A   TREATISE 


ON    THE 


TREATISE 


ON   THE 


CONSTITUTIONAL   LIMITATIONS 


WHICH    REST    UPON 


THE   LEGISLATIVE   POWER  OF   THE   STATES 
OF  THE   AMERICAN   UNION. 


BY 

THOMAS   M.   COOLEY,  LL.D., 

FORMERLY   ONE  OF   THE  JUSTICES  OF  THE  SUPREME  COURT  OF   MICHIGAN,    JAY   PROFESSOR  OF  LAW  IN   THE 
UNIVERSITY  OF   MICHIGAN,    AND  CHAIRMAN  OF  THE  INTERSTATE  COMMERCE  COMMISSION. 


SEVENTH  EDITION, 

WITH    LARGE   ADDITIONS,   GIVING    THE    RESULTS  OF 
THE    RECENT    CASES, 

BY  VICTOR   H.  LANE, 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  MICHIGAN 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1903. 


\ 

Entered  according  to  Act  of  Congress,  in  the  year  1868,  by 

LITTLE,  BROWN,  AND  COMPANY, 
In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  years  1871, 1874, 1878,  1883,  1890,  by 

LITTLE,  BKOWN,  AND  COMPANY, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

Copyright,  1896, 
Br  THOMAS  M.  COOLKT. 

Copyright,  1903, 
BY  THOMAS  B.  COOLEY,  Trustee. 


All  rightt  reserved. 
/>>» 


UNIVERSITY    PRESS     •    JOHN    WILSON 
AND     SON       •     CAMBRIDGE,    U.S.A. 


PREFACE   TO  THE   SEVENTH  EDITION. 


AT  the  request  of  the  heirs  of  the  late  Judge  Cooley  I  have 
undertaken  the  preparation  of  this  edition  of  the  Constitutional 
Limitations.  It  seemed  desirable,  in  view  of  all  the  circumstances, 
that  the  text  of  the  last  edition  should  stand  as  the  text  for  this, 
and  the  work  of  the  present  editor  has  been  confined  to  the  bring- 
ing of  the  book  down  to  date,  by  the  addition  of  such  matter  to 
the  notes  as  will  fairly  present  the  development  of  this  branch 
of  the  law  since  the  publication  of  the  last  edition.  No  effort 
has  been  made  to  exhaust  the  cases  reported  in  this  period, 
but  a  judicious  selection  from  such  cases  has  been  attempted, 
and  the  additions  appear  in  the  bracketed  matter  of  the  notes. 
Where  it  seemed  more  appropriate  to  add  the  new  matter  through 
new  references  from  the  text,  that  course  has  been  followed,  and 
such  matter  is  found  in  the  single  column  annotations.  The 
other  new  matter  is  incorporated  in  the  old  notes.  The  partic- 
ular experience,  or  better  judgment  of  some,  will  suggest  a  dif- 
ferent selection  in  some  cases,  but  it  is  hoped  that  what  has  been 
done  will  meet  reasonably  well  the  common  need.  When  equally 
desirable  on  other  grounds,  cases  found  in  one  or  the  other,  and 
sometimes  in  both,  the  Lawyers'  Reports  Annotated  and  the 
American  State  Reports  have  been  chosen,  that  they  might  be 
available  to  a  greater  number.  For  a  like  reason,  citations  to 
the  National  Reporter  System  of  reports  have  been  added,  not 
only  for  the  new  cases  cited,  but  for  the  old  cases  as  well  so  far 
as  found  in  the  Reporters.  The  editor  desires  to  'acknowledge 
his  obligation  to  William  J.  Meyers  for  his  most  valuable  assist- 
ance in  preparing  this  edition. 

VICTOR  H.   LANE. 

UNIVERSITY  OF  MICHIGAN, 

ANN  ARBOR,  September,  1903. 


116683 


PREFACE  TO  THE  SECOND   EDITION. 


IN  the  Preface  to  the  first  edition  of  this  work,  the  author 
stated  its  purpose  to  be,  to  furnish  to  the  practitioner  and  the 
student  of  the  law  such  a  presentation  of  elementary  constitu- 
tional principles  as  should  serve,  with  the  aid  of  its  references  to 
judicial  decisions,  legal  treatises,  and  historical  events,  as  a  con- 
venient guide  in  the  examination  of  questions  respecting  the 
constitutional  limitations  which  rest  upon  the  power  of  the  sev- 
eral State  legislatures.  In  the  accomplishment  of  that  purpose, 
the  author  further  stated  that  he  had  faithfully  endeavored  to 
give  the  law  as  it  had  been  settled  by  the  authorities,  rather 
than  to  present  his  own  views.  At  the  same  time,  he  did  not 
attempt  to  deny  —  what  he  supposed  would  be  sufficiently  ap- 
parent—  that  he  had  written  in  full  sympathy  with  all  those 
restraints  which  the  caution  of  the  fathers  had  imposed  upon 
the  exercise  of  the  powers  of  government,  and  with  faith  in  the 
checks  and  balances  of  our  republican  system,  and  in  correct 
conclusions  by  the  general  public  sentiment,  rather  than  in  re- 
liance upon  a  judicious,  prudent,  and  just  exercise  of  authority, 
when  confided  without  restriction  to  any  one  man  or  body  of 
men,  whether  sitting  in  legislative  capacity  or  judicial.  In  this 
sympathy  and  faith,  he  had  written  of  jury  trials  and  the  other 
safeguards  to  personal  liberty,  of  liberty  of  the  press,  and  of 
vested  rights ;  and  he  had  also  endeavored  to  point  out  that 
there  are  on  all  sides  definite  limitations  which  circumscribe  the 
legislative  authority,  independent  of  the  specific  restrictions 
which  the  people  impose  by  their  State  constitutions.  But  while 
not  predisposed  to  discover  in  any  part  of  our  system  the  rightful 
existence  of  any  unlimited  power,  created  by  the  Constitution, 


viii  PREFACE. 

neither  on  the  other  hand  had  he  designed  to  advance  new 
doctrines,  or  to  do  more  than  state  clearly  and  with  reasonable 
conciseness  the  principles  to  be  deduced  from  the  judicial 
decisions. 

The  unexpected  favor  with  which  the  work  has  been  received 
having  made  a  new  edition  necessary,  the  author  has  reviewed 
every  part  of  it  with  care,  but  without  finding  occasion  to  change 
in  any  important  particular  the  conclusions  before  given.  Fur- 
ther reflection  has  only  tended  to  confirm  him  in  his  previous 
views  of  the  need  of  constitutional  restraints  at  every  point 
where  agents  are  to  exercise  the  delegated  authority  of  the 
people ;  and  he  is  gratified  to  observe  that  in  the  judicial  tribu-. 
uals  the  tendency  is  not  in  the  direction  of  a  disregard  of  these 
restraints.  The  reader  will  find  numerous  additional  references 
to  new  cases  and  other  authorities  ;  and  some  modifications  have 
been  made  in  the  phraseology  of  the  text,  with  a  view  to  clearer 
and  more  accurate  expression  of  his  views.  Trusting  that  these 
modifications  and  additions  will  be  found  not  without  value,  he 
again  submits  his  work  "  to  the  judgment  of  an  enlightened  and 
generous  profession." 

THOMAS  M.  COOLEY. 
UNIVERSITY  OF  MICHIGAN, 

ANN  ARBOR,  July,  1871. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

DEFINITIONS. 

Page 

Definition  of  a  state,  nation,  people,  sovereignty,  and  sovereign 

state 3 

What  sovereignty  consists  in 3,  4 

Apportionment  of  sovereignty  in  America 4 

Definition  of  constitution  and  constitutional  government     .     .     .  4,  5 

Of  unconstitutional  law 5 

The  will  of  the  people  the  final  law 6 


CHAPTER  II. 

THE    CONSTITUTION    OF   THE    UNITED    STATES. 

What  the  United  States  government  the  successor  of;  Colonial 

confederacies 7 

The  States  never  in  a  strict  sense  sovereign 8 

The  Continental  Congress 8,  9 

Limitations  upon  its  power ;  the  Articles  of  Confederation,  and 

the  supersession  thereof  by  the  Constitution 9 

Adoption  of  the  Constitution  by  North  Carolina,  Rhode  Island, 

and  the  New  States 9,  10 

United  States  government  one  of  enumerated  powers     ....       11 
General  purpose  of  this  government  .     .........       11 

Powers  conferred  upon  Congress 11-13 

Powers  under  the  new  amendments 13-18 

Executive  and  judicial  power  of  the  nation 19-23 

Constitution,  laws,  and  treaties  of  United  States  to  be  supreme  ; . 
final   decision   of   questions   under,    to    rest   with   national 

judiciar}* 24 

Removal  of  causes  from  State  courts ;  decisions  of  State  courts 

to  be  followed  on  points  of  State  law 24-35 

Restrictions  upon  State  action 35-36 


X  TABLE   OF   CONTENTS. 

Page 

Protection  to  privileges  and  immunities  of  citizens    ....  15-36 

Extradition  of  fugitives  from  justice 37,  38 

Faith  and  credit  secured  to  records,  &c .     .  38-41 

Guaranty  of  republican  government 42-45 

Implied  prohibitions  on  the  States 45,  46 

Reservation  of  powers  to  States  and  people     ......  46 

Construction  of  national  bills  of  rights 46,47 

Statutes  necessary  to  jurisdiction  of  national  courts       .     .     .  47,  48 


CHAPTER  III. 

THE   FORMATION   AND    AMENDMENT    OF   STATE   CONSTITUTIONS. 

State   governments  in  existence   when  Constitution  of   United 

States  adopted .  49 

Common  law  in  force  ;  what  it  consists  in 49-53 

English  and  Colonial  legislation 53,  54 

Colonial  charters  and  revolutionary  constitutions      ....  55 

Constitutions  of  new  States 55,  56 

Sovereignty  of  the  people 56-59 

Who  are  the  people,  in  a  political  sense 57 

Proceedings  in  the  formation  and  amendment  of  constitutions  58-69 
Restraints  imposed  thereon  by  Constitution  of  the  United  States        62 

What  generally  to  be  looked  for  in  State  constitutions  .     .     .  64-68 

Rights  are  protected  by,  but  do  not  come  from  them     ...  69 

CHAPTER  IV. 

CONSTRUCTION   OF   STllE   CONSTITUTIONS. 

Interpretation  and  construction 70 

Who  first  to  construe  constitutions 71-77 

Final  decision  generally  with  the  courts 76-78 

The  doctrine  of  res  adjudicata  and  stare  decisis 79-88 

Construction  to  be  uniform 88,  89 

The  intent  to  govern 89-91 

The  whole  instrument  to  be  examined 91,  92 

Effect  to  be  given  to  the  whole 91,  92 

Words  to  be  understood  in  their  ordinary  meaning     ....  92,  93 

Common  law  to  be  kept  in  view 94,  95 

Words  sometimes  employed  in  different  senses 95-97 

Operation  of  laws  to  be  prospective 97 

Implied  powers 98    99 

Consideration  of  the  mischief  to  be  remedied    ....  100 


TABLE    OF    CONTENTS.  xi 

Page 

Proceedings  of  Constitutional  Convention  may  be  examined    .  101,  102 
Force  of  contemporaneous  and  practical  construction     .     .     .  102-107 

Unjust  provisions  not  invalid -108, 109 

Duty  in  case  of  doubt  on  constitutional  questions      ....          109 

Directory  and  mandatory  provisions 109-119 

Constitutional  provisions  are  imperative 114-119 

Self-executing  provisions 119-122 

Danger  of  arbitrary  rules  of  construction 123 


CHAPTER  V. 

THE    POWERS    WHICH    THE    LEGISLATIVE    DEPARTMENT    MAT   EXERCISE. 

Power  of  American  legislatures  compared  to  that  of  British 

Parliament 124-129 

Grant  of  legislative  power  is  grant  of  the  complete  power  .     .          128 

But  not  of  executive  or  judicial  power 129-133 

Definition  of  legislative  and  judicial  authority 131-134 

Declaratory  statutes 134-140 

Statute  setting  aside  judgments,  granting  new  trials,  &c.    .     .  136-140 

Recitals  in  statutes  do  not  bind  individuals 139 

Statutes  conferring  power  on  guardians,  &c. ,  to  sell  lands  .  140-147 
Statutes  which  assume  to  dispose  of  disputed  rights ....  147-151 
Statutes  validating  irregular  judicial  proceedings  .  .  .  .150,151 

Legislative  divorces 152-157 

Legislative  encroachments  upon  executive  power      ....  157-162 

Legislative  power  not  to  be  delegated 163-169 

Conditional  legislation 169-173 

Local  option  laws 173, 174 

Irrepealable  laws  not  to  be  passed 174-176 

Territorial  limitations  upon  State  legislative  authority    .     .     .  176-181 

Inter-state  comity 178-181 

Other  limitations  by  express  provisions       .......  181-184 

Limitations  springing  from  nature  of  free  government   .     .     .  182-185 

CHAPTER  VI. 

THE    ENACTMENT    OF    LAWS. 

Importance  of  forms  in  parliamentary  law 186,187 

The  two  houses  of  the  legislature 187,  188 

Differences  in  powers  of 188 

Meetings  and  adjournments 188 


Xll  TABLE    OF   CONTENTS. 

Page 

Contested  elections,  rules  of  proceeding,  punishing  disorderly 

behavior 189, 190 

Contempts 191 

Privileges  of  members 192 

Legislative  committees 193 

Journal  of  proceedings 193-195 

Corrupt  contracts  to  influence  legislation 196 

Counsel  before  legislature  ;  lobby  agents 196 

The  introduction  and  passage  of  bills 197-199 

Evasions  of  constitutional  provisions 199  n. 

Three  readings  of  bills 199,200 

Yeas  and  nays 201 

Vote  required  for  the  passage  of  a  bill 201 

Title  of  statutes 202-214 

Amendatory  statutes 214-217 

Signing  of  bills  by  presiding  officers 218 

Approval  of  bills  by  the  governor 218-221 

Other  legislative  powers  of  the  governor 222 

When  acts  to  take  effect 222-226 

CHAPTER  VII. 

THE   CIRCUMSTANCES    UNDER   WHICH    A    LEGISLATIVE    ACT   MAT   BE 
DECLARED    UNCONSTITUTIONAL. 

Authority  to  declare  statutes  unconstitutional  a  delicate  one  .  227-229 

Early  cases  of  such  declaration 229  n. 

Will  not  be  done  by  bare  quorum  of  court 230 

Nor  unless  a  decision  upon  the  point  is  necessary     ....          231 

Nor  on  objection  by  a  party  not  interested 232 

Nor  solely  because  of  unjust  or  oppressive  provisions  .  .  .  232-237 
Nor  because  conflicting  with  fundamental  principles  .  .  .  237-239 
Nor  because  opposed  to  the  spirit  of  the  constitution  .  .  .  239-241 

Extent  of  legislative  power 242 

Difference  between  State  and  national  governments  ....          242 

A  statute  in  excess  of  legislative  power  void 243-246 

Statutes  invalid  as  encroaching  on  executive  or  judicial  authority        244 

Or  conflicting  with  the  bill  of  rights 245 

Legislative  forms  are  limitations  of  power 245,246 

Statutes  unconstitutional  in  part 246-250 

Constitutional  objection  may  be  waived 250-252 

Judicial  doubts  on  constitutional  questions 252-257 

"K  Inquiry  into  legislative  motives  not  permitted 257-259 

Consequences  if  a  statute  is  void 259,  260 


TABLE   OF    CONTENTS.  Xlll 

CHAPTER  VIII. 

THE    SEVERAL    GRADES    OF    MUNICIPAL    GOVERNMENT. 

Page 

The  American  system  one  of  decentralization 261-264 

State  constitutions  framed  in  reference  to  it 264 

Local  government  may  be  delegated  to  citizens  of  the  mu- 
nicipality    264, 265 

Legislative  control  of  municipalities 265-269 

Powers  of  public  corporations 270 

Strict  construction  of  charters 271,  272 

Contracts  ultra  vires  void 272-274 

Must  act  through  corporate  authorities 274-276 

Corporations  by  prescription  and  implication  ......  276-278 

Municipal  by-laws 278-292 

Delegation  of  powers  by  municipality  not  admissible      .     .     .  293,  294 
Irrepealable  municipal  legislation  cannot  be  adopted     .     .     .  295-299 

Presumption  of  correct  action 300-306 

Power  to  indemnify  officers 306-309 

Powers  to  be  construed  with  reference  to  purposes  of  their 

creation 309-311 

Authority  confined  to  corporate  limits 312,313 

Municipal  subscriptions  to  works  of  internal  improvement       .  312-325 

Negotiable  paper  of  corporations 320-325 

Municipal  military  bounties 326-333 

Legislative  control  of  municipal  taxation 334-342 

Legislative  control  of  corporate  propert}' 342-347 

Towns  and  counties 347-355 

Not  liable  for  neglect  of  official  duty 354,  355 

Different  rules  govern  chartered  corporations 355,  356 

In  what  respect  the  charter  a  contract 356-362 

Validity  of  corporate  organizations  not  to  be  questioned  col- 
laterally    363, 364 

The  State  sometimes  estopped  from  questioning 364  n. 

CHAPTER   IX. 

PROTECTION   TO   PERSON   AND    PROPERTY    UNDER   THE   CONSTITUTION 
OF   THE    UNITED    STATES. 

Bill  of  Rights,  importance  of 365-367 

Addition  of,  by  amendments  to  national  Constitution    .     .     .  367,  368 

Bills  of  attainder 368-372 

Ex  post  facto  laws 372-383 


XIV  TABLE   OF  CONTENTS. 

Page 

Laws  impairing  the  obligation  of  contracts 383-416 

What  charters  are  contracts 391-394 

Contracting  away  powers  of  sovereignty 395-401 

Grant  of  exclusive  privileges 401,402 

Changes  in  the  general  laws 402,  403 

Obligation  of  a  contract,  what  it  is 403-406 

Modification  of  remedies  always  admissible 406-416 

Appraisal  laws 412 

Stay  laws,  when  void 414 

Laws  taking  away  substantial  rights 415 

Validating  imperfect  contracts 415,416 

State  insolvent  laws 416,417 

The  thirteenth  and  fourteenth  amendments 417,  418 

CHAPTER  X. 

THE   CONSTITUTIONAL   PROTECTIONS   TO    PERSONAL   LIBERTY. 

Villeinage  in  England 419-422 

In  Scotland 422,423 

In  America 423 

Impressment  of  seamen 424 

Unreasonable  searches  and  seizures 424-429 

Every  man's  house  his  castle 425-429 

Search  warrants 429-434 

Inviolability  of  papers  and  correspondence 432-434 

Quartering  soldiers  in  private  houses 435 

Criminal  accusations,  how  made 436,  437 

Bail  to  persons  accused  of  crime 437-439 

Prisoner  standing  mute "    439 

Trial  to  be  speedy 440 

To  be  public 441 

Not  to  be  inquisitorial 442 

Prisoner's  statement  and  confessions 443-449 

Confronting  prisoner  with  witnesses 450-452 

Prisoner  to  be  present  at  trial 452 

Trial  to  be  by  jury 453-465 

Number  of  jurors '.     .454-459 

Right  of  challenge 459 

Jury  to  be  of  the  vicinage 459  450 

Verdict  to  be  unanimous  and  free 460 

Instructions  of  the  judge,  how  limited 460-462 

Power  of  jury  to  judge  of  law 461-465 

Accused  not  to  be  twice  put  in  jeopardy 466-470 


TABLE   OF   CONTENTS.  XV 

Page 

Excessive  fines  and  cruel  and  unusual  punishments  ....  471-474 

Right  to  counsel 474-482 

Protection  of  professional  confidence 477,  478 

Duty  of  counsel 478-482 

Whether  counsel  to  address  the  jury  on  the  law 480,  481 

Punishment  of  misconduct  in  attorne}'s 481,  482 

Writ  of  habeas  corpus 483-497 

Legal  restraints  upon  personal  liberty 484-491 

Necessity  of  Habeas  Corpus  Act 489,490 

What  courts  issue  the  writ 491-494 

General  purpose  of  writ,  and  practice  upon 495-497 

Right  of  discussion  and  petition 497,498 

Right  to  bear  arms 498,  499 

Jealousy  of  standing  armies 498,  499 

CHAPTER  XI. 

OF  THE  PROTECTION  OF  PROPERTY  BY  THE  "LAW  OF  THE  LAND." 

Magna  Charta,  chap.  29 500 

Constitutional  provisions  insuring  protection  ' '  by  the  law  of 

the  land" 500 n. 

Meaning  of  "  due  process  of  law  "  and  "  law  of  the  land"      .  502-508 

Vested  rights  not  to  be  disturbed 508 

What  are  vested  rights 509-520 

Interests  in  expectancy  are  not 511,  512 

Legislative  modification  of  estates 512,513 

Control  of  rights  springing  from  marriage 513-515 

Legislative  control  of  remedies 515-518 

Vested  rights  of  action  are  protected 517 

Confiscation  of  rights  and  property 518-520 

Statutes  of  limitation 520-524 

Alteration  in  the  rules  of  evidence 524-528 

Retrospective  laws 528-546 

Curing  irregularities  in  legal  proceedings 530-533 

Validating  imperfect  contracts 535-546 

Pendency  of  suit  does  not  prevent  healing  act 543 

What  the  healing  statute  must  be  confined  to 544-546 

Statutory  privilege  not  a  vested  right 546-548 

Consequential  injuries  from  changes  in  the  laws 548,  549 

Sumptuary  and  other  like  laws 549,  550 

Betterment  laws 550-553 

Unequal  and  partial  legislation 554-575 

Local  laws  may  vary  in  different  localities 554-557 


xvi  TABLE   OF   CONTENTS. 

Page 

Suspension  of  general  laws 558-562 

Equality  the  aim  of  the  law 562-564 

Strict  construction  of  special  grants 564-567 

Privileges  and  immunities  of  citizens 567-575 

Judicial  proceedings  void  if  jurisdiction  wanting 575 

What  constitutes  jurisdiction 575 

Consent  cannot  confer  it 575,  576 

Jurisdiction  in  divorce  cases 577-582 

Necessity  for  process 579-585 

Process  by  publication 582-585 

Courts  of  general  and  special  jurisdiction 585,  586 

Effect  of  irregularities  in  judicial  proceedings 587,  588 

Judicial  power  not  to  be  delegated 589 

Must  be  exercised  under  accustomed  rules 589-592 

Judge  not  to  sit  in  his  own  cause 592-595 

CHAPTER  XII. 

LIBERTY    OP    SPEECH    AND    OF    THE    PRESS. 

Detection  of,  by  the  Constitution  of  the  United  States      .     .          596 

State  constitutional  provisions 596  ». 

Not  well  protected  nor  defined  at  common  law 599 

Censorship  of  the  press  ;  publication  of  proceedings  in  Parlia- 
ment not  formerly  suffered 599,  600 

Censorship  of  the  press  in  America 600,  601 

Secret  sessions  of  public  bodies  in  the  United  States     .     .     .  601,  602 

What  liberty  of  the  press  consists  in 602-605 

Common-law  rules  of  liability  for  injurious  publications      .     .  605-609 

Cases  of  privileged  communications 609-612,  646  n. 

Libels  on  the  government,  whether  punishable 612-615 

Sedition  law 613 

— Farther  cases  of  privilege ;  criticism  of  officers  or  candidates 

for  office 616-628 

Petitions  and  other  publications  in  matters  of  public  concern  .  617,  618 

Statements  in  course  of  judicial  proceedings 629-631 

by  witnesses 629 

by  jurors 629,  630 

by  complainant,  &c 630,  631 

by  counsel 631-633 

Privileges  of  legislators 634-636 

Publication  of  privileged  communications  through  the  press  .  636-640 
Accounts  of  judicial  proceedings,  how  far  protected  ....  636-640 
Privilege  of  publishers  of  news 640-650 


TABLE    OF   CONTENTS. 

Page 

Publication  of  legislative  proceedings 650-652 

The  jury  as  judges  of  the  law  in  libel  cases 652-655 

Mr.  Fox's  Libel  Act 653-655 

"  Good  motives  and  justifiable  ends,"  burden  of  showing  is  on 

defendant 656-658 

What  is  not  sufficient  to  show 657  n. 


CHAPTER  XIII. 

RELIGIOUS    LIBERTY. 

Care  taken  by  State  constitutions  to  protect 659 

Distinguished  from  religious  toleration 660-662 

What  it  precludes 663-668 

Does  not  preclude  recognition  of  superintending  Providence 

by  public  authorities 668-669 

Nor  appointment  of  chaplains,  fast-da}^,  &c 669 

Nor  recognition  of  fact  that  the  prevailing  religion  is  Christian  669 
The  maxim  that  Christianity  is  part  of  the  law  of  the  land  .  670 

Punishment  of  blasphemy 671-673 

And  of  other  profanity , 674 

Sunday  laws,  how  justified 674-676 

Respect  for  religious  scruples 676 

Religious  belief  as  affecting  the  competency  or  credibility  of 

witnesses 676,  677 

CHAPTER  XIV. 

THE    POWER    OF   TAXATION. 

Unlimited  nature  of  the  power 678-686 

Exemption  of  national  agencies  from  State  taxation  .  .  .  682-686 
Exemption  of  State  agencies  from  national  taxation  .  .  .  685,  686 
Limitations  on  State  taxation  by  national  Constitution  .  .  .  686,  687 

Power  of  States  to  tax  subjects  of  commerce 687-691 

Discriminations  in  taxation  between  citizens  of  different  States          693 

Elements  essential  to  valid  taxation 695-751 

Purposes  must  be  public 696-705 

Legislature  to  judge  of  purposes 698-705 

Unlawful  exactions 702-705 

Necessity  of  apportionment 705-713 

Taxation  with  reference  to  benefits  in  local  improvements  .  .  713—737 
Local  assessments  distinguished  from  general  taxation  .  .  715-717 
Apportionment  of  the  burden  in  local  assessments  ....  718-737 

6 


XViii  TABLE   OF  CONTENTS. 

Page 

Taxation  must  be  uniform  throughout  the  taxing  districts  .     .  722-737 

Road  taxes  in  labor 737 

Inequalities  in  taxation  inevitable 737,  738 

Legislature  must  select  subjects  of  taxation 739 

Exemptions  admissible 739-744 

Constitutional  provisions  forbidding  exemptions 743,  744 

Legislative  authority  requisite  for  every  tax 744-748 

Excessive  taxation 747,  748 

The  maxim  de  minimis  lex  non  curat  in  tax  proceedings    .     .  748 

What  errors  and  defects  render  tax  sales  void 748-750 

Remedies  for  collection  of  taxes  .  748-751 


CHAPTER  XV. 

THE    EMINENT   DOMAIN. 

Ordinarj*  domain  of  State  distinguished  from  eminent  domain  752,  753 

Definition  of  eminent  domain 753,  754 

Not  to  be  bargained  away  ;  general  rights  vested  in  the  States          755 

How  far  possessed  by  the  general  government 755,  756 

What  property  subject  to  the  right 756-759 

Legislative  authority  requisite  to  its  exercise 759.  760 

Strict  compliance  with  conditions  precedent  necessary  .     .     .  760-763 
Statutes  for  exercise  of,  not  to  be  extended  by  intendment     .  762,  763 

Purpose  must  be  public 763-766 

What  is  a  public  purpose 766-775 

Whether  milldams  are 771-773 

Question  of,  is  one  of  law 774,  775 

How  property  to  be  taken 775,  776 

Determining  the  necessity  for 777,  778 

How  much  may  be  taken 779-781 

What  constitutes  a  taking 781-810 

Consequential  injuries  do  not 781-788 

Appropriation  of  highway  to  plank  road  or  railroad  ....  788-808 

Whether  the  fee  in  the  land  can  be  taken 808-810 

The  damaging  of  property 810-812 

Compensation  to  be  made 812,  826-828 

Time  of  making 813-817 

Tribunal  for  assessing 817,  818 

Principle  on  which  it  is  to  be  assessed 819-828 

Allowance  of  incidental  injuries  and  benefits 823-828 

What  the  assessment  covers 825,  826 

Action  where  work  improperlj*  constructed 826 


TABLE   OF   CONTENTS. 
CHAPTER  XVI. 

THE   POLICE   POWER   OF   THE    STATES. 

Page 

Definition  of  police  power 829 

Pervading  nature  of 829-831 

Power  where  vested 831,  832 

Exercise  of,  in  respect  to  charter  contracts 833-844 

License  or  prohibition  of  sales  of  intoxicating  drinks     .     .     .845-851 
Payment  of  license  fee  to  United  States  gives  no  right  in  oppo- 
sition to  State  law 851 

Quarantine  regulations  and  health  laws 851-855 

Inspection  laws ;  harbor  regulations 855 

Distinction  between  proper  police  regulation  and  an  interfer- 
ence with  commerce 856 

State  taxes  upon  commerce 857-859 

Sunday  police  regulations 859 

Regulation  of  highwa}'s  by  the  States 860,  861 

Control  of  navigable  waters 861-868 

What  are  navigable 861,  862 

Congressional  regulations  of 863 

Monopolies  of,  not  to  be  granted  by  States 864 

Power  in  the  States  to  improve  and  bridge 865,  866 

And  to  establish  ferries  and  permit  dams 867 

Regulation  of  speed  of  vessels 867 

Levees  and  drains 868 

Regulation  of  civil  rights  and  privileges 869 

Regulation  of  business  charges 870-877 

Destruction  of  buildings  to  prevent  spread  of  fire      ....          878 
Establishment  of  fire  limits  and  wharf  lines ;  abatement  of  nui- 
sances, &c 878-883 

Other  State  regulations  of  police 884-891 

Power  of  States  to  make  breach  thereof  a  crime  ....  890 


CHAPTER  XVII. 

THE   EXPRESSION    OP   THE   POPULAR   WILL. 

People  possessed  of  the  sovereignty,  but  can  only  exercise 

it  under  legal  forms 892 

Elections  the  mode 893-898 

Qualifications  for  office 894  W.-896  n. 

Officers  de  facto  and  dejure 896-899 


XX  TABLE    OF   CONTENTS. 

Page 

Who  to  participate  in  elections  ;  conditions  of  residence,  pres- 
ence at  the  polls,  &c 899-903 

Residence,  domicile,  and  habitation  defined 903-907 

Registration  of  voters 905-907 

Other  regulations 907,  908 

Preliminary  action  by  authorities,  notice,  proclamation,  &c.    .  908,  909 

Mode  of  voting ;  the  ballot 910 

Importance  of  secrecy  ;  secrecy  a  personal  privilege      .     .     .911-913 

Ballot  must  be  complete  in  itself 914 

Parol  explanations  by  voter  inadmissible 914 

Ballot  must  not  contain  too  many  names 915 

Names  on  ballot  should  be  full 916 

Abbreviations,  initials,  &c 916,  917 

Erroneous  additions  do  not  affect '•  '       917 

Evidence  of  surrounding  circumstances  to  explain  ballot    .     .  919,  920 

Boxes  for  different  votes;  errors  in  depositing 921 

Plurality  to  elect 892  w.,  921,  922 

Freedom  of  elections  ;  bribery 922 

Treating  electors  ;  service  of  process 923 

Betting  on  elections,  contracts  to  influence  them,  &c.    .     .     .          924 

Militia  not  to  be  called  out  on  election  days 924,  925 

Electors  not  to  be  deprived  of  votes 926,  927 

Liability  of  officers  for  refusing  votes 927,  928 

Elector's  oath  when  conclusive 927,  928 

Conduct  of  election 928 

Effect  of  irregularities 928-930 

Effect  if  candidate  is  ineligible 931 

Admission  of  illegal  votes 932,  933 

Fraud,  intimidation,  &c 932-934 

Canvass  and  return  of  votes  ;  canvassers  act  ministerially  .  .  934-937 
Contesting  elections  ;  final  decision  upon,  rests  with  the  courts  937-944 
Canvasser's  certificate  conclusive  in  collateral  proceedings; 

courts  may  go  behind 939-944 

What  proofs  admissible 940-944 

Whether  qualification  of  voter  may  be  inquired  into  by  courts  942-944 


INDEX 


945 


TABLE   OF   CASES. 


Abbett  v.  Com'rs  Johnson  Co.       305,  355 

Abbott  v.  Commonwealth  516 

v.  Kansas  City,  &c.  Co.  757 

v.  Lindenbower  526,  527,  645 

v.  Nat'l  Bk.  of  Commerce  21,  28 

Abell  v.  Douglass  62 

Abels  v.  Supervisors  of  Ingham  896 

Abendroth  v.  Greenwich  266 

p.  Manhattan  Ry.  Co.    799,  801,  815, 

828 

Abercrombie  c.  Baxter  412 

Aberdeen  v.  Saunderson  343 

v.  Sykes  274,  322 

Aberdeen  Academy  v.  Aberdeen          347 

Abington  v.  North  Bridgewater  904 

Ableman  v.  Booth  4,  493 

Abraham  v.  Casey  32 

Ackerman  v.  Jones  639 

Ackley  School  Diet.  v.  Hall  206 

A  Coal  Float  v.  Jeffersonville  282 

Adams,  Ex  parte  453 

v.  Adams  42,  497 

v.  Beale  626 

v.  Beloit  182 

v.  Beman  743 

v.  Brenan  274 

p.  Chicago,  &c.  R.  R.  Co.       299,  791, 

802,  828 

v.  Coulliard  850 

v.  Cowles  586 

v.  Field  86 

v.  Hachett  400 

p.  Howe  128, 185,  237,  254 

v.  Palmer  156,  402,  403 

v.  People  177 

v.  Rankin  607 

t'.  Rivers  808 

v.  Shelbyville  731 

v.  SomerviMe  725 

v.  State  262,  468 

v.  Tonnella  718 

v.  Vose  496 

v.  Wiscasset  Bank  348,  352,  356 

Adams  Co.  v.  Burlington,  &c.  R.  R. 

Co.  30,  81,  86 

v.  Quincy  695,  718,  731,  741 

Adams  Exp.  Co.  v.  Kentucky  692 

v.  Ohio  State  Aud.  (165  U.  S.)       691 

p.  Ohio  State  Aud.  (166  U.  S.)       692 

Adamson  v.  Davis  624 

Addle  v.  Davenport  900 

Addoms  v.  Marx  6'28 

Addy  v.  Janesville  304 


Page 
Addyston  Pipe  &  S.  Co.  v.  United 

States  687 

Ad  Hine,  The,  p.  Trevor  45 

Adirondack  Ry.  Co.  v.  New  York         386 
v.  State     '  386 

Adkins  v.  Richmond  690,  694,  853 

Adler  p.  Whitbeck  709,  749 

Adsit  v.  Sec'y  of  State  909 

Agee  v.  Smith  877 

Ah  Fook,  Matter  of  607 

Ah  Foy,  Ex  parte  287 

Ah  Jow,  In  re  493 

Ah  Kow  v.  Nunan  557 

Ah  You,  Re  290 

Ahl  v.  Gleim  331,  533 

A'Hern  p.  Iowa  S.  A.  Society  305 

Aikman  v.  Edwards  64 

Aitken  v.  Wells  River  300,  754,  878 

Akron  v.  Chamberlain  296 

Alabama,  &c.  Ins.  Co.  v.  Boykin  539 

Alabama,  &c.  R.  R.  Co.  v.  Kenney       398 
Alabama  G.  S.  Ry.  Co.  v.  Hill  424 

Alabama  R.  R.  Co.  v.  Kidd  316 

Albany  p.  Sikes  S04 

Albany  Co.  Suprs.  v.  Stanley  232 

Albany  Street,  Matter  of      232,  251,  508, 
764,  778,  780,  815,  823 
Albertson  P.  Landon  149,  528 

Albrecht  p.  State  204,  205,  709,  713 

Albrittin  p.  Huntsville  356 

Albuquerque  Nat'l  Bk.  p.  Pera      712,  749 
Alcock  v.  Cooke  609 

Alcorn  v.  Hamer  166,  736 

Alderman  v.  School  Directors  262 

Alderson  v.  Com'rs  936 

Aldrieh  p.  Aldrich  193 

p.  Cheshire  R.  R.  Co.       783,  819,  826 
p.  Kinney  41,  42,  583 

p.  Printing  Co.  622 

p.  Sharp  689 

Aldridge  v.  Railroad  Co.  629,  777 

p.  Williams  101 

Alexander  v.  Alexander  614,  605 

p.  Baltimore  728 

p.  Bennett  129 

v.  McKenzie  388 

p.  Milwaukee  296,  781,  786 

p.  Mt.  Sterling  358 

p.  People  253 

p.  State  687 

p.  Taylor  82 

v.  Worthington  89,  100 

Alexandria  &  F.  Ry.  Co.  P.  Alexan- 
dria, &c.  R.  R.  Co.  807 


XX11 


TABLE   OF   CASES. 


Page 

Allbyer  v.  State  97,  629 

Alleghany  City  v.  McClurkan 
Allegheny  Co.  v.  Gibson 
Allegheny  County  Home's  Case 

2\2t 

Allen  v.  Aldrich  484 

v.  Archer  631 

v.  Armstrong  626, 627,  545 

v.  Baltimore  &  O.  R.  R.  Co. 
v.  B'd  of  State  Aud.  130 

v.  Cape  Fear,  &c.  Ry.  Co.  606 

v.  Chippewa  Falls 

v.  Crofoot  629 

v.  Dist.  of  Col. 

v.  Drew  730,  734 

v.  Georgia 

v.  Glynn  900 

v.  Jay         311,  316,  697,  700,  705,  772 
v.  Jones  760 

v.  La  Fayette  272 

v.  Louisiana  249 

r.  McKeen  360 

v.  Pioneer  Press  Co.  660,  650 

v.  Southern  P.  Ry.  Co.  28 

v.  Staples  430 

v.  State  458 

v.  Taunton  812 

v.  Tison  209 

v.  Wyckoff  20 

Allen  Co.  Commissioners  v.  Silvers    248, 

253 

v.  Simons  12,  680 

Allentown  v.  Henry  728 

Alley  v.  Edgecomb  327 

Allgeyer  r.  Louisiana       12,  179,  833,  837 
Allison,  Re  469 

t7.  Blake  99 

Allor  v.  Auditors  231,  689 

Alloway  v.  Nashville  826 

Almy  v.  California  687 

Alston  v.  Newcomer  904 

Altenburg  v.  Commonwealth        845,  885 
Alter's  Appeal  641,  558 

Altgelt  v.  San  Antonio  297,  749 

Altnow  v.  Sibley  355 

Alton  v.  Hope  363 

Alton  Woods,  Case  of  609 

Altvater  v.  Baltimore  301 

Alvin  v.  Collin  924 

Alvord  v.  Collin  749 

Amann  v.  Damm  612 

Amberg  v.  Rogers  626 

Atnboy  v.  Sleeper  280 

Ambrose  v.  State  280 

Amenia  v.  Stamford  737 

American  Bk.  N.  Co.  v.  N.  Y.  E.  Ry. 

Co.  803 

American  Exp.  Co.  v.  Michigan  22 

v.  People  879 

American  Fertilizing  Co.  v.  Bd.  of 

Ag.  686 

American  Fur  Co.  r.  United  States      850 
American  Print  Works  v.  Lawrence  757, 

878 

American  Pub.  Co.  v.  Fisher         458,  460 
American  R.  Tel.  v.  Hiss  298 


Page 

American  Ref.  Tr.  Co.  v.  Hall  691 

American  River  Water  Co.  v.  Am*- 

den  863 

American  Sugar  R.  Co.  v.  Louisiana    16, 

663 

American  S.  S.  Union  v.  Taylor  741 

American  Telph.  &  Telne.  v.  Pearce    804 
v.  Smith  787 

Americus  v.  Mitchell 

v.  Perry  65,  24 

Ames  v.  Boland  576 

v.  Lake  Superior  R.  R.  Co.    394,  817, 

836 
v.  Port  Huron  Log  Driving  and 

Booming  Co.  619,  594 

Amey  v.  Mayor,  &c.  167 

Amis  v.  Smith 
Amory  >;.  Keokuk 
Amoskeag  Mfg.  Co.  v.  Concord 
Ampt.  v.  Cincinnati 

Amsbaugh  v.  Exchange  Bank  683 

Amsterdam  Water  Com'rs,  Matter  of   809 
Amy  ».  Selma  267,  268 

».  Smith  37 

Anderdon  v.  Burrows  829 

Anderson  v.  Dunn  190,  191 

v.  East  302 

v.  Hill  213,  327,  703 

v.  Jackson  84 

v.  Kerns  Draining  Co.     717,  735,  770 
v.  Louisville  16 

v.  Louisville  &  N.  Ry.  Co.  869 

v.  M.  F.  As.  Co.  164 

v.  Millikin  564 

».  O'Conner  272 

v.  State  486 

17.  Wellington  289 

v.  Whatcomb  Co.  121 

Anderton  v.  Milwaukee  674 

Andes  v.  Ely  322 

Andover  v.  Grafton  320 

Andres  v.  Wells  644 

Andrew  v.  Bible  Society  670,  672 

Andrews,  Ex  parte  859 

r.  Andrews  579 

v.  Beane  138,  544,  546 

v.  Beck  589 

v.  Carney  133 

r.  Insurance  Co.  279 

v.  Page  154,  634 

v.  People  217 

v.  Russell  537 

v.  Simms  478 

v.  State  128,  237,  452,  499 

v.  St.  Louis  Tunnel  Co.  224 

v.  Swartz  22 

r.  Wheaton  576 

Andrus  v.  Board  of  Police  654 

Angle  t7.  Chicago  M.  &  St.  P.  Ry.  Co.     517 
Annable  v.  Patch  513 

Annapolis  v.  Harwood  194 

v.  State  207 

Annis  v.  People  459 

Anniston,  &c.  R.  R.  Co.  v.  Jackson- 
ville &c.  R.  R.  Co.  807 
Anonymous  515 


TABLE   OF   CASES. 


XX111 


Anthony  v.  State  452 

Antisdel  v.  Chicago,  &c.  R.  R.  Co.        841 
Antoni  v.  Greenliow  24,  406 

v.  Wright  232,  403 

Antonio  v.  Gould  209,  211 

Arayo  v.  Currell  178 

Arbegust  v.  Louisville  720 

Arbenz  r.  Wheeling  &  H.  Ry.  Co.        828 
Arctander,  Matter  of  481 

Argentine  v.  Atchison,  T.  &  S.  F. 

Ry.  Co.  298 

Arimond  v.  Green  Bay  Co.     757,  783,  787 

Arkadelphia  v.  Windham  356 

Arkansas  V.  L.,  &c.  Co.  v.  Mann  590 

Armington  v.  Barnet       395,  679,  757,  777 

Arms  v.  Ayer  164,  558 

Armstrong  v.  Harshaw  42,  583 

v.  Jackson  246,  553 

v.  Mayor  205 

v.  State  459,  464 

v.  United  States  12 

Arnold,  Ex  parte  911 

v.  Arnold  .     677 

v.  Davis  903 

».  Decatur  760,  777 

v.  Kelley  137,  560 

17.  McKellur  220 

v.  Mundy  862 

Arnson  v.  Murphy  23 

Aron  v.  Wausau  302,  306 

Arrington  v.  Arrington  44 

Arrowsmith  v.  Burlingim  503 

v.  Harmoning  30 

Arundel  o.  McCulloch  863 

Asberry  v.  Roanoke  731 

Ash  v.  Cummings  773,  814,  817 

v.  People  283,  857,  887 

Ashbrook  v.  Commonwealth  853 

r.  Schaub  182 

Ashcroft  v.  Bourne  587 

Asher  v.  Louisville,  &c.  R.  R.  Co.         823 

v.  Texas  694 

Ashland  &  C.  S.  Ry.  Co.  v.  Faulkner      803 

Ashley  v.  Peterson  430 

v.  Port  Huron  304,  363,  786,  787 

v.  Ryan  397 

Ashuelot  R.  R.  Co.  v.  Elliott    144,  394,  412 

Aspinwall  v.  Commissioners  266 

Astley  v.  Younge  629 

Astor  v.  New  York          .  531 

A strom  v.  Hammond  259 

Atchinson  &  N.  Ry.  Co.  v.  Boerner      827 

Atchison  v.  Bartholow  266 

v.  King  363 

Atchison,  &c.  R.  R.  Co.  v.  Betts  52 

Atchison  &  Nebraska  R.  R.  Co.  v. 

Baty  528,  841 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Camp- 
bell 569,  874 
v.  Clark  558 
v.  Howe  706 
v.  Matthews                               15,  571 
Athearn  v.  Independent  District           262 
Athens  v.  Georgia  R.  R.  Co.                 291 
Atherton  v.  Atherton  44 
Atkins  v.  Com.                                        474 


Atkins  v.  Phillips 

v.  Plimpton 

v.  Randolph 
Atkinson  v.  Bemis 

v.  Detroit  Free  Press 

v.  Doherty 

v.  Dunlap 


Page 

288 
685 

336,  360 
278 
646 
510 
137,  521,  529 


v.  Goodrich  Transp.  Co.  284 

v.  Marietta  &  Cincinnati  R.  R.  Co.  762 
Atlanta  v.  Central  R.  R.  Co.  825 

v.  First  Pres.  Ch.  718,  741 

v.  Green  811,  812 

v.  Stein  274,  291 

v.  Warnock  303 

v.  Word  812 

Atlantic  Ex.  Co.  v.  Wilmington  &  W. 

Ry.  Co.  873 

Atlantic  &  Ohio  R.  R.  Co.  v.  Sulli- 

vant  762 

Atlantic  &  P.  Ry.  Co.  v.  Mingus          149 
Atlantic,  &c.  Telegraph  Co.  v.  Chi- 
cago, &c.  R.  R.  Co.  316,  787 
Atlantic  De  Laine  Co.  v.  Mason  275 
Attaway  v.  Cartersville  305 
Atty.-Gen.  v.  Barstow            935,  937,  939 
v.  Boston  &  A.  Ry.  Co.            574,  875 
v.  Brown                           158,  217,  259 
v.  Brunst  86 
v.  Cambridge                                     269 
v.  Chicago,  &c.  R.  R.  Co.      238,  395, 
838,  839,  873 

v.  Common  Council  of  Detroit      121, 
894,  895 

v.  Detroit  908 

v.  Detroit  &  Erin  Plank  Road  Co.   89, 

92 

v.  Eau  Claire  55,  256,  700 

v.  Ely  915,  916,  919,  929,  935,  937, 941 
v.  Exeter  350 

v.  Geerlings  661 

v.  Jochem  159,  574 

v.  Joy  201,  209 

t>.  Marr  168 

v.  Marston  895 

v.  Morris  &  Essex  R.  R.  Co.  789 

v.  New  York  295 

v.  Old  Colony  Ry.  Co.  572 

v.  Railroad  Companies    217,  394,  875 
v.  Railway  Co.  802 

v.  Rice  194,  205 

v.  Rogers  75,  134 

v.  Supervisors  of  Lake  Co.  259 

v.  Supervisors  of  St.  Clair  926 

v.  Weimer  166,  195 

r.  Williams  879 

v.  Winnebago,  &c.  Plank  Road 

Co.  725 

Atwater  v.  Woodbridge  353,  395 

Atwill  v.  Mackintosh  610 

Atwood  v.  Lincoln  275 

v.  Welton  677 

Auburn  v.  Union  Water  P.  Co. 

Auditor  v.  Holland  163 

Auditor  Gen.  v.  University  740 

Auditor  of  State   v.  Atchison,  &c 

R.  R.  Co.  130 


XXIV 


TABLE   OF   CASES. 


Page 

Augusta  r.  Burum  296 
17.  Mackey 
v.  Murphy 
v.  Sweeney 

Augusta,  &c.  R.  R.  Co.  v.  Renz 

Augusta  Bank  v.  Augusta  407,  738 
Augusta  Evening  News  v.  Radford      628 

Augusta  Factory  c.  Augusta  740 
Augustin  t7.  Eggleston 

Auld  v.  Butcher  406,  623 

v.  Walton 
Aurora  v.  Heed 

Aurora  City  v.  West  80,  167 

Austen  v.  Miller  35 

Austin  el  a/.,  In  re  481 

v.  Augusta  T.  Ry.  Co.  810,  811 

».  Coggeshall  310 

t7.  Gas  Co.  740 

v.Murray  281,285,291,292 

v.  Tennessee  687,  848 

Austine  17.  State  445 

Avent-Beattyville  Coal  Co.  v.  Com.      877 

Avery  v.  Tyringham 

Avis  v.  Vineland  291 

Axtell  v.  Gerlach  748 

Aycock  r.  Martin  414 

Ayers,  In  re  24,  495 

r.  Chicago  Title  T.  Co.  709 

v.  Grider  606 

r.  Moan  925 

Aylesworth  v.  St.  John  631 

Aynette  v.  State  499 

Ayres  t7.  Methodist  Church  670,  673 


B. 


Babcock  t?.  Buffalo  362,  884 

t7.  Camp  80 

Baccigalupo  v.  Commonwealth  437 

Bachelder  v.  Moore  454 

Backus  i:  Detroit  666 

v.  Fort  St.  U.  D.  Co.  22,  32,  814 

v.  Lebanon  392,  395,  589 

Bacon  v.  Arthur  867 

».  Callender  616,  643,  553 

t7.  Fisher  478 

v.  Mich.  Cent.  R.  R.  Co.         605,  612 

t7.  Texas  31,  36 

i7.  Wayne  County  477 

».  York  County  986 

Bacot,  Ex  parte  764 

Bagg  t7.  Wilmington  C.  &  A.  Ry. 

Co.  845 

Baprp's  Appeal  138,  521 

Baiznall  v.  London  &  N.  W.  R.  Co.       819 

Bahen,  Ex  parte  282 

Bailey  v.  Boston  &  P.  Ry.  Co.  827 

v.  Commonwealth  109 

w.  Fisher  898 

v.  Fiske  664 

r.  Gentry  78 

«7.  Milnef  36 

t;.  Miltenberger  766 

v.  New  York  347,  357,  358,  390 

v.  People  673,  880 


Page 

Bailey  v.  Philadelphia,  &c.  R.  R.  Co.     79, 
228,  838,  867 

v.  Sweeney  800 

v.  Wright  425 
Bailey's  Case 
Bain,  Ex  parte 

Baird  v.  Mayor  691 

v.  State  200 
Baity  v.  Cranfill 

Baker  v.  Boston  884 

t7.  Braman  232,  250,  251 

t7.  Cincinnati  717 

r.  Ducker  661 

v.  Gordon  497 

v.  Johnson  809,  814 

r.  Kelly  623 

v.  Kerr  688 

r.  Lewis  863 

17.  Mattocks  62 

t7.  Panola  Co.  710 

«7.  People  680 

v.  Portland  888 

17..  Rand  81 

17.  State  468,  470 

v.  Stonebraker's  Adm'rs  522 

r.  Windham  307 

Balch  v.  Commissioners  770 

Baldwin  v.  Bank  of  Newberry  417 

17.  Chicago  285 

v.  Douglas  Co.  737 

v.  Flagg  413 

v.  Franks  18 

f.  Green  279 

v.  Hale  416,  417 

17.  Newark  406,  630 

v.  New  York  341 

v.  North  Branford  266,  327 

v.  State  222 

Balfour  v.  Louisville,  &c.  R.  R.  Co.      823 

Ball  v.  Chadwick  100 

17.  Commonwealth  437 

r.  Gilbert  924 

v.  Winchester  365 

v.  Woodbine  302 

Ballard  v.  State  437 

Ballentine  v.  Mayor,  &c.  236 

Ballot  Act,  Re    '  900 

Ballon  v.  State  304 

Balm  v.  Nunn  689 

Baltes  v  Farmers'  Irr.  Dist.  929 

Baltimore  v.  Baltimore,  &c.  R.  R. 

Co.  665 

r.  Keeley  Inst.  696 

v.  B.  Tr.  &  G.  Co.  299 

r.  Cemetery  Co.  741 

r.  Clunet  165,  400 

r.  Eschbach  324 

v.  Hussey  694 

17.  Johns  Hopkins  Hosp.  722 

v.  Pendleton  362 

P.  Redecke  288 

17.  Scharf  505,  722 
p.  State             100,  104, 169,  239,  253 
255,  257,  258,  657,  831 

v.  Stewart  731 
Baltimore  &  E.  S.  Ry.  Co.  v.  Spring    696 


TABLE  OF  CASES. 


XXV 


Page 
Baltimore  &  F.  T.  R.  v.  Baltimore, 

&c.  Ry.  Co.  758 

Baltimore  &  O.  Ry.  Co.  v.  Baugh  32 

v.  Maryland  872 

Baltimore,  &c.  R.  R.  Co.  v.  P.  W.  & 

K.  Ry.  Co.  779 

v.  Fifth  Bapt.  Ch.  297,  785 

v.  Magruder  757 

v.  Nesbit  761 

v.  North  807 

».  Pittsburgh,  &c.  R.  R.  Co.    780,  818 

Baltimore  Tr.  Co.  v.  B.  B.  Ry.  Co.         32 

Baltimore,    &c.    Turnpike    Co.    v. 

Union  R.  R.  Co.  398 

Baltzer  v.  North  Carolina  410 

Bamberger  &  Co.  v.  Schoolfield  32,  180 
Banaz  v.  Smith  259,  731 

Bancroft  v.  Dumas  174,  845 

v.  Lynnfleld  308 

v.  Thayer  262 

Bandel  v.  Isaac  101 

Banger's  Appeal  709 

Bangor  v.  Smith  ,  852,  858 

Bangs  v.  Snow  745,  749 

Banholzer  17.  N.  Y.  L.  Ins.  Co.  39 

Bank  v.  Hines  703 

v.  Supervisors  683 

Bank  of  Augusta  v.  Earle  178 

Bank  of  Chenango  v.  Brown,  166,  170, 173 
Bank  of  Chillicothe  v.  Chillicothe  272 
Bank  of  Columbia  v.  Okely  505,  564 

Bank  of  Commerce  r.  New  York         683 
17.  Tennessee  396,  738.  740 

r.  Wiltsie  182,  183 

Bank  of  the  Dominion  v.  McVeigh  392 
Bank  of  Hamilton  v.  Dudley's  Les- 
see 33,  247,  516 
Bank  of  Illinois  v.  Sloo  86 
Bank  of  Mich.  v.  Williams  244,  503 
Bank  of  Republic  v.  Hamilton 
Bank  of  Rome  v.  Village  of  Rome  167 
Bank  of  the  State  v.  Bank  of  Cape 

Fear  392 

v.  Cooper  56( 

r.  Dalton  4c 

Bank  of  United  States  17.  Daniel  33 

v.  Halstead  103 

t7.  Norton  2( 

Bank  of  Utica  v.  Mersereau  47£ 

Bank  Tax  Case  68< 

Bankers'  Case 

Bankhead  v.  Brown  764,  775,  778 

Banks,  Ex  parte  439 

Banks,  The  v.  The  Mayor  i 

Banner  Pub.  Co.  v.  State  619,  656 

Banning  v.  Commonwealth  88-; 

17.  Taylor  502 

Bannon  v.  State  56( 

Banta  v.  Chicago  265 

Baptist  Church  v.  Wetherell          660,  66 

Bar  Association,  Ex  parte  69' 

Barbemeyer  v.  Iowa  18 

Barber  v.  Pittsburgh,  Ft.  W.  &  C. 

Ry.  Co. 

17.  Root  679,  580 

v.  St.  Louis,  &c.  Co.  637 


Page 

Jarber  v.  Trustees  of  Schools  262 

Jarber  Asphalt  Co.  v.  Hunt  195 
Barbier  v.  Connolly              11,  19,282,  832 

iarbour  v.  Barbour  514 

v.  Camden  331,  543 

17.  Erwin  522 

Barclay  v.  Barclay  487 

».  HowelFs  Lessee  810 

3ardwell  «7.  Anderson  673 

Barfield  v.  Gleason  731 

3arker,  Ex  parte  40 

17.  Cleveland  80 
v.  People                      46,  99,  471,  894 

v.  Pittsburgh  389 

Barling  v.  West  282,  285 

Barlow  v.  Lambert  62 

Barnaby  v.  State  858 

Barnard  v.  Bartlett  434 

v.  Taggart  100 

Barnes  v.  Campbell  644 

i7.  District  of  Columbia  266 

r.  Dyer  729 

i7.  First  Parish  in  Falmouth  105 

w.  Lacon  340 

17.  McCrate  629 

v.  Pike  Co.  929 

v.  Suddard  181 

v.  Supervisors  907 

Barnet  v.  Barnet  638,  641 

Barnett  v.  Dennison  319 

17.  People  470 

u.  Railroad  Co.  841 

r.  Ward  607 

Barnitz  v.  Beverley  413 

Barnum  v.  Oilman  895,  932 
v.  Okolona                 81,  168,  319,  326 

Barr  v.  Moore  629 

Barre  R.  R.  Co.  v.  Montpelier  807 

Barre  Water  Co.,  Re  696,  762 

Barrett  v.  Crane  685 

17.  Failing  685 

17.  Holmes  623 

17.  Kemp  777 

v.  Taylor  908 

Barren  v.  Baltimore  46 

v.  Burnside  24 

t7.  Dent  685 

v.  Detroit  306 

Barronet,  Matter  of  438,  439 

Barrow  v.  Page  760 

Barrows  v.  Bell  637,  647 

Barry,  Ex  parte  498 
v.  Lauck                            908,  910,  927 

v.  Mercein  33,  497 

Barry's  Case  497 

Bartemeyer  v.  Iowa  38,  849 

Barthelemy  v.  People  658 
Bartholomew  v.  Harwinton    330,  331,  643 

Bartlett  v.  Christhilf  630 

t7.  Clarksburg  302 

17.  Columbus  800 

v.  Crozier  803,  355 

t7.  Kinsley  275 

v.  Knight  42,  683 

w.  Lang  615 

v.  Morris  91 


XXVI 


TABLE   OF   CASES. 


Page 

Bartlett  v.  Wilson  631 

Barto  v.  Himrod  163,  169,  170,  172 

Barton  n.  Brown  251 

v.  State  453 

v.  Swepston  274 

v.  Syracuse  356,  362 

t\  Thompson  81 

Bartruffc.  Remey  .                          629 

Bass  v.  Fontleroy  176 

v.  Nashville  120,  400 

v.  Roanoke  N.  &  W.  P.  Co.  512 

Bassett  v.  Porter  277 

Hasten  r.  Carew  687 

Batchelder  v.  Batchelder  679 

Bates  v.  Cullom  622 

r.  Delavan  683 

v.  Huston  661 

v.  Kimball  78,  132,  137,  228 

v.  McDowell  514 

r.  Relyea  84 

v.  Spooner  80 

v.  Taylor  162 

Bates  Co.  v.  Winters  319 

Bathrick  v.  Detroit  Post,  &c.  Co.          637 

Baths,  Ex  purte  289 

Batman  v.  Megowan  937 

Batre  v.  State  464,  466 

Battle  r.  Howard  209 

Baugher  v.  Nelson  374,  672 

Baughn  v.  State  670 

Biium  v.  Clause  606 

v.  Raphael  216 

Bauman  v.  Detroit  300 

r.  Ross  716,  826 

Bauserman  v.  Blunt  27,  32 

Baxter,  Matter  of  371 

v.  Brooks  937 

v.  Winooski  Turnpike  355 

Bay  v.  Gage  629 

Bayard  v.  Klinge  892 

v.  Singleton  56 

Bay  City  v.  State  Treasurer         104, 325, 

338 

Bay  City,  &c.  Co.  v.  Austin  407 

Bayerque  v.  Cohen  34 

Baylis  v.  Lawrence  656 

Bayly  v.  Fourchy  632 

Bays  t-.  Hunt  628 

v.  State  262 

Beach  v.  Ranney  607 

v.  Viles  33 

v.  Walker  629,  633 

Beal  v.  Nason  621 

v.  State  177 

Beale  v.  City  of  Boston  828 

Beall  r.  Beall  612,  554 

Beals  v.  Amador  Co.  336 

Bean  v.  State  434 

Beard  v.  Beard  682,  585 

v.  Hopkinsville  318,  320 

v.  Wilson  200 

Bearden  v.  Madison  287 

Bcardsley  v.  Bridgman  607,  644 

v.  Erie  Ry.  Co.  873,  875 

»•  Smith  348,  354,  355 

v.  Tappan  611 


Beardstown  v.  Virginia    89, 102,  914,  926, 

942 

Beasley  v.  Beckley  691 

Beaty  v.  Knowler 

Beauchamp  v.  State  128,  237 

Beaudeau  v.  Cape  Girardeau  220 

Beaufort  Co.  Comm'rs  v.  Old  Domin- 
ion S.  S.  Co.  693 
Beauregard  v.  New  Orleans 
Beaver  v.  City  of  Harrisburg  763 
Beck  v.  Stitzel  605 
Becker  v.  La  Crosse  312 
Beckwith  v.  Racine                                415 
v.  Rucker                                         900 
v.  Winters  900 
Bedard  v.  Hall  195 
Bedell,  Ex  parte                                     473 
v:  Bailey                                           692 
Bedford  v.  E.  Building  &  L.  Ass'n       179 
Bedle  r.  Beard  277 
Beebe  v.  State    132, 137,  236, 237,  245,  849 
Beecher  v.  Baldy                             121,  251 
Beeching's  Case  490 
Beef  &  P.  Co.  v.  Best  417 
Beekman  v.  Saratoga,  &c.  R.  R.  Co.    754, 
764,  767,  770,  776,  776 
Beeler  v.  Jackson  612 
Beene  v.  State                                        481 
Beer  Co.  v.  Massachusetts    400,  831,  845, 
846,  849,  854,  883 

Beers  v.  Beers  590,  591 

v.  Botsford  352 

v.  Haughton  406,  407 

Beets  v.  State  451 

Begeroro,  Re  440 

Behrens  v.  Allen  638,  640 

Beiling  v.  Evansville  290 

Beirne  v.  Brown  370,  372 

Belcher  Sugar  Ref.  Co.  v.  St.  Louis 
Kiev.  Co.  766,  770,  804 


Belden  v.  State 
Belknap  v.  Ball 

v.  Louisville 
Bell  v.  Bell 

v.  Clapp 

v.  Morrison 

v.  Norfolk,  &c.  R.  R.  Co. 

t>.  Plattville 

v.  Prouty 

v.  Rice 

v.  State 

v.  Sun  Printing  Co. 

v.  West  Point 
Belles  v.  Bun- 
Belleville  R.  R.  Co.  v.  Gregory 


83 
628 
893 

44,  579 
428,  430 
33,  34,  521 
757 
272 
765 
430 
451 
629 
363 
901 

92 


441, 


Bellinger  v.  New  York  Cent.  R.  R. 

Co.  757,  783,  807,  826 
Beliingham  Bay  &  B.  C.  Ry.  Co.  v. 

New  Whatcom  26 

Bellmeyer  v.  School  District  261 

Bellows  v.  Parsons  87 

Bellport,  Parish  of  v.  Tooker  660 

Belo  v.  Commissioners  738 

Belvin  v.  Richmond  356 

Bemis  v.  Becker  86 

Benden  v.  Nashua  733 


TABLE  OF  CASES. 


XXV11 


Bender  v.  Crawford  414,  522 

v.  State  219 
Bendey  v.  Townsend 

Benedict  v.  Goit  790 
v.  Smith 

v.  State  478 

v.  Vanderbilt  856 
Benford  v.  Gibson 

Benjamin  v.  Manistee,  &c.  Co.  865 

v.  Webster  294 

Bennett  v.  Am.  Exp.  Co.  879 
v.  Bennett 

v.  Boggs  237 

v.  Borough  of  Birmingham  272,  283 

v.  Brooks  859 

v.  Bull  236 

v.  Deacon  611 

v.  Fisher  631 

v.  Harms  38,  514 

v.  New  Orleans  304 

v.  Pulaski  285 

v.  State  437,  677 

Benoist  v.  St.  Louis  726 

Bensley  v.  Mountain  Lake,  &c.  Co.      763 

Benson  v.  Albany  239,  241 

v.  New  York    235,  344,  345,  347,  390, 

838,  843 

Bentinck  v.  Franklin  522 

Benton  v.  Town  of  Brookline  826 

v.  Trustees,  &c.  305 

Bents  v.  Graves  675 

Benz  o.  Weber  206 

Bergeman  v.  Backer  22,  32 

v.  Cleveland  285,  890 

Berger  v.  U.  S.  Steel  Cor'p.  396,  510 

Berkley  v.  Board  of  Education  532 

Berlin  v.  Gorham  166 

Bernhardt  v.  Brown  570 

Bernier  v.  Russell  559 

Beroujohn  v.  Mobile  285 

Berry  v.  Baltimore,  &c.  R.  R.  Co.  194, 247 

v.  Carter  607 

v.  Clary  539 

v.  Doane  Point  K.  R.  Co.  194 

v.  Ransdell  623,  624 

Berthold  v.  Fox  413 

Bertholf  v.  O'Reiley  851 

Bertonneau  v.  School  Directors  557 

Beseman  v.  Pa.  R.  R.  Co.  785 

Bethany  v.  Sperry  275 

Bethune  v.  Hayes  285 

Bettman  v.  Coroley  404 

Bettner  v.  Holt  606 

Bevard  v.  Hoffman  927 

Beveridge  ».  Lewis  827 

Bibb  v.  Bibb  81 

v.  Janney  252 

Bibb  County  Loan  Association  v. 

Richards  200 

Bickersdike  v.  Allen  571 

Bicknell  r.  Comstock  621 

Biddle  v.  Commonwealth  591 

v.  Hooven  621 

Bidwell  v.  Whit  taker  89 
Bielenberg  v.  Montana  N.  Ry.  Co.  528,  842 

Bier  v.  McGehee  62,  384 


Bigelow  v.  Bigelow 

v.  Randolph 

v.  W.  Wisconsin  R.  R. 
Big  Grove  r.  Wells 
Biggs,  Ex  parte 

v.  McBride 
Bigham  v.  State 


Page 
46 

355,  356 

92,  256,  823 

320,  324 

481 

105,  158,  159 
467 


Bigler's  Executors  v.  Penna.  Canal 

Co.  762 
Bill  v.  Norwich  363 
Billings  r.  Detten  645 
v.  Fairbanks  611,  612 
v.  Wing  605 
Billmeyer  v.  Evans  415 
Bills  v.  Goshen  284 
Bimeler  v.  Dawson                   42,  683,  586 
Binghamton  Bridge  Case       892,  398,  549 
Bird,  Ex  parte  859 
v.  Benlisa  751 
v.  Daggett  324 
v.  Perkins  363 
v.  Smith  862 
v.  State  448 
v.  St.  Mark's  Ch.  661 
v.  Wasco  County  216 
Birdsall  v.  Carrick  221 
Birdsong,  In  re  473 
Birmingham  v.  McCary  362 
Birmingham,  &c.  St.  Ry.  Co.  v.  Bir- 
mingham St.  Ry.  Co.  299 
Birmingham  M.  Ry.  Co.  v.  Parsons      164 
Birmingham  T.  Co.  i:  Birmingham 

R.  &  E.  Co.  803 

Bischoff  v.  N.  Y.  El.  827 

Bishop  v.  Marks  7-56 

Bissell  v.  Briggs  41,  583 

v.  Davidson  880 

v.  Jeffersonville  321,  323 

v.  Kankakee  320 

v.  Penrose  104 

v.  Spring  Valley  319 

Bittenhaus  v.  Johnston  671 

Bitzer  v.  Thompson  284 

Black  v.  Black  681 

v.  Columbia  301 

v.  Gloucester  City  182 

v.  Sherwood  695 

v.  State  468 

Blackford  v.  Peltier  623 

Blackhawk,  Co.  of,  v.  Springer  690 

Blackinton  v.  Blackinton  80 

Blackman  v.  Halves  765 

Black  well  v.  State  442 

Blackwood  v.  Van  Vleit  97,  412 

Bladen  v.  Philadelphia  111 

Blahnt  v.  State  676 

Blain  v.  Bailey  217 

Blair  v.  Charleston  828 

r.  Forehand  881 

v.  Kilpatrick  568,  889 

v.  Milwaukee,  &c.  R.  R.  Co.  836 

i?.  Ostrander  28,  417 

v.  Ridgely  57,  370 

v.  West  Point  278 

Blake  v.  Dubuque  818 

v.  McClung  21,38,813,825 


XXV111 


TABLE   OF   CASES. 


Page 

Blake  v.  Rich  808 

v.  St.  Louis  356,  362 

v.  Winona,  &c.  R.  R.  Co.        839,  876 

Blakely  v.  Devine  307 

15  lake  more  v.  Dolan  215 

Blakeslee  v.  Carroll  629 

Blauchard  v.  Raines  590 

r.  Stearns  927 

Blandford  v.  State  41 

Blandford  School  District  v.  Gibbs      932 

Standing  v.  Burr  167,  336 

Blatchley  v.  Moser  280 

Bleakney  v.  Bank  of  Greencastle    633, 536 

Bledsoe  v.  Commonwealth  435 

Blessing  v.  Galveston  194,  200,  267 

Blewett  v.  Wyandotte,  &c.  R.  R.  Co.   841 

Blin  v.  Campbell  575 

Bliss  v.  Commonwealth  237,  499 

v.  Hosmer  757 

t>.  Kraus  265 

v.  South  Hadley  808 

Bliss's  Petition  37 

Block  v.  Jacksonville  851 

v.  Salt  Lake  R.  T.  R.  Co.  298 

Blocker  v.  Burness  677 

Blodgett,  In  re  211 

Blood  v.  Mercelliott  207 

Bloodgood   v.   Mohawk   &  Hudson 

R.  R.  Co.     228,  761,  764,  766,  777,  813, 

814 

Bloom  v.  Richards    52,  662,  670,  675,  859 

Bloomer  v.  Stolley  175 

v.  Todd  901 

Bloomfleld  v.  Charter  Oak  Bank  275 

v.  Trimble  280 

Bloomfield,  &c.  Co.  v.  Calkins  791 

Bloomington  v.  Bay  356 

v.  Brokaw  296,  304,  363 

v.  Latham  731,  813,  825 

v.  Pollock  828 

v.  Wahl  285 

Blossburg,  &c.  R.  R.  Co.  v.  Tioga 

R.  R.  Co.  34 

Blount  v.  Janesville  296,  639,  719 

Blue  v.  Beach  880 

Blumb  v.  Kansas  City  302,  362 

Blydenburg  v.  Miles  472,  886 

Board  of  Commissioners  v.  Allman      305 

v.  Bearss  331 

v.  Bradford  310 

v.  Bright  642 

v.  Church  337 

v.  Lucas  307 

v.  Merchant  20 

v.  Pidge  861 

Board   of  Dir.   of  A.  Irr.   Dist.  v. 

Collins  767 

Board  of  Education  v.  Blodgett  622 

v.  Brunswick  231 

v.  De  Kay  319 

v.  McLandsborough  679 

v.  Minor  67,  263,  665,  670 

v.  State  131 

v.  Thompson  262,  263 

v.  Tinnon  667 

Board  of  H.  Com.  v.  Excelsior  R.  Co.  165 


Board  of  Health  v.  Van  Hoesen  770 

Board    of    Improvement  v.  School 

Dist.  718,  741 

Board  of  Pol.  Com'rs  v.  Wagner    431,  885 
Board  of  Public  Works  v.  Columbia 

College  42 

Board  of  Street  Openings,  Re        759,  768 
Board  of  Supervisors  v.  Cowan  336 

v.  Heenan  204 

Board  of  Trade  Tel.  Co.  v.  Barnett      787 
Board  Water  Com.  v.  Dwight  210 

Boardman  v.  Beckwith  531 

Bode  v.  State  845,  846 

Bodwell  v.  Osgood  619 

Boehm  r.  Hertz  696 

Bogardus  v.  Trinity  Church  62 

Bogert  v.  Indianapolis  285 

Boggess  v.  Scott  750 

Boggs  v.  Merced,  &c.  Co.  753 

Bohanan  v.  Nebraska  31 

Bohannan  v.  Commonwealth  434 

Bohen,  Re  881 

v.  Waseca  363 

Bohl  v.  State  675 

Bolilinan  v.  Green  Bay,  &c.  R.  R. 

Co.  760,  761 

Bohmey  ».  State  279 

Bohon's  Assignee  v.  Brown  13 

Boice  v.  Boice  413 

Boisdere  v.  Citizens'  Bank  256 

Boiling  v.  Lersner  30 

Bollman  and  Swartout,  Ex  parte          495 

Bolln  v.  Nebraska  30,  436,  456,  605 

Bolton  v.  Johns  515,  540 

v.  Prentice  484 

Bombaugh  v.  Bombaugh  613 

Bonaparte,  Prince  Pierre,  Trial  of       442 

Bonaparte  v.  Tax  Court  694 

Bond  v.  Appleton  86 

v.  Commonwealth  463 

v.  Kenosha  717,  718,  749 

v.  State  437 

Bonds  of  Madera  Irrig.  Dist.,  Re         674, 

715,  731 

Bonham  v.  Needles  321 

Bon  Homme  Co.  v.  Berndt  183 

Bonnett  v.  Bonnett  497 

Bonney  v.  Bowman  688 

Bousall  v.  Lebanon  860 

Boogher  v.  Knapp  606,  606 

Booker  v.  Young  893 

Boon  c.  Bowers  84,  146 

Boonville  v.  Ormrod  817 

v.  Trigg  216 

Boorman  v.  Santa  Barbara  618,  722 

Boorum  v.  Connelly  663 

Booth  v.  Booth  633 

v.  People  885 

v.  Woodbury  331,  699,  812 

Borden  v.  Fitch  42,  579 

Boro  v.  Phillips  Co.  736 

Borough  of  Dunmore's  Appeal    269,  336, 

341,  391 

Borough  of  York  v.  Forscht  310 

Boske  v.  Comingore  35 

Bosley  v.  Mattingley  89 


TABLE  OF  CASES. 


XXIX 


Bossier  v.  Steele 
Bostick  v.  State 
Boston  v.  Cummins 

v.  Schaffer 

v.  Shaw 


Page 
209 
886 

237,  376 
283,710 
288,  861 


Boston,  &c.  Railroad  Co.  In  re  806 

Boston  &  A.  Ry.  Co.  v.  Cambridge      758 
Boston,  Concord,  &  M.  R.  li.  Co.  v. 

State  844 

Boston  &  Lowell  R.  R.  Co.  v.  Salem 

&  Lowell  R.  R.  Co.  398 

Boston  &  M.  R.  R.  Co.  v.  Cora'rs          839 
Boston  &  Roxbury  Mill-dam  Cor- 

poration v.  Newman  772,  777 

Boston  Mining,  &o.  Co.,  Matter  of       214 
Boston  Water  Power  Co.  v.  Boston 

&  Worcester  R.  R.  Co.  398,  757 

Bostwick  v.  Perkins  575,  576 

Boswell  v.  Commonwealth  437 

v.  State  437,  467 

Botts  u.  Williams  39 

Boucher  v.  New  Haven  363 

Bougliton  v.  Carter  757 

Boulder  v.  Niles  356 

Boulware  i>.  Davis  179 

Bounds  v.  Kirven  790 

Bourgeois,  Ex  parte  281 

Bourland  v.  Eidson  608 

v.  Hildreth  183,  903,  929 

Bourn  v.  Hart  318 

Bourne  v.  The  King  473 

Bow  v.  Allenstown  263,  276,  277 

Bowditch  v.  City  of  Boston  826 

Bowdoinham  v.  Richmond  268,  411 

Bowen  v.  Byrne  685 

v.  Hixon  937 

v.  King  275 

v.  Preston  514 

v.  State  24 

Bowers  v.  Smith  900 

Bowie  v.  Lott  120 

Bowler  v.  Eisenhood  937 

Bowles  v.  Landaff  333 

Bowling  Green  v.  Carson  284,  887 

Bowman  v.  Chicago  &N.  W.  Ry.  Co.     847 

v.  Middleton  234,  244,  509 

v.  Smiley  252,  415 

Box  well  v.  Affleck  660 

Boyce  v.  Sinclair  632,  536,  542 

Boyd,  In  re  160 

v.  Alabama  831 

v.  Bryant  174,  888 

v.  Ellis  46 

v.  Mills  900,911 

v.  Nebraska  12 

v.  Roane  686 

v.  Selma  720 

».  State  212,  400,  445 

Boye  v.  Girardey  710 

Boyer  v.  Grand  Rapids  F.  I.  Co.          212 

Boyland  v.  New  York  357 

Boyle,  Matter  of  182,  225 

v.  Arledge  34 

v.  Zacharie  417 

Braceville  Coal  v.  People  574,  877 

Brackett  v.  Norcross  615,  553 


Page 

Bradbury  v.  Davis  86 

Braddee  v.  Brownfield  237 

Braddy  v.  Milledgeville  285 

Braden  v.  Stumph  893 

Bradfield  v.  Roberts  664 

Bradford  v.  Brooks  138,  521 

v.  Gary  389 

v.  Shine  414,  522 

v.  Stevens  846 

Bradley,  Ex  parte  454,  481 

v.  Bander  738 

v.  Baxter  163 

v.  Buffalo,  &c.  R.  R.  Co.         841,  844 

v.  Clarke  442,  893 

v.  Fall  Brook  Irr.  Dist.  768 

v.  Fisher  481 

v.  Heath                    611,  620,  633,  658 

v.  Me  Atee   265, 396,  399,  719,  728,  730 

v.  New  York  &  N.  H.  R.  R.  Co.    565, 

765,  777 

v.  People  683 

v.  Pharr  764 

v.  State  130 

Bradshaw  v.  Heath  42,  579,  583 

v.  Lankford  164 

v.  Omaha  258,  267,  721 

v.  Rogers  812 

Bradstreet  Co.  v.  Gill  611 

Bradt  v.  Towsley  607 

Brad  well  v.  State  18,  38,  57,  568 

Brady  v.  Bronson  761 

v.  King  546 

v.  New  York  323,  324 

v.  Northwestern  Insurance  Co.      286, 

878 

v.  Richardson  576 

v.  West  218 

Bragg  v.  Meyer  36 

v.  People  547 

Bragg's  Case  681 

Braggs  v.  Tuffts  35 

Brainard  v.  Colchester  395,  396 

Branahan  v.  Hotel  Co.  291 

Branch  r.  Tomlinson  252 

Branch  Bank  of  Mobile  v.  Murphy      223 

Brand  v.  Multnomah  Co.  168 

Brandon  v.  Gowing  478 

v.  People  449 

v.  State  209 

Branham  v.  Lange  161,  193,  216 

Brann  v.  Chicago  710 

Branson  v.  Gee  571,  814,  815 

v.  Philadelphia  299,  840 

Brashear  v.  Madison  318 

Brass  v.  North  Dakota  871 

Brassard  v.  Langevin  922 

Brasso  v.  Buffalo  362 

Braynard  v.  Marshall  26 

Breeding  v.  Davis  614 

Bregguglia  v.  Lord  290 

Breidenthal  v.  Edwards  900 

Breitenbach  v.  Bush  414 

Breitung  v.  Lindauer  407,  408 

Brenham  v.  Brenham  Water  Co.  271 

v.  German  Am.  Bk.  319 

v.  Story  146 


XXX 


TABLE   OF   CASES. 


Page 

Brennan  v.  Titusville  687,  689,  694 

Brent  v.  Chapman  621 

Brevoort  v.  Detroit  631 

v.  Grace  144,  146 

Brewer  v.  Bowman  765 

v.  Davis  389 

v.  Mayor,  &c.  194 

v.  McClelland  908 

v.  New  Gloucester  351 

v.  Weakley  624,  913 

Brewer  Brick  Co.  v.  Brewer         163,  740, 

742,  743 

Brewster  v.  Davenport  302 

v.  Hough  176,  395,  741 

v.  Syracuse  207,  642,  543,  702 

Brick  Presbyterian  Church  v.  New 

York  176,  295, 400,  881 

Bricker  v.  Potts  606 

Brickey,  Re  499 

Bridal  Veil  Lumbering  Co.  v.  John- 
son 765,  767,  775 
Bridge  v.  Ford  685 
Bridge  Co.  v.  Hoboken  Co.  392 
Bridgeport  v.  Housatonic  B.  R.  Co.    167, 

612,  542 

Bridges,  Ex  parte  ]  492 

v.  Shallcross  158 

Bridge  water  v.  Plymouth  648 

Brien  v.  Williamson  95,  120 

Brieswick  v.  Mayor,  &c.  of  Bruns- 
wick 209 
Brig  Aurora  v.  United  States  165 
Briggs  v.  Garrett                                    624 
v.  Georgia  114 
v.  Hubbard                      512,  622,  629 
v.  Johnson  Co.                                   261 
v.  Lewiston,  &c.  Co.               795,  802 
v.  Russellville                          720,  722 
v.  Walker  28 
v.  Whipple                                       308 
Brigham  v.  Miller                           107,  156 
Bright  v.  Boyd                                        652 
P.  McCulloch                           206,  712 
Brightman  v.  Bristol                               884 
Brighton  v.  Wilkinson                    266,  268 
Brim  v.  Jones                                            671 
Brimmer  v.  Boston                                 400 
v.  Rebman                                       855 
Brinkmeyer  v.  Evansville                      356 
Brinton  v.  Seevere                                  640 
Brisbin  v.  Cleary                                    913 
Briscoe  v.  Anketell                         410, 515 
v.  Bank  of  Kentucky          11,  35,  230 
Bristol  v.  Johnson                          308,  309 
v.  New  Chester                        268,  344 
v.  Supervisors,  &c.                          616 
v.  Washington  County             21,  695 
Britain  v.  Kinnard                                  686 
British  Plate  Manuf.  Co.  v.  Meredith    783 
Brittle  v.  People  69 
Britton  v.  Des  Moines,  &c.  R.  R.  Co.    825 
v.  Election  Commissioners              899 
p.  Ferry                                            104 
Broadhent  v.  State                                  664 
Broadfoot's  Case                                      424 
Broadfoot  v.  Fayetteville                       669 


Page 

Broadnax  P.  Baker  667 

Broadway   Baptist  Church  v.  Mc- 

Atee  741 

Broadwell  v.  Kansas  City  304,  788 

Brock  P.  Barnet  765 

p.  Hishen  814 

v.  Milligan  677 

Brockway  v.  Kinney  81 

Brodhead  v.  Milwaukee  331,  700 

Broderick's  Will  43 

Brodnax  v.  Groom  194 

Broil  P.  State  465 

Bromage  v.  Prosser  647 
Bromley  v.  People 

v.  Reynolds  711 

Bronson  v.  Bruce  624,  644,  646 

v.  Kinzie  406,  408,  409,  412 

v.  Newberry  406,  408 

v.  Oberlin  291,  888 

v.  Wallace  34 

p.  Wallingford  304 

Bronson's  Estate  720 

Brook  P.  Montague  632 

Brooke  v.  Philadelphia  321 

Brooker  p.  Coffin  605,  607 

Brooklyn,  Re  383,  393,  758 

Brooklyn  p.  Breslin  285 

v.  Long  Island  756 

Brooklyn   &  Newton  R.   R.  Co.  v. 

Coney  Island  R.  R.  Co.  796 
Brooklyn  Central  R.  R.  Co.  P.  Brook- 
lyn City  R.  R.  Co.  278,  794,  796 
Brooklyn   Park    Commissioners   v. 

Armstrong  770, 809 

Brooklyn  Trust  Co.  v.  Hebron  275 

Brooks  P.  Cedar  Brook  782 

p.  Harison  605 

p.  Hyde  183 

v.  Missouri  31 

p.  Mobile  School  Commissioners     92 

Brophy  v.  Hyatt  860 

Brosnahan,  In  re  493 

Brotherton  p.  People  437 

Brow  p.  Hatheway  619 

Brower  p.  O'Brien  935 

Brown,  Ex  parte  41,  433,  438 

In  re  497 

p.  Beatty  754,  819 

p.  Brown  196 

p.  Calumet  R.  R.  Co.  822 

p.  Cape  Girardeau  258 

p.  Cayuga,  &c.  R.  R.  Co.  757,  784,  819 

p.  Chadbourne  861,  862 

p.  Chicago  816 

p.  Circuit  Judge  129 

v.  Com'rs  Rush  Co.  936 

p.  Commonwealth  451,  867 

P.  Denver  722 

P.  Duffus  133,  496 

v.  Duplessis  681,  799 

P.  Epps  691 

p.  Fi field  95 

p.  Fleischner  170 

p.  Foster  686 

p.  Grover  99,  902 

p.  Guyandotte  306 


TABLE  OF  CASES. 


XXXI 


Page 

Brown  v.  Hanson  605 

v.  Haywood  657,  659 

v  Hitchcock  407 

v.  Houston  686,  688 

v.  Hummel  392 

v.  Lei  ten  252 

»;.  Lunt  898 

v.  Maryland      686,  688,  846,  847,  858 

v.  Massachusetts  30 

v.  McCollum  915 

v.  New  Jersey    14, 34, 46,  456, 457, 505 

v.  New  York  639 

v.  Ohio  Valley  Ry.  Co.  232 

v.  Orangeburg  Co.  346 

v.  Parker  622 

v.  People  382 

v.  Phillips  901 

v.  Pratt  62 

v.  Providence,  W.  &  B.  R.  R.  Co.    826 

v.  Russell  66 

v.  School  Dist.  749 

v.  Seattle  784 

v.  Seay  120 

v.  Smart  416,  417 

v.  Smith  606,  719 

v.  State  (5  Col.)  106 

v.  State  (79  Ga.)  208,  468 

v.  State  (7  S.  E.  Rep.)  400 

v.  State  (32  Miss.)  452 

v.  State  (8  Blackf.)  468,  577 

v.  State  (16  Ind.)  458 

v.  Storm  652 

v.  Turner  895 

v.  United  States  104 

v.  Walker  442 

v.  Wilcox  97 

r.  Worcester  815 

Brown's  App.  709 

Brown  &  Allen  v.  Jacobs  P.  Co.  661 

Brownback  v.  North  Wales  694,  888 

Brown  Shoe  Co.  v.  Hunt  569 

Brown  University  v.  Granger  740 

Browne  v.  Scofield  861 

Browning  v.  Springfield  356,  357 

Brownville  v.  Cook  280 

Bruce  v.  Bradshaw  146 

Bruffet  v.  Great  Western  R.  R.  Co.      392 

Bruley  v.  Garvin  478 

Brumagin  v.  Tillinghast  687 

Bruning  v.  N.  O.  Canal  &  Banking 

Co.  763 

Bruns  v.  Crawford  414 

Brunswick  v.  Finney  166,  167 
Brunswick  &  W.  Ry.  Co.  v.  City  of 

Way  cross  762 

Brush  »;.  Carbondale  296 

v.  Keeler  924 

Bryan,  Ex  parte  452 

v.  Cattell  389 

v.  Page  274 

v.  Reynolds  196 

v.  Stephenson  893 

v.  Walker  518 

Bryant  v.  Robbins  130,  868 

Bryar  v.  Campbell  40 

Bryrner  v.  Butler  872 


Bryson  v.  Bryson 

v.  Campbell 
Buchanan,  A'« 

v.  Hubbard 

v.  Jones 

v.  Litchfield 
Bucher  v.  Cheshire  R.  R.  Co.  33 

Buchner  r.  Chicago,  &c.  R.  R.  Co.        791 
Buck  v.  Miller  719 

Bucki  v.  Cone  862 

Buckingham  v.  Davis  695 

v.  Ludlum  82 

v.  Smith  759,  764 

Buckles  a.  Ellers  52 

Buckley  v.  N.  Y.  &  N.  H.  R.  R.  Co.      844 
Bucknall  v.  Story  748 

Buckner  v.  Finley  42 

v.  Lynip  911 

v.  Gordon  902 

Budd  v.  New  York  871 

v.  State  669 

Buddington,  Matter  of  495 

Budge  v.  Grand  Forks  751 

Buell  v.  Ball  306,  721 

Buffalo  v.  Holloway  362 

v.  Webster  284,  287,  887 

Buffalo,  &c.  R,  R.  Co.  v.  Ferris  690,  814 
Buffalo  &  N.  Y.  R.  R.  Co.  r.  Brainerd  765 
Buffalo  &  Niagara  R.  R.  Co.  v.  Buffalo  840 
Buffalo,  N.  Y.  &  P.  R.  R.  Co.  v.  Har- 
vey 817 
Buffington  v.  Grosvenor  38 

v.  Overton  759 

Buhl  v.  Fort  St.  Union  Depot  Co.        781 
Bulger,  In  re  388 

v.  Eden  303 

Bulkley  v.  Callanan  751 

v.  N.  Y.  &  X.  H.  R.  R.  Co.     841,  843 
Bull  v.  Conroe  647,  558 

v.  Read  165,166,171,237 

Bullard  v.  Chandler  44 

Bullock  v.  Bullock  43,  45 

v.  Curry  312,  318 

Bumpass  v.  Taggart  685 

Bumpus  v.  French  572 

Bumsted  v.  Govern  183,  205 

Bunn  v.  Gorgas  414 

v.  People  104 

v.  Riker  924 

Bunton  v.  Worley  630 

Buonaparte  v.  Camden  &  Amboy  R. 

R.  Co.  46,  316,  776 

Bur,  Ex  parte  494 

Burch  v.  Newberry  138 

v.  Savannah  710 

Burckholter  v.  McConnellsville  265 

Burden  v.  Stein  769 

Burdeno  v.  Amperse  95 

Burdett  v.  Abbott  191 

v.  Allen  674 

Burdick  v.  Babcock  263 

v.  Missouri  P.  Ry.  Co.  453 

v.  People  510,  886,  887 

Bureau  Co.  v.  Railroad  Co.  706 

Burford  v.  Grand  Rapids  301 

».  Wible  607 


XXX11 


TABLE    OF   CASKS. 


Page 

Burger,  In  re  495 

Burgess  v.  Clark  773 

v.  Pue  104,  166,  173,  266 

v.  Seligman  35 

Burgett  v.  Burgett  202 

Burghardt  v.  Turner  513 

Burke  v.  Elliott  898 

v.  Gaines 

v.  Mechanics'  Savings  Bank  144 

v.  St.  Paul,  M.,  &c.  Ry.  Co.           129 

v.  Supervisors  of  Monroe  Co.        207, 

983,  936 

Burkett  v.  McCarty  902 

v.  McCurty  133 

Burks  v.  Bennett  692 

v.  Hinton  87 

Burley  v.  State  452 

Burlingame  v.  Burlingame  630,  631 

Burlington  v.  Bumgardner  283,  709 

v.  Gilbert  296 

v.  Kellar  279,  745 

v.  Leebrick  144,  165 

v.  Putnam  Ins.  Co.  283 

Burlington  C.  K.  &  N.  Ry.  Co.  v.  Dey  873 

Burlington  &  M.  R.  R.  R.  Co.  v. 

Reinhackle  797 

v.  Webb  842 

Burmeister  v.  Howard  272 

Burnes  v.  Atohison  717 

Burnett,  Ex  parte  281,  282,  291 

v.  Dean  184 

v.  Kinney  44 

v.  Maloney  183 

v.  Sacramento  717,  728,  730 

Burnham  v.  Chelsea  331 

v.  Commonwealth  582 

v.  Morrissey  191,  193 

v.  Stevens  496 

Burns,  Ex  parte  144 

v.  Clarion  County  269,  336 

v.  Crawford  414 

Burnside  v.  Lincoln  Co.  Ct.  232,  849 

Burr  v.  Carbondale  337,  704 

v.  Ross  194 

Burrel  v.  Associated  Reform  Ch.    '      660 

Burridge  v.  Detroit  297 

Burrill  v.  Augusta  305 

v.  Boston  327 

v.  West  82 

Burritt  v.  Com'rs  218 

v.  New  Haven  272 

Burroughs  v.  Eastman  425 

Burrows,  In  re  690 

v.  Delta  Trans.  Co.  853 

Burson  v.  Huntington  685 

Burt  v.  Advertiser  N.  Co.  644,  645 

v.  Brigham  761 

v.  Merchants'  Ins.  Co.  755 

v.  Williams  138,  414 

Burton  v.  Burton  605 

v.  Chattanooga  304 

Burtt  v.  Pyle  454 

Buser  v.  Shepard  407,  514 

Bush  v.  Bd.  Suprs.  of  Orange  Co.  333, 697 

v.  Indianapolis  216 

v.  Kentucky  19 


Bush  v.  Seabury 

v.  Shipman 
Bushel's  Case 
Bushnell  v.  Beloit 
Bushnell's  Case 
Buskett,  Re 
Busk  irk  v.  Strickland 


284,  887 

389,  391 

461 

167,  325 
496 
442 
784 


Butcher's  Slaughtering  &  Melting 

Ass'n  v.  Commonwealth  827 

Butcher's  Union  Co.  v.  Crescent  City 

Co.  399, 402 

Butler,  Re  436 

v.  Board  of  Regents  895 

v.  Chambers  882 

r.  Dunham  325 

v.  Farnsworth  37 

v.  Gage  30 

v.  Gorely  416 

v.  Palmer  406,  413,  543 

v.  Pennsylvania  388,  389 

v.  Porter  750 

v.  Pultney  331 

v.  Rockwell  387 

v.  Shiver  252 

».  State  47,  161,  451 

v.  Supervisors  of  Saginaw       137,  712 
v.  Toledo  530 

Butler's  Appeal  237,  742 

Butte,  A.  &  P.  R.  Co.  v.  Montana  U. 

R.  Co.  758,  765,  767,  777 

Butte  &  B.  Consol.  Min.  Co.  v.  Mont. 

•re.  P.  Co.  610 

Butterworth  v.  Henrietta  Tex.  Civ. 

App.  301 

Buttrick  v.  Lowell  305 

Butts  v.  Swartwood  677 

Buys  v.  Gillespie  607 

Byam  v.  Collins  611 

Byers  v.  Commonwealth  690 

v.  McAuley  27,  32 

Byler  v.  Asher  906,  927 

Byram  v.  Marion  Co.  Com'ra  740 

Byrd,  Ex  parte  285,  888 

Byrne  v.  Missouri  36 


C. 


Cabanne  v.  Graf  682 

Cabell  v.  Cabell  156 

Cadwallader  v.  Harris  95 

Cady  v.  Walker  478 

Cage  v.  Trager  815 

Cagwin  v.  Hancock  324 

Gaboon  v.  Commonwealth  120 

Cain  v.  Commissioners  174,  717 

v.  Syracuse  302 

Cairo  v.  Bross  283 

v.  Zane  319,  321 
Cairo,  &c.  R.  R.  Co.  v.  Sparta  319,  340 

v.  People  841 

v.  Trout  120 

Calaveras  Co.  v.  Brockway  937,  941 

Calcote  v.  Stanton  30 
Calder  v.  Bull  11,  131,  237,  373 

v.  Kurby  400 


TABLE    OF   CASES. 


XXX111 


Caldwell  v.  Alton 

v.  Barrett 

v.  Gale 

v.  Justices  of  Burke 

v.  Lincoln 

v.  Texas 

Caldwell  Co.  v.  Harbert 
Caledonian    Ry.    C 

Trustees 
Calhoun  v.  Fletcher 

v.  Little 

v,  McLendon 
California  v.  Centr.  I 
Cal.  Tel.  Co.  v.  Alta  Tel.  Co. 
Calking  v.  Baldwin 
Calkins  v.  Cheney 

v.  State 

v.  Sumner 
Call  v.  Chadbourne 

v.  Hagger 

v.  Wilkesboro 
Callahan  v.  St.  Lou 
Callam  v.  Saginaw 
Callan  v.  Wilson 
Callen  v.  Columbus 

v.  Columbus  M, 
Callendar  v.  Marsh 
Cailendar's  Case 
Callison  v.  Hedrick 
Calvin  v.  Reed 
Calwell  v.  Boone 
Cambridge  v.  Lexington 
Camden  v.  Camdei 
Camden   &  Ambo 

Briggs 

Camden  &  S.  Ry.  ( 
Cameron  v.  Chicag 

v.  Chicago,  M 

Co.  (42  Minn.) 

v.  Chicago,  M.  &  S 
Co.  (60  Minn.) 

v.  Chicago,  M.  &  f 
Co.  (63  Minn. 

v.  Kenyon-Connell 

v.  Parker 

v.  P.  &  L.  E.  Ry.  Co. 

v.  Supervisors 
Camp  v.  State 
Campau  v.  Detroit 

v.  Langley 
Campbell,  Ex  parte 

v.  Bannister 

v.  Board,  &c. 

v.  Campbell 

v.  Chicago,  M.  < 

v.  Dwiggins 

v.  Evans 

r.  Fields 

v.  Holt 

r.  Indianapolis 

v.  Metr.  St.  Ry.  Co. 

v.  Morris 

v.  Quinlin 

v.  Spottiswoode 

v.  State 

v.  Union  Bank 


Page 

Page 

285 

Campbell's  Case                       56,  125,  217 

174 

Canal  Co.  v.  R.  R.  Co.                            149 

86 

Canal  Trustees  v.  Chicago                     717 

ce                        167 

Cancemi  v.  People                          458,  677 

709 

Cannon,  In  re                                             41 

14,  30,  457 

v.  Brame                                             80 

rt                 336,  522 

v.  Hemphill                                      209 

v.    Walker's 

v.  Mathes                          116,  116,  209 

811,812 

v.  New  Orleans                                691 

604 

Canton  v.  Nist                                         279 

289 

Cantril  v.  Sainer                                     213 

136 

Cantwell  v.  Owens                                    89 

R.  R.  Co.  683,  706 

Cape  Girardeau  v.  Honch                       777 

sL  Co.                 398 

v.  Riley                                           118 

814,  816 

Cape  Girardeau  Co.  Ct.  v.  Hill              217 

660,  661 

Cape  Girardeau,  &c.  Road  v.  Dennis     779 

449 

Cape  May  v.  Cape  M.  Del.  Bay  &  S. 

629 

P.  Ry.  Co.                                          297 

166,  167 

Capen  v.  Foster                       906,  908,  927 

410,  521,  523,  524 

Caperton  v.  Martin                                 622 

775 

Capital  City  Dairy  Co.  v.  Ohio               46 

&..  B.  T.  Co.       570 

Capital  Nat'l  Bk.  v.  First  Nat.  Bk.          31 

338 

Capital  Traction  Co.  v.  Hof            47,  458 

691 

Caplis,  Ex  parte                                       440 

E.  L.  Co.           804 

Cardigan  v.  Page                                     924 

S.  Ry.  Co.         804 

Card  well  v.  American  Bridge  Com- 

296, 783 

pany                                       65,  864,  866 

613 

Carey  v.  Chicago,  &c.  Ry.  Co.               841 

814,  815 

v.  Giles                              149,  237,  253 

679 

Cargill  v.  Power                              250,  413 

301,  305 

Cargill  Co.  v.  Minn.                                887 

a                         269 

Carleton  v.  Bickford                                 42 

lage  Corp.         695 

v.  Goodwin's  Ex'r                            138 

„.   R.    Co.   v. 

v.  Rugg                                            590 

842,  874 

v.  Whitcher                                      198 

.  Stetson           424 

Carlisle  v.  United  States                        160 

c.  Rv.  Co.         823 

Carlslake  v.  Mapledoram                       606 

St.  Paul  Ry. 

Carlson  v.  St.  Louis  Riv.  D.  &  I.  Co.    782 

)                         827 

Carlton  v.  People                                    898 

5t.  Paul  Ry. 

Carman  v.  Steubenville  &  Indiana  R. 

.)                        556 

R.  Co.                                                   786 

3t.  Paul  Ry. 

Carmody  v.  State                                   439 

)                         671 

Carne  v.  Litchfield                                  448 

Comm'l  Co.     279 

Carothers  v.  Hurly                                  525 

389 

Carpenter  v.  Bailey                                644 

to.                       828 

v.  Dane  County                               477 

761 

v.  Grand  Trunk  Ry.  Co.                   62 

689 

v.  Jennings                                       825 

249,  257 

v.  Landaff                         823,  824,  825 

620 

v.  Montgomery                        224,  258 

849 

v.  Oswego  &  Syracuse  R.  R.  Co.   791 

612 

v.  Pennsylvania                       374,  638 

215 

v.  People                             93,  182,  464 

605,  6011 

i'.  Snelling                                        685 

.  PaulRy.  Co.  876 

v.  Strange                                           44 

722 

v.  Tan-ant                                         606 

520,  582 

Carr,  In  re                                               177 

63 

v.  Brown                                         670 

20,  522 

v.  Coke                                            195 

184 

v.  Georgia  R.  R.  Co.                      817 

795,  811,  828 

v.  Nichols                                          505 

37,  674,  693 

v.  Northern  Liberties     301,  302,  303, 

85 

362 

656 

v.  State  (106  Ala.)                           408 

46,  470 

v.  State  (127  Ind.)                             24 

149,  237,  246 

v.  St.  Louis                                     279 

c 

XXXIV 


TABLE   OF  CASES. 


Page 

Carrington  v.  St.  Louis  305 

Carroll  v.  Missouri  P.  Ry.  Co. 

r.  Olmsted's  Lessee  145 

v.  State  499 

v.  St.  Louis  302,311 

v.  Wis.  Centr.  R.  R.  Co.  784 

Carroll  Co.  v.  Smith  34 

Carrollton  v.  Bazzette  290,  690,  888 

Carson  v.  Blazer  752 

v.  Brockton  Sewer  Com'rs    713,  718, 

722,  730 

v.  Carson  370,  403 

».  Coleman  813 

v.  McPhetridge  895,  932 

Carter  v.  Balfour  62 

».  Commonwealth  456 

v.  Dow  284,  881 

v.  Dubuque  311 

v.  Rice  74 

v.  State  434 

r.  Walker  587 

Carter  Co.  v.  Siuton  206,  320 

Carter's  Adm'r  v.  Carter  252 

Cartersville  v.  Lanham  286,  860 

Carthage  v.  Frederick  298 

v.  National  Bank  284 

Carton  v.  Illinois  Cent.  R.  R.  Co.   840, 874 

Caruthers  v.  Russell  924 

Cary  v.  Western  U.  Tel.  Co.  198 

Cary  Library  v.  Bliss  807 

Casborus  r.  People  470 

Case  v.  Dean  623,  527,  748 

r.  Dunmore  252,  415 

t».  New  Orleans,  &c.  R.  R.  80 

v.  Reeve  82 

v.  Rorabacker  192 

v.  State  898 

v.  Thompson  814 

v.  Wildridge  89 

Cash,  Appellant  148 

v.  Whitworth  769 

Cass  v.  Dillon  167,  217,  333 

Cass  County  ».  Chicago  B.  &  Q.  Ry. 

Co.  706 

v.  Johnson  893 

v.  Wilbarger  County  322 

Cass  Farm  Co.  v.  Detroit  714,  731 

Cassard  v.  Tracy  616 

Casselman  v.  Winship  606 

Cassidy  v.  Old  Colony  826 

Castellaw  t>.  Guilmartin  80 

Caster  v.  Texas  19 

Castillo  v.  McConnico  750 

Castleberry  v.  Kelly  605,  607 

Castro  v.  De  Uriarte  105 

Caswell,  Re  848 

Cate  v.  Martin  219 

Cater  v.  N.  W.  Tel.  Exch.  Co.  804 

Cateril  v.  U.  Pac.  R.  R.  Co.  527 

Cates  v.  Kellogg  644 

v.  Wadlington  861 

Cathcart  v.  Robinson  52 

Catlin  v.  Hull  694 

r.  Smith  58 

Cattell  r.  Lowry  920 

Caughran  v.  Oilman  42 


Caulfield  v.  Bullock  927 
Caw  ley  v.  People 

Cayuga  Bridge  Co.  v.  Magee  666 

Cearfoss  v.  State  91 
Cedar  Rapids  Water  Co.  v.  Cedar 

Rapids  872 
Center  Tp.  v.  Com'rs  Marion  Co.  80 
Central,  &c.  R.  R.  Co.  v.  People  212 
Central  B.  U.  P.  R.  R.  Co.  v.  An- 
drews 797 
Central  Branch  U.  P.  R.  R.  Co.  v. 

Atchison,  &c.  R.  R.  Co.  754,  817 

Central  Bridge  Corp.  v.  Lowell   392,  757, 

758 
Central  City  Horse  Railway  Co.  v. 

Fort  Clark  Horse  Railway  Co.  758 

Central  Georgia  Ry.  Co.  v.  State  201 

Central  la.  Ry.  Co.  v.  Board  706 

Central  Land  Co.  v.  Lardley  36 
Central  L.   &  T.   Co.   v.   Campbell 

Commn.  Co.  21 

Central  Nat'l  Bk.  v.  Stevens  25 

Central  Ohio  R.  R.  Co.  v.  Holler  825 

Central  Pac.  Ry.  Co.  v.  California  680 

Central  Park  Extension,  Matter  of  770 
Central  Plank  Road  Co.  v.  Hanna- 

man  209 

Central  R.  &  B.  Co.  v.  Wright  741 
Central  R.  R.  Co.  v.  Board  of  Asses- 
sors                                   689,  706 
v.  Hetfield                                 791,  806 

v.  Rockafellow  677 

v.  State  396 
Central  Transp.  Co.  v.  Pullman  P. 

C.  Co.  565 

Centralia  v.  Scott  363 

v.  Wright  828 

Centre  St.,  In  re  729 

Chadbourne  v.  New  Castle  346 

Cliadwick  v.  Moore  414 

Chafee  r.  Quidnick  Co.  453 

Cliaffe  v.  Aaron  6lfi 

Cliaffee  Co.  Com'rs  v.  Potter  322 
Chagrin  Falls,  &c.  Plank  Road  Co. 

v.  Cane  790 

Chalker  v.  Ives  516 

Chamberlain  v.  Dover  275 

r.  Elizabethport,  &c.  Co.  789 

v.  Lyell  251 

v.  Sibley  162 

Chamberlain  of  London  v.  Compton  281, 

287 

Chambers  v.  Church  868 

v.  Fisk  104 

v.  Satterlee  7.30 

v.  State  (127  Ind.)  895 

v.  State  (25  Tex.)  215 

Champaign  v.  Pattison  363 

Champaign  Co.  v.  Church  269 

Champer  v.  Greencastle  290 

Champion  v.  Ames  687 

Chance  v.  Marion  Co.  91  93 

Chandler  v.  Calumet  &  H.  Min.  Co.  '  22 

^   '--Nash  129,58!) 

Chaney  v.  Bryan  579 

Chapin  v.  Paper  Works  666 


XXXV 


Page 

Chapman,  Re  467 

v.  Albany  &  Schnectady  R.  E. 

Co.  796 

v.  Calder  619 

v.  Gates  814,  815 

v.  Macon  363 

v.  Morgan  675 

v.  Smith  80 

Chappee  v.  Thomas  681 

Chappel  v.  United  States  768 

Chappell  Chem.  &  F.  Co.  v.  Sulphur 

M.  Co.  15,  28 

Chariton  v.  Barber  292 

Charles    River    Bridge  v.    Warren 

Bridge  374,  649,  665,  817 

Charleston  v.  Benjamin  675 

Charlestown  Branch  R.  R.   Co.   v. 

Middlesex  814,  815 

Chariton  v.  Alleghany  City  783 

v.  Watton  638,  640 

Charlotte  C.  &  A.  Ry.  Co.  v.  Gibbes     844 


Charpentier  v.  Bresnahan 
Chase  v.  Blodgett 

v.  Chase 

v.  Cheney 

v.  Fish 

v.  Merrimac  Bank 

v.  Miller 

v.  Oshkosh 

v.  People 

t?.  Stephenson 
Chase's  Case 

Chattaroi  Ry.  Co.  v.  Kinner 
Chauvin  v.  Valiton 
Chavannes  v.  Priestly 
Cheadle  v.  State 
Cheaney  v.  Hooser 
Cheever  v.  Shedd 

v.  Wilson 


262 
43 
578 
661 
193 
351 
903 
297 
437 
657 
654 
406 

712,  583 
672 
643 

166,  331,  699,  702 
296 
43 


Chenango  Bridge  Co.  v.  Bingham- 

ton  Bridge  Co.  565,  667 

Cheney  v.  Atlantic  City  Water  Works  763 

v.  Jones  253 

Chenowith  v.  Commonwealth  474 

Cherokee  v.  Fox  285 

Cherokee  Nation  v.  Georgia  3,  96 

r.S.  K.  Ry.  Co.  756,814 

Cherokee  Tobacco,  The  25 

Chesapeake,  &c.  Co.  v.  Hoard  217 

Chesapeake  &   Ohio  Canal  Co.  v. 

Baltimore  &  Ohio  R.  R.  Co.  767 

Chesapeake  &  O.  Ry.  Co.  t>.  Kentucky  869 

Chesapeake,  &c.  Ry.  Co.  v.  Miller          91 

Chestnut  v.  Shane's  Lessee  538 

Chestnut  St.,  In  re  787 

Chestnutwood  v.  Hood  893 

Chester  v.  Black  308 

Chetwynd  v.  Chetwynd  497 

Chevrier  v.  Robert  622 

Chicago  v.  Baptist  Union  741 

v.  Bar  tree  287 

v.  Blair  714 

v.  Brophy  362 

v.  Collins  289,  297 

v.  Hesing  363 

v.  Langlass  363 


Chicago  v.  Lamed  717,  722 

v.  Manhattan  Cement  Co.       301,  346 
v.  McCarthy  358 

v.  McCoy  27-2 

.    v.  McGinn  286 

v.  McGiven  363 

v.  Netcher  289,  658,  837 

v.  O'Brennan  362 

v.  O'Brien  286,  730 

v.  People  929 

17,  Robbins  33,  356 

v.  Rumpff  562 

v.  Stratton  293 

v.  Taylor  810 

v.  Wheeler  819 

Chicago  &  E.  I.  R.  R.  Co.  v.  Wiltse      766 

Chicago  &  G.  T.  Ry.  Co.  v.  Chappell   705 
v.  Hough  781,  839 

v.  Wellman  267,  873 

Chicago  G.  W.  Ry.  Co.  v.  First  M.  E. 
Church  297,  763 

Chicago  &  N.  W.  Ry.  Co.  v.  Chicago, 

&c.  R.  R.  Co.  806,  807 

v.  Gait  763 

v,  Langdale  Co.  168 

v.  Milwaukee  R.  &  K.  El.  Ry.        803 
v.  Town  of  Cicero  762 

Chicago,  &c.  R.  R.  Co.  v.  Ackley          875 
v.  Adler  617 

v.  Barrie  841 

v.  Boone  Co.  711 

v.  Haggerty  840 

v.  Iowa  18,  840,  874 

v.  Joliet  282,  789,  798,  883 

v.  Lake  398,  759,  775,  778 

v.  Mallory  907,  930 

v.  Oconto  349 

v.  People  299,  840,  875 

v.  Smith  237,  760 

v.  Starkweather  758 

v.  Stein  787 

v.  Triplett  843 

Chicago,  B.  &  K.  C.  Ry.  Co.  v.  Guffey    396 

Chicago,  B.  &  N.  P.  R.  Co.  v.  Bow- 
man 823,  824 

Chicago,  B.  &  N.  Ry.  Co.  v.  Porter      767 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago      828 
v.  Jones  873 

v.  Nebraska  843 

v.  West  Chicago  S.  Ry.  Co.  803 

v.  Wilson  780 

r.  Wolf  222 

Chicago,  K.  &  N.  Ry.  Co.  v.  Hazels      811 

Chicago,  K.  &  W.  Ry.  Co.  v.  Parsons  826 
17.  Pontius  16 

Chicago  Life  Ins.  Co.  v.  Auditor          406 
v.  Needles  30,  392 

Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Becker  876 
v.  Milwaukee  715 

17.  Minnesota  873,  874 

v.  Solan  852 

v.  Tompkins  872,  874 

Chicago  Mun.,  &c.  Co.  v.  Lake  391 

Chicago  Packing,  &c.  Co.  v.  Chicago  280, 

293,  400 

Chicago  P.  &  St.  L.  Ry.  Co.  v.  Eaton  827 


XXXVI 


TABLE   OF  CASES. 


Page 

Chicago,  R.  I.  &c.  Co.  v.  McGlinn         177 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ottumwa  715 

v.  Sturm  20,  43,  695 

v.  Zernecke  844 

Chicago,  S.  F.  &  C.  Ry.  Co.  v.  Ward    822 

Chicago,  &c.   Terminal   Ry.  Co.  v. 

Whiting,  H.  &  E.  C.  St.  Ry.  Co.       803 

Chicago  U.  T.  Co.  v.  Chicago  387 

Chicago,  W.  I.  R.  R.  Co.  v.  Ayres        811 

v.  Englewood,  &c.  Ry.  Co.  785 

v.  111.  Centr.,  &c.  Co.  807 

Chicago  W.  &  V.  Coal  Co.  v.  People    888 

Chicot  County  v.  Sherwood  27 

r.  Davis  200 

Chidsey  r.  Canton  303,  355 

Child  «?.  Bemus  290 

Child  r.  Boston  303 

Child's  Case  494 

Childress  v.  Mayor  286 

Childs  v.  New  Haven,  &c.  R.  R.  Co.     824 

v.  Shower  257,  553 

Chiles  v.  Drake  209 

v.  Monroe  209 

Chilton  v.  St.  Louis  &  I.  M.  Ry.  Co.     869 

Chilvers  v.  People  283,  710,  867 

Chincleclamouche  L.   &  B.   Co.  v. 

Commonwealth  392 

Chinese  Exclusion  Case  25 

Chiniquy  v.  People  324 

Chisholm  v.  Georgia  3,  8,  52 

t>.  Montgomery  272 

Chittenden  v.  Wurster  158,  159 

Choper  v.  Eureka  35H 

Chouteau  v.  Gibson  83 

Chow  Goo  Pooi,  In  re  493 

Chrisman  v.  Bruce  927,  928 

Christ  Church  v.  Philadelphia,     396,  402, 

547 

Christal  v.  Craig  605 

Christensen,  Matter  of  580 

Christian,  In  re  854 

v.  Commonwealth  473 

Christian  Union  v.  Yount  180 

Christie  v.  Bayonne  215 

Christmas  ».  Russell  43 

Christy  v.  Commissioners  389 

Chumasero  v.  Potts  162 

Chunn  v.  Gray  42 

Church  i'.  Chapin  80 

v.  Kelsey  47 

t7.  Rowell  903 

v.  South  Kingston  573,  589 

Church  of  Jesus  Christ  of  L.  D.  S.  v. 

United  States  54 

Chute  v.  Winegnr  321 

Cicero  Lumber  Co.  v.  Cicero  289,  297,  783 

Cincinnati  v.  Batsche  731 

Cincinnati  i>.  Bryson  283 

v.  Buckingham  285 

v.  Rice  676 

Cincinnati,  &c.  R.  R.  Co.  v.  Carthage  391 

v.  Cook  840 

17.  Commissioners  of  Clinton  Co.    132 

Cincinnati  College  v.  State  741 

Cincinnati  Gaslight  Co.  v.  Avondale    299 

».  State  '  284,  710,  717 


Page 

Cincinnati  Gazette  Co.  v.  Timber-lake  637, 

638,  640 

Cincinnati  Health  Ass'n  v.  Rosenthal,   38 
Cincinnati,  H.  &  D.  Ry.  Co.  v.  Bowl- 
ing Green  287 
Cincinnati,  H.  &  I.  R.  R.  Co.  v.  Clifford  392 
Cincinnati,  L.  &  N.  Ry.  Co.  v.  Cincin- 
nati 731 
Cincinnati,  N.  O.  &  T.  Ry.  Co.  r. 

Commonwealth  706 

Cincinnati,  W.  &  M.  R.  Co.  v.  Ander- 
son 758,  806 
Circleville  v.  Neuding  362 
Cisco  v.  Roberts  856,  858 
r.  School  Board  869 
Citizens'  El.  Light  &P.  Co.  v.  Sands  508 
Citizens'  Gas,  &c.  Co.  v.  Elwood  299 
Citizens'  Ins.  Co.  v.  Parsons  11 
Citizens  of  Cincinnati,  In  re  130 
Citizens  &  Taxpayers  D.  S.  P.  v. 

Williams  893 

Citizens'  Savings  Bk.  v.  Owensboro    396, 

547 
Citizens'  Savings  &  L.  Assn.  v.  Perry 

Co.  322 

Citizens'  St.  Ry.  Co.  v.  Detroit  297 

Citizens'  Water  Co.  v.  Bridgeport, 

&c.  Co.  402 

City  Council  v.  Benjamin  859 

v.  Pepper  285 

City  National  Bank  v.  Mahan  36 

City  Ry.  Co.  v.  Citizens'  St.  Ry.  Co.    392 
Civil  Rights  Cases  18,  869 

Claflin  v.  Hopkinton  310,  327 

Claiborne  Co.  v.  Brooks  320 

Clapp  v.  Cedar  County  323,  325 

v.  Ely  139 

Clair  v.  State  436,  455 

Clare  v.  People  206 

Clarion  Turnpike  &  B.  Co.  v.  Clarion 

Co.  827 

Clark,  Ex  parte  434,  492,  901 

Re,  (65  Conn.)  425,  571 

Re,  (195  Pa.)  65 

Matter  of  39,  40 

r.  Baltimore  529 

v.  Barnard  24 

v.  Bever  32 

v.  Binney  637 

v.  Board  of  Directors  557 

v.  Bridge  Proprietors  269 

v.  Buchanan  935 

v.  Clark     154,  156,  403,  517,  530,  578 
17.  Commonwealth  898 

v.  County  Court  588 

«.  County  Examiners    918,  919,  920, 

935 

v.  Crane  m 

v.  Davenport  217,  745 

t7.  Des  Moines   270, 274,  311, 320,' 323, 

324 

T7.  Dram  Com'r  818 

v.  Ellis  246 

i7.  Holmes  535,  5H6 

t7.  Janes ville  167,  224,  225,  325 

v.  Jeffersonville,  &c.  R.  R.  Co.        85 


TABLE  OF  CASES. 


XXXVll 


Page 

Clark  v.  Kansas  City  15,  231,  232 

v.  Lamb  692 

v.  Le  Cren  281,  287 

v.  Martin  406,  414 

v.  McCreary  615 

v.  McKenzie  936 

v.  Miller  259,  818 

v.  Mobile  165 

v.  Mollyneaux  647 

v.  People  101,  253,  255,  453 

v.  Kobinson  903,  906,  917,  932 

v.  Russell  841 

v.  Sammons  80 

v.  School  Directors  262,  272 

v.  South  Bend  287 

v.  State  ( 12  O. )  376,  378,  437 

v.  State  (142  N.Y.)  877 

v.  Washington  295,  356,  360 

v.  White  764 
Clark's  Adm'r   v.   Hannibal   &  St 

Joseph  R.  R.  Co.  843 

Clark's  Case  423 

Clarke  r.  Clarke  32,  43 

v.  Irwin  109 

v.  Jack  167 

v.  Rochester  256 

v.  Rogers  166 

v.  Smith  33 

v.  Van  Surlay  144 

Clarksburg  El.  L.  Co.  v.  Clarksburg    299 

Clason  v.  Milwaukee  282 

Clay,  Ex  parte  495 

v.  Grand  Rapids  719 

v.  Smith  417 

Clay  brook  v.  Owensboro  557 

Clay  Co.  v.  Chickasaw  Co.  217,  268 

Clayton,  Re  674 

v.  Harris  99 

v.  Henderson  303 

Cleburne  v.  Gulf,  &c.  Ry.  Co.                271 

Clee  v.  Saunders  700 

Clegg  v.  Laffer  606 

v.  School  District  348 

Cleghorn  v.  Greeson  252 

v.  Postlewait  712 

Cleland  v.  Anderson  573 

w.  Porter  929 

Clem  v.  State  463 

Clemens  v.  Conrad  685 

Clement  v.  Mattison  484 

Cleveland,  In  re  129,  130,  937 

v.  Augusta  299 

r.  Clement  Bros.  C.  Co.                  891 

v.  Creviston  83 

v.  Heisley  711 

v.  Rogers  585 

r.  Tripp  722 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  ». 

Backus  691 

v.  Illinois  851 

Cleveland  C.  &  C.  Ry.  Co.  v,  Closser    875 

Clifton  v.  Cook  929 

Cline  v.  State  451 

Clinton  v.  Cedar  Rapids,  &c.  R.  R.  Co.  797 

v.  Draper  208 

v.  Englebrect  64 


Clinton  v.  Phillips  289 

v.  St.  Louis  &  I.  M.  Ry.  Co.  869 

Clippinger  v.  Hepbaugh  197 

Clodfelter  v.  State  24 

Cloud  v.  Pierce  City  686 

Clough  v.  Unity  818 

Cloughessey  v.  Waterbury  363 

Cloyd  v.  Trotter  683 

Coal  Run  Co.  v.  Finlen  706 

Coast  Line  Ry.  Co.  v.  Savannah  387,  391 

Coates  v.  Campbell  700 

v.  Muse  34 

Coatesville  Gas  Co.  v.  Chester  Co.        120 

Coats  v.  Hill  518 

v.  New  York  176,  286,  295,  881 

Cobb  v.  Bord  184 

Cobbett  v.  Hudson  494 

Cobbett's  Case  494 

Coburn  v.  Ellenwood  278 

i7.  Harvey  52 

Cochran  v.  Darcy  412 

v.  Jones  895 

».  Miller  409 

v.  Van  Surlay   128,  144,  149,  237,  241 

Coclirane  v.  Frostburg  302 

Cochran's  Case  484 

Cock  v.  Weatherby  606 

Cockagne  v.  Hodgkisson  611 

Cocke  t7.  Halsey  898 

Cockrum  v.  State  499 

Coddington  v.  Bispham  413 

Coe  v.  Errol  690 

v.  Schultz  853,  880 

Coffee  v.  State  447 

Coffey  r.  Edmonds  911 

v.  United  States  80 

Coffin  v.  Coffin  192,  636 

v.  Rich  407 

v.  State  388 

v.  Thompson  901 

v.  Tracy  575 

Coffman  v.  Bank  of  Kentucky  414 

v.  Keightley  331 

Cofrode  v.  Gartner  38 

Coggswell  v.  N.  Y.,  &c.  R.  R.  Co.          785 

Coglan  v.  Beard  941 

Cohen,  Ex  parte  442 

v.  Barrett  202 

v.  Cleveland  296 

17.  .Hoff  139 

17.  Wright  372 

Cohens  v.  Virginia  26,  29,  103 

Colin,  Ex  parte  707 

v.  Beal  897 

v.  Hoffman  409 

v.  Kingsley  195 

Coit  v.  Sutton  690 

Colburn  v.  Colburn  579 

v.  Woodworth  81 

Colby  r.  Jackson  829 

Coldwater  v.  Tucker  312 

Cole  v.  Bedford  333 

y.  Black  River  Falls  897 

v.  Cunningham  41 

17.  Eastman  752 

t7.  La  Grange  317,  323,  700 


XXXV111 


TABLE   OF   CASES. 


Cole  v.  Medina 

v.  Muscatine 

r.  Tucker 

v.  Wilson 
Coleman,  Matter  of 

v.  Bellandi 

v.  Carr 

v.  Roberts 

v.  Yesler 

Coles  v.  Madison  Co. 
Collamer  v.  Page 
Collector  v.  Day 
Colley  r.  Merrill 
Collier  v.  Frierson 
Collins  v.  Collins 

r.  Henderson 

v.  Hills 

r.  Howard 

v.  Lean 

v.  New  Hampshire 

v.  Philadelphia 
Colman  v.  Holmes 
Coloma  v.  Eaves 
Colony  v.  Dublin 


Page 

301,  367 
296 
900 
658 
478 
408 
146 
455 
256 

266,  391,  617 
576 

684,  685 
62 
60 

412,  576 

104,  262 

846 

862 

428,  434 
848,  882 

302,  305 
522 

274,  321 
529 


Colorado  E.  Ry.  Co.  v.  Union  Pac. 

Ry.  Co.  767,  778,  806 

Colpetzer  v.  Trinity  Church  508 

Colt  r.  Eves  46,  114 

Coltin  v.  Ellis  162 

Colton  v.  Rossi  815 

Columbia  v.  Guest  745 

Columbia  Co.  17.  Davidson  324 

v.  King  324 

Columbus  v.  Columbus  268 

Columbus  &  W.  Ry.  Co.  v.  Witherow  786, 

802,  811 

Columbus  G.  L.  &c.  Co.  v.  Columbus    298 

Columbus  Ins.  Co.  v.  Curtenius  866 

v.  Peoria  Bridge  Co.  866 

Columbus  S.  Ry.  Co.  v.  Wright  692 

Col  well  v.  Chamberlin  216 

Comer  v.  Fulsom  331 

Commercial  Bank  v.  Tola  317,  700 

Commercial  Bank  of  Natchez  v.  State  392 

Commercial  Nat'l.  Bk.  v.  Chambers        16 

Commissioners,  &c.  v.  Aspinwall    167,  321 

v.  Bearss  331 

v.  Beck  with  760 

v.  Bowie  814 

v.  Cox  324 

v.  Duckett  304,  366,  361 

v.  Gas  Co.  281 

v.  Holyoke  Water  Power  Co.  666,  836 

».  Little  694 

v.  Martin  355 

i'.  Mighels  348 

v.  Morrison  690 

v.  Owen  707 

v.  Pidge  866 

v  Seabrook  690 

v.  Wallace  167 

r.  Withers  861 

Commissioners    Allegheny    Co.    v. 

Union  Min.  Co.  749 

Commissioners  Brown  Co.  v.  Stan- 
dard Oil  Co.  690 


Page 

Commissioners  Calhoun  Co.  v.  Wood- 
stock Iron  Co.  396 
Commissioners    Dickinson     Co.    v. 

Hogan  825 

Commissioners  Harford  Co.  v.  Hamil- 
ton 485 
Commissioners     of    Kensington    v. 

Philadelphia  346 

Commissioners  Ottawa  Co.  v.  Nelson  711 
Commissioners  of  Revenue  v.  State  338 
Commissioners  Sinking  Fund  v.  Green, 

&c.  Nav.  Co.  865 

Commissioners    of  Stanley   Co.    v. 

Snuggs  195 

Commissioners  State  Park  v.  Henry  814 
Commonwealth  v.  Alderman  467 

v.  Alger  830,  878 

v.  Amer.  Bell  Tel.  Co.  694 

v.  Andrews  177 

r.  Anthes  464 

v.  Archer  438 

v.  Austin  481 

v.  Aves  497 

v.  Bacon  388,  888 

v.  Bailey  388 

v.  Bakeman  468 

v.  Bean  286 

v.  Hearse  886 

v.  Bennett  174 

v.  Billings  466 

v.  Binns  895 

v.  Bird  396,  547 

v.  Blanding  603,  639 

v.  Blood  41 

v.  Bonner  448,  449 

v.  Boston,  &c.  Ry.  Co.  844 

v.  Bowden  469 

v.  Breed  772,  865 

v.  Brennan  400 

v.  Brickett  487 

r.  Brooks  286 

v.  Brown  718 

v.  Byrne  603 

».  Certain  Liquors  430 

v.  Chambers  644 

v.  Chapin  752,  861 

v.  Charlestown  862 

v.  Chase-Davidson  Co.  879 

v.  Clap  608,  625,  628 

»•  Clapp  246,  846,  849 

»•  Clark  184,  247,  561 

v.  Clary  177 

v.  Cluley  932 

v.  Colton  859 

v.  Commissioners,  &e.  515 

v.  Cook  467 

v.  County  Commissioners  930 

v.  Coyningham  265 

v.  Crotty  430 

v.  Cullen  392 

v.  Cullins  177 

v,  Cummings  462 

v.  Curtis  444,  445,  446,  450,  800 

v.  Dailey  453 

v.  Dana  437 

v.  Davis  (140  Mass.)  287 


TABLE   OF   CASES. 


XXXIX 


Page 

Page 

Commonwealth  v.  Davis  (162  Mass.)    603 

Commonwealth  v.  Juanita  Coke  Co.   740 

v.  Dean                                             174 

v.  Keary                                    886,  887 

v.  Del.  Div.  Canal  Co.                    706 

v.  Kendall                                         849 

v.  Dorsey                                          382 

v.  Kenneson                                      215 

v.  Downing                                       469 

v.  Kimball                 247,  437,  616,  644 

v.  Drewry                                         207 

v.  King                                              863 

v.  Duane                                   616,  544 

v.  Knapp                           446,  464,  474 

v.  Duffy                                            374 

v.  Kneeland                       671,  672,  673 

v.  Dunster                                        471 

v.  Knowlton                                        52 

v.  Eastern  B.  R.  Co.                        843 

v.  Leach                                              62 

v.  Eddy                                             437 

v.  Leech                                    190,  938 

v.  Edison  El.  Lt.  Co.                       680 

v.  Lehigh  V.  R.  R.  Co.            689,  875 

v.  Emery                                           694 

v.  Linn                                                 (571 

v.  Emminger                            936,  940 

v.  Little                                             694 

v.  Erie  &  W.  Tr.  Co.                        392 

v.  Locke                                            163 

v.  Erie  &  Northeast  R.  R.  Co.       271, 

v.  Lodge                                           62 

279,  789,  791 

v.  Look                                             752 

v.  Erie  R.  R.  Co.                              690 

v.  Lottery  Tickets                          429 

v.  Essex  Co.                                      394 

v.  Louisville,  &c.  R.  R.  Co.             859 

v.  Featherstone                               619 

v.  Mann                                             388 

v.  Fells                                      468,  469 

».  Marshall                        616,  631,  544 

v.  Fenton                                          287 

v-  Marzynski                                    859 

v.  Ferguson                                       708 

v.  Matthews                                      285 

v.  Fisher                                    676,  809 

v.  Maxwell                                237,  246 

v.  Fitzpatrick                                   469 

v.  McClelland                                   906 

t;.  Fowler                                          845 

v.  McCloskey                                   236 

v.  Fredericks                                    174 

v.  McCombs                              897,  928 

v.  Freelove                                       436 

v.  McHale                                 922,  927 

v.  Gage                                              285 

v.  McLane                                         692 

v.  Gallagher                                     449 

».  Me  Williams                 163,  167,  173 

v.  Gamble                                         389 

v.  Meeser                                        940 

v.  Germania  L.  I.  Co.                      707 

v.  Miller                                            849 

v.  Gilbert                                          879 

v.  Mitchell                                        445 

v.  Goddard                                        468 

v.  Moir       183,  233,  240,  244,  258,  265 

v.  Godshalk                                      636 

v.  Moore                           237,  253,  709 

v.  Graves                                        375 

v.  Morey                                           446 

v.  Green                              43,  207,  932 

v.  Morgan                                 448,  450 

v.  Griest                                              60 

v.  Morris                                           628 

v.  Hall                                         40,  382 

v.  Mullen                                          450 

v.  Hamilton  Manuf.  Co.          555,  890 

v.  Murphy  (165  Mass.)                    471 

v.  Harman                                        447 

v.  Murphy  (166  Mass.)                   499 

v.  Harmel                                         690 

v.  Myers                                    437,  690 

v.  Hart                                      468,  497 

v.  Nesbit                                           675 

v.  Hartman                               242,  261 

v.  New  Bedford  Bridge                   411 

v.  Hartnett                                          85 

v.  Newburvport                        269,  338 

v.  Has                                       675,  859 

v.  New  York  L.  E.  &  W.  R.  R. 

v.  Hawes                                             41 

Co.                                             694 

v.  Hawkins                                       467 

v.  Nichols                                  448,  644 

v.  Hillside  Coal  Co.                          6C8 

v.  Odell                                             628 

v.  Hilton                                             37 

v.  Olds                                               469 

v.  Hinds                                            430 

v.  Painter                                  166,  167 

>j.  Hippie                                           129 

v.  Patch                     279,  282,  286,  854 

v.  Hitchings                        46,  246,  247 

v.  Patton                                           183 

v.  Holbrook                                      851 

».  Penn.  Canal  Co.     758,  838,  839,  840 

».  Holder                                           177 

v.  Perry                                     672,  877 

v.  Holt                                               444 

v.  Petty                                               13 

v.  Housatonic  R.  R.                        875 

v.  Philadelphia  Co.                          680 

v.  Howe                                            849 

v.  Pittsburg                                      341 

v.  Hoxey                                           922 

v.  Pittsburg,  &c.  R.  R.  Co.      565,  757 

v.  Hubley                                        287 

v.  Plaisted         287,  334,  335,  665,  894 

v.  Hunt                                               52 

v.  Pomeroy                                       246 

v.  Hyneman                                      859 

v.  Porter                                   464,  481 

v.  Intoxicating  Liquors    430,  845,  850 

v.  Potts                                     247,  249 

v.  Jeandelle                                       859 

v.  Pottsville                                      740 

v.  Jones              133,  144,  403,  471,  937 

v.  Preece                                           446 

v.  Judges  of  Quarter  Sessions  166,  167 

v.  Putnam                                         680 

TABLE  OF  CASES. 


Page 

Commonwealth  v.  Randall  486 

v.  Reed  694 

v.  Reeder  931 

v.  Richards  451 

v.  Richter  783 

v.  Roberts  880 

v.  Roby  470 

r.  Rock  464 

v.  Roxbury  263 

v.  Roy  284 

v.  Ryan  694 

v.  Savings  Bank  748 

v.  Scott  448 

v.  Semmes  438 

v.  Snelling  658 

v.  Snyder  887 

r.  Starr  675 


v.  Stodder 
v.  Stowell 
v.  Sturtivant 
v.  Taylor 
v.  Tewksbury 
v.  Towles 
v.  Tuck 
v.  Tuckerman 
v.  Uprichard 
v.  Van  Tuyl 
».  Vaughn 
v.  Vrooman 
v.  Waite 
v.  Waldman 
v.  Walter 
v.  Ward  well 
v.  Wells 


283,  285,  860,  888 
469 
445 

446,  446,  879 

830 

37 

467,  468 
446 
178 
464 
467 

886,  889 
882 
860 
895 
626 
924 


v.  Westinghouse  Air  Brake  Co.  680 

v.  Westinghouse  El.  &  Mfg.  Co.  680 

v.  White  177 

r.  Whitney  591 

v.  Wilkins  285 

v.  Wilkinson  790 

v.  Williams  99,  525 

v.  Woelper  912 

v.  Wolf  676 

v.  Wood  466 

v.  Worcester  281,  860 

v.  Wright  232 

v.  Zelt  846 

Commonwealth's  Appeal  740 

Commonwealth  Bank  v.  Griffith  31 

Compagnie  F.  v.  New  Orleans  853 

Comstock  v.  Clearfield  827 

v.  Gay  513 

<?onabeer  v.  N.  Y.  C.  &  H.  R.  Ry.  Co.  800 

Concha  v.  Concha  83 

Concord  v.  Boscawen  312 

v.  Portsmouth  Savings  Bank  320 

v.  Robinson  320 

Concord  R.  R.  Co.  v.  Greeley  764 

Condemnation  of  Land,  Re  826 

Condict  v.  Jersey  City  305 

Condon  v.  Galbraith  751 

Cone  v.  Cotton  683 

v.  Hartford  728,  736,  861 

Cone,  Ex  parte,  &  Com.  Co.  v.  Poole  179 

Coney  v.  Owen  553 

Confiscation  Cases  617 


Page 

Congdon  v.  Norwich  363 

Conkey  v.  Hart  406,  409,  410,  415 

Conk  I  in  v.  N.  Y.,  &c.  Ry.  Co.         783,  786 

v.  State  469 

Conlin  v.  San  Francisco  317,  336 

Conneau  v.  Geis  691 

Conn.  Life  Ins.  Co.  v.  Spratley  180 

Conn.  M.  L.  Ins.  Co.  v.  Cross  54 

v.  Cushman  413 

Conn.  Riv.  R.  R.  Co.  v.  Commis- 
sioners 815 


Connell  v.  Connell 

Connelly  v.  State 

Conner,  Ex  parte 

v.  Elliott 

v.  New  York 


538 
458 
209 
37 
205,  388 


Conners  v.  Burlington,  &c.  Ry.  Co.      691 
Connolly  v.  Boston  859 
v.  Union  Sewer  Pipe  Co.  561,  562 
Connor  v.  Green  Pond,  &c.  R.  R.  Co.    208 
Connors  v.  Carp  River  Iron  Co.  217 
v.  People  449 
Conrad  v.  Ithaca  356 
Conservators  of  River  Tone  v.  Ash      278 
Consolidated   Channel   Co.  v.  Rail- 
road Co.  771 
Consolidated  Coal  Co.  v.  Illinois  661 
v.  People  888 
Constitutional  Conv.,  In  re  60 
Constitutional  Provision,  Re  72 
Consumers'  Gas  Trust  Co.  v.  Harless    814 
Contested  Election,  Re  900 
Continental  Imp.  Co.  v.  Phelps  106 
Contra  Costa  R.  R.  v.  Moss  778 
Contzen  v.  United  States  12 
Converse,  Ex  parte  14,22 
Conway  v.  Cable      526,  527,  529,  545,  546 
v.  Taylor's  Ex'r  867 
v.  Waverly  749 
Conwell  v.  Emrie  757 
v.  O'Brien  279 
Cook  v.  Burlington  738 
v.  Cook  579 
v.  Gray  412 
v.  Gregg  407,  520 
v.  Hart  39 
v.  Hill  619,  620 
v.  Macon  305 
v.  Marshall  Co.  661 
v.  Moffat  25,  417 
v.  Pennsylvania               688,  694,  846 
v.  Portland  267 
v.  Slocum  729 
v.  South  Park  Com'rs  816,  817 
v.  State  (26  Ind.  App.)  284 
v.  State  (90  Tenn.)  900 
v.  United  States  375 
v.  Vimont  83 
Cook  Farm  Co.  v.  Detroit  340 
Cookerly  v.  Duncan  531 
Cooley  v.  Board  of  Wardens   688,  856, 858 
v.  Fitzgerald  190 
v.  Freeholders  355 
Coolidge  v.  Guthrie  764 
v.  Williams  566 
Coombs  v.  Rose  619 


TABLE  OF  CASES. 


xli 


Cooney  v.  Hartland 
Coonradt  v.  Myers 
Cooper,  Re 

Ex  parte 

v.  Barber 

v.  Board  of  Works 

v.  Com. 

v.  Cooper 

v.  Greeley 

v.  McJunkin 

v.  Newell 

v.  People 

v.  Stone 

v.  Sunderland 

v.  Telfair 

v.  Williams 
Cooper's  Case 


Page 
305 
578 

454,  770 
881 
645 
681 
467 

579,  580 

607,  645 

486 

40 

455,  628,  646 
645 

585,  586 

131,  237,  253 

759,  764 

613 


Cooper  Mfg.  Co.  v.  Ferguson         105,  180 
Coosa  River  Steamboat  Co.  v.  Bar- 
clay 406,  843 
Copas  v.  Anglo- Amer.  Prov.  Co.          582 
Cope,  Re  739 
Copes  v.  Charleston  167 
Copp  v.  Henniker  590,  591 
Copper  17.  Major  322 
Corbett  v.  Bradley  112 
v.  McDaniel  937 
Corbin  v.  Hill  527 
Corfield  v.  Coryell  37,  574,  693 
Coriell  v.  Ham  406 
Corley  v.  State  445 
Corliss,  In  re  895 
Matter  of  932 
v.  Corliss  113 
v.  E.  W.  Walker  Co.  510 
Cornell  v.  State  294,  473 
Cornet  v.  Winton  25,  813 
Corning  v.  Greene  166 
v.  McCullough  407 
v.  Saginaw  306 
Cornwall  v.  Commonwealth  403 
Corrigan,  et  al.,  v.  Chicago  759 
v.  Gage  288 
Corsicana  v.  White  305 
Corson  v.  Maryland  694 
Corwin  v.  Comptroller  220 
v.  New  York  &  Erie  R.  R.  Co.  841, 842 
Cory  v.  Carter  657 
Cosgrove  v.  Augusta  289 
Costar  v.  Brush  398 
Coster  v.  New  Jersey  R.  R.  Co.  809 
Gotten  v.  Ellis  99 
Cotting  v.  Kansas  City  16,  872 
Cottman  v.  Grace  44 
Cotton  v.  Commissioners  of  Leon        167, 

237,  253 

v.  Phillips  895 

Cotton  Exchange  v.  Ry.  Co.  875 

Cotulla  v.  Kerr  620 

Couch  v.  McKee  522 

Cougot  v.  New  Orleans  888 

Coughlin  v.  People  469 

Coulterville  v.  Gillen  279 
Council  Bluffs  v.  Kansas  City,  &c. 

R.  R.  Co.  875 

Counselman  v.  Hitchcock  442 


County  Commissioners  v.  Jones 
County  Court  v.  Griswold 
County  Treasurer  v.  Dike 
Court  of  Appeals,  In  re 
Courvoisier,  Trial  of 
Cousins  v.  State 


Page 
388 
770 
162 
129 
478 
709 


Coutant  v.  People 
Cover  v.  Baytown 
Covington  v.  Bryant 
v.  Buffett 
v.  East  St.  Louis 
v.  Kentucky 
r.  Souihgate 


101, 104,  263 
327 
356 
130 

217,  279 
268,  391,  396 
646,  703,  704,  720 


Covington  &  C.  B.  Co.  v.  Kentucky    857, 
866,  867,  875 

Covington  &  L.  T.  R.  Co.  v.  Sanford  397, 

872,  875 

Covington,  &c.  Ry.  Co.  v.  Piel  761 

Covington  St.  R.  Co.  v.  Covington, 

&c.  R.  Co.  800,  802 

Cowan  v.  McCutchen  625 

v.  Milbourn  671 

Coward  v.  Wellington  620 

Cowdery,  In  re  482 

Cowen  v.  West  Troy  279 

Cowgill  v.  Long  643 

Cowles  v.  Harts  82 

Cowley  v.  Pulsifer  637 

Cox,  Ex  parte  133 

v.  Bunker  607 

v.  Coleridge  443 

17.  Cox  580 

v.  Lee  656 

v.  Louisville,  &c.  R.  R.  Co.     316,  791 

v.  Mason  City,  &c.  R.  Co.       823,  827 

r.  State  183 

Coxe  17.  Martin  414 

Coxhead  v.  Richards  611 

Coy,  In  re  496,  901 

Coyner  v.  Lynde  676 

Craemer  v.  Washington  22 

Craft  87.  State  Bank  62 

Crafts  v.  Ray  742 

Craig  v.  Andes  324 

v.  Brown  606 

v.  Burnett  281,  282 

v.  Dimock  685 

v.  First  Presbyterian  Church         881 

v.  Kline  864 

v.  Missouri  36 

17.  Philadelphia  730 

v.  Rochester  City   &    Brighton 

R.  R.  Co.  791,  794 

v.  State  454 

w.  Werthmueller  850 

Craighead  17.  Martin  689 

Cram  v.  United  States  22 

Crandall,  Petition  of  495 

v.  James  80 

17.  Nevada  667,  690 

t7.  State  37,  574 

Crane  v.  Meginnis  166,  157,  585 

t7.  School  District  262 

v.  Waters  646 

Crane  v.  West  Chicago  P.  Com'rs        714 

Cranson  v.  Smith  13 


xlii 


TABLE    OF   CASES. 


Page 

Craven  v.  Winter  614 

Craw  v.  Tolono  717 

Crawford  v.  Delaware     296,  784,  785,  802 

v.  Dunbar  895,  932 

v.  Topeka  290 

v.  Wilson  68 

Crawfordsville  v.  Bond  304 

v.  Braden  696 

w.  Hays  262 

Crawfordsville,  &c.  Co.  v.  Fletcher         92 

Crawsliaw  v.  Roxbury  310 

Creai  v.  Keokuk  296,  783 

Crease  w.  Babcock  165 

Creevy  v.  Carr  658 

Creighton  v.  Piper  895 

v.  San  Francisco  336 

Crenshaw  v.  Slate  River  Co.  237,  773 

Creole  v.  Chicago  722 

Cresap  v.  Gray  5)35 

Crescent  City,  &c.  Co.  v.  Butcher's 

Union,  &c.  Co.  31 

Cressey  v.  Meyer  524 

Creston  v.  Nye  440,  454 

Creston  Water  Works  Co.  v.  Mc- 

Grath  778 
Crichfield  v.  Bermudez  Asphalt  P. 

Co.  198 

Grim  v.  Crim  42,  45 

Crittenden  r.  White  13 

Crocker  v.  State  590 

Cromarty  v.  Boston  363 

Cronan  v.  Cotting  86 

Crone  v.  Angell  605 

Cronin  v.  People  286,  287 

Cronise  v.  Cronise  156,  403 

Crosby  v.  Hanover  757 

v.  Lyon  743,  744 

v.  Warren  286,  884 

Cross,  Ex  parte  177 

v.  Allen  32 

v.  Armstrong  42 

v.  Cross  680 

v.  Hopkins  265 

Crossley  v.  California  26,  467 

Grossman  v.  United  States  12 

Croswell's  Case  616 

Crouch,  Ex  parte  495 

v.  Hall  62 

Crow  v.  Bowlby  80 

Crowder  v.  Sullivan  321 

Crowell  v.  Hopkinton    327,  331,  333,  701, 

704 

v.  Randell  30 

Crow  ley  v.  Burlington,  &c.  Ry.  Co.      840 

v.  Cliristensen  885 

v.  Copley  736,  868 

v.  State  253 

v.  West  283 

Crown  Cork  &  Seal  Co.  v.  State  684 

Croy  v.  Epperson  689 

Crozier  v.  Cudney  434 

Cruikshanks  v.  Charleston  606 

Crumlisk's  Admr.  r.  Central  Imp.  Co.  42 

Crump  v.  Morgan  65 

Crutcher  v.  Commonwealth  694 

v.  Kentucky  692 


Page 

Cubbison  ».  McCreary  676 

Cubreth,  Ex  parte  39 

Cuddy,  Ex  parte  496 

Cullen  v.  Carthage  272 

Crystal  Spring  L.  &  W.  Co.  v.  Los 

Angeles  31 

Cullen  v.  N.  Y.,  N.  H.  &  H.  R.  Ry. 

Co.  781 

Culver  v.  Streator  306 

Cumberland  v.  Willison  305 

Cumberland,  &c.  R.  R.  Co.  v.  County 

Court  231,  529 

Cumberland  &  P.  R.  Co.  v.  State        692, 

706 
Cumberland  Tel.  &  T.  Co.  v.  United 

El.  Ry.  Co.  803 

Cummerford  v.  McAvoy  644 

Gumming  v.  Police  Jury  717 

v.  Board  of  Education  15 

Cummings  v.  Ash  755 

v.  Howard  537 

v.  Missouri          62,  370,  372,  374,  376 

v.  National  Bank  707,711 

v.  Peters  769 

v.  Win  go  38 

Cunningham  v.  Brown  629 

v.  Macon,  &c.  R.  R.  Co.  24 

r.  Neagle  28 

v.  State  437 

Cupp  v.  Seneca  Co.  582,  815 

Curran  v.  Arkansas  36 

v.  Sliattuck  813,  817 

Currie  v.  Waverly  &  N.  Y.  B.  Ry.  Co.  827 

Currier  v.  Marietta  &  Cincinnati  R. 

R.  Co.  762,  763 

Curry  v.  Walter  638 

Curryer  v.  Merrill  262 

Curtis,  Ex  parte  14,  456 

v.  Curtis  606 

v.  Gibbs  42,  583 

v.  Gill  591 

v.  Hubbard  425 

v.  Leavitt  416,  517,  537 

v.  Mussey  622 

v.  State  440 

v.  Whipple  243,  703,  705,  772 

v.  Whitney  406,  409 

Cushman  v.  Smith  813 

Cusic  v.  Douglas  408,  515 

Cusick's  Appeal  906 

Cutlip  v.  Sheriff  209,  213 

Cutts  v.  Hardee  414 

Cuyler  v.  Rochester  575 

Cypress  Pond  Draining  Co.  v.  Hooper  694, 

699,  702 


D. 


Dabbs  v.  State 
Dada  v.  Piper 
Daggett  v.  Colgan 

v.  Hudson 
Dahnke  v.  People 
Dailey  v.  Reynolds 

v.  State 


886 
630 
696 
906 

130,  455 
607 
895 


TABLE   OF  CASES. 


xliii 


Page 

Dailey  v.  Superior  Ct.  San  Francisco  456 

v.  Swope  736,  745 

Daily  Post  Co.  v.  McArthur  650 

Dakin  r.  Hudson  585 

Dalby  v.  Wolf  265 

Dale  v.  Com.  161 

v.  Irwin  903,  904,  907 

v.  Medcalf  639 

r.  State  464 

v.  The  Governor  396,  547 

Dallas  Lumbering  Co.  v.  Urquhart      769 

Dalrymple  v.  Mead  861 

Dalton,  Re  66,  891 

v.  State        .  189 

v  Water  Commissioners  760 

Daly  v.  State  555 

Damour  v.  Lyons  City  304 

Dana's  Case  460,  591 

Dancaster  v.  Hewson  631 

Dane  County  v.  Dunning  690 

Danforth  v.  Groton  Water  Co.  629 

v.  State  437 

Daniel  Ball,  The  864 

Daniells  v.  Watertown  531 

Daniels  v.  Clegg  86 

v.  Hathaway  306 

Danks  v.  Quackenbush  406 

Dantzer  v.  Indianapolis  U.  Ry.  Co.      781 

Danville  v.  Pace       86, 237,  241,  242,  515, 

529,  537 

v.  Shelton  709,  740 

Darcy  v.  Allain  401,  562 

D'Arcy  v.  Ketcham  42 

Dare  Co.  v.  Currituck  Co.  268 

Dargan  v.  Mobile  357 

Darling  v.  Boesch  220 

v.  Gunn  712 

v.  Rogers  182 

Darlington  v.  New  York  346 

v.  United  States  756 

v.  Ward  287 

Darrington  v.  State  Bank  of  Alabama  35 

Darrow  v.  People  183,  894 

Darst  v.  People  283 

Dart  v.  Houston  389,  393 

Dartmouth  College  v.  Woodward        175, 

268,  316,  343,  360, 388,  392, 403,  602,  836 

Dash  v.  Van  Kleek   97, 134, 137,  374,  617, 

629 

Datz  v.  Cleveland  159 

Daubman  v.  Smith  206 

D'Auvilliers  v.  De  Livaudais  579 

Davenport  v.  Barnett  80 

v.  Mayor  895 

v.  Richmond  295,  881,  883 

v.  Stevenson  301 

v.  Young  148 

Davenport,  &c.  Co.  v.  Davenport         278 

David  v.  Portland  Water  Com.  334 

Davidson  v.  Boston  &  Maine  R.  R. 

Co.  781,  782 

v.  Briggs  86 

v.  Jennings  67 

«.  Lawrence  623 

v.  New  Orleans  20, 505, 506,  722,  735, 

868 


Da  vies,  In  re 

v.  McKeeby 

v.  Morgan 

Daviess  Co.  v.  Dickinson 
Davis  v.  Auld 

v.  Bank  of  Fulton 

v.  Boget 

v.  Burke 

v.  Brown 

v.  Davis 

v.  Dubuque 

v.  Duncan 

v.  Elmira  Sav.  Bk. 


Page 
482 

99,  509,  518 
281 
323 
883 
204 
663 

22 
605 

83 
721 
628 

27 


v.  Gaines 
v.  Gray 
v.  Guilford 
v.  Hambrick 
v.  Holbrook 
v.  Jackson 
v.  Litchfield 


118,  182,  194,  701,  722 
386,  389 
358 
900 
924 
302 
732 


v.  Lynchburg 

v.  Massachusetts 

v.  McNees 

v.  Menasha 

v.  Minor 

v.  Montgomery 

v.  New  York 

v.  O'Ferrall 

v.  Petrinovich 

v.  Reed 

v.  Richardson 

v.  Rupe 

v.  Shepstone 


722,  730 
293,  603 
630 
659 
521 
300 

295,  299 
514 
289 
294 
685 
413 
626 


v.  State  158,  205,  212,  217,  241,  247, 
451.  538,  655 

v.  State  Bank  146,  532,  638 

v.  St.  Louis  Co.  Com'rs  571 

v.  Texas  22,  46 

v.  Wood  82 

v.  Woolnough  210 

Davis's  Lessee  v.  Powell  553 

Davison  v.  Duncan  651 

i:  Johonnot  146,  558 

Davock  v.  Moore  335 

Dawkins  v.  Paulet  630 

v.  Rokeby  631 

Dawson  v.  Aurelius  305 

v.  Coffman  52 

v.  Duncan  644 

v.  Holt  645 

v.  Lee  657 

v.  Shaver  237 

v.  State  379 

Day,  Re  130,  890 

v.  Gallup  30 

v.  Green  860 

v.  Jones  903 

v.  Kent  929 

v.  Munson  87 

v.  Savadge  692 

v.  Stetson  194 

Dayton  v.  Quigley  288 

Dayton  Coal  &  I.  Co.  v.  Barton 

Dayton  Mining  Co.  v.  Seawell  771 

Deal  v.  Mississippi  Co.  697 

Dean  v.  Ann  Arbor  St.  Ry.  Co.  803 


xliv 


TABLE   OF  CASES. 


Page 

Dean  v.  Borchsenius  627,  642 

v.  Gleason  645,  743 

p.  Sullivan  R.  R.  Co.  808,  819 

v.  Willamette  Bridge  Co.  456 

Dean  of  St.  Asaph,  Trial  of  479 

Deansville   Cemetery   Association, 

Matter  of  770,  775 

Dearborn  v.  Boston,  C.  &  M.  R.  R. 

Co.  312,825,826 

Deaton  v.  Polk  Co.  822 

De  Ben  v.  Gerard  281 

De  Benneville  v.  Philadelphia  826 

De  Berry  v.  Nicholson  907 

Debevoise  v.  New  York,  L.  E.  &  W. 

R.  R.  Co.  181 

Deblois  v.  Barker  860 

Debolt  v.  Ohio  Life  Ins.  &  Trust  Co.     176 
De  Camp  v.  Eveland  257 

v.  Hibernia  R.  R.  Co.  215,  766 

Decatur  v.  Fisher  358 

•  Decatur  Co.  v.  Humphreys  760 
De  Chaetellux  v.  Fairchild     78, 132,  137, 

152 

Decker  v.  Baltimore,  &c.  R.  R.  Co.         25 
v.  Gay  lord  618 

Decorah  v.  Dunstan  285 

De  Cordova  v.  Galveston  630 

Dedham  v.  Natick  485 

Deeds  v.  Sanborn  721 

-  Deems  v.  Baltimore  878,  882 

r.  Peterson  698 

De  Giacomo,  In  re  383 

De  Groff  v.  St.  Paul,  &c.  R.  R.  Co.      387 
Dejarnette  v.  Commonwealth  4fi5 

De  Jarnette  v.  Haynes  232 

De  Krafft  v.  Barney  493 

Delafoile  v.  State  425 

De  Lamar's  Gold  M.  Co.  v.  Nesbitt        31 
Delancey  v.  Insurance  Co.  665 

Delano's  Case  482 

Delaplaine  v.  Cook  526 

Delaware  &  H.  Canal  Co.  v.  Mahlen- 

brock  180 

Delegal  v.  Highley  637,  638 

De  Lima  v.  Bidwell  12 

Dell  v.  Marvin  67 

Dells  v.  Kennedy  906 

Delmonico  v.  New  York  362 

Deloach  v.  Rogers  932 

Delphi  o.  Evans  296,  761 

Demaree  v.  Scales  894 

De  Mill  v.  Lockwood  612 

Demoss  v.  Newton  524 

Dempsey  r.  People  452 

Den  v.  Bolton  661 

v.  Downam  635 

v.  Dubois  92 

v.  Schenck  92 

Denham  v.  Holeman  209 

Denison  v.  Hyde  683 

Denn  v.  Reid  91 

Dennett,  Petitioner  162 

Dennick  v.  Railroad  Co.  181 

Denning  c.  Corwin  685 

Dennis  v.  Coughlin  911 

v •  Moses  669,  886 


Page 

Dennis  v.  State  905 

Dennis  Long  &  Co.  v.  Louisville  763 

Dennison  School  District  v.  Padden     262 

Denny,  Re  202 

v.  Ashley  583 

v.  Mattoon  161,  646 

v.  Reynolds  80 

».  State  127 

v.  White  252 

Dent  v.  West  Virginia  19,  376,  509 

Denton  v.  Jackson  298,  312,  348 

Dentzel  v.  Waldie  639 

Denver  v.  Bach  289 

v.  Bayer  811 

v.  Capelli  302 

v.  Coulehan  722 

v.  Hayes  168 

v.  Knowles  731 

».  Rhodes  304,  362 

v.  Vernia  296,  812 

Denver  Circle  R.  Co.  v.  Nestor     216,  811 

Denver  City  Irrig.  Co.  v.  Middaugh     826 

Denver  City  Ry.  Co.  v.  Denver  718 

Denver  &  N  O.  R.  R.  Co.  v.  Lamborn     816 

Denver  &  R.  G.  Ry.  Co.  v.  Bourne       81 1 

v.  Griffith  827 

v.  Denver,  &c.  Co.  807 

Depew  v.  Board  of  Commissioners       861 

v.  Trustees  55,  865,  867 

De  Pew  v.  Robinson  606 

Derby  v.  Derby  444,  680 

Derby  Turnpike  Co.  v.  Parks  237 

De  Saussure  v.  Gaillard  24 

Deskins  v.  Gose  263 

Des  Moines  v.  Gilchrist  271 

Des  Moines  C.  R.  Co.  v.  Des  Moines    291 

Desmond  v.  Dunn  183 

Desnoyer  v.  Jordan  513 

Detmold  v.  Drake  251 

Detroit  v.  Beckman  302,  303 

v.  Beecher  822 

v.  Blackeby  366 

v.  Chapin  (108  Mich.)  220 

v.  Chapin  (112  Mich.)  731 

v.  Corey  356,  360 

v.  Daly  824 

v.  Detroit  Cit.  St.  Ry.  Co.      383,  836 

v.  Detroit  &  H.  P.  R.  Co.       392,  394, 

839 

v.  Lewis  720 

f.  Martin  259 

v.  Osborne  38 

r.  Parker  714 

v.  Rentz  195,  719 

v.  Rush  900 

Detroit  City  St.  Ry.  Co.  v.  Detroit 

(110  Mich.)  297 

v.  Com.  Coun.  Detroit  (125  Mich.)  693 

v.  Detroit  Ry.  Co.  299 

Detroit  Free  Press  v.  McArthur  650 

Detroit  Ry.  Co.  v.  Guthard  30  397 

Detroit  &  S.  P.  R.  Co.  v.  Detroit        '  777 

Detroit,  Grand  Haven,  &  M.  Ry.  Co. 

v.  Grand  Rapids  715 

Dettenhofer  v.  State  473 

De  Turk  v.  Commonwealth          121  896 


TABLE   OF   CASES. 


xlv 


De  Varaigne  v.  Fox 
Dever  v.  Cornwall 
Devin  v.  Scott 
Devlin  v.  Brady 
Devon  Witches,  Case  of 
De  Voss  v.  Richmond 
Devoy  v.  New  York 
Devries  v.  Conklin 

r.  Phillips 

Dew  v.  Cunningham 
De  Walt's  Appeal 
De  Walt  v.  Bartley 
Dewar  v.  People 
Dewe  v.  Waterbury 
Dewey  v.  Des  Moines 

v.  Detroit 

Dewhurst  v,  Allegheny 
De  Wolf  v.  Rabaud 
Dexter  v.  Boston 
Dial  v.  Holter 


Page 
809 

632,  749,  751 
850 
198 
444 
321 
99,  257 

95 

449 

200 

885 

899,  900 

55 
620 

21 

358 

251,  554 

33 
714 
619 


Diamond  Match  Co.  v.  New  Haven      757 
Dibdin  v.  Swan  646 

Dibrell  v.  Lanier  185 

Dick  v.  McLaurin  588 

Dickens's  Case  481 

Dickenson  v.  Fitchburg          822,  823,  824 
Dickerman  v.  Duluth  784 

Dickerson  v.  Franklin  726 

Dickey  v.  Hurlburt  930 

v.  Reed  144 

r.  Tennison  765,  818 

Dickinson  v.  Hayes  80 

Dicks  v.  Hatch  575 

Dickson  v.  Dickson  156,  181 

v.  People  895 

Dieffendorf  v.  Ref.  Cal.  Church  661 

Dietriclis  v.  Lincoln,  &c.  R.  R.  Co.       754 
Diggins  v.  Brown  732 

Dike  v.  State  560 

Dikeman  v.  Dikeman  412,  413 

Dill,  In  re  496 

Dillard  v.  Collins  610 

Dillingham  v.  Hook  403 

v.  Snow  277,  749 

v.  State  458 

Dimes  v.  Proprietors  of  Grand  Junc- 
tion Canal  692,  693,  595 
Dingey  v.  Paxton  523,  627 
Dingley  ?;.  Boston  770,  809 
Directors,  &c.  v.  Burton  262 
Directors  of  the  Poor  v.  School  Direc- 
tors 695 
Dishon  v.  Smith     275,  909,  925,  929,  935, 

937 

District  Attorney,  Re  895 

District  of  Columbia  v.  Washington 

Gas  Light  Co.  200 

District  Township  v.  Dubuque         89,  92, 

100,  110 

Ditson  v.  Ditson  579,  680,  584 

Dively  v.  Cedar  Falls  320,  692 

Divine  v.  Commissioners  183 

Division  of  Howard  Co.         201,  210,  267 

Dixon  v.  Baker  304 

v.  Orr  934,  940 

t>.  Parmelee  478 


Page 

Dixon  v.  People  68,  455 

v.  Poe  886 

Dixon  Co.  v.  Field  322 

Doane  t>.  Lake  Street  El.  Ry.  Co.         803 
Dobbins  v.  Commissioners  of  Erie 

Co.  591, 682 

v.  State  469 

Dobyns  v.  Weadon  930,  940 

Dodd  v.  Thomas  607 

Dodge  v.  Coffin  43 

v.  County  Commissioners  826 

v.  Granger  305 

v.  Gridley  217 

v.  Mission  Township  185 

v.  Woolsey  25,  62,  176,  395 

Doe  v.  Beebe  755 

r.  Braden  25,  237 

v.  Douglass  54,  146,  237 

v.  McQuilkin  749 

Dogge  v.  State  454 

Dole  »•.  Lyon  644 

v.  Van  Rensselaer  628 

Doles  v.  State  469 

Dominick  v.  Bowdoin  160 

Doriahoe  v.  Richards  263,  66-3 

Donahue  v.  Will  Co.  159 

Done  v.  People  471 

Donkle  v.  Kohn  677 

Donnaher's  Case  789,  791 

Donnell  v.  State  869 

Donnelly  v.  Decker  868 

v.  State  452 

v.  Tripp  305 

Donnersberger  v.  Prendergast       206,  212 

247 

Donoghue  v.  Philadelphia  346 

Donohugh  v.  Roberts  215 

Dooley  v.  Sullivan  356 

v.  United  States  (182  TJ.  S.)  12 

v.  United  States  (183  U.  S.)  12 

Dooling  v.  Budget  Pub.  Co.  606 

Doon  Township  v.  Cummins         323,  324 
Doonan  v.  Glynn  82 

Doran  v.  De  Long  190 

Dore  v.  Milwaukee  296 

Dorgan  v.  Boston  717 

Dorfan  v.  East  Brandywine,  &c.  R. 

R.  Co.  825 

Dorlin  v.  Shearer  663 

Dorman  v.  Jacksonville  2915 

Dorr,  Ex  parte  491,  493 

Dorrance  Street,  Matter  of  860 

Dorsey,  Matter  of  99 

v.  Dorsey  138,  560,  579 

v.  Gilbert  146 

Dorsey's  Appeal  209,  212 

Dortic  v.  Lockwood  691 

Doss  v.  Commonwealth  464 

Dothage  v .  Stuart  653 

Dotton  v.  Albion  358 

Doud  v.  Mason  City,  &c.  Ry.  Co.         822 

Dougherty  v.  Austin  164 

v.  Commonwealth  453 

Doughty  v.  Hope  114,  581 

v.  Somerville  &  Eastern  R.  R.  Co.  823, 

825 


xlvi 


TABLE  OF  CASES. 


Page 

Douglas  v.  Byrnes  778 

v.  Freeholders,  &c.  91 

r.  Kentucky  400,  885 

Douglas  Co.  v.  Bolles  321 

Douglass  v.  Pike  Co.  36,  405 

v.  Placerville  266,  272 

v.  Turnpike  Co.  790 

Dove  v.  School  District 

Dover  v.  Portsmouth  Bridge  865 

Dow  v.  Beidelman  18,  218,  874 

v.  Norris  237,  253,  256 

Dow's  Case  39 

Dowdell  r.  State  217 

Dower  v.  Kichards 

Dowling  v.  Lancashire  Ins.  Co.  1(54 

v.  State  382 

Dowling's  Case  458 

Downes  v.  Bidwell  12 

Downing  v.  Porter  430 

v.  Wilson  607 

Downs  v.  Bowdoin  Sq.  Bapt.  Soc.         661 

Doyle  v.  Continental  Ins.  Co.  258 

v.  Hallam  80 

v.  O'Doherty  630 

>:  Raleigh  895 

Drady  v.  Des  Moines,  &c.  Co.  404 

Drainage  of  Lands,  Matter  of  770 

Draining  Co.  Case  735,  737 

Drake  v.  Drewry  908 

v.  Gilmore  629 

v.  Granger  42 

v.  Jordan  876,  381,  617 

v.  Phil.,  &c.  R.  R.  Co.  842 

Draper  v.  United  States  26 

Drath  v.  Burlington,  &c.  R.  R.  Co.       816 

Drehman  v.  Stifle  870,  371,  411,  617 

Drennan  v.  People  86 

Dressen  v.  Brameier  661 

Drew  v.  Davis  748,  749 

v.  Hilliker  868 

Dreyer  v.  Illinois  469 

v.  People  689 

Drinkall  y.  Spiegel  39 

Driscoll  v.  Taunton  827 

Dritt  v.  Snodgrass  263 

Dronberger  v.  Reed  816 

Druliner  v.  State  91 1 

Drummond  v.  Leslie  607 

Dryden  v.  Swinburne  932 

Dry  fuss  v.  Dridges  114 

Duanesburgh  v.  Jenkins  340 

Dubois  v.  McLean  147 

Dubuque  Co.  v.  R.  R.  Co.  256,  324 

Ducat  o.  Chicago  37 

Duche"  v.  Voisin  682 

Duchess  of  Kingston's  Case  80 

Dudley  v.  Mayhew  676 

Duffield  v.  School  District  880 

Duffy  v.  Dubuque  302,  362 

v.  Hobson  685 

Dugan  v.  Rollins  84 

v.  State  869 

Duke  v.  Ashbee  924 

v.  Rome  804 

Dulany's  Lessee  v.  Tilghman        637,  638 

Dull  v.  Blackman  40 


Page 

Dullam  v.  Willson  55,  159 
Duluth  &  I.  R.  Ry.  Co.  v.  St.  Louis 

Co.  739 

Duluth  &  W.  Ry.  Co.  v.  West  828 
Dunbar  v.  Boston  &  P.  Ry.  Co. 

v.  San  Francisco  757 

Duncan  v.  Barnett  408 

r.  Lynchburg  306 

v.  McCall  32 

r.  Missouri  22,  374 

v.  Thwaites  638,  640,  657 

Duncombe  v,  Daniell  623 

v.  Prindle  194,  208 

Dunden  v.  Snodgrass  631 

Dunham  v.  Anders  617 

v.  Chicago  743 

v.  Cox  707 

v.  Hyde  Park  296 

«.  Powers  630 
v.  Rochester      271,  281,  284,  285,  291 

Dunlap  v.  Glidden  629 

v.  State  547 

v.  Toledo,  &c.  Ry.  Co.  617,  826 

Dunman  v.  Bigg  611 

Dunn  v.  Adams  62 

v.  Burleigh  668 

v.  City  Council  780 

v.  Com.  286 

v.  Sargeant  616 

v.  State  452 

v.  Winters  619 

Dunne  v.  People  13 

Dunnovan  v.  Green  819,  893 

Du  Page  Co.  v.  Jenks  98 

v.  People  929 

Dupy  v.  Wickwire  137 

Durach's  Appeal  266,  710,  742 

Durant  t1.  Essex  Co.  85 

v.  Kauffman  704,  721 

v.  People  450 

Durein  v.  Pontius  210 

Durham  v.  Lewistown  137,  237,  659 

Durkee  v.  Janesville  208,  660 

v.  Kenoslia  30(5 

Durkin  v.  Kingston  C.  Co.  67 

Duson  v.  Thompson  941 

Duverge's  Heirs  v.  Salter  216 
Dwenger  v.  Chicago,  &c.  Ry.  Co.          797 

Dwyer  v.  Goran  80 

v.  Gulf  C.  &  S.  F.  Ry.  Co.  853 

Dyckman  v.  New  York  686 

Dye  v.  Cook  409 

Dyer  v.  Bayne  91 

v.  Morris  607 

v.  State  223 
t>.  Tuscaloosa  Bridge  Co.        168,  566 

Dykes,  Ex  parte  439 


E. 

Eagle  Ins.  Co.  v.  Ohio  838 

Eakin  v.  Raub  101 

Eames  v.  Savage  364,  506 

w.  Whittaker  619 

Earle  v.  Board  of  Education  183 


TABLE  OF  CASES. 


xlvii 


Earle  v.  Con  way 

v.  Grant 

v.  Pennsylvania 

v.  Picken 
Earley's  Appeal 
Easley  v.  Morse 
Eason  v.  State 


Page 

26 

478 

26 

444 

272 

611 

253 


East  &  West  India  Dock,  &c.  Co.  v . 

Gattke  819 

East  Brandywine,  &c.  R.  R.  Co.  v. 

Ranck  822 

East  End  St.  Ry.  Co.  v.  Doyle  803 

Eastern  Building  &  L.  Ass'n  v.  Well- 
ing 30 
Eastern  R.  R.  Co.  v.  Boston,  &c.  R. 

R.  Co.  398,  399 

Easthampton    v.     Hampshire    Co. 

Com'rs  760,  806 

East  Hartford  v.  Hartford  Bridge  Co.   295, 

347,  390 

East  Kingston  v.  Towle  628 

East  Lincoln  v.  Davenport  322 

Eastman  v.  Dearborn  583 

v.  McAlpin  202 

v.  Meredith  303,  305,  348,  355 

v.  State  237,  890 

East  Norway  Lake  Ch.  v.  Froislie        661 

East  Oakland  v.  Skinner  274,  320 

Easton  Bank  v.  Commonwealth  396 

East  Portland  v.  Multnomah  Co.  711 

East  Saginaw   Salt   Manuf.   Co.  v. 

East  Saginaw  395,  396,  402,  547 

East  St.  Louis  v.  East  St.  Louis,  &c. 

Co.  311 

v.  Maxwell  217 

v.  O'Flynn  812 

v.  Trustees  710 

v.  Wehrung  294,  710 

v.  Witts  339 

East  St.  Louis  Com.  Ry.  Co.  v.  East 

St.  Louis,  &c.  Co.  806 

East  Tenn.  V.  &  G.  R.  Co.  ».  Frazier    392 

Eaton,  Matter  of  495 

v.  Boston,  &c.  R.  R.  Co.          757,  777, 

783,  786,  788,  826 

v.  Brown  900 

v.  Walker  211 

Echols  v.  State  937 

v.  Staunton  764 

Eckhart  v.  State  249 

Eddings  v.  Seabrook  781,  785 

Eddy  v.  Capron  198 

Eden  v.  People  691,  837 

Edgecombe  v.  Burlington  770 

Edgerly  v.  Swain  606 

Edgerton  v.  Goldsboro  Water  Co.        272 

v.  Hart  687 

Edgewood  R.  R.  Co.'s  Appeal       764,  771 

Edison  Gen.  El.  Co.  v.  Canadian  P. 

N.  Co.  178 

Edmonds  v.  Ban  bury  906 

Edmunds  v.  Herbrandson  182 

Edmundson  v.  Pittsburgh,  &c.  R.  R. 

Co.  810,  812 

Edson  v.  Edson  41 

Edwards,  In  re  440 


Edwards  v.  Commonwealth 
v.  Davenport 
v.  Elliott 
v.  Jagers 
v.  James 
v.  Johnson 


Page 

160 

35 

46 

392 

114 

413 


v.  Kearzey  407,  408,  409,  414 

v.  Pope  147,  149 

v.  State  458 

v.  Williamson  406 

Edwards's  Lessee  v.  Darby  104 

Eells  v.  People  247,  250 

Effinger  v.  Kenney  412 

Egerer  v.  N.  Y.  C.  &  H.  R.  Ry.  Co.     801 

Eggleston  v.  Doolittle  661 

Egyptian  Levee  Co.  v.  Hardin  717,  735, 

868 

Ehlers  v  Stoeckle  607 

Eichels  L:  Evansville,  &c.  Co.  271,  795 

Eidemiller  v.  Wyandotte  761 

Eikenberry  v.  Edwards  690 

Eikhoff  v.  Gilbert  620 

Eimer  v.  Richards  80 

Eingartner  v.  Illinois  Steel  Co.  38 

Eisenbach  v.  Hatfleld  781 

Eitel  v.  State  182,  225 

Elam  v.  Badger  611 

Elbin  v.  Wilson  927 

Elder  v.  Barnes  861 

v.  Reel  679,  580 

Eldredge  v.  Trezevant  26 

Eldridge,  Matter  of  481 

v.  Kuehl  623,  751 

v.  Smith  757,  766 

Election  Law,  Matter  of  923 
Electric   Improvement   Co.   v.  San 

Francisco  288 

Elgin  v.  Eaton  296 

v.  Kimball  304 

Eliason  v.  Coleman  895 

Elijah  v.  State  469 

Eliot  v.  McCormick  683 
Elizabethtown,   &  P.  R.  R.  Co.  v. 

Thompson  791 

Elk  v.  Wilkins  901 

Elk  Point  v.  Vaugn  279 

Ellerbee  v.  State  441 

Ellett  v.  Commonwealth  403 

Elliot  v.  Ailsbury  607 

Elliott  v.  Detroit  164 
v.  Fairhaven  &  Westfield  R.  R. 

Co.  794 

v.  People  473 

v.  Philadelphia  305 

v.  Wohlfrom  680 

Ellis  v.  Davis  43 

v.  Frazier  184,  708 

v.  Jones  407 

v.  May  900,  912 

v.  Pacific  R.  R.  Co.  761 

v.  State  446,  567 

Ellison  v.  Barnes  1MO 

Ellsworth  v.  Chicago  &  I.  W.  Ry.  Co.    826 

Ellyson,  Ex  parte  937 

Elmendorf  v.  Carmichael  139 

v.  New  York  114 


xlviii 


TABLE   OF   CASES. 


Elmendorf  v.  Taylor 
Elmwood  r.  Marcy 
Else  v.  Smith 
Elston  v.  Piggott 
Elwell  v.  Shaw 
Ely  v.  Holton 

v.  Niagara  Co. 

v.  Thompson 
Embury  v.  Conner 
Emerick  v.  Harris 
Emerson  v.  Atwater 
Emert  v.  Missouri 
Emery  v.  Gas  Co. 

v.  Lowell 

v.  Mariaville 

v.  Reed 
Emery's  Case 

Empire  City  Bank,  Matter  of 
Emporia  v.  Soden 
Encking  v.  Simmons 
Enfield  v.  Jordan 


Page 
33 

47,  320 
429 

23,  180 
748,  749 
530 

346,  884 
247,  257,  499 
232,  251,  764,  780 
591 
84,  86 
689,  693 
717 
308 
320 
86 

193,  442 
581,  582 


807,  808 

108 

34 


Enfield  Toll  Bridge  Co.  v.  Hartford 

&  N.  H.  R.  R.  Co.  398 

Engle  w.  Shurtz  517,  544 

English  v.  Chicot  Co.  272 

v.  Dickey  937 

v.  New  Haven,  &c.  Co.  '  549 

v.  Oliver  194 

Enos  v.  Chicago,  &c.  Ry.  Co.  797 

Ensign  v.  Barse  209,  627 

Ensworth  v.  Albin  183,  906,  907 

Enterprise  v.  Smith  211 

Enterprise  Ditch  Co.  v.  Moffitt  394 

Entinck  v.  Carrington  428,  434 

Epping  v.  Robinson  687 

Equator  Co.  v.  Hall  33 

Equitable  Life  A.  S.  v.  Clements          834 

Equity  G.  &  T.  Co.  v.  Donahoe     212,  257 

Erb  v.  Morasch  15,  859 

Erber  v.  Dun  611 

Erie  Co.  v.  Com'rs  Water- Works          695 

v.  Erie  120,  695 

Erie  R.  R.  Co.  v.  Commonwealth         396 

v.  New  Jersey  690 

v.  Pennsylvania  176 

Erie  &  N.  E.  R.  R.  Co.  v.  Casey  149 

Erlinger  v.  Boneau          166,  16"7,  174,  210 

Ernst  o.  Kunkle  730 

Erskine  v.  Nelson  Co.  535 

Ervine's  Appeal      132,  149,  150,  244,  502, 

503 

Esberg-Gunst  Cigar  Co.  v.  Portland  306 
Escanaba  Co.  v.  Chicago  65,  688,  866 
Eshelman  v.  Chicago,  &c.  Ry.  Co.  688,  690 
Esmon  v.  State  470 

Essex  Co.  v.  Pacific  Mills  106 

Essex  Public  Road  Bl.  v.  Skinkle  268 
Essex  Witches,  Case  of  444 

Este  v.  Strong  82 

Estep  v.  Hutchman  146,  148 

Estea  v.  Owen  719 

Esty  v.  Westminster  383 

Etheredge  v.  Osborn  80 

Bthridge  v.  Sperry  W.  &  G.  29,  32 

Eufaula  v.  McNab  271 

Eureka  Basin,  &c.  Co.,  Matter  of  766,  770 


Page 

Eureka  Springs  Ry.  Co.  v.  Timmons     62 
Eustis  v.  Parker  316 

Evans  v.  Brown 

v.  Montgomery  374,  406 

v.  Myers  105 

v.  Osgood  275 

v.  Phillipi  97,  182 

v.  Populus  388 

v.  Sliarpe  '209 

Evansville  v.  Dennett  322 

v.  Miller  883 

v.  Senhenn  300 

v.  State  158,  334,  894 

Evansville,  &c.  R.  R.  Co.  v.  Dick          786 

Evansville  &  R.   Ry.  Co.  v.  Swift        827 

Evening  News  v.  Tryon  650 

Everett  v.  Council  Bluffs  883 

v.  Marquette  884 

Evergreen  Cemetery  v.  New  Haven     770 

Everhart  v.  Holloway  583 

Evernham  v.  Hulit  202,  212,  216 

Eviston  v.  Cramer  629 

Ewing  v.  Alabama  &  C.  Ry.  Co.  763 

v.  Filley  929,  938 

v.  Hoblitzelle  183,  206 

v.  Orville  M.  Co.  121 

v.  School  Directors  262 

Excelsior  Mfg.  Co.  v.  Keyser  544 

Exchange  Bank  v.  Hines       247,  707,  711 

Executive  Officers,  Election  of  938 

Express  Printing  Co.  v.  Copeland         628 

Exuiu  v.  State  13 

Eyre  v.  Jacob  253 

Ezekiel  v.  Dixon  89 


F. 


Facey  v.  Fuller  686,  587 

Fadness  v.  Braunborg  660,  661 

Fagg,  Exparte  281 

Fahey  v.  State  203,  706 

Fahr  r.  Hayes  611 

Fair  v.  Philadelphia  302 

Fairchild  v.  Adams  619,  627 

v.  Lynch  83 

v.  St.  Louis  812 

Fairfield  v.  Gallatin  33 

v.  McNany  80 

v.  Ratcliffe  717 

Fairhurst  v.  Lewis  485 

Fairman  v.  Ives  620,  648 

Falconer  v.  Campbell  34,  376 

v.  Robinson  216 

Fales  v.  East  Hampton  827 

v.  Wadsworth  625 

Falk,  Exparte  118,183 

Fall  v.  Hazelrigg  85,  106 
Fallbrook  Irr.  Dist.  v.  Bradley  713,  714, 

768,  774 

Falvey,  In  re  193,  495 

Fanning  ».  Gregorie  867 

v.  Krapfl  687 

Fargo  v.  Michigan  688 

Faribault  v.  Misener  104 
Farist  Steel  Co.  v.  Bridgeport  768,  782 


TABLE  OF  CASES. 


xlix 


Farley  v.  Dowe 

Farm  Ins.  Co.  v.  Carpenter 


Page 
408 

134,  253, 
582 

Farmers'  Loan  &  T.  Co.  v.  Funk          122 
v.  Lake  St.  El.  Ry.  Co.  25 

Farmers'  &  Mechanics'  Bank  r.  Butch- 
ers' &  Drovers'  Bank       321,  323 
17.  Smith  104,  253,  416 

Farneman    17.   Mt.    Pleasant    Cem. 

Ass'n  768,  770 

Farney  v.  Towle  30 

Farnharu  17.  Pierce  423 

Farnsworth  17.  Lime  Rock  Ry.  Co.        767 

i7.  Storrs  619 

17.  Vance  414 

Farnsworth  Co.  v.  Lisbon  163,  740 

Farnsworth  Lumber  Co.  v.  Fairley      747 

Farnum  v.  Concord  355 

v.  Johnson  166 

Farr  v.  Rasco  644 

».  Sherman  95 

Farrar  v.  Clark  523 

v.  St.  Louis  717,  730 

Farrell  v.  West  Chicago  P.  Co.     714,  731 

Farrelly  ».  Cole  74 

Farrington  v.  Tennessee         395,  396,  738 

v.  Turner  930 

Farwell  v.  Des  Moines  B.  M.  Co.          721 

Fausler  v.  Parsons  907 

Fawcett  v.  Charles  637 

17.  Clark  606 

17.  Fowliss  686,  587 

17.  York  &  North  Midland  R.  R. 

Co.  841,  842 

Fayetteville  17.  Carter  283 

Fearing  v.  Irwin  548,  781 

Fechheimer  17.  Washington  52 

Feck  i7.  Bloomingdale  174 

Fehr  v.  Schuylkill  Nav.  Co.  826 

Feibleman  v.  State  99,  205 

Feige  v.  Mich.  Cent.  R.  R.  Co.  139 

Feineman  v.  Sachs  178 

Feldman  v.  City  Council  317,  700 

Felix  v.  Schwarnweber  30 

17.  Wallace  Co.  Com'rs  131 

Fell  v.  State  169,  174,  400 

Fellows  v.  New  Haven  296 

v.  Walker  700 

Felton's  Case  442 

Fenelon  v.  Butts  928 

Fennell  v.  Bay  City  280 

Fenton  v.  Garlick  42,  683 

17.  Scott  915,  941 

w.  Yule  205 

Fenwick  i?.  Gill  553 

Ferguson  v.  Landram     333,  554,  697,  705 

17.  Selma  884 

17.  Snohomish  721 

v.  Williams  538 

Fernandez,  Ex  parte  495 

Fernstler  o.  Siebert  661 

Ferraria  v.  Vasconcellos  660,  661 

Ferrell  17.  Commonwealth  177 

Ferrelle,  In  re  41 

Ferrenbach  v.  Turner  880 

Ferris  17.  Bramble  766 


Page 

Ferry  v.  Campbell  506,  528,  644 

Fertich  v.  Michener  263 

Fertilizing  Co.  v.  Hyde  Park  400,  836,  853, 

883  884 

Fetter,  Matter  of  39 

Ficklen  v.  Shelby  Tax  Dist.  694 

Fidelity  &  C.  Co*  17.  Allebone  886 

Fidelity  &  D.  Co.  v.  United  States        453 
Fidelity  M.  L.  Ins.  Ass'n  v.  Mettler  563, 

564 

Field  v.  Barling  784 

v.  Clark  247 

u.  Des  Moines  272,  757 

v.  Gibbs  42 

17.  People  98,  160 

Fielden  v.  Illinois  16 

Fields  v.  Highland  Co.  Com.         308,  744 

v.  Osborne  900 

Fifield  i7.  Close  684 

i7.  Phoenix  302 

Figg  i7.  Thompson  289 

Filber  v.  Dauhterman  605 

Finch  i7.  Riverside  &  A.  Ry.  Co.  803 

Finlayson  v.  Peterson  532 

Finney  v.  Boyd  80 

Fire  Department  v.  Helfenstein      37,  710 

t7.  Noble  37 

v.  Wright  37 

Firemen's  Association  v.  Lounsbury  208, 

209 

First  Natl.  Bk.  v.  Ayers  32,  682 

v.  Chehalis  Co.  32,  682 

17.  McGwire  693 

17.  Merchants'  National  Bank         433 
v.  Price  181 

First  National  Bk.  Rock  Springs  v. 

Foster  458 

First  Natl.  Bk.  Wellington  v.  Chap- 
man 682 
First  Parish,  &c.  v.  Middlesex       822,  825 
».  Stearns                          893,  932,  933 
First  Pres.  Soc.,  Matter  of                     661 
First  Ref.  Pres.  Ch.  v.  Bowden              660 
Fischli  n.  Cowan  80 
Fish  v.  Collens                                         932 
v.  Kenosha                                        324 
Fishburn  v.  Chicago                               290 
i7.  Chicago  M.  &  St.  P.  Ry.  Co.       28 
Fisher  v.  Boston                                      301 
i7.  Deering                                          85 
t7.  Dudley                                          900 
v.  Haldeman                                       33 
v.  Hildreth                                        924 
17.  Horricon  Co.                                  772 
v.  McGirr                  246,  431,  850,  881 
t7.  Wineman                              673,  583 
Fisher's  Lessee  v.  Cockerell                     30 
Fisher's  Negroes  v.  Dobbs                      630 
Fishkill  r.  Fishkill  &  Beekman  Plank 

Road  Co.  207 

Fisk,  Ex  parte  4»5 

v.  Jefferson  Police  Jury    62,  383,  38M 

v.  Kenosha  542 

t7.  Soniat 

Fiske  v.  Framingham  Manuf.  Co.         772 
v.  Hazzard  327 


1 


TABLE   OF  CASES. 


Page 

Fiske  v.  People  274,  291,  661,  891 

Fitchburg  R.  R.  Co.  v.  Grand  Junc- 
tion R.  R.  Co.  836,  842 
Fitts  v.  McGhee  24 
Fitzgerald  v.  Robinson                           661 
v.  St.  Paul,  &c.  Ry.  Co.                   841 
Fitzgerald  &  M.  C.  Co.  v.  Fitzgerald     582 
Fitzpatrick  v.  United  States                  449 
Flagg  v.  Baldwin                              62,  178 
v.  School  Dist.  No.  70                     322 
v.  Worcester                                     301 
Flaherty,  He                                           289 
v.  McCormick                                  690 
Flanagan  v.  Philadelphia                        867 
v.  Plainfield                                      709 
Flatbush,  In  re                               209,  720 
Fleetwood  v.  Reed                           368,  707 
Fleischner  v.  Chad  wick                  216,  217 
Fleishman  v.  Walker                              577 
Fleming,  Ex  parte                                    161 
Fletcher  v.  Auburn  &  Syracuse  R. 

R.  Co.  814 

v.  Baxter  192 

v.  Ferrel  43 

v.  Fletcher  829 

v.  Lord  Somers  84 

v.  Oliver  98,  204,  711 

v.  Peck  128, 237,  253,  370,  374, 

385,  813 

v.  State  449 

v.  Tuttle  74 

v.  Wall  911 

Flint  v.  Pike  637,  638,  640 

Flint,  &c.  Plank  Road  Co.  v.  Wood- 
hull  138,  149,  259 
Flint,  &c.  R.  R.  Co.  v.  Dewey  262 
Flint  River  Steamboat  Co.  v.  Foster  236, 

253,  591 

Flood  v.  State  279 

Florence,  Ex  parte  89 

Florentine  v.  Barton  144,  146 

Florer  v.  Sheridan  718 

Florida  C.  Ry.  Co.  v.  Reynolds  708 

Florsheim,  &c.  Co.  v.  Lester  180 

Flournoy  v.  Jeffersonville  689 

Flower  v.  Flower  679,  584 

Floyd  v.  Mintsey  82 

Flukes,  Re  573 

Flynn  v.  Flynn  828 

Fobes  v.  Rome  W.  &  O.  Ry.  Co.  799,  801, 

802 

Fogg  v.  Holcomb  640 

Foley  v.  People  438 

v.  State  209,  212,  213 

Folkenson  v.  Easton  97 

Folsom  v.  New  Orleans  346 

v.  Township  Ninety-six  31,  696 

Foltz  v.  Kerlin  895 

v.  State  859 

Fond  du  Lac  Water  Co.  v.  Fond 

du  Lac  720 

Fong  Yue  Ting  v.  United  States     14,  456 

Foote  v.  Fire  Department  881 

v.  State  473 

Forbes  v.  Halsey  626 

v.  Johnson  619,  630 


Page 

Ford  v.  Chicago  &  N.  W.  R.  R.  Co.      777, 

778,  791 

r.  County  Commissioners  807 

».  Delta  Pine  Land  Co.  36,  740 

Fordyce  v.  Godman  193,  194 

Foreman  v.  Hardwick  924 

v.  Marianna  594 

Forepaugh  v.  Del.  L.  &  W.  R.  R. 

Co.  178 

v.  Delaware  L.  &  W.  Ry.  Co.          48 
Forster  v.  Forster  137,  631 

Forsyth  v.  Hammond  722 

Forsyth  Boulevard  v.  Forsyth  826 

Fort  Dodge  v.  District  Township  927 
Fort  Leaven  worth  R.  R.  Co.  v.  Lowe  177 
Fort  Scott  v.  Pelton  694 

Fort  Wayne  v.  Coombs  304 

Fort  Worth  v.  Crawford  302 

Fort   Worth  &  N.  O.  Ry.  Co.    v. 

Garoin  828 

Fort   Worth   &  R.  G.  Ry.  Co.   v. 

Jennings  803 

Forward  v.  Hampshire,  &c.  Canal  Co.  758 

Fosdick  v.  Perrysburg  217 

Foss,  Re  41 

v.  Foss  679 

v.  Hildreth  656 

Foster  v.  Byrne  408 

v.  Essex  Bank          263,  416,  516,  539 

v.  Kansas  848,  849 

v.  Kenosha  745 

v.  Morse  691 

v.  Neilson  25 

v.  Scarff  909,  926 

v.  Scripps  629 

v.  St.  Louis  302 

Foule  v.  Mann  507,  612 

Fourteen  Diamond  Rings  v.  United 

States  12 

Fowler,  Matter  of  778 

v.  Beebe  898,  928 

v.  Chichester  644 

v.  Danvers  330 

v.  Halbert  653 

17.  Pierce  219 

v.  State  930,  934 

Fowles  v.  Bowen  610 

Fox,  Ex  parte  424 

v.  Cottage,  &c.  Ass.  688 

v.  McDonald  159 

i7.  Mohawk  &  H.  R.  H.  Society      183 

v.  State  of  Ohio  46,  281 

v.  W.  P.  Railroad  Co.  813 

v.  Wood  192 

Foxcroft  t7.  Mallett  33 

Foye  v.  Patch  83 

Frain  v.  State  445 

Francis  v.  Railroad  Co.  707,  743 

17.  Wood  630 

Francois,  Ex  parte  557 

Frank,  Ex  parte  289,  709 

Frankfort  v.  Aughe  280,  851 

v.  Winterport  198,  310 

Frankfort,  &c.  R.  Co.  v.  Philadelphia   285 

Frankland  v.  Cassaday  81 

Franklin  c.  Browne    '  606 


TABLE   OF   CASES. 


li 


Franklin  v.  State  480 

Franklin  Bridge  Co.  v.  Wood  237,  253 

Franklin  Co.  v.  Railroad  706 
Franklin  Co.  Gram.  Sch.  v.  Bailey        392 

Franz  v.  Railroad  Co.  797 

Frary  v.  Frary  579 

Frasher  v  State  657 

Frazee,  Matter  of  289 

n.  Beattie  690 

Frazer  v.  Lewiston  355 

Free  v.  Buckingham  677 

Freeborn  v.  Pettibone  413 

Freedman  v.  Steel  684,  685 

Free  Fishers'  Co.  v.  Gann  752 

Freeholders  v.  Sussex  303 

Freeholders,  &c.  v.  Barber  283 
Freel  v.  School  City  of  Crawfords- 


ville 
Freeland  v.  Hastings 


305 

243,  311,  333,  698, 
704 

20,411 
683 
223 

25 
607 
301 
306 
396 
231 

86 
803 
400 


v.  Williams 
Freeman  v.  Alderson 
w.  Gaither 
v.  Howe 
».  Price 
Freeport  v.  Isbell 

v*  Marks- 

Freeport  W.  Co.  v.  Freeport 
Frees  v.  Ford 
Freeze  y.  Tripp 

Freiday  v.  Sioux  City  R.  T.  Co. 
Freleigh  v.  State 

Frellsen  v.  Mahan  737 
Fremont,   E.  &  M.  V.  Ry.   Co.   v. 

Bates  826 

French  v.  Barber  Paving  Co.        714,  731 

v.  Boston  302 

v.  Braintree  Manuf.  Co.  771 

v.  Camp  728 

v.  Commonwealth  388 

v.  Deane  375 

v.  Edwards  •  113 

v.  Kirkland  735 

v.  Nolan  932 

t7.  State  (141  Ind.)  104 

v.  State  (Tex.  Cr.  App.)  689, 853, 858 

v.  State  (85  Wis.)  451 

Fretwell  v.  Troy  285 

Friedman  v.  Mathes  121 

Friend  v.  Hamill  927 

Fries  c.  New  York  &  H.  R.  Ry.  Co.      800 

Frieszleben  v.  Shallcross  902 

Frink  v.  Darst  84 

Frisbie  v.  Fowler  607 

Frith  v.  Dubuque  301 

Fritts  v.  Palmer  181 

Frolickstein  v.  Mobile  676,  859 

Frommer  v.  Richmond  285 

Frorer  v.  People  672,  877 

Frost  17.  Belmont  196,  266,  309 

v.  Chicago  289 

v.  Thomas  162 

Fry  v.  Bennett  645 

».  Booth  114,929,930 

t7.  State  610,840,891 

Fry's  Election  Case  903,  904,  905 


Page 

Fryer  v.  Kinnersley  611 

Fuller  i7.  Chicago,  &c.  R.  R.  Co.  875 

v.  Dame  197,  198 

v.  Edings  781 

v.  Gould  711 

v.  Groton  307,  308 

v.  Hampton  353 

v.  Morrison  Co.  336 

v.  People  206 

t7.  State  425 

Fullerton  v.  Bank  of  United  States         33 

Fulmer  v.  Commonwealth  93 

Fulton  v.  Davenport  721 

w.  McAffee  31 

Fuqua  v.  Pabst  Brewing  Co.          848,  876 

Furgeson  v.  Jones  685 

Furman  v.  New  York  89 

v.  Nichol  403 

Furman  Street,  Matter  of       717,  783,  822 

Furnell  v.  St.  Paul  363 

Furniss  v.  Hudson  River  R.  R.  Co.      819 


G. 

Gabbert  v.  Railroad  Co. 

Gabel  v.  Houston 

Gableman  v.  Peoria,  D.  &  E.  R.  Co. 

Gaff  v.  Greer 

Gage  t7.  Bain 

v.  Caraher  526, 

v.  Censors 

v.  Graham  339, 

v.  Shelton 
Gagnet  v.  Reese 
Gaines  v.  Buford 

v.  Coates  562,  565, 

v.  Gaines 
Gainsville,  H.  &  W.  Ry.  Co.  v.  Hall 


Gale,  Matter  of 

r.  Kalamazoo  562,  854, 

v.  Mead 

17.  South  Berwick 
Galen  v.  Clyde  &  Rose  Plank  Road 

Co. 

Galena  &  Chicago  Union  R.  R.  Co. 
v.  Appleby  836, 

v.  Dill 

v.  Loomis  836, 

Galesburg  v.  Hawkinson  144, 

Gall  v.  Cincinnati 

Gallatin  v.  Bradford  281, 

Galveston  v.  Posnainsky 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  State 

v.  Texas 
Galveston,  &  W.  Ry.  Co.  v.  Galveston 

Gatnmel  v.  Potter 
Gannett  v.  Leonard 
Gannon,  In  re  (16  R.  I.) 

Re  (16  R.  I.) 

v.  People 

Gano  v.  Minneapolis  &  St.  L.  Ry.  Co. 
Gantly's  Lessee  v.  Ewing 
Garbett,  Ex  parte 


208 
285 
28 
661 
751 
749 
890 
341 
605 
496 
550 
888 
156 
811, 
826 
481 
887 
114 
310 

355 

843 
843 
843 
267 
888 
291 
356 
384 
384 
266, 
299 
773 
146 
830 
672 
469 
656 
412 
481 


lii 


TABLE   OF   CASES. 


Page 

Garcia  ?•.  Lee  26 

v.  Territory  473 

Gardiner  v.  Johnston  296 

Gardner  v.  Burke  932 

v.  Collins  81 

v.  Hope  Ins.  Co.  394 

v.  Michigan  C.  Ry.  Co.  32 

».  Newburg       757,  769,  807,  808,  814 

v.  The  Collector  194 

v.  Ward  927 

Gargan  v.  Louisville,  N.  A.  &  C.  Ky. 

Co.  298 

Garland,  Ex  parte  370,  371,  374,  376 

v.  Brown's  Adm'r  406 

Garner  v.  Gordon  497 

Garnett  v.  Jacksonville  789 

Garr  v.  Selden  629,  634 

Garrabad,  Re  290 

Garrett  v.  Beaumont  529 

v.  Cordell  411 

v.  Doe  529 

v.  Janes  293 

v.  Lake  Roland  Elevated  R.  Co.    784 

v:  State  854 

v.  St.  Louis  728 

Garrigas  v.  Board  of  Com'rs          202,  209 

Garrigus  v.  State  453 

Garrison  v.  Hollins  591 

v.  New  York  358 

v.  Tillinghast  687 

Gartin  v.  Penick  661 

Garvey,  In  re  440 

v.  People  381 

Garvey's  Case  468 

Garvin  v.  State  207 

Gas  Co.  v.  Parkersburg  299 

v.  San  Francisco  860 

v.  Wheeling  92 

Gascoigne  v.  Ambler  607 

Gaskill  v.  Dudley  354 

Gass  v.  Wilhite  660 

Gassett  v.  Gilbert  610 

Gastineau  v.  Cora.  289 

Gaston  v.  Mace  862 

v.  Merriam  217 

Gatch  v.  Des  Moines  722 

Gates  v.  Neal  927 

Gathercole  v.  Miall  625,  644 

Gatlin  v.  Tarboro  707 

Gatton  v.  Chicago,  R.  I.  &  P.  Ry.  Co.    48 

Gatzow  v.  Buening  324 

Gaulden  v.  State  482 

Geary  v.  Simmons  80 

Gebhard  v.  Railroad  Co.  517 

Gebhardt  v.  Reeves  796,  809 

Geildes  v.  Cunningham  750 

Gee  v.  Williamson  80 

Geebrick  v.  State  163,  171,  173 

Geer  v.  Connecticut  852 

Gehling  v.  School  District  262 

Gelpcke  v.  Dubuque         35,  167,  321,  324 

Genet  v.  Brooklyn  825 

Genther  v.  Fuller  751 

Gentile  v.  State  183,  868 

Gentry  v.  Griffith  192 

George  v.  George  859 


Page 

George  v.  Gillespie  80 

v.  Oxford  223 

Georgetown,  &c.  R.  R.  Co.  v.  Eagles    786 

Georgia  u.  Stanton  3 

Georgia,  &c.  R.  R.  Co.  v.  Harris   575,  577 

Georgia  Packing  Co.  v.  Macon  690 

Georgia  Pen.  Cos.  v.  Nelms  386 

Georgia  R.  R.,  &c.  v.  Smith  165,  874 

Gerard  v.  People  468 

Gerhard  v.  Seekonk,  &c.  Co.  788 

German,  &c.  Cong.  v.  Pressler  660 

German  Reformed  Church  v.  Seibert  661 

German  Savings  Bank  v.  Franklin  Co.     34 

Germania  Ins.  Co.  v.  Wisconsin  30 

Germania  Trust  Co.  v.  San  Francisco  738 

Gerrish  v.  Brown  861 

Gerry  v.  Stoneham  529 

Gertum  v.  Board  389 

Gettys  v.  Gettys  579 

Gianfortone  v.  New  Orleans  347 

Gibb  v.  Washington  898 

Gibbons  v.  Dist.  Columbia  739 

v.  Mobile,  &c.  R.  R.  Co.          167,  542 

v.  Ogden  10,  11,  92,  864 

v.  United  States  24 

Gibbs  v.  Gale  525 

Giboney  v.  Cape  Girardeau  721 

Gibson,  Ex  parte  496 

v.  Armstrong  661 

v.  Choteau  30,  524 

v.  Emerson  129 

i'.  Harrison  882 

v.  Hibbard  639 

r.  Huntington  357 

v.  Lyon  36 

v.  Mason  506,  892 

v.  Mississippi  19,  382 

v.  School  District  262 

v.  United  States  769 

v.  Wood  904 

Gidding  v.  Blacker  74,  931 

Giesy  v.  Cincinnati,  W.  &  Z.  R.  R.  Co.  780, 

809,  825 

Gifford  v.  People  449 

v.  Railroad  Co.  209 

Gill  v.  Davis  198 

Gilbert  v.  Ackerman  624 

v.  People  631,  633,  647 

Gildersleeve  v.  People  681 

Gilfillan  v.  Union  Canal  Co.  407 

Gilkeson  v.  Frederick  Justices  265 

Gilkey  v.  Cook  97 

Gill  v.  Parker  849 

Gillespie  v.  Lincoln  305 

v.  Palmer  893,  927,  928,  931 

v.  People  573,  887 

v.  State  209,  213 

Gillett  v.  McCarthy  210 

Gillette  v.  Hartford  726 

Gilliland  v.  Phillips  637 

v.  Sellers's  Adm'r  675 

Gillinwater  v.  Mississippi  &  Atlantic 

R.  R.  Co.  75,  760,  762 

Gillison  v.  Charleston  363 

Gilluly  v.  Madison  304 

Gilman  v.  Cutts  512 


TABLE  OF  CASES. 


liii 


Oilman  v.  Lockwood 

v.  Lowell 

v.  Philadelphia   11,  688,  856,  869, 

p.  Sheboygan 

v.  Tucker 

v.  Williams 
Gilmer  v.  Lime  Point    755,  763,  777, 

Gilmore  v.  Heutig 
Gilson  v.  Dayton 

v.  Rush 
Ginn  v.  Rogers 

Giozza  v.  Tierman  22, 

Girard  v.  Philadelphia 
Girard  Will  Case 

Girdner  ».  Stephens  62, 

Gladden  v.  State 
Gladson  v.  Minnesota 
Glasgow  v.  City  of  St.  Louis 
Gleason  v.  Dodd  41,  42, 

v.  Gleason 

v.  Keteltas 
Glenn  v.  Garth 
Glide,  The 
Glidewell  v.  Martin 
Gloucester  Ferry  Co.  v.  Pennsylvania 

856, 

Gloucester  Ins.  Co.  v.  Younger 
Glover  v.  Powell  788, 

v.  Taylor 

Godeharles  v.  Wigeman         234,  559, 
Goddard,  Petitioner       279,  281,  286, 

v.  Jacksonville  845, 

Goddin  v.  Crump  167, 

Godshalk  v.  Metzgar 
Goenen  v.  Schrceder 
Goetcheus  v.  Mathewson        581,  927, 
Goetz  v.  United  States 
Goff  v.  Frederick 
Goggans  v.  Turnispeed 
Gohen  v.  Texas  Pacific  R.  R.  Co. 
Gold  v.  Fite 

Goldey  v.  Morning  News 
Goldthwaite  v.  Montgomery 
Gold  Water  &  Washing  Co.  v.  Keyes 
Gonell  v.  Bier 
Gooch,  Re 
Good  v.  Zercher 
Goodell,  Matter  of 

v.  Jackson 
Goodenouph,  In  re 
Good  hue,  Re 

Goodin  v.  Thoman  99, 

Goodlett  v.  Kelly 
Goodman  v.  Munks 

v.  State 

Goodrel  v.  Kreichbaum 
Goodrich  a.  Detroit 

v.  Winchester,  &c.  Co. 
Goodsell  v.  Boynton 
Goodtitle  v.  Kibbee 

v.  Otway 

Goodwin  v.  Thompson 
Goodwin,  &c.  Co.'s  Appeal 
Goodwine  v.  Evans 


Page 
417 
605 
864 
396 
672 
252 
815, 
817 
722 
323 
711 
676 
885 
267 
670 
522 
452 
852 
781 
583 
579 
691 

39 

26 
195 
689, 
867 

35 
863 
924 
877 
860, 
861 
883 
257 
638 
413 
928 

12 
267 
404 
217 

91 
180 
265 

29 
896 
848 
638 
655 

84 
497 
237 
389 
525 
622 
450 

23 
274 
717 
223 
755 

84 

62 
478 
827 


Page 

Gordon  v.  Appeal  Tax  Court  176,  395 

v.  Building  Association  560.  564 

p.  Caldcleugh  .        31 

v.  Cornes                          337,  338,  703 

v.  Farrar  927 

v.  Ingram  132 

v.  M  cores  159 

v.  People  215 

v.  Preston  276 

Gore  v.  State  450,  453 

Gorham  v.  Campbell  929 

v.  Cooperstown  363 

v.  Luckett  453 

v.  Springfield  166 

Gorman  v.  Pacific  R.  R.  Co.  394,  841 

Gormley  w.  Taylor  253 

Goshen  v.  Kern  285,  710 

v.  Richmond  648 

v.  Stonington                    235,  633,  536 

Goshorn  v.  Purcell  630.  538 

Goslin  t;.  Cannon  612,  630 

v.  Veley  281,  932 

Gosnell  v.  State  890 

Gosselink  v.  Campbell  286,  860 

Cosset  v.  Howard  191 

Gossigi  v.  New  Orleans  285,  888 

Goszler  v.  Georgetown  295,  783 

Gott  v.  Pulsifer  648 

Gottbehuet  v.  Hubachek  606,  628 

Gottschalk  v.  Chicago,  &c.  R.  R.  Co.    811 

Gougar  v.  Timberlake  901 

Gough  v.  Dorsey  129,  589 

v.  Pratt  136 

Gould,  Ex  parte  443 

v.  Hudson  River  R.  R.  Co.  781,  786 

v.  Sterling                 274,  320,  323,  542 

v.  Sullivan  750 

v.  Topeka  302 

Goulding  v.  Clark  275 

Govan  v.  Jackson  934 

Gove  v.  Blethen  628 

v.  Epping  327,  704 

Governor  ».  Porter                    77,  132,  137 

Grace  v.  McElroy  86 

v.  Teague    '  898 

Graffty  v.  Rushville  693 

Graham,  Ex  parte  629 

v.  Chicago  732 

v.  Com'rs  Chautauqua  Co.  707 

v.  Greenville  166 

t;.  Weeks  32 

Grammar  School  v.  Burt  392 

Granby  v.  Thurston  266 

Grand  Gulf  R.  R.  Co.  v.  Buck  396 

Grand  Island  &  N.  W.  Ry.  Co.  v. 

Baker  321 
Grand  Lodge  of  Louisiana  v.  New 

Orleans  396 

Grand  Rapids  v.  Brandy  288 

v.  Hughes  271 

v.  Newton  291 

v.  Perkins  818 

v.  Powers  574 
Grand  Rapids,  &c.  R.  R.  Co.  v.  Heisel    786, 

799 

v.  Weiden  761 


liv 


TABLE   OF   CASES. 


Page 

Grand  Rapids  Booming  Co.  v.  Jarvis  787 
Grand  Trunk  Ry.  Co.  v.  Ives  134,  560 
Granger  v.  Pulaski  Co.  348,  355 

Grannahan   v.  Hannibal,  &c.  R.  R. 

Co.  836,  844 

Grant  v.  Brooklyn  362 

v.  Buckner  26 

v.  Courier  241 

v.  Erie  301 

v.  Leach  566 

v.  Spencer  114 

v.  State  461 

Grattan  v.  Mattison  689 

Graves  v.  Blanchet  607 

v.  Nor.  Pac.  R.  R.  Co.  590 

v.  Otis  296,  783 

v.  Saline  322 

Gray  v.  Connecticut  568,  845 

v.  Danbury  363 

v.  First  Division,  &c.  791 

v.  Griffin  305 

v.  Hook  924 

v.  Knoxville  304 

v.  Navigation  Co.  394 

v.  Pentland  618,  619 

v.  State  564 

Gray's  Lessee  v.  Askew  86 

Great  Falls   Manufacturing  Co.   v. 

Fernald  773 

v.  Garland  814 

Great  Western  R.  R.  Co.  v.  Decatur  840 
Great  Western  Telegraph  Co.  v. 

Purdy  40 

Greeley  v.  Jacksonville  217 

Greeley  S.  L.  Ry.  Co.  v.  Yount  827 

Green,  Re  28 

v.  Aker  121 

».  Biddle  387 

v.  City  803 

v.  Chapman  645 

v.  Collins  575 

z;.  Creighton  576 

v.  Custard  583 

v.  Holway  685 

v.  Hotaling  695 

v.  Mayor,  &c.  209 

v.  Neal's  Lessee  33,  34 

v.  Portland  799 

v.  Reading  296,  783 

v.  Sarmiento  42 

v.  Savannah  854 

v.  Shumway  902 

v.  State  24,  557,  782,  869 

v.  Swift  782,  869 

v.  Telfair  656 

v.  Van  Buskirk  43 

v.  Weller  92,  93,  194 

Greencastte,  &c.  Co.  v.  State  87,  216 

Greencastle  Township  v.  Black   91,  92, 

93,  107,  115 

Greene,  Re  336 

v.  Briggs  431,  502,  591 

Greenfield  i;.  Dorris  413 

Greenlaw  v.  Greenlaw  578 

Greenough  v.  Greenough   129,  132,  136, 

150,  540 


Page 

Greensboro'  v.  Ehrenreich  287 

v.  Mullins  280 

Greenstreet  v.  Thornton  681 

Greenville  v.  Kemmis  280 
Greenville  &  Columbia  R.  R.  Co.  v. 

Partlow  823,  824,  825 

Greenwood  v.  Cobbey  620 

v.  Curtis  178 

v.  Freight  Co.  394 

i>.  Louisville  301 

v.  State  280 

Gregory,  Exparte  283,  709 

o.  Bridgeport  308 

v.  Denver  Bank  407 

v.  Gregory  679 

v.  State  133 

Grenada  Co.  Supervisors  v.  Brogden  256 

Grey  v.  Newark  Plank  R.  Co.  183 

ex  rel  Simmons  v.  Paterson  782 

Gridley  v.  Bloomington  286,  861 

Grier  v.  Shackleford  937 

Griffin  v.  Cunningham  560 

v.  Goldsboro  873 

v.  Martin  788 

v.  McKenzie  622 

v.  Mixon  518 

».  New  York  300 

v.  Ranney  685 

v.  Wilcox  410,  517 

v.  Williamstown  363 

Griffin's  Case  18 

Griffin's   Executor  v.   Cunningham    138, 

153,  546 

Griffing  v.  Gibb  34 
Griffiths,  In  re  130 
Griggs  v.  Foote  296 
Grills  v.  Jonesboro'  285 
Grim   v.  Weissenburg  School  Dis- 
trict 535,  701 
Grimes  v.  Coyle                       612,  619,  630 
v.  Doe  537 
v.  Eddy  854,  881 
Grimmett  v.  State  441 
Grissell  v.  Housatonic  Ry.  Co.  841 
Griswold  v.  Bragg  553 
v.  School  District  712 
Grob  t>.  Cusliman  195 
Groesbeck  v.  Seeley  623,  527 
Groesch  v.  State    '  173 
Groffs,  In  re  247 
Grogan  v.  San  Francisco  346,  386 
v.  State  468 
Groorne  v.  Gwinn  162 
Gross  v.  Rice  474 
v.  U.  S.  Mortgage  Co.  30,  537 
Grossman  v.  Oakland  290 
Grosvenor  v.  Chesley  406 
v.  United  Society  661 
Grove  v.  Brandenburg  629 
r.  Todd  638 
Grover  &  B.  S.  M.  Co.  v.  Radcliffe         42 
v.  Huckins  620 
v.  Trustees  Ocean  Grove  213 
Grubb  v.  Bullock  160 
Grubbs  v.  State  212 
Grube  v.  St.  Paul  305 


TABLE   OF   CASES. 


Iv 


Page 

Grumbine  v.  Washington  305,  362 

Grundy  v.  Commonwealth  515 

Grunewalds  v.  Cedar  Rapids  272 
Guaranty  T.  &  S.  D.  Co.  v.  Green 

C.  S.  &  M.  Ry.  Co.  42,  44 

Guard  r.  Rowan  629 

Gubasko  v.  New  York  363 

Guenther  v.  People  470 

Guerin  v.  Moore  614 

Guerrero,  In  re  283,  294,  694,  709 

Guetig  v.  State  437 

Guild  v.  Kidd  553 

v.  Rogers  406,  409 

Guile  v.  Brown  590 

Guilford  v.  Cornell  208 

v.  Supervisors  of  Chenango  309,  332, 

335,  340,  543,  761 

Guillotte  v.  New  Orleans  286,  888 

Guiterrez,  Ex  parte  383 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis  16,  671 

v.  Fuller  811 

v.  Helfley  &  Lewis  872 

v.  Rambolt  92 

v.  State  875 

Gulick  v.  New  932 

v.  Ward  197 

Guiline  v.  Lowell  808 

Gumm  v.  Hubbard  916 

Gundling  v.  Chicago  15 

Gunn,  Re  189 

v.  Barry  62,  63,  407,  408 

».  White  S.  M.  Co.  180 

Gunnarssohn  v.  Sterling  174 

Gunnison  Co.  Com'rs  v.  Rollins  & 

Sons  322 

Gunter  v.  Dale  Co.  207 

Gurnee  v.  Chicago  719 

v.  Speer  403,  407 

Gurney  v.  Minneapolis  Union  Elev. 

Co.  804 

Gustafson  v.  State  66 

Gut  v.  Minnesota  375 

v.  State  382,  459 

Guthrie  v.  Oklahoma  336 

Guthrie  Nat'l  Bk.  v.  Guthrie  336 

Gutman  v.  Virginia  Iron  Co.  237 

Guy  v.  Baltimore  694 


H. 

Haas  v.  Chicago,  &c.  R.  R.  Co.  840,  843 

Habersham  v.  State  464 

Hackett,  In  re  606,  590,  749 

v.  Wilson  667 

Hackettstown  r.  Swackhamer  271 

Hackney  v.  Vawter  661 

v.  Welsh  41 

Hadden  v.  Chora  661 

v.  The  Collector  202 

Hadduck's  Case  276 

Hadley  v.  Mayor,  &c.  937,  939 

Hadsell  v.  Hancock  308 

Hafford  ».  New  Bedford  301 

Hagan  v.  Hendry  658 

Hagany  v.  Cohnen  690 


Page 

[la  gar  v.  Reclamation  Dist.  722 

v.  Supervisors  of  Yolo  735 

Hagerstown  v.  Dechert  247,  250 

v.  Schuer  267 

v.  Whitmer  287,  297 

Haggard  v.  Hawkins  208 

Hagge  v.  State  935 
Haggerty  v.  St.  Louis  I.  M.  &  S.  Co.     879 

Hagood  v.  Southern  24 

Hahn  v.  United  States  106 

Haigh  v.  Bell  860 

Haight  v.  Grist  685 

v.  Lucia  454 

Haines  v.  Hall  862 

v.  Levin  591 

v.  School  District  275 

Haines's  Appeal  591 

Hair  v.  State  451 
Haislip  /;.  Wilmington,  &c.  R.  R.  Co.    824 

Hakewell,  Matter  of  497 

v.  Ingram  656 
Halbert  v.  San  Saba  Springs,  L.  & 

L.  S.  Ass'n  187 

v.  Sparks  262 
Hale  v.  Everett            67,  93,  660,  664,  670 

v.  Kenosha  718,  741 

v.  Lawrence  878 

v.  State  130 

v.  Wilkinson  685 

Haley  v.  Clarke  160 

v.  Philadelphia  136,  530 

v.  Taylor  486 

Hall,  In  re  218 

v.  Armstrong  456 

v.  Bray  182 

v.  Bunte  207 
v.  De  Cuir                        668,  840,  881 

v.  Gavitt  924 

v.  Marks  589 

v.  Marshall  167,  925 

v.  Steele  195,  199 

v.  Thayer  593,  594 

v.  Washington  Co.  474 

v.  Williams  41,  42,  583 

v.  Wisconsin  386,  389 
Hallinger  v.  Davis                   464,  456,  505 

Hallock  v.  Franklin  Co.  818 

v.  Miller  607 

Halstead  v.  Buster  32 

v.  Nelson  620 
v.  New  York             270,  309,  311,  323 

Ham  v.  McClaws  234 

v.  Salem  769 

v.  Smith  924 

».  State  40 

v.  Wisconsin,  &c.  Ry.  Co.  823 

Hamblin  v.  Western  Land  Co.  30 

Hamersley  v.  New  York  814 

Hamilton,  Ex  parte  496 

v.  Brown  22 

v.  Carthage  363 

v.  Eno  628 

v.  Hirsch  515 

v.  Kneeland  62 

v.  People                      •  464 

v.  State  177,  218 


Ivi 


TABLE  OF  CASES. 


Page 

Hamilton  u.  St.  Louis  County  Court     69, 

101 

v.  Vicksburg,  &c.  R.  R.  Co.     55,  784, 
864,  866 

v.  Wilson  708 

Hamilton  Co.  v.  Massachusetts  30 

v.  Mighels  348 

Hamilton  Co.  Com'rs  v.  Rasche    530,  555 

Hamilton  Gas  Light  &  Coke  Co.  v. 

Hamilton  299,  383,  394 

Hamlet  v.  Taylor  223 

Hamlin  v.  Mack  606 

v.  Meadville  272,  319 

Hammett  v.  Philadelphia       400,  704,  717, 

719,  730 

Hammond  v.  Anderson  84 

v.  Haines  173 

v.  People  496 

v.  Wilcher  891 

Hampshire  v.  Franklin  268 

Hampton  v.  Coffin  818 

v.  McConnel  43 

u.  Wilson  644 

Hamrick  v.  Rouse  176 

Hancock,  Matter  of  592 

v.  Louisville  &  N.  Ry.  Co.  32 

v.  State  441 

v.  Yaden  572,  877 

Hancock  Nat'l  Bank  v.  Farnum  43 

Hand  v.  Ballou  526 

Hand  Gold  Mining  Co.  v.  Packer          771 

Handle  ».  Chapin  852 

Handy  v.  Chatfield  410,  415 

v.  State  464 

v.  St.  Paul,  &c.  Pub.  Co.  860 

Haney  v.  Marshall  37 

Hanford  v.  Davis  36 

Hanger  v.  Des  Moines  310 

Hang  Kie,  In  re  286 

Hankins  v.  Lawrence  772 

v.  People  280 

Hanley  v.  Donoghue  42 

Hanlin  v.  Chicago,  &c.  Ry.  Co.  791 

Hanlon  v.  Doherty  478 

Hanna  v.  Young  9S 

Hannel  v.  Smith  87 

Hannibal  v.  Richards  884 

Hannon  v.  Grizzard  894,  90.- 

v.  St.  Louis  Co.  Court  354 

Hanoff  v.  State  449 

Hanover  v.  Turner  578,  58C 

Hans  v.  Louisiana  24,  417 

Hanscom  v.  Boston  36c 

Hansen  v.  Vernon  691 

Hapgood  v.  Doherty  591 

v.  Whitman  529 

Happel  v.  Brethauer  19( 

Happy  v.  Morton  66( 

v.  Mosher  58* 

Happy  Home  Club  v.  Alpena  Co. 

Harbaugh  v.  Cicott  905,  921,  932 

Harbeck  v.  New  York  257 

Harbison  v.  Knoxville  Iron  Co.  509 

Harbor  Com'rs  v.  Pashley  69 

Hard  v.  Burton  68? 

v.  Nearing  504,  606 


lardeman  v.  Downer 
larden  v.  Cumstock 
iardenburg  v.  Lock  wood 
3ardin  v.  Baptist  Ch. 
iarding,  Ex  parte 


Page 

634 
788 
660 
496 


v.  Alden  679,  580,  584,  585 

v.  Funk  772,  823 

f.  Goodlet  772,  775 

v.  People  837 

v.  Rockford,  &c.R.  R.  Co.  819 

v.  Stamford  Water  Co.  788 

rlardwick  v.  Pawlet  485 

Hardy  v.  Atchison,  &c.  R.  R.  Co.         875 
v.  Brooklyn  304 

flare  i:  Hare  579 

v.  Kennedy  745 

v.  Mellor  619 

Harkrader  v.  Wadley  25,  26 

Harley  v.  Montana  O.  P.  Co.  582 

Harlan  v.  People  46 

Harman  v.  Harwood  159 

v.  Lynchburg  305 

Harmison  v.  Ballot  Com'rs  of  Jeff.  Co.  127 
Harmon  v.  Auditor  83 

v.  Chicago         688,  690,  856,  859,  884 
v.  Dreher  661 

v.  Omaha  296,  812 

v.  Wallace  412 

Harmony  v.  Mitchell  878 

Harp  v.  Osgood  487 

Harpending  v.  Haight  162,  220 

r.  Reformed  Church  33 

Harper  »?.  Commissioners  506 

i?.  Richardson  814,  815 

v.  Rowe  546 

Harper  County  Comr's  v.  Rose  322 

Harrigan  v.  Lumber  Co.  868 

Harriman  v.  Baptist  Church  661 

v.  Boston  363 

Harrington  v.  County  Com'rs  818 

v.  Miles  605 

v.  Providence  883 

v.  State  466 

Harris  v.  Austell  409 

v.  Colquit 

v.  Dennie  30 

v.  Harris  80 

17.  Huntington  619 

v.  Inhabitants  of  Marblehead         553 
v.  McClanahan  686 

v.  Morris  484 

v.  People  209,  458 

v.  Roof  197 

v.  Rutledge  539 

v.  Schuylkill  R.  E.  S.  Ry.  Co.       826, 

827 

17.  State  212 

17.  Terry  606 

Harrisburg,  C.  &  C.  T.  R.  Co.  v.  Har- 

risburg  &  M.  E.  Ry.  Co.  814 

Harris  Co.  v.  Boyd  695 

Harrison  v.  Baltimore  863 

v.  Bridgeton  267,  268,  345 

r.  Bush  610,  612,  647,  648 

t7.  Harrison  679,  684 

t7.  Leach  95 


TABLE   OF   CASES. 


Ivii 


Page 

Harrison  v.  Metz  629 

v.  Morton  '28 

v.  New  Orleans,  &c.  Ry.  Co.  798 

v.  Sager  86 

v.  Stacy  622 

r.  State  237 

v.  Supervisors  206,  209 

v.  Willis  617 

Harrison  Justices  v.  Holland  266 

Harrodsburg  v.  Renfro  291 

Harrow  v.  Myers  87 

Hart  v.  Albany  292,  830,  878 

v.  Bostwick  623 

v.  Bridgeport  305 

v.  Brooklyn  358,  860 

v.  Evans  919 

v.  Henderson  527 

v.  Holden  331 

v.  Jewett  81 

v.  State  382 

v.  Von  Gumpach  629 

Harteau  v.  Harteau  680 

Hartford  v.  State  606 

Hartford  Bridge  Co.  v.  Union  Ferry 

Co.  237,  263 

Hartford  F.  Ins.  Co.  v.  Chicago  M. 

&  St.  P.  Ry.  Co.  32,  833 

v.  Reynolds  478 

Hartland  v.  Church  719 

Hartman,  Ex  parte  496 

v.  Aveline  39 

v.  Greenhow  85,  386,  403 

Hartman  Steel  Co.,  Appeal  of  703 

Hartranft's  Appeal  162 

Hartt  v.  Harvey  935 

Hartung  v.  People  379,  473, 616,  544 

Harvey  v.  Com'rs  Rush  Co.  388 

v.  Farnie  580 

v.  Lackawanna  R.  R.  Co.      781,  785, 

823 

v.  Tama  Co.  924 

v.  Thomas  237,  608,  765 

Harward  v.  St.  Clair,  &c.  Drainage 

Co.  643 

Harwood  v.  Astley  624 

v.  Bloomington  826 

Hasbrouck  v.  Milwaukee      313,  337,  338, 

642 

v.  Shipman  414 

Haskel  v.  Burlington  656 

Haskell,  Re  288 

v.  New  Bedford  232,  251,  780 

Hastings  v.  Lane  629 

v.  Lusk  633 

Hastings  &  G.  I.  R.  R.  Co.  v.  Ingalls    803 

Haswell's  Case  613 

Hatch  v.  Lane  611,  612 

v.  Stoneman  162 

v.  Vermont  Central  R.  R.  Co. 

783, 807,  826 

Hatcher  v.  State  655 

v.  Toledo,  &c.  R.  R.  Co.  629 

Hatcheson  w.  Tilder  932 

Hatchett  v.  Mount  Pleasant  Ch.  661 

Hatfleld  v.  Commonwealth  177 

Hathaway  v.  New  Baltimore  209 


Hatheway  v.  Sackett 
Hatlion  v.  Lyon 
Hathorne  v.  Panama 
Hatzfield  v.  Gulden 
Hauenstein  v.  Lynham 


Page 

263,  267 

613 

456 

198 

25 


Haugen  v.  Albina  Light  &  W.  Co.        877 
Hausenfluck  v.  Commonwealth  436 

Harvard  v.  Day  748 

Haverhill  Bridge  Props,  v.  County 

Commissioners  814 

Haverly  I.  M.  Co.  v.  Howcutt  689 

Hawbecker  v.  Hawbecker  89 

Hawes  v.  Chicago  290 

v.  Miller  915,  925 

Hawk  v.  Marion  Co.  310 

Hawker  v.  New  York  890 

Hawkins  v.  Barney's  Lessee  387 

v.  Carrol  91 

v.  Commonwealth  266 

v.  Governor  132,  162,  228 

v.  Jones  80 

v.  Lumsden  644 

v.  Mangrum  706 

v.  Ragsdale  684 

Hawthorn  v.  People  886 

Hawthorne  v.  Calef  392,  407,  415 

Hay  v.  Cohoes  Company  773,  786 

Hay  den  v.  Foster  749 

v.  Goodnow  265 

r.  Noyes  281,  287,  291 

Hayes  v.  Appleton  285 

Ex  parte  890 

r.  Douglas  County  731 

v.  Holly  Springs  322 

v.  Missouri  19,  459 

v.  Pratt  27 

v.  Press  Co.  638 

v.  Reese  80 

Haynes  v.  Burlington  757 

v.  Thomas  785 

Hays  v.  Brierly  666 

v.  Risher  778 

Hay  wood  v.  Savannah  278 

Hazen  v.  Essex  Company  772 

v.  Lerche  262 

Head  v.  Amoskeag  Co.  773 

v.  Daniels  688 

v.  Providence,  &c.  R.  R.  Co.  323 

Head  Money  Cases  25,  686,  832,  858 

Health    Dept.   v.   Rector  of   Trin. 

Church  671, 880 

Heard  v.  Brooklyn  796 

v.  Heard  223 

Hearn  v.  Brogan  217 

Heath,  Ex  pnrte      114,  926,  929,  933,  935 
Heather  Children,  Matter  of  497 

Hechinger  v.  Maysville  286 

Hector  v.  State  445, 469 

Hedderich  v.  State  845 

Hedgecock  v.  Davis  104 

Hedges  v.  Dixon  County  320,  822 

v.  Madison  Co.  865 

Hedley  v.  Com'rs  of  Franklin  Co.        263 
Hegarty's  Appeal  144,  149 

Hegeman  v.  Western  R.  R.  Co.    835,  838 
Heilbron,  Ex  parte  287 


Iviii 


TABLE   OF  CASES. 


Page 

Heilbron,  Estate  of  409 

Hein  v.  Davidson  607 

Heinlein  v.  Martin  81 

Heiss  v.  Milwaukee,  &c.  Ry.  Co.  791 

Hekking  v.  Pfaff  40 

Heldt  v.  State  446,  449 

Helena  v.  Dwyer  289 

v.  Gray  284 

v.  Thompson  362 

Helena  Cons.  Water  Co.  v.  Steele        335 

Heller  v.  Atchison,  &c.  R.  R.  Co.          648 

v.  Sedalia  301 

Helverstine  v.  Yantes  691 

I  leman  v.  Allen  731 

Hendershot  v.  State  818 

Hendershott  v.  Ottumwa  296 

Henderson  v.  Griffin  31 

v.  Hey  ward  289 

v.  Lambert  726 

v.  McClain  784 

v.  Minneapolis  783,  786 

v.  New  York  688 

».  Oliver  751 

Henderson    Petitioner   in    State    v. 

Evans  474 

Henderson's  Distilled  Spirits         429,  748 

Henderson's  Tobacco  217 

Henderson  Bridge  Co.  v.  Henderson    691 

v.  Kentucky  692 

Hendrick's  Case  46 

Hendrickson  v.  Decow  661 

v.  Hendrickson  223,  224,  258 

Henisler  v  Freedman  433 

Henke  v.  McCord  259 

Henkel  v.  Cincinnati  30 

v.  Detroit  304 

Henley  v.  Lyme  Regis  356,  361 

Henneberger,  Re  183 

Hennersdorf  v.  State  859 

Hennepin  Co.  v.  Bartleson  860 

Hennessy  v.  St.  Paul  883 

Hennington  v.  Georgia  852,  859 

Henry  v.  Chester  743 

v.  Deitrich  661 

v.  Dubuque  &  Pacific  R.  R.  Co. 

808,  817,  822 

v.  Henry  209,  409 

v.  Tilson  101 

Henshaw  v.  Foster  123,  911 

Hensley  v.  Force  42 

Hensley  Township  v.  People  704 

Hensoldt  v.  Petersburg  194 

Henson  v.  Moore  614 

Kenwood  v.  Harrison  628,  649 

Hepburn  v.  Curts  615,  634 

Hepburn's  Case  764 

Herber  v.  State  378 

Herdie  v.  Roessler  13 

Herndon  v.  Imp.  F.  Ins.  Co.  131 

Herrick  v.  Randolph  396,  396,  679 

Herrington  v.  Lansingburgh  362 

Herrmann  v.  State  288 

Hersey  v.  Supervisors  of  Milwaukee 

743,  749 

Hershfield  v.  State  466 

Hershizer  v.  Florence  614,  616 


Page 

Hess  v.  Johnson  411 
v.  Pegg                       86,  182,  266,  267 
v.  Werts  636 
v.  White  460 
Hessler  v.  Drainage  Com'rs  643 
Heth  v.  Fond  du  Lac  304 
Hewison  v.  New  Haven  304,  346,  360 
Hewitt  v.  Normal  School  District         262 
v.  Prince  478 
Hewitt's  Appeal  722 
Heydenfeldt  v.  Towns  695 
Heyfron,  Ex  parte  683 
Hey  Sing  Jeck  v.  Anderson  431 
Heyward,  Matter  of  40 
v.  Judd  406,  413 
v.  New  York     232,  251,  754,  801,  809 
Hibbard  v.  People  431,  850 
v.  State  233 
Hibbard  S.  B.  &  Co.  v.  Chicago  299 
Hibernia  R.  R.  Co.  v.  Camp  776 
Hickerson  v.  Benson  924 
Hit-key  v.  Hinsdale  114 
Hickie  v.  Starke  30 
Hickman's  Case  765 
Hickman  v.  Kansas  City  754,  815,  824 
Hickok  v.  Plattsburg  357 
Hickox  v.  Tallman  625,  526 
Hicks  v.  Steigleman  621 
Higert  v.  Green  Castle  363 
Higginbotham  v.  State  460 
Higgins  v.  Berg  900 
v.  Chicago  818,  819 
v.  Farmer  Ins.  Co.  65,  590 
v.  Lime  686 
High  v.  Coyne  708 
v.  Shoemaker  606 
High's  Case  908 
Highland  Ave.  &  B.  R.  Co.  v.  Mat- 
thews 828 
High   School  Dist.  No.  137  v.  Lan- 
caster Co.  707 
Hightower  v.  Bailey  &  K.  616 
Hightstown  v.  Glenn  183 
Highway  Com.  v.  Ely  302 
v.  Martin  303,  356 
Hilands  v.  Commonwealth  469 
Hilbish  v.  Catherman  333 
Hildreth  v.  Lowell  770, 861 
v.  Mclntyre  898 
Hill,  Ex  parte  494 
v.  Boston  302,  305,  355 
v.  Boyland  118 
v.  Charlotte  301 
v.  Commissioners  209 
v.  Higdon  717,  728,  730,  734,  742,  745 
v.  Hill  937 
v.  Kessler  408 
v.  Kricke  522,  623 
v.  Miles  619 
v.  Morse  80 
v.  People  458,  676,  677 
v.  Pride  685 
v.  Slade  99 
p.  Spear  850 
v.  State  221,  223 
v.  Sunderland  138 


TABLE    OF   CASES. 


lix 


Page 

Hill  v.  Wella  594 

Hill's  Case  452 

Hillebert  v.  Porter  414 

Billiard  v.  Connelly  138 

v.  Miller  540 

v.  Moore  412 

Hills  v.  Chicago  102,  121,  236 

Hiimnan  v.  Warren  64 

Himmelman  v.  Carpenter  625 

Hinchman  t>.  Paterson  Horse  R.  R. 

Co.  800,  805,  806,  867 

v.  Town  577 

Hinckley  v.  Somerset  358 

Hind  v.  Rice  209 

Hinde  v.  Vattier  33 

Hindman  v.  Piper  149 

Hines  v.  Charlotte  301 

v.  Leaven  worth  717,  730 

v.  Lockport  304, 363 

Hingham,  &c.  Turnpike  Co.  v.  Nor- 
folk Co.  232 
Hing  v.  Crowley  258 
Hingle  v.  State  203,  205 
Hinkle,  In  re  898 
Hinman  o.  Chicago,  &c.  R.  R.  Co.  842 
Hinsou  v.  Lott  690 
Hinton  v.  State  435 
Hintrager  v.  Mahoney  750 
Hintz  v.  Michigan  C.  Ry.  Co.  454 
Hipp  v.  Charlevoix  Co.  Superv.  937 
Him  v.  State  217,  399,  400 
Hiss  o.  Bartlett  190 
v.  Railway  Co.  802 
Hite  i7.  Hite  569 
Hoag  v.  Hatch  605 
v.  Switzer  785 
Hoagland  v.  Creed  589 
Hoar  v.  Wood  632,  633,  647 
v.  Silverlocke  637 
Hobart  v.  Supervisors,  &c.  166,  167,  237 
Hobbs  &  Johnson,  Ex  rel.  551 
Hoboken  v.  Phinney  744 
Hocking  Valley  Coal  Co.  v.  Rosser  556, 

571 

Hodge  v.  Linn  913,  929 

Hodges  v.  Bait.  Pass.  Ry.  Co.  794 

v.  Buffalo  270,  310 

v.  Crowley  318 

Hodgkins  v.  Rockport  263 

Hodgson  v.  Milward  618,  519 

v.  New  Orleans  710 

v.  Scarlett  632 

v.  Vermont  22,  456,  505 

Hoefling  v.  San  Antonio  718 

Hoffman  v.  Circuit  Judge  483 

v.  Hoffman  42,  579,  580 

17.  Locke  591 

i7.  State  467,  469 

Hoge  v.  Railway  Co.  396 

Hogg,  Ex  parte  209 

17.  Mackay  739 

v.  Zanesville  Canal  Manuf.  Co.        64, 

867 

Hoggard  v.  Monroe  306 

Hoggatt  v.  Vicksburg,  &c.  R.  R.  Co.     804 
Hoglan  v.  Carpenter  895 


Page 

Hoisington  17.  Hough  252 

Hoke  v.  Henderson  603 

Holbrook  v.  Finney  613 

v.  Murray  42 

Holden  v.  Hardy  (14  Utah)   456,457,605, 

570,  891 

v.  James  237,  621,  658,  659 

v.  Minn.  376 

Holder  v.  Aultmann  M.  &  Co.  178 

v.  State  463 

Holland  v.  Com'rs  of  Silver  Bow 

Co.  720 

v.  Davis  921 

17.  Dickerson  406 

v.  Osgood  113 

v.  State  133 

Hollenbeck  v.  Winnebago  Co.  305 

Holley  v.  Burgess  606 

Hollida  v.  Hunt  12 

Holliday  v.  Ont.  Farmers',  &c.  Co.       610 

Hollingsworth  v.  Duane  454 

Hollis  v.  Meux  630 

Hollister  v.  Hollister  579,  580 

i7.  Union  Co.  549 

Holloway  v.  Sherman  406,  515 

Hoi  man  v.  School  Trustees  263 

Holman's  Heirs  v.  Bank  of  Norfolk     144, 

583,  584 

Holmes,  Ex  parte  41 

v.  Holmes  403,  585 

v.  Jennison  30,  41 

Holt  i7.  Downs  660 

v.  State  379,  467 

Holt's  Appeal  275 

Holton  v.  Com'rs  Mecklenburg  Co.       707 

v.  Milwaukee  728,  822,  823 

Holyoke  Co.  v.  Lyman  394,  565 

Home  v.  Bentinck  630 

Home  Building,  &c.  Co.  v.  City  of 

Roanoke  784 

Home  Ins.  Co.  v.  Augusta  283,  404 

17.  Swigert  166,  707 

17.  Taxing  District  216 

Home  Ins.  &  T.  Co.  v.  Tennessee         397 

Home  &  C.  v.  Wilkinsburg  718,  741 

Home  of  the  Friendless  v.  Rouse         395 

Homer  v.  Commonwealth  217 

Homestead  Cases  408 

Hong  Wah,  In  re  286 

Hood  t7.  Finch  818 

i\  Lynn  310 

f.  State  42,  580 

Hook  17.  Hackney  606,  628 

Hooker  v.  Hooker  138 

v.  New  Haven,  &c.  Co.     781 ,  786,  787, 

815 

Hooper,  In  re  39 

v.  Bradford  709 

17.  Bridgewater  769 

v.  California  179,  687,  834 

v.  Emery  272,  698,  704 

Hoover  v.  McChesney  609 

17.  Mitchell  80 

v.  Wood  231 

Hope  v.  Johnson  615 

v.  Mayor,  &c.  205,  208 


TABLE   OF   CASES. 


Hopkins  v.  Baker  Bros. 

v.  Duluth 

v.  Hopkins 

v.  Lewis 

Hopple  v.  Brown 
Hopps  v.  People 
Hopson,  In  re 
Hopt  v.  Utah 
Horbach  v.  Miller 


Page 
720 
166 
679 
848 

272,  323,  348 
437 
494 

447,  452,  469 
522 


Horn  v.  Atlantic,  &c.  R.  R.  Co.     841,  842 

v.  Chicago,  &c.  R.  R.  Co.  843 

Horn  Silver  Mining  Co.  v.  New  York  179, 

180 

Home  v.  State  410 

Horstman  v.  Kaufman  442 

Horton  v.  Baptist  Church  661 

v.  Watson  895 

Hoskins  v.  Brantley  895 

Hosmer  v.  Loveland  620,  630,  686 

Hospes  v.  O'Brien  854 

Hotchkiss  v.  Oliphant  642,  644 

Hot  Springs  R.  R.  Co.  v.  Williamson   811 

Hottentot  Venus  Case  494 

Houdayer's  Estate,  lie  21,  720 

Houghton  v.  Huron  Copper  M.  Co.      312 

v.  Page  62 

Houghton  Co.  Sup'rs  v.  Blacker  931 

Houlton  v.  Nichol  196 

House,  Re  696 

v.  White  477 

House  Bill,  In  re  706 

No.  99,  Re  73 

No.  1230,  Re  886 

No.  1291,  Re  010 

Householder  v.  Kansas  City  121 

Houseman  v.  Kent  Circ.  Judge     130,  531 

House  of  Refuge  v.  Ryan  423 

Houston,  Re  689 

v.  Moore  13,  46 

v.  Stafe  606,  878 

Houston,  &c.  R.  R.  Co.  v.  Odum     194,  791 

Houston  &  E.  T.  Ry.  Co.  v.  Adams      826 

Houston  &  T.  C.  Ry.  Co.  v.  State 

(90  Tex.)  884 

v.  Texas  (170  U.  S.)  384 

v.  Texas  (177  U.  S.)  35,  386 

v.  Texas  &  P.  Ry.  Co.  392 

Houston  D.  Nav.  Co.  v.  Ins.  Co.  of 

N.  A.  848,  852 

Houston  E.  &  W.  Ry.  Co.  v.  Camp- 
bell 848 
Hovelman  v.  Kansas  City             387,  391 
Hover  v.  Barkhoof                                 259 
Hovey  v.  Elliot                               455,  669 
v.  State                            105,  158,  221 
Howard,  Ex'parte  161 
v.  Church                                         728 
v .  De  Cordova  40 
v.  McDiamid                            266,  939 
v.  Moot                                             409 
t>.  San  Francisco                              801 
v.  Schneider                                     212 
v.  Shields              ,                         929 
v.  Shoemaker                                  895 
v.  Skinner                                         903 
v.  State  99 


Page 

Howard  v.  Thompson  619 

v.  Worcester  802 

v.  Zeyer  653 

Howard  County,  Division  of,  201, 210, 267 

v.  State  627 

Howe,  Re  708 

v.  Plainfleld  690 

Howell  v.  Bristol  725,  729 

v.  Buffalo  338 

v.  Fry  690 

v.  State  209,  555 

Howes  v.  Crush  610,  548 

Howison  v.  Weeden  81,  82 

Howland  v.  Maynard  610 

v.  School  Dist.  769 

Hoxie  v.  Wright  42,  683 

Hoyt  v.  East  Saginaw  728,  730 

v.  Hudson  363 

v.  People  474 

v.  Shelden  30 

v.  Sprague  144 

Hubbard  v.  Bell  862 

v.  Brainerd  618,  629 

v.  Patterson  292 

v.  Taunton  310 

Hubbell  v.  Hubbell  679,  584 

v.  Viroqua  301 

Huber  v.  People  209 

v.  Reily  372,  374,  502,  902 

Huckle  v.  Money  434 

Huddleston  Admx.  v.  Eugene  804 

Hudelson  v.  State  464 

Hudson  v.  Geary  285,  675,  859 

v.  State  469 

v.  Thorne  283,  288 

Hudson  Tel.  Co.  v.  Jersey  City  295 

Hudspeth  v.  Davis  414 

Huesing  v.  Rock  Island  271 

Huff  v.  Bennett  688,  644 

v.  Cook  896 

Huffmire  v.  Brooklyn  784 

Hughes,  Matter  of  39 

v.  Auburn  302 

v.  Baltimore  304 

v.  Cannon  639 

t;.  County  of  Monroe  305 

v.  Hughes  104 

v.  People  280 

v.  Recorder's  Court  285 

Hughey's  Lessee  v.  Horrell  546,  719 

Ruling  v.  Kaw  Valley  Ry.  Co.  818 

Hull  v.  Homer  277 

v.  Hull  679,  684 

v.  Marshall  Co.  324 

v.  Miller  184 

Hulseman  v.  Reins  903,  939 

Humboldt  v.  Long  321 

Humboldt    Co.    v.    Churchill    Co. 

Com'rs  206,  258 

Hume  v.  Commercial  Bank  692 

v.  New  York  358 

Humes  v.  Mayor,  &c.  296 

v.  Tabor  430 

Humphrey  v.  Pegues  395 

Humphries  v.  Brogden  831 

Hunckel  v,  Voneiff  629 


TABLE   OF   CASES. 


Ixi 


Hungerford's  Appeal  80 

Hung  Hang,  Ex  parte  495 

Hunsaker  v.  Wright  176,  742,  743 

Hunscom  v.  Hunscom  616 

Hunt  v.  Bennett  620,  623,  624,  656 

v.  Boonville  305 

v.  Iowa  Cent.  Ry.  Co.  826 

0.  Lucas  518 

v.  Murray  226 

v.  State  195,  218,  464 

Hunt's  Lessee  v.  McMahan  553 

Hunter,  Ex  parte  372 

v.  Cobb  685 

v.  Moore  667 

v.  Nolf  924 

Hunting  v.  Johnson  514 

Huntington  v.  Attrill  43 

v.  Cheesbro  286 

Huntsville  v.  Phelps  284 

Huntzinger  v.  Brock  406 

Hurford  v.  Omaha  112,  114 

Hurley  v.  Powell  751 

v.  Van  Wagner  924 

Hum,  Ex  parte  424 

Huron,  Re  455 

v.  Second  Ward  Natl.  Bk.  322 

Huron  Water  Works  Co.  v.  Huron      342 

Hurst  v.  Smith  496 

v.  State  467 

v.  Warner  272,  873 

Hurtado  v.  California  436,  4o6,  505 

Huse  v.  Glover  65,  688,  691,  864,  865 

v.  Merriam  748 

Huson  v.  Dale  608 

Hussey  v.  Davis  431 

Hussman  v.  Durham  683 

Huston  v.  Wadsworth  46,  589 

Hutcheson  v.  Peck  485 

v.  Storrie  731 

Hutchinson  v.  Brown  899 

v.  Concord  301 

v.  Lewis  629 

v.  Olympia  856 

v.  Parkersburg  812 

v.  Wheeler  608 

Hutchinson  &  S.  R.  Co.  v.  Fox  322 

Hutson  v.  New  York  356 

Hutton  v.  Camden  883 

v.  State  263 

v.  Webb  697 

Huus  v.  New  York  &  R.  R.  S.  Co.  12 

Hyatt  v.  Bates  80 

v.  Rondout  357 

v.  Taylor  89 

Hyde  v.  Brush  906 

i>.  Cogan  346 

r.  Jamaica  303 

v.  Melvin  925 

v.  White  219 

Hydes  v.  Joyes  294 

Hylton  v.  United  States  680 


I. 


Idaho  v.  Rasmussen 
leek  v.  Anderson 


854,  881 
518 


Page 

Igoe  v.  State  209 

1  jams  v.  Duvall  100 

Illinois,  &c.  Co.  v.  Peoria  Bridge  865 

Illinois  &  Mich.  Canal  v.  Chicago  & 

It.  I.  R.  R.  Co.  399 

Illinois  Cent.  R.  R.  Co.  v.  Arnold          842 

v.  Chicago  (138  111.)  763 

v.  Chicago  (141  111.)  806 

v.  Chicago,  &c.  R.  R.  Co.  807 

v.  Decatur  741 

v.  Ihlenberg  121 

v.  Illinois  851 

v.  Irvin  396 

v.  McLean  742 

v.  People  394,  840 

v.  Willenborg  839 

v.  Wren  195 

Illinois  Conf.  Fern.  Col.  v.  Cooper         278 

Illinois  G.  T.  Ry.  Co.  v.  Wade  320 

Ilsley  v.  Nichols  425 

Imlay  v.  Union  Branch  R.  R.  Co.    792,  795 

Indiana  Cent.  R.  R.  Co.  v.  Potts  119,  205, 

206,  207,  213 

Indianapolis  v.  C.  Gas  T.  Co.  298 

v.  Holt  731 

Indianapolis,  £e.  R.  R.  Co.  v.  Kerche- 

val  399,  830,  836,  841,  842 

v.  Smith  786 

v.  Townsend  841,  842 

Indianapolis,  B.  &  W.  Ry.  Co.   v. 

Eberle  786,  791,  797 

Indianapolis  Sun  v.  Horrell  606 

Indianapolis  U.  Ry.  Co.  v.  Houlihan   889, 

891 

Ingalls  v.  Cole  89 

Inge  v.  Police  Jury  769 

Ingersoll  v.  Nassau  Elec.  Ry.  Co.         392 

Inglee  v.  Coolidge  30 

Inglis  v.  Sailors'  Snug  Harbor  33 

v.  Shepherd  921 

Ingraham  v.  Geyer  178 

v.  Regan  85 

Ingrum  v.  Colgan  696 

Inman  v.  Foster  644 

v.  Tripp  304 

Inman  Steamship  Co.  v.  Tinker  691 

Innis  v.  Bolton  902 

Inst.  for  Ed.  Mute,  &c.  v.  Henderson    188 

Insurance  Co.  v.  Morse  567 

v.  Ritchie  544 

v.  Treasurer  30 

?'.  Yard  743 

Intendant  of  Greensboro'  v.  Mullins    280 

International  T.  B.  Co.  v.  Weissin- 

ger  889 

Inter   Ocean   P.  Co.   v.  Associated 

Press  877 

Inter  State  Com.  Conn.  23 

Intoxicating  Liquors,  In  re  849 

Invest.  Com.,  In  re  620 

Investment  Co.  v.  Carpenter  127 

Inwood  v.  State  456 

Iowa  C.  Ry.  Co.  v.  Iowa  20,  22 

Iowa  Life  Ins.  Co.  v.  Lewis  563 

Iowa  R.  R.  Land  Co.  v.  Soper       521,  555 
Iowa  Sav.  &  L.  Ass'n  v.  Heidt  637 


Ixii 


TABLE  OF  CASES. 


Page 
Ireland  v.  Mackintosh  622 

v.  Turnpike  Co.  231,  414 

Iron  Mountain  Co.  v.  Haight  219 

Iron  Mountain  R.  R.  Co.  v.  Binghaiu  797 
Iron  R.  R.  Co.  v.  Ironton  777 

Irons  v.  Field  606 

Irrigation  Resolution,  In  re  73 

Irwin  v.  Great  Southern  Tel.  Co.  804 
Isenhour  v.  State  253 

Isham  v.  Fullager  661 

v.  Trustees  661 

Isom  v.  Mississippi,  &c.  R.  R.  Co.  247 
Israel  v.  Arthur  151,  646 

Ivanhoe  v.  Enterprise  729 

Iverson  v.  State  217 


J. 

Jack  v.  Thompson 
Jackson,  Ex  parte 

In  re 

Matter  of 

v.  Butler 

v.  Chew 

v.  Commonwealth 

v.  Hathaway 

v.  Jackson 

v.  Lyon 

v.  Munson 

v.  Newman 

v.  Nimmo 

v.  Reeves 


681 

432,  433 

40 

490,  494 

411 

33 

450,  452 

810 
679,  585 

515 

371 
283,  709 

129 

209 


v.  Rutland  &  B.  R.  R.  Co.       810,  842 

v.  Shaw  183 

i-.  Vedder  82 

v.  Walker  924 

v.  Winn's  Heirs  814 

v.  Young  114 

Jackson  Iron  Co.  v.  Auditor-General  687 

Jackson,  &c.  R.  Co.  v.  Interstate,  &c. 

Co.  299 
Jacksonville  v.  Drew  362 
».  Led  with                        885,  887,  888 
Jacksonville  El.  Lt.  Co.  v.  Jackson- 
ville 696 
Jacksonville,  T.  &  K.  W.  Ry.  Co.  v. 

Adams  460 

Jacob  v.  Louisville  824 

Jacobs,  In  re  886 

v.  Cone  452 

v.  Marks  43 

v.  Small  wood  414 

Jacoway  v.  Denton                           62,  405 

Jacques  v.  Litle  389 

Jahn,  Re  691 

James  v.  Commonwealth  46 

v.  Pine  Bluff                            281,  860 

v.  Rowland  136 

v.  Stull  412 

v.  Wood  879 

Jameson  v.  People  276 

Jamesville  &  W.  Ry.  Co.  v.  Fisher  896 

Jamieson  v.  Ind.  Nat.  G.  &  O.  C.  853 

v.  Wiggin  894 

Jamison  v.  Burton  85,  86 


Page 

Jane  v.  Commonwealth  46 

Janes  v.  Reynolds  504 

Janesville  v.  Carpenter  787,  837 

Janson  v.  Stuart  606 

January  v.  January  413 

Janvrin,  Re  131 

v.  Exeter  310 

Jarnagan  v.  Fleming  608 

Jarvis  v.  Hatheway  619,  630 

Jaynes  v.  Omaha  S.  Ry.  Co.  803 
Jefferson  Branch  Bank  v.  Skelley    35,  62 

176 

Jefferson  City  *-•.  Courtmire  281 
Jeffersonville,  &c.  R.  R.  Co.  v.  Dun- 
lap  217 
v.  Hendricks  38 
v.  Nichols  842 
v.  Parkhurst  842 
Jeffrey  v.  Brokaw  751 
Jeffries  v.  Ankeny  664,  927 
v.  Harrington  896 
v.  Lawrence  271 
v.  Williams  831 
Jeliff  v.  Newark  719 
Jenkins,  Ex  parte  492 
v.  Andover  313 
v.  Ballantyne  574 
v.  Charleston  694 
v.  Ewin  94 
v.  Jenkins  614 
v.  Thomasville  281 
v.  Waldron  927 
Jennings  v.  Brown  911 
v.  Coal  Ridge  Imp.  &  Coal  Co.         16 
v.  Paine                             629,  633,  634 
v.  Stafford  685 
Jensen  v.  Union  Pac.  Ry.  Co.  842 
Jentzsch,  Ex  parte  837 
Jernigan  v.  Madisonville  163 
Jerome  v.  Ross  766 
Jersey  City  v.  Elmendorf  213 
v.  Kiernan  363 
J.  E.  Rumbell,  The  26 
Jesler  v.  Bd.  Harbor  Com'rs  30 
Jessup  v.  Carnegie  180 
Jett  v.  Commonwealth  46 
Jewett  v.  New  Haven  301 
Joannes  v.  Bennett  611,  612 
Jockleck  v.  Shawner  Co.  Com'rs  756,  759 
John  v.  C.  R.  &  F.  W.  R.  R.  Co.  167 
John  &  Cherry  Streets,  Matter  of  608,  764 
John    Hancock   M.   L.   Ins.   Co.   v. 

Warren  886 

Johns  v.  State  451,  676 

Johnson  v.  Atlantic,  &c.  R.  R.  Co.        757 

v.  Beazley  80 

v.  Bentley  636 

v.  Bond  410 

v.  Bradstreet  Co.  61 1 

v.  Brown   .  647 

v.  Campbell  332,  543 

v.  Com'rs  Wells  Co.  182,  531 

v.  Common  Council  324 

v.  Commonwealth  606 

v.  De  Bary-Baya  M.  Line  719 

v.  Drummond  691 


TABLE  OF  CASES. 


Ixiii 


Page 

Johnson  v.  Fletcher  408 
v.  Gebhaner  521 
v.  Goodyear  Min.  Co.  660 
v.  Higgins  207,  268,  404,  414 
v.  Hudson  R.  R.  Co.  89 
v.  Joliet  &  Chicago  R.  R.  Co.  107,  258 
v.  Jones  517,  618 
v.  Loper  691 
v.  Martin  173 
v.  Parkersburg  121;  784 
v.  People  206,  904 
«.  Philadelphia  .2,  283,  710 
v.  Powers  44 
v.  Railroad  Co.  182 
v.  Rich  171 
v.  Richardson  538,  544 
v.  San  Diego  269 
v.  School  District  262 
v.  Spicer  207 
v.  Stack  167 
v.  Stark  Co.  325 
v.  State  (59  N.  J.)  159 
v.  State  (1  Tex.  App.)  451 
v.  State  (10  Tex.)  437 
v.  State  (29  Ark.)  470 
v.  Taylor  538 
v.  Wallace  589 
Johnson  Co.  v.  January  321 
John  Spry  Lumber  Co.  v.  Sault  Sav- 
ings Bank  508 
Johnston  v.  Commonwealth  236,  675 
v.  Dist.  Columbia  302 
v.  Louisville  272 
v.  Old  Colony  R.  Co.  809 
v.  Riley  39,  40 
Johnstone  v.  Sutton  631 
Joliet  v.  Harwood  302,  362 
v.  Verley  304 
Joliet,  &c.  R.  R.  Co.  v.  Jones  842 
Jolly  v.  Hawesville  305 
v.  Terre  Haute  Drawbridge  Co.  54, 

866 

Jones  v.  Black  232 

v.  Boston  728,  736 

r.  Brim  16,  22 

v.  Carter  653 

v.  Cavins  224 

v.  Columbus  209 

v.  Darnall  497 

v.  Davis  215 

v.  Driskell  682 

v.  Duncan  669 

v.  Erie  &  W.  V.  Ry.  Co.  803,811 

v.  Fletcher  430 

v.  Galena,  &c.  R.  R.  Co.  841 

v.  Harris  677 
v.  Hutchinson           186,  193,  194,  221 

v.  Jones  ( 18  Ala.)  622 

r.  Jones  (104  N.  Y.)  249 

v.  Jones  (2  Overt.)  156,  376 

v.  Jones  (12  Pa.  St.)  156,  259 

v.  Keep's  Estate  684 

v.  Leonard  39,  40 

v.  Meehan  612 

v.  Nebraska  262 
v.  New  Haven                 366,  361,  363 


Page 

Jones  v.  People  846,  849 

v.  Perry  134,  141,  146,  148,  603 

v.  Richmond  265,  309,  878 

v.  Robbins  249,  591 

v.  Skinner  903 

v.  State  382,  478,  908 

v.  Surprise  178,  846,  849 

v.  Thompson  212,  213 

v.  Townsend  603,  624 

v.  Weathersbee  80 

v.  Williamsburg  301 

Jonesboro  v.  Cairo,  &c.  R.  R.  Co.         206 

Joplin  Consol.  Mining  Co.  v.  Joplin     778 

Jordan  v.  Bailey  99 

v.  Benwood  304,  782 

v.  Moore  692 

v.  Woodward  772 

Jordan's  Case  444 

Joseph  v.  Randolph  693 

Joslyn  v.  Detroit  362 

Journeay  v.  Gibson  638,  641 

Joy  v.  Grindstone-Neck  Water  Co.       828 

v.  St.  Louis  396 

v.  Thompson  416 

Joyce  v.  Woods  884 

Joyner  v.  School  District  748 

Judd  v.  Judd  544 

Judefind  v.  State  860 

Judkins  v.  Hill  932 

Judson  v.  Bridgeport  761 

v.  Reardon  283,  484 

Jugiro  v.  Brush  16 

Julia  Bldg.  Ass.  v.  Bell  Tel.  Co.           787 

Julieu  v.  Model  B.  &  L.  I.  Co.  237 

v.  Woodsmill  808 

Justice  v.  Commonwealth  400 

Justices  v.  Fennimore  694 

v.  Murray  46 


K. 

Kahn  v.  Sutro 
Kaine,  Matter  of 

v.  Commonwealth 
Kalloch  v.  Superior  Court 
Kaminitsky  v.  R.  R.  Co. 
Kane  v.  Baltimore 

v.  Commonwealth 

v.  Cook 

v.  N.  Y.  E.  Ry.  Co. 

v.  People 
Kansas  v.  Ziebold 
Kansas  City  v.  Baird 

v.  Clark 

v.  Corrigan 

v.  Huling 

v.  Ry.  Co. 

v.  Whipple 

Kansas  City,  &c.  Ry.  Co.  », 
Kansas  City,  St.  J.,  &c.  R. 

St.  Joseph,  &c.  Co. 
Kansas  City,  St.  J.  &  C.  B. 

v.  Terminal  Ry.  Co. 
Kansas,  N.  &  D.  Ry.  Co.  v. 
dall 


99 
495 
657 

436,  506 
843 
769 
464 
42 
801 
474 
690 
729 
232 
278 
618 
231 

706,  894 
Pettes  763 
R.  Co.  v. 


Ry.  Co. 
Cuyken- 


811 
754 

787 


Ixiv 


TABLE    OF   CASES. 


Page 

Kansas  Pacific  R.  R.  Co.  v.  Mower       841 

Karney  v.  Paisley  625 

Katzenberger  v.  Aberdeen  320 

v.  Larvo  279 

Kauclier  v.  Blinn  606 

Kaufman  v.  Dostal  850 
Kauffman  v.  Tacoma,  O.  &  G.  H. 

Ry.  Co.  803 

v.  Wooters  16 
Kaukauna  W.  P.  Co.  v.  Green  Bay 

&  M.  Canal  Co.  32,  769,  782 

Kayser  v.  Bremen  363 

Kaysville  City  v.  Ellison  721,  759 

Kean  v.  McLaughlin  631 

v.  Stetson  862 

Kearney,  Ex  parte  (55  Cal.)  495 

Ex  parte  (7  Wheat.)  495 

Kearns  v.  Howley  899 

Keasy  v.  Louisville  296 

Keating  v.  Cincinnati  304 

Keator  L.  Co.  v.  St.  Croix  B.  Co.         865 

Keddie  v.  Moore  590,  591 

Kedrolivansky  v.  Niebaum  607 

Keeler,  Ex  parte  456,  471,  474 

Keen  v.  State  376,  382 

Keen  an  v.  Cook  906 

Keene  v.  Clarke  30 

Keese  v.  Denver  736 

Kehrer  v.  Richmond  304,  783 

Keith  v.  Clark  386 

v.  Keith  534 

v.  Kellogg  589 

v.  State  848 

v.  Ware  517 

Keller  v.  Corpus  Christi  757 

v.  State  209 

Kelley  v.  Boston,  &c.  R.  R.  Co.  629 

v.  Corson  748,  750 

v.  Minneapolis  318 

v.  Partington  607 

v.  Pike  81 

v.  Rhodes  690 

v.  Schuyler  425 

v.  Sherlock  627,  648 

Kellinger  v.  Railroad  Co.  794 

Kellogg,  Ex  parte  496,  587 

v.  Hickman  903,  911,  934 

v.  Janesville  356 

v.  Oshkosh  175 

v.  State  Treasurer  254 

v.  Union  Co.  865 

Kelly  v.  Bemis  259 

v.  Flaherty  607 

v.  Marshall  311,  333,  705 

v.  McCarthy  615 

v.  Meeks    '  183,  253,  265 

v.  Milan  320 

v.  Minneapolis  297 

v.  People  474 

v.  Pittsburgh  46,  606,  722 

v.  Tinling  627,  628,  648 

v.  United  States  177 

Kelsey  v.  King  800 

Kemmter,  Re  473 

Kemp,  In  re  454 

Kemper  v.  McClelland  748,  749 


Kendall,  Ex  parte 

In  re 

v.  Canton 

v.  Dodge 

v.  Kingston 

v.  State 

v.  United  States 
Rendition  v.  Maltby 
Kendricks  v.  State 
Kennard  v.  Louisiana 


Page 
439 
898 
388 
617 

73,  253,  625 
469 

48 
620 
451 

20 


Kennebec  Purchase  v.  Laboree  509 

Kennedy,  Ex  parte  174,  860 

In  re  408 

v.  Board  of  Health  883 

v.  Insurance  Co.  614 

v.  McCarthy  83 

v.  Phelps  854,  883 

v.  Sacramento  110 

Kennedy's  Case  161 

Kennett's  Petition  781,  785 

Kennisen  v.  Beverly  304 

Kent  v.  Bongartz  618 

v.  Kentland  711 

t>.  Worthington  Local  Board         356 

Kentish  Artillery  v.  Gardiner  592 

Kentucky  v.  Dennison  39,  40,  41 

Kentucky  R.  R.  Tax  Cases  19 

Kentworthy  v.  Ironton  363 

Kenyon  v.  Stewart  406 

Keokuk  v.  Packet  Co.  65 

Keokuk  &  H.  Bridge  Co.  v.  Illinois       691 

Keokuk  N.  L.  Packet  Co  v.  Keokuk    247 

Keokuk  &  W.  Ry.  Co.  v.  Missouri        397 

Ker  v.  Illinois  81,  40,  41 

Kermott  v.  Ayer  62 

Kerr,  Matter  of  398 

v.  Dougherty  180 

v.  Jones  895 

v.  Kerr  679 

v.  Kitchen  146,  149 

v.  Union  Bank  80 

Kerrigan,  Ex  parte  454 

Kershaw  v.  Bailey  619 

Kersten  v.  Milwaukee  731 

Kerwhacker  r.  Cleveland,  &c.  R.  R. 

Co.  788 

Ketchara  v.  McNamara  416 

Ketchum  v.  Buffalo  270 

Kettering  v.  Jacksonville  363,  845 

Kettle  Riv.  Ry.  Co.  v.  Eastern  Ry. 

Co.  763,  767 

Keymer,  Re  158,  159 

Keyser  v.  Stansifer  660,  661 

Kibbe  v.  Kibbe  41 

Kibby  v.  Chetwood's  Adm'rs  146 

Kibele  v.  Philadelphia  362 

Kidd  v.  Pierson  848,  849 

Kidder  v.  Parkhurst  629,  630 

Kieffer,  Ex  parte  854 

Kiehe  v.  South  Bend  321 

Kies  v.  Lowery  65 

Kilbourn,  Matter  of  193 

v.  Thompson  190,  193 

Kilburn  v.  Woodworth  41,  583 

Kile  v.  Montgomery  574 

Kiley  v.  Kansas  City  302 


TABLE  OF  CASES. 


Ixv 


Page 

Kilgore  v.  Commonwealth  217 

v.  Magee  183 

Kilham  v.  Ward  927 

Kilpatrick  v.  Smith  162 
Kimball  v.  Alcorn                    864,  898,  928 

v.  Grantsville  City  74,  721 

v.  Kimball  679 

r.  Rosendale  645,  751 
Kimble  v.  Whitewater  Valley  Canal    819 

Kimbro  v.  Bank  of  Fulton  623 

Kimmish  v.  Ball  38,  881 

Kincaid  v.  Hardin  305 
v.  Indianapolis  N.  G.  Co.        791,  804 
Kincaid's  Appeal                     176,  295,  881 

Kindel  v.  Beck  &  P.  L.  Co.  180 

Kine  v.  Defenbaugh  121 

v.  Sewell  630 

King  v.  Belcher  623 

v.  Burdett  688 
v.  Cross  20,  43,  605 
v.  Davenport  285,  878,  884 

v.  Dedham  Bank  132,  392 

v.  Hayes  506 

t7.  Hopkins  689 

v.  Hunter  99,  389 

v.  Moore  223 

v.  Mullens  21,  749 

v.  Patterson  611 

v.  Portland  732 

v.  Reed  169 
v.  Root  623,  628,  642,  644,  656 

v.  Wilson  34 

King,  The,  v.  Abington  650 

v.  Almon  453 

v.  Bailie  648 

v.  Bedford  Level  897 

v.  Campbell  609 

w.  Carlile  638,  671 

v.  Chancellor  of  Cambridge  581 

v.  Clement  643 

v.  Clewes  445 

v.  Cooper  447 

v.  Cox  84 

v.  Creevey  650 

v.  l)e  Mannville  497 

v.  Dunn  445 

v.  Ellis  443 

v.  Enoch  445 

v.  Fisher  638,  640 

v.  Fletcher  473 
v.  Foxcroft  893,  931,  932 

17.  Gardner  361 

v.  Hagan  452 

v.  Hawkins  932 

v.  Howes  447 

v.  Inhal).  of  Hardwick  350 

v.  Inhab.  of  Hipswell  110 

v.  Inhab.  of  St.  Gregory  1 10 

v.  Inhab.  of  Woburn  350 

v.  Kingston  445 

v.  Lee  638 

v.  Lewis  443 

r.  Locksdale  110 
».  Mayor  of  Stratford  on  Avon  276 

v.  Miller  652 

v.  Monday  932 


King,  The,  v.  Newman 

v.  Paine 

17.  Parry 

i;.  Partridge 

v.  Richards 

v.  River 

v.  Rosewell 

v.  Simpson 

v.  Smith 

».  St.  Olaves 

v.  Sutton 

v.  Taylor 

i?.  Thomas 

v.  Tizzard 

v.  Tubbs 

v.  Waddington 

v.  Walkley 

v.  Webb 

v.  Withers 

v.  Woodfall 

v.  Woolston 

v.  Younger 
Kingley  v.  Cousins 
Kingman,  Re 

v.  Brockton 


Page 
644 
612 
932 
445 
447 
443 
884 
445 
443 
904 
139 
671 
445 
894 
424 

671,  673 
445 
443 
931 
652 

671,  673 
84 
416 

131,  267,  697,  713,  741 
696 


Kingman  Co.  Com'rs  v.  Leonard  21 

Kingshury's  Case  40 

Kingsland  v.  Mayor,  &c.  566,  787,  822 

Kinkead  v.  McKee  661 

Kinmundy  v.  Mahan  294 

Kinne  v.  Hinman  689 

Kinneen  v.  Wells  908 

Kinney,  Ex  parte  557 

v.  Beverley  503 

Kinney 's  Case  657 

Kinsworthy  v.  Mitchell  748 

Kip  y.  Patterson  283,  285 

Kipp  v.  Elwell  670 

Kirby  v.  Boylston  Market  286 

v.  Pennsylvania  R.  R.  Co.  842 


v.  Shaw 
Kirk  v.  Nowill 

v.  Rhodes 

v.  State 
Kirkman  v.  Bird 


242,  337,  338,  679 
292 
911 
459 
617 


Kirkpatrick  v.  Eagle  Lodge  619 
Kirthind  v.  Hotchkiss  18,  20,  568,  679 
Kisler  v.  Cameron  936 
Kistler  v.  State  466 
Kistner  v.  Indianapolis  301 
Kittanning  Coal  Co.  v.  Common- 
wealth 707 
Klein  v.  New  Orleans  270 

v.  Valerius  129 

Kleinschmidt  v.  Dumphy  458 

Kleizer  v.  Symmes  619 

Klewin  v.  Bauman  607 

Klinck  v.  Colby  610,  619 

Kline  v.  Kline  684 

Kling  v.  Fries  850 

Klingler  v.  Bickel  878 

Klumph  v.  Dunn  605 

Knapp  w.  Grant  338,  542 

v.  Thomas  161 
Knapp,  Stout,  &c.  Co.  v.  McCaffrey        23 

Kneass's  Appeal  149 


Ixvi 


TABLE  OF  CASES. 


Page 

Knee  v.  Baltimore  City  P.  Ry.  Co.  87 
Kneedler  v.  Lane  18 

Kneedler  v.  Norristown  286,  292 

Kneeland  v.  Milwaukee  84,  87,  108,  742 

v.  Pittsburgh  769 

Kneetle  v.  Newcomb  252 

Knight  v.  Begole  629 

v.  Foster  608,  644 

v.  Gibbs  608 

Kniper  v.  Louisville  272 

Knisely  v.  Cotterel  707,  887 

Knobloch  v.  Chicago,  &c.  Ry.  Co.  285 
Knoop  v.  Piqua  Bank  395 

Knopf  v.  People  184 

Knote  v.  United  States  160 

Knoulton  v.  Redenbaugh  529 

Knowles  v.  People  449,  564 

v.  Yeates  930 

Knowlton  v.  Moore  92,  684,  708 

v.  Williams  335,  340,  696 

Knox  v.  Bd.  of  Education  272 

v.  Chaloner  861 

v.  Cleveland  521 

v.  Rossi  685 

Knox  Co.  v.  Aspinwall  323 

v.  Ninth  Natl.  Bk.  31,  322 

Knoxville  v.  King  506 

Knoxville  Iron  Co.  v.  Harbison  877 

Knoxville,  &c.  R.  R.  Co.  v.  Hicks  128 
Kobs  v.  Minneapolis  362 

Kochersperger  v.  Drake  708 

Koehler  v.  Hill  60,  194,  195,  892 

v.  Miller  515 

Koenig  v.  Chicago  B.  &  Q.  R.  Co.  181, 763 
Koerper  v.  St.  P.  &  N.  P.  Ry.  Co.  828 
Koestenbader  v.  Pierce  825 

Kohe  v.  Lehlback  22 

Kohl  v.  United  States  755,  756 

Kohlheimer  v.  State  468 

Koontz  v.  Franklin  Co.  388 

v.  Nabb  '  85 

Kosciusco  Co.  v.  Slomberg  290 

Koser,  Ex  parte  676 

Koshkonong  v.  Burton  523 

Kountze  v.  Morris  Aqueduct  767,  777 

v.  Omaha  259 

Kraft  v.  Wickey  584 

Kramer  v.  Cleveland,  &c.  R.  R.  Co.  760, 

764 

v.  Kister  478 

Kranz  v.  Mayor,  &c.  of  Baltimore  304 
Krebs  v.  Oliver  606 

Kreidler  v.  State  898 

Kreiger  v.  Shelby  R.  R.  Co.  30 

Kreitz  v.  Behrensmeyer  903,  904,  914, 
916,  917,  919 

Kremer  v.  C.  M.  &  St.  P.  Ry.  Co.  827 
Kring  v.  Missouri  375,  381 

Krone  v.  Krone  524 

Kroop  v.  Form  an  760 

Krueger  v.  Wisconsin  Tel'ne  Co.  804 
Kuback,  Re  279 

Kuckler  v.  People  381 

Kuehner  v.  Freeport  715 

Knlm  v.  Board  of  Education  267 

».  Common  Council  558 


Kuhns  v.  Kramis 
Kulp  v.  Flemming 
Kundinger  v.  Saginaw 
Kunkle  v.  Franklin 
Kuntz  v.  Sumption 
Kunz  v.  Troy 
Kurtz  v.  People 
Kuykendall  v.  Barker 
Kyle  v.  Jenkins 

v.  Malin 

v.  Texas  &  N.  O.  Ry.  Co. 


L. 


Page 
212 
32 
548 
542 
712 
362 

206,  207,  209,  859 
907,  929 
372 
272 
763,  766 


Labrie  v.  Manchester  272 

Lacey,  Ex  parte  287 

v.  Davis  526 

Lackawana  Iron  Co.  v.  Little  Wolf      114 

Lackey  v.  United  States  901 

Lackland  v.  North  Mo.  R.  R.  Co.        266, 

272,  788,  789 

La  Croix  v.  Co.  Com'rs          400,  454,  548 

Lacy,  Ex  parte  213,  853 

v.  Davis  749 

v.  Martin  162 

Ladd  v.  Rice  478 

Laefon  v.  Dufoe  209 

Lafarier  v.  Grand  Trunk  Ry.  Co.          870 

La  Fayette  v.  Bush  296,  783 

v.  Cox  270,  271,  318,  319 

v.  Fowler  296,  728,  730 

v.  Jenners  253 

v.  Nagle  296 

v.  Orphan  Asylum  741 

c.  Timberlake  301 

La  Fayette  Plank  Road  Co.  v.  New 

Albany,  &c.  R.  R.  Co.  785 

Lafayette,  &c.  R.  R.  Co.  v.  Geiger       104, 

166 

v.  Winslow  807 

Lafferty  v.  Huffman  195 

v.  Schuylkill  Riv.  E.  S.  Ry.  Co.    788 
Lahr  v.  Metr.  El.  Ry.  Co.  799 

Lahr's  Case  800 

Laing  v.  Ridney  44 

Lake,  Matter  of  527 

Lake  Erie,  &c.  R,  R.  Co.  v.  Heath  46,  690 
Lake  Erie   &  Western  Ry.  Co.  v. 

Kokomo  806 

v.  Com'rs  of  Seneca  Co.  768 

v.  Scott  785 

Lake  Pleasanton  W.  Co.  v.  Contra 

Costa  W.  Co.  769 

Lake  Roland  El.  Ry.  Co.  v.  Baltimore  297 

L.  S.  &  M.  S.  Ry.  Co.  v.  Chicago          827 

v.  Grand  Rapids  741 

v.  Ohio  (165  U.  S.)  865 

v.  Ohio  (173  U.  S.)  852 

v.  Smith  875 

Lake  St.  El.  Ry.  Co.  v.  Chicago  715 

Lake  Shore,  &c.  It.  R.  Co.  v.  Chicago, 

&c.  R.  R.  Co.  754,  758,  785 

Lake  View  v.  Rose  Hill  Cemetery  268, 

881 
v.  Tate  289,  290 


TABLE   OF   CASES. 


Ixvii 


Page 

Lake  View  School  Trustees  v.  People  263 

Lamar  W.  E.  L.  Co.  v.  Lamar  318 

Lamb  v.  Lane  120,  818 

v.  Lynd  189 

v.  Sehotter  815 

Lambert,  Re  681 

v.  Smith  194 

Lambertson  v.  Hogan  137 

Lamm  v.  Chicago  M.  &  St.  P.  Ry.  Co.  828 

Lammert  v.  Lidwell  166,  173 

Lancaster  v.  Barr  669 

Lance  v.  Dugan  42 

Lancey  v.  Clifford  861 

v.  King  County  318,  756 

Lander  v.  Seaver  486 

Landers  v.  Frank  St.  M.  E.  Ch.  661 

Landis  v.  Campbell  619 

Landon  v.  Litchfield  396 

Lane  v.  Commonwealth  159 

v.  Dorman  147,  253,  503 

».  Nelson  161,  529,  531 

v.  Spokane  Falls  &  N.  R,  Co.         424 

v.  Vick  33 

Lanfear  v.  Mayor  594 

Lang  v.  Lynch  846,  848,  849 

Langan  i>,  Atchison  362 

Langdon  v.  Applegate  85,  216 

v.  Mayor  787 

Lange,  Ex  parte  473 

Langenberg  v.  Decker  425 

Langford  v.  Fly  517 

v.  Kamsey  Co.  814 

v.  United  States  24 

Langhammer  v.  Munter  903 

Langhorne  v.  Robinson  720 

Langworthy  v.  Dubuque  266,  721 

Lanier  v.  Gallatas  137,  921,  930 

Lankford  v.  Somerset  Co.  195,  219 

Lanning  v.  Carpenter  364,  926 

v.  Christy  630 

Lansing  v.  Carpenter  629 

v.  Lansing  924 

v.  Smith  785 

v.  Stone  52 

v.  Toolan  302 

v.  Van  Gorder  274 

Lantz  v.  Hightstown  400 

Lanzetti,  Succession  of  208 

Lapeyre  v.  United  States  160 

La  Plaisance    Bay   Harbor  Co.   v. 

Monroe  55 

La  Porte  v.  Gamewell  318 

Laramie  Co.  v.  Albany  Co.  266 

Larkin  v.  Noonan  618 

v.  Saginaw  302 

Lamed  v.  Wheeler  927 

Larrison  v.  Peoria,  &c.  R.  R.  Co.  194,  218 

Larson  v.  Furlong  863 

v.  Grand  Forks  363 

Lascelles  v.  Georgia  41 

Lashee  v.  People  184,  555,  561 

Lassiter  v.  Lee  518 

Lasure  v.  State  382 

Latah  County  v.  Peterson  765,  767 

Lathrop  v.  Mills  246 

v.  Snyder  689 


Latless  v.  Holmes  222 

La uck's  Appeal  415 

Laude  v.  Chicago,  &c.  R.  R.  Co.             97 

Lauer  v.  State  209 

Laura,  The  161 

Laurens  v.  Elmore  694 

Laurence  v.  Ingersoll  202 

Laval  v.  Meyers  924 

Lavalle  v.  Strobel  62 

Law,  Ex  parte  370,  372 

v.  People  120 

Lawler  v.  Earle  612 

Lawrence,  In  re  612 

v.  Born  691 

v.  Great  Nor.  R.  R.  Co.  819 

v.  Louisville  622 

v.  Miller  614 

v.  Nelson  28 

Lawrenceburg  v.  Wuest  280 

Lawson  v.  Hicks  633 

v.  Jeffries  62,  138,  660 

Lawton  v.  Steele               22,  831,  879,  885 

v.  Waite  624 

Lawyer  v.  Cipperly  660 

Lay  r.  Sheppard  633,  653 

Layton  v.  New  Orleans  269,  336,  341 

Lea  v.  Lea  80 

v.  White  630,  633 

Leach,  Re  130 

v.  Money  434 

v.  People  897,  898 

Leadville  Coal  Co.  v.  McCreery  27 

League  v.  Journeay  880 

Lea  veil  v.  Western  U.  T.  Co.  690 

Leaven  worth  v.  Duffy  296 

v.  Norton  272 

v.  Rankin  324 

Leaven  worth  Co.  v.  Lang  712 

v.  Miller  167,  325 

Leavitt  v.  Canadian  P.  Ry.  Co.  570 

v.  Watson  751 

Lebanon  v.  Olcott  777 

Lebanon  Sch.  Dist.  v.  Female  Sem.      507 

Le  Barron  v.  Le  Barren  66 

Le  Claire  v.  Davenport  284,  887 

Le  Due  v.  Hastings  739 

Lee  v.  Flemingsburgh  310 

v.  McClelland  423,  485 

u.  Minneapolis  296 

;•.  Murphy  161 

».  Pembroke  Iron  Co.  786 

v.  Sandy  Hill  356,  362 

v.  Springfield  Water  Power  Co.     8^7 

v.  State  69,  468 

v.  Rturges  738 

v.  Tillotson  251 

Leeds  v.  Camden  &  A.  Ry.  Co.  826 

Leep  v.  St.  Louis  I.  M.  &  S.  Ry.  Co.    672 

Leeper  v.  State  262 

v.  Texas  14,  22,  457 

Leefe,  Matter  of  594 

Lefever  v.  Detroit  741 

Lefferts  v.  Supervisors  711 

Leffingwell  v.  Warren  34,  521,  523 

Legal  Tender  Case  14 

Leger  v.  Warren  425 


Ixviii 


TABLE    OF   CASES. 


Page 

Legg  v.  Annapolis  186,  218 
Leggett  v.  Hunter  128,  146 
Legislative  Adjournment,  Re  189 
Lehew  v.  Brummell  574 
Leliigh  Co.  v.  Hoflbrt  301 
Leliigh  Iron  Co.  v.  Lower  Macungie     120 
Leliigh  Valley  Ry.  Co.  v.  Common- 
wealth 404 
v.  Dover,  &c.  R.  R.  Co.  785 
v.  Pennsylvania  680 
Lehigh  V.  Water  Co.'s  Appeal  549 
Lehigh  Water  Co.  v.  Easton  30,  383 
Lehman  v.  McBride  216,  903 
Lelm  v.  San  Francisco  304 
L'Hote  v.  New  Orleans  21,  884 
Leicht  v.  Burlington  726 
Leigh  v.  State  936 
Leisy  v.  Hardin  846,  847 
Leith  v.  Leith  579 
Leland  v.  Wilkinson  134 
Leloup  i7.  Port  of  Mobile  689 
Lemley  v.  State  848 
Lemmon  v.  Chicago,  &c.  R.  R.  Co.       841 
v.  People  37 
Lemmons  v.  People  118 
v.  Wells  605 
Lemont  v.  Jenks  16 
Lennon  v.  New  York              516,  517,  531 
Lent  v.  Tillson  22,  588 
Lenz  v.  Charlton  506,  526 
Leominster  v.  Conant  736 
Leonard  v.  Commonwealth  895 
v.  Wiseman  91 
Leprohon  v.  Ottawa  682 
Leroy  &  W.  R.  R.  Co.  v.  Ross  825 
Les  Bois  v.  Bramel  540 
Leslie  v.  Bonte  82 
t>.  State  470 
Lessley  v.  Phipps  408 
Lester  v.  State  469 
v.  Thurmond  633 
Levan  v.  Millholland  588 
Levee  District  No.  9  v.  Farmer  781 
Levi  r.  Louisville  718 
Levins  v.  Sleator  153,  156 
Levy  v.  Hitsche  405 
t7.  State  279,  280 
17.  Superior  Ct.  of  San  Francisco   450 
Lewis  i1.  Chapman  610,611 
v.  Clement  637 
v.  Commissioners  936 
p.  Few                               622,  624,  644 
v.  Foster  537 
v  Garrett's  Adm'r  581 
v.  Hawley  606 
v.  Lervelling  100 
v.  Levy                              637,  638,  647 
17.  Lewis  415 
t7.  McElvain  615,  535 
v.  Monson  750 
17.  N.  Y.  &  H.  R.  Co.  800 
v.  State  19 
V.  Thornton  84 
v.  Walter  637 
v.  Webb             137,  152,  237,  521,  559 
Lewis  Adm'r  of  Lewis  v.  Dunne  211,  216 


Lewis's  Appeal 
Lexington  v.  Butler 

v.  Long 

v.  McQuillan's  Heirs 

v.  Thompson 


Page 

128,  237 
321 

822,  823,  824 
717,  732 
65,  240,  244 


Lexington,  &c.  R.  R.  Co.  v.  Apple- 
gate  791 
Ley  man  v.  Latimer  606 
Libby  v.  Burnham  749 
License  Cases    690, 831,  832, 845,  850, 881 
License  Tax  Cases          238.  832,  846,  851 
Lieberman  v.  State  454,  558 
Life  Association  v.  Assessors  111 
Ligat  v.  Commonwealth  817 
Lightburne  v.  Taxing  District.  713 
Liles  v.  Caster  629 
Lillard  v.  State  474 
Lima  v.  Cemetery  Ass.  741 
Limestone  Co.  v.  Fagley  569 
v.  Rather  114 
Lincoln  v.  Alexander  141,  145 
17.  Boston  302,  357 
v.  Com.  804,  827 
v.  Davis  752 
17.  Hapgood  904,  927 
v.  Iron  Co.  321 
v.  Smith      46,  458,  591,  846,  849,  850 
?;.  Tower  42 
Lincoln  Park,  Re  815,  817 
Lindenmuller  v.  People  859 
Lindholm  v.  St.  Paul  363 
Lindsay  v.  Commissioners  228 
Lindsay  &  P.  Co.  v.  Mullen  21,  862 
Lindsey  v.  Hill  181 
v.  Smith  606 
Lindsley  r.  Coats  52 
Lindstrom  v.  Bd.  of  Canvassers  900 
Lindzey  v.  State  381 
Linehan,  In  re  881 
Liness  v.  Hesing  925 
Linford  v.  Ellison  28 
v.  Fitzroy  439 
Lining  v.  Bentham  454 
Linn  v.  Chatnbersburg  696 
i7.  Minor  87 
Linney  v.  Maton  607 
Lin  Sing  v.  Washburn    557,690,  725,  858 
Linsley  v.  Hubbard  146 
Linton  v.  Stanton  31 
Lipes  17.  Hand  590 
Lippman  v.  People  425 
Lisbon  v.  Bath  745 
Litchfield  v.  McComber  406 
v.  Vernon  698 
Litowich  v.  Litowich  680 
Little,  Re  41 
v.  Fitts  575 
y.  Madison  305 
v.  Merrill  275 
t>.  Smith  85,  86 
Littlefield  o.  Brooks  903 
r.  State  283 
Littlejohn  v.  Greeley  628 
Little  Miami  R.  R.  v.  Collett  823 
v.  Dayton  758 
Little  Rock  v.  Katzenstein  729 


TABLE   OF   CASES. 


Ixix 


Page 

Little  Rock  v.  Willis  304 

Little  Kock,  &c.  K.  R.  Co.  v.  Payne    527, 

841 

v.  Brooks  861 

v.  Hanniford  566 

v.  McGehee  822 

v.  Woodruff  822 

Littleton  v.  Richardson  581 

v.  Smith  586 

Littlewort  v.  Davis  262 

Live  Stock,  &c.  Association  v.  Cres- 
cent City,  &c.  Co.  863,  854 

(See  Slaughter  House  Cases.) 

Liverman  v.  Roanoke  &  T.  Ry.  Co.      827 

Livermore  v.  Waite  96 

Liverpool  &  London  &  Globe  Ins.  Co. 

v.  Bd.   of  Assessors   (44  La. 

Ann.)  720 

t>.  Bd.  of  Assessors  (51  La.  Ann.)     719 
Liverpool  &  L.  L.  &  F.  Ins.  Co.  v. 

Massachusetts  687 

Livingston  v.  Los  Angeles  Sup.  Ct.     487 

».  Mayor,  &c.  N.  Y.  735 

v.  New  York  717,  728,  735 

v.  Paducah  709 

v.  Rector,  &c.  661 

».  Van  In  gen  49 

Livingston  Co.  v.  Darlington        337,  704 

v.  Weider  337,  704 

Livingston's  Lessee  v.  Moore  46 

Lloyd  v.  Chambers  570 

v.  Matthews  39 

v.  New  York  357,  361,  362 

Loan  Association  v.  Topeka  125,  317, 678, 

700,  705 

Lobrano  v.  Nelligan  146 

Locke  o.  Bradstreet  Co.  611 

v.  Dane  374,  531 

v.  Speed  130 

Locke's  Appeal  173 

Lockhart  v.  Horn  522 

w.  Locke  42 

v.  Troy  209 

Lock  Haven  Bridge  Co.  v.  Clinton 

County  755 

Lock  port  v.  Gaylord  212 

Lockwood,  Ex  parte  32,  568,  890 

v.  St.  Louis  741 

v.  Wabash  R.  Co.  298 

Lodi  Tp.  v.  State  183 

Loeb  v.  Attica  281 

v.  Columbia  Tp.  Trustees  32 

v.  Mathis  86 

Loeffner  v.  State  437 

Loesch  v.  Koehler  570 

Logan  v.  Matthews  859 

v.  Onachita  Parish  121 

v.  Pyne  272,  285 

v.  Stogdale  765 

u.  United  States  23,  568 

r.  Walton  674 

Logansport  v.  Dick  362 

Logue  v  Commonwealth  434 

Lombard  v.  Antioch  College  618 

Lommen  r.  Minneapolis  458 

Lonas  v.  State  557 


Page 

Londener  v.  Lichtenheim  677 

London,  Mayor,  Case  of  490 

Londonderry  v.  Andover  276 

Long  r.  Fuller  769,  814 

17.  Long  927 

v.  Peters  610 

v.  State  837,  885,  889 

v.  Taxing  District  287 

Long's  Case  445 

Long  Island  R.  R.  Co.,  Matter  of         933 

Long  Island  W.  S.  Co.  v.  Brooklyn,    393, 

769 

Longworth  v.  Worthington  653 

Lonthan  v.  Com.  603 

Look  v.  Dean  829 

Looker  v.  Maynard  394 

Loomis  v.  Colemau  262 

v.  Jackson  61,  929 

v.  Wadhams  588 

Lord  v.  Chadbourne  615 

v.  Litchfield  396,  547 

v.  Steamship  Co.  12 

v.  Thomas  404 

v.  Wilcox  82 

Lorenzen,  Ex  parte  282,510 

Lorillard  v.  Clyde  83 

v.  Monroe  355 

Loring  v.  Hildreth  609 

i\  Marsh  34 

Lorman  v.  Benson  52,  861 

t7.  Clarke  48 

Los  Angeles  v.  Los  Angeles  Water 

Co.  386, 405 

v.  Water  Co.  391 

Los  Angeles  Co.  v.  Reyes  765 

v.  Spencer  882 

Los  Ass'n,  Re  439 

Lothrop  v.  Commercial  Bank  180 

v.  Steadman        74,  139,  149,  165,  887 

Lott  v.  Morgan  691 

v.  Ross  745 

Loughbridge  v.  Harris  773,  775 

Lougher  v.  Soto  183 

Loughlin  v.  McCauley  25 

Louisiana  v.  Bd.  of  Assessors  740 

v.  Jumel  24 

v.  New  Orleans  20,387,411 

v.  Pilsbury  405 

v.  Police  Jury  387 

17.  Texas  23 

Louisiana  C.  &.  I.  Co.  v.  I.  C.  Ry. 

Co.  266 

Louisiana  State  Lottery  v.  Richoux      194 

Louisville  v.  Bank  of  Louisville  396 

v  Commonwealth  361 

17.  Hyatt  304,  717 

17.  Rolling  Mill  Co.  296 

v.  University  345 

Louisville   N.  A.  &   C.  Ry.  Co.  v. 

Wallace  674 

Louisville  N.   O.  &  T.  Ry.  Co.  t;. 

Blythe 

Louisville,  &c.  Co.  v.  Ballard 
Louisville,  &c.  R.  R.  Co.  v.  Baldwin 


v.  Burke 


147 
209 
19, 

857 
844 


Ixx 


TABLE   OF   CASES. 


Page 

Louisville,  &c.  R.  K.  Co.  v.  Caster       843 
v.  Davidson  167 

v.  Palmes  35,  396 

v.  State  707,  743,  840 

Louisville  &  N.  Ry.  Co.  v.  Baldwin      844 
v.  Com.  (99  Ky.)  1(54 

v.  Com.  (104  Ky.)  162 

v.  County  Court  926 

v.  Enbank  856 

v.  Ingram  82!) 

v.  Kentucky  (99  Ky.)  164,  875 

v.  Kentucky  (161  U.  S.)          838,  852 
v.  Kentucky  (183  U.  S.)  856 

v.  Schmidt  20 

v.  Thompson  825 

v.  Whitely  758,  763,  806 

Louisville  City  R.  R.  Co.  v.  Louis- 
ville 295,  299 
Louisville  Gas  Co.  v.  Citizens'  Gas 

Co.  35,  402 

Louisville  Ry.  Co.  v.  Foster  811 

Louisville   Safety   U.   &  T.  Co.  v. 

Louisville  &  N.  R.  Co.  574 

Louisville  Water  Co.  v.  Clark  396 

c.  Kentucky  396 

Loumand  v.  New  Orleans  415 

Love  v.  Moynahan  485 

v.  Raleigh  302 

r.  Shartzer  553 

Loveland  v.  Detroit  310 

Lovell  v.  Leeback  425 

Lovingston  v.  Trustees  •  710 

v.  Wider  339,  543,  703 

Low,  Ex  parts  706 

v.  Blanchard  86 

v.  Dunham  113 

v.  Galena  &  C.  U.  R.  R.  Co.  780 

17.  Towns  162 

Low  Rees  Printing  Co.  570 

Lowe,  Re  562 

U.  Commonwealth  99,  389 

r.  Harris  632 

v.  Kansas  16,  22 

Lowell  w.  Boston  243,  317,  700 

r.  Hadley  113,  860 

17.  Oliver  330,  331 

Lowenberg  v.  People  473 

Loweree  v.  Newark  814,  816 

Lowndes  v.  Town  of  Huntington  32 

Lowndes  Co.  v.  Hunter  247 

Lowry  v.  Francis  386 

v.  Rainwater  431 

Lucas  v.  Case  619,  661 

v.  Sawyer  514 

r.  Tucker  632 

Ludeling  v.  Chaffe  27,  30 

Ludlow  v.  Johnson  516 

Ludlow's  Heirs  v.  Johnson  89 

Ludwig  v.  Cramer  606,  637 

v.  Stewart  523 

Luehrman  v.  Taxing  District         259,  267 

Lunian  v.  Hitchins  Bros.  Co.  569 

Lumbard  v.  Aldrich  180 

Lumsden  17.  Cross  526,  700,  717,  730 

Lund  17.  New  Bedford  760 

Lunt's  Case  237 


Page 

Luques  v.  Dresden  312 

Lusher  v.  Scites  257 

Luther  v.  Borden  46,  58,  59,  892 

Luxton  v.  North  River  Bridge  Co.        756 
Lycoming  v.  Union  539 

Lyddy  v.  Long  Island  City  217 

Lydecker  v.  Palisade  Land  Co.  748 

Lyle  v.  Richards  62 

Lyman  i?.  Boston  &  Worcester  R.  R. 

Co.  841 

v.  Martin  902 

v.  Mower  517 

Lyme  v.  Turner  356,  361 

Lynch,  Ex  parte  707 

v.  Brudie  553 

v.  Forbes  777,  779 

v.  Hoffman  372 

v.  New  York  296,  302 

v.  State  465,  480 

Lynchburg  v.  Slaughter  322 

Lynde  v.  County  319 

v.  Lynde  44 

Lyon  v.  Circuit  Judge  85 

v.  Jerome  294,  756,  778,  814 

f.  Lyon  580 

r.  Manhattan  Ry.  Co.  424 

17.  McDonald  804 

v.  Morris  258,  517 

Lyon's  Case  613 

Lyons  v.  Chamberlain  324 

Lythe  v.  Lansing  319,  320 


M. 

Mabry  v.  Baxter  407 

MacDougall  v.  Knight  687 

Machette  w.  Wanless  478 

Machine  Co.  v.  Gage  693 

Machir  v.  Moore  924 

Mackaboy  v.  Commonwealth  687 

Mackay  c.  Ford  632 

Mackel  v.  Rochester  442 

Mackin  v.  United  States  436 

Macon  v.  Hill  296 

•     v.  Jones  745 

».  Macon  &  Western  R.  R.  Co.       272 

v.  Patty  717,  860 

Macon  &  A.  Ry.  Co.  v.  Riggs  766 

Macon  &  Western  R.  R.  Co.  v.  Davis  237, 

253 

Macreiuly  v.  Wolcott  485 

Macy  v.  Indianapolis  783 

Mad'dox,  Re  559 

v.  Graham  80 

Maddrey  v.  Cox  267 

Madison  v.  Daley  762 

Madison  Co.  v.  People  743 
Madison  &  Ind.  R.  R.  Co.  v.  Norwich 

Savings  Society  321,  324 

v.  Whiteneck  237,841 

Madisonville  v.  Bishop  306 

Magee  v.  Commonwealth  730 

17.  Overshiner  804 

,  v.  Supervisors  936 

v.  Young  614 


TABLE   OF   CASES. 


Ixxi 


Magoun  v.  Illinois  Tr.  &  Sav.  Bank    663, 

684,  708 
Magruder,  Ex  parte  372 

v.  Governor  162 

Maguire,  Matter  of  890 

v.  Maguire        403,  579,  580,  584,  585 
Magurn  v.  Magurn  680,  584 

Mahala  v.  State  469 

Malian  v.  Cavender  690 

Maher  v.  People  434,  450,  466 

Mahomet  v.  Quackenbush  208 

Mahon  v.  Justice  39 

v.  New  York  Central  R.  R.  Co.     791 
Mahoney  v.  Comry  702 

Mahony  v.  Bank  of  the  State  278 

Mahony's  Estate,  Re  16,  30 

Maiden  v.  Ingersoll  25 

Maier,  Ex  parte  880 

Maine  v.  Grand  Trunk  Ry.  of  Canada  692 
Maine  Water  Co.  v.  Waterville  742 

Mairs  v.  Manhattan,  &c.  Ass.  786 

Maize  v.  State  163,  173,  237,  247 

Malcolmson  v.  Scott  39 

Malison,  In  re  439 

Mallett  o.  Nortli  Carolina  375,  382 

Mallory  ,:  Hiles  223 

v.  Pioneer  Press  Co.  644 

Malone  v.  Clark  588 

v.  Stewart  607 

Maloy  v.  Marietta      75,  717,  728,  745,  746 
Maltus  v.  Shields  702 

Manchester,  Matter  of  40 

W.Massachusetts  177,852,879 

Maney,  Re  40 

Mankato  v.  Arnold  454 

v.  Fowler  283,  709 

Man  ley  v.  Manley  679,  584 

Manly  v.  Raleigh  265 

v.  State  92,  93, 102,  459 

Manning  v.  Van  Buren  262 

v.  Weeks  22 

Mannix  v.  Purcell  660 

Mansfield  v.  Mclntyre  679,  584 

v.  Moore  356 

Mansfield,  &c.  R.  R.  Co.  v.  Clark         777 
Mansion  v.  Mclntosh  900 

Manufacturer's  G.  &  O.  Co.  v.  Indi- 
ana N.  G.  &  O.  Co.  788,  858 
Mapel  v.  John  880 
Mapes  v.  Weeks  644 
Marbury  v.  Madison  78 
March  v.  Commonwealth  279 

r.  Portsmouth,  &c.  R.  R.  Co.          757 
Marchant  v.  Langworthy  113 

».  Pa.  Ry.  Co.  16,  22 

Marcum  v.  Ballot  Com'rs  899 

Marcy  v.  Oswego  321 

Marietta  v.  Fearing  291,  389 

Mariner  v.  Dyer  453 

Marion  v.  Epler  717,  728 

v.  State  177,  381,  382 

Marion,  &c.  Ry.  Co.  v.  Champlin          707 
Mark  v.  State  224  258 

Markey  v.  Queen's  County  305 

Market  v.  St.  Louis  363 

Marks,  Ex  parte  161 


Marks  v.  Baker 

v.  Morris 

v.  Purdue  University 
Marlatt  v.  Silk 
Marler  v.  State 
Marlow  v.  Adams 
Marmet  v.  State 


Page 

628 

52 

182,  337,  704 

33 

451 

553 

555 


Marquette  Co.  v.  Ishpeming  Treas.      355 

Marron,  In  re  691 

Marsh  v.  Chesnut  112 

v.  Ellsworth  629,  634 

v.  Fulton  Co.  320 

r.  New  York  &  Erie  R.  R.  Co.        842 

v.  Nichols  S.  &  Co.  26 

v.  Putnam  417 

v.  Supervisors  324,  706 

Marshall  v.  Baltimore  &  Ohio  R.  R. 

Co.  198 

v.  Donovon  232,  423 

v.  Grimes  256  867 

v.  Gunter  630,  633 

v.  Harwood  193 
v.  Kerns                    926,  935,  937,  940 

v.  Silliman  339,  543 

v.  Vicksburg  691 
Marshall  Co.  Court  v.  Galloway  Co. 

Court  268 

Marshalltown  v.  Blum  693 

Marten  v.  Van  Schaick  644 

Martens  v.  People  288 

Martin,  Ex  parte  687 

v.  Barbour  751 

v.  Bigelow  52 

v.  Broach  209 

v.  Brooklyn  357 

v.  Dix  237,  267,  721 

v.  Elliot  424,  568 

v.  Hughes  408 

v.  Hunter's  Lessee  26,  30,  45,  103 

v.  Ingham  131,  162 

v.  Mott  74 

v.  State  851 

v.  Stovall  44 

v.  Tyler  318 

v.  Waddell  33 

v.  Wade  924 

Martin's  Appeal  149 

Marx,  Ex  parte  456 

v.  Hanthorn  111,  526,  750 

Mary  Smith's  Case  444 

Mason,  Matter  of  496 

v.  Bridge  Co.  664 

v.  Cumberland  297 

v.  Haile  407,  410 

v.  Harper's  Ferry  B.  Co.         812,  822 

v.  Kennebec,  &c.  R.  R.  Co.     819,  826 

v.  Lancaster  711 

v.  Mason  644 

v.  McLeod  13 

v.  Messenger  582 

i>.  Missouri  16,  32 

v.  Spencer  786 

v.  State  893 

v.  Wait  128,  148 

Massachusetts  v.  West  U.  Tel.  Co.       691 

Massuere  v.  Dickens  606 


Ixxii 


TABLE   OF   CASES. 


Page 

Masten  v.  Olcutt  82 

Masteron  v.  Mt.  Vernon  362 

Mather  v.  Chapman  633,  643 

v.  Hodd  687 

v.  Ottawa  317,  700 

Mathews,  Ex  parte  86 

v.  Beach  638 

v.  Zane  223 

Mato,  Ex  parte  144 

Matre  v.  Sankey  45 

Matter  of  Election  Law  923 

Matthews  v.  Board  of  Education          180 

v.  Densmore  688 

v.  Murphy  245,  284 

v.  St.  Louis  &  S.  F.  Ry.  Co.   150,  836, 

841 

Mattox  v.  U.  S.  451 

Mauch  Chunk  v.  McGee  207 

Maul  v.  State  376 

Mauldin  v.  Greenville  (33  S.  C.)  696 

t7.  Greenville  (42  S.  C.)  717 

17.  Greenville  (53  S.  C.)  717 

Maull  v.  Vaughn  408 

Maulsby  v.  Reifsnider  633 

Mauran  v.  Smith  162 

Maurer  v.  People  452 

Maurice  v.  Worden  631 

Maxey  v.  Loyal  408 

v.  Williamson  Co.  322 

17.  Wise  537 

Maxmilian  v.  New  York  357 

Maxwell  v.  Com'rs  Fulton  Co.  591 

t7.  Dow  14,  38,  47,  454,  505 

v.  Goetchius  149,  153,  545 

v.  Jonesboro  285 

v.  Newbold  30 

«7.  Reed  252 

v.  Stewart  43 

May  v.  City  of  Boston  826 

t7.  Fletcher  614 

t7.  Holdridge  641 

v.  Logan  Co.  524 

t7.  Rice  188 

t7.  Tenney  32 

May  &  Co.  v.  New  Orleans  687 

May  berry  v.  Kelly            _  231 

Mayer,  Ex  parte  547 

17.  Schleichter  607 

Maynard  v.  Bd.  of  Canvassers  922,  932 

v.  Hill  64,  156,  403 

Maynes  v.  Moore  406 

Mayo  v.  Freeland  935 

v.  Sample  620 

v.  Springfield  304 

v.  Washington  318 

v.  Wilson  62 

Mayor,  Matter  of  (99  N.  Y.)  312 

v.  Cooper  29 

v.  Morgan  190 

Mayor,  &c.,  Matter  of  741 

v.  Horn  137,  138 

v.  Maberry  860 

v.  The  Queen  128,  174,  832 

».  Yuille  283,  284,  286,  287,  888 

Mayor  of  Annapolis  v.  State  206 

Mayor  of  Athens  v.  Georgia  R.  R.  Co.   291 


Page 

Mayor  of  Baltimore  v.  Hussey  694 

v.  State  234 

Mayor  of  Cartersville  v.  Lanhara         860 
Mayor  of  City  of  New  York,  Re  806 

Mayor  of  Florence,  Ex  parte  89 

Mayor  of  Hudson  v.  Thorne          283,  288 
Mayor  of  Hull  v.  Horner  276,  277 

Mayor  of  Huntsville  v.  Phelps  284 

Mayor  of  London's  Case  490 

Mayor  of  Lyme  v.  Turner  356,  361 

Mayor  of  Macon  v.  Macon  &  W.  R. 

R.  Co.  272 

Mayor  of  Memphis  v.  Winfield     281,  288 

Mayor  of  Mobile  v.  Allaire  279,  280 

v.  Dargan  49,  703,  717 

v.  Kimball  688,  856,  858 

v.  Rouse  280 

Mayor  of  New  York  v.  Furze  356 

v.  Hyatt  280 

v.  Lord  878 

v.  Nichols  279,  281,  291 

v.  Second  Ave.  R.  R.  Co.  283 

Mayor  of  Savannah  v.  Hartridge          271 

v.  Spears  304 

v.  State  204,  247 

Mayor  of  Wetumpka  v.  Winter  167 

Mayrant  v.  Richardson  628 

Mays  v.  Cincinnati  266,  279,  283,  745 

v.  Commonwealth  458 

Maysville  &  B.  S.  Ry.  Co.  v.  Ingraham  815 

Maysville  v.  Wood  664 

McAdoo  v.  Benbow  91 

McAfee  v.  Covington  408 

McAfee's  Heirs  v.  Kennedy  773 

McAlister  v.  Clark  286 

McAllister  v.  Detroit  Free  Press  Co.    644 

v.  Hoffman  924 

McAndrews  v.  Hamilton  County      '    300 

McArthur  v.  Goddin  615 

McAuley  v.  Boston  363 

McAunich  v.  Mississippi,  &c.  R.  R. 

Co.  183,  209 

McBean  v.  Chandler  711,  730 

v.  Fresno  318 

McBee  v.  Fulton  637,  647,  648 

McBrayer  v.  Hill  607 

McBride  v.  Chicago  717 

McCabe,  Ex  parte  425 

McCafferty  v.  Guyer  99,  372 

McCain  v.  Des  Moines  31 

McCall  v.  California  179,  690 

v.  Peachy  575 

McCampbell  v.  State  459 

McCann  v.  Com.  849 

v.  Eddy  876 

v.  Sierra  Co.  815 

McCardle,  Ex  parte         138,  258,  644,  548 

McCarroll  v.  Weeks  506 

McCarthy,  Matter  of  481 

v.  Boston  305 

v.  Commonwealth  183 

v.  Froelke  894 

v.  Hoffman  540 

McCarver,  Ex  parte  289 

McCaslin  v.  State  209 

McCauley  v.  Brooks  79,  411 


TABLE   OF   CASES. 


Ixxiii 


McCauley  v.  Hargroves  42,  80 
McClain,  Ex  parte  827 
v.  People  817 
McClary  v.  Lowell  859 
McClatchy  v.  Superior  Court  of  Sac- 
ramento Co.  569 
McClaughry  v.  Wetmore  631 
McClellan  v.  Chipman  27 
McClinch  v.  Sturgis  118,  194 
McCloskey  v.  Kreling  878 
McCloud  v.  Shelby  353 
McClure  v.  Oxford  223,  319,  320 
v.  Redwing  302 
McOluskey  v.  Cromwell  89 
McCollum,  Ex  parte  253 
McComas  v.  Krug  99 
McComb  v.  Akron  296,  784 
v.  Bell  725 
v.  Gilkey  146,  147 
McConkle  v.  Binns  656 
McCool  v.  Smith  217 
McCormick  v.  Fitch  707 
v.  Rusch  414,  515 
MeCormick's  Est.  v.  Harrisburg  730 
McCoull  v.  Manchester  362 
McCoy  v.  Grandy  653 
v.  Huffman  485 
v.  Michew  531 
McCracken  v.  Hay  ward  404,  406,  409,  412 
McCracken  Co.  v.  Merc.  Trust  Co.       522 
McCready  r.  Sexton  527,  751 
v.  Virginia  37 
McCrowell  v.  Bristol  293 
McCuen  v.  Ludlum  605 
McCulley  v.  State 
McCulloch  v.  Maryland  25,  43,  98,  679, 

681,  682 

v.  State      116,  193,  195,  200,  246,  258 

McCullough  v.  Brown  848 

v.  Virginia  31,  36,  324,  403 

McCully  v.  Tracey  269 

McCutchen  v.  Windsor  262 

McDade  v.  Chester  301 

McDaniel  v.  Correll  137, 151,  546 

McDermott  v.  Evg.  Journal  Co.  631 

McDermott's  Appeal  579 

McDevitt  v.  Peoples  N.  G.  Co.              804 

v.  St.  Paul  301 

McDonald  v.  Hinton  900 

v.  Massachusetts  375 

v.  Mayor,  &c.  311 

v.  People  375 

v.  Redwing  757,  878 

v.  Schell  691 

v.  State  473,  844 

v.  Woodruff  644 

McDonogh  v.  Millaudon  31 

McDuffee  v.  Sinnott  622 

McEldowney  v.  Wyatt  622 

McElmoyle  v.  Cohen  42 

McElrath  v.  United  States  47 

McElroy  v.  Albany  305 

McElvain  v.  Mudd  685 

McElvaine  v.  Brush  46,  473 

McFadden  v.  Commonwealth  408 

McFarland  v.  Butler  411,  518 


Page 

McFarland  v.  State  467 

McGahey  v.  Virginia  31,  403 

McGatrick  r.  Wason  675 

McGear  v.  Woodruff  454 

McGee  v.  Mathis  395 

v.  San  Jose  387 

McGeehan  v.  State  Treasurer  530 

McGehee  v.  Mathis  717,  736,  868 

v.  McKenzie  640 

McGhee  v.  State  215 

McGhee  Irr.  Ditch  Co.  v.  Hudson        766 

McGraw  v.  Dist.  of  Columbia  302 

v.  Marion  693,  887 

McGregor  v.  Cove  848 

McGiffert  v.  McGiffert  578,  579,  580 

McGinity  v.  New  York  358 

McGinnis  v.  State  95 

v.  Watson  661,  672 

McGinty  v.  Carter  691 

McGlinchy  v.  Barrows  430 

McGoon  v.  Scales  683 

McGowan  v.  State  468 

McGruder  v.  State  162,  217 

McGuffee  v.  State  461,  463 

McGuire  v.  Parker  693 

v.  State  375 

McHaney  v.  Trustees  of  Schools  529 

McHenry  v.  Alford  706 

v.  Downer  682 

Mclnturf  v.  State  381 

Mclntyre  v.  McBean  610 

McKane  v.  Durston  22,  38 

McKay  v.  Gordon  42 

McKean,  Ex  parte  40,  492 

McKee  v.  Cheney  198 

v.  McKee  265,  860 

v.  People  470 

v.  Wilcox  95 

McKeen  v.  Delancy  33 

McKenna  v.  Edmundstone  217 

v.  St.  Louis  301 

McKenzie  v.  Moore  218 

v.  State  437 

McKibbin  v.  Fort  Smith  286 

McKim  v.  Odom  266 

McKinney  v.  Carroll  30 

v.  O'Connor  921,  929 

v.  Salem  400 

v.  Springer  621 

McKinnon  v.  Cotner  195 

v.  People  914 

McKinsev  v.  Squires  690 

McKune'r.  Weller  114,  908 

McLane  v.  Bonn  376,  644 

McLaughlin,  Ex  parte  469 

v.  Corry  363 

v.  Cowley  630,  632 

v.  South  Bend  689 

v.  State  382 

McLaurine  v.  Monroe  42 

M'Lean  v.  Hugarin  81 

v.  State  898 

McLean  Co.  v.  Humphrey  423 

McLeod's  Case  493 

McLimans  v.  Lancaster  644 

McLure  v.  Melton  405 


Ixxiv 


TABLE   OF  CASES. 


McMahon  v.  Savannah  906 

v.  St.  Louis,  &c.  Ry.  Co.  811 

McManus  v.  Carmichael  861 

v.  McDonough  590 

v.  O'Sullivan  30 

v.  State  883 

Me  Masters  v.  Commonwealth  728 

McMatli  v.  State  464 

McMerty  v.  Morrison  522 

McMillan  v.  Birch  619,  632 

v.  Boyles  542 

v.  Lee  County  270 

v.  McNeill  45,  417 

McMillen  v.  Anderson  20,  505 

McMinn  v.  Whelan  750 

McMullen  v.  Hodge  109 

McNaughton  Co.  v.  McGirl  687 

McNealy,  Ex  parte  459 

McNeer  v.  McNeer  512 

McNeill,  In  re  189 

v.  Somers  895 

McNichol  i7.  U.  S.,  &c.  Agency  136 

McNiel,  Ex  parte  688 

v.  Commonwealth  220 


McNulty  v.  California 
McPherson  v.  Blacker 

v.  Chebanse 

v.  Foster 

v.  Leonard 


22,  31,  456,  505 

17,  932 

279,  883 

271,  320,  324 

118 


McQuigan  v.  Delaware  L.  &  W.  Ry. 

Co.  424 

McQuillen  v.  Hatton  766,  775 

McRae  v.  Americus  280 

v.  Grand  Rapids  L.  &  D.  Ry. 

Co.  454 

McReynolds  v.  Smallhouse    207,  864, 865 
McSorley's  Liquors  591 

McSpedon  v.  New  York  311 

McTwiggan  v.  Hunter  712,  722,  748 

McVeigh  v.  United  States  681,  582 

Meacham  v.  Dow  924 

v.  Fitchburg  R.  R.  Co.  824 

Mead  v.  Acton  310,  333 

v.  County  Treasurer  897 

v.  Derby  363 

v.  Larkin  581 

v.  McGraw  87 

v.  Walker  590 

Meade  v.  Beale  34 

v.  Deputy  Marshal  681 

Meadowcraft  v.  People  526 

Meagher  v.  Storey  Co.  259 

Mears  v.  Commissioners  of  Wilming- 
ton 356 
Mechanics'    &    Farmers'    Bank    v. 

Smith  291 

Mechanics'  &  Traders'  Bank  v.  De- 
bolt  176,  385 
v.  Thomas  395 
Mechanics',  &c.  Bank  Appeal  406 
Mechanics'  Bank  v.  Smith  104 
Meddock  v.  Williams  538 
Medford  v.  Learned  628,  529 
Meeker  ?•.  Van  Rensselaer  851,  878 
Meguire  v.  Corwin  198,  924 
Meighen  v.  Strong  640 


Page 

Meister  v.  People  483 

Vlelick  v.  Washington  284 

Melizet's  Appeal  156,  514 

Mellen  v.  Western  R.  R.  Corp.  784 

Melvin  v.  Weiant  605 

Memphis  v.  Bolton  825 

v.  Fisher  660 

v.  Water  Co.  562 

v.  Winfield  281,  288 

Memphis,  &c.  R.  R.  Co.  v.  Payne         817 
Memphis  &  C.  Ry.  Co.  v.  Birming- 
ham S.  &  T.  Ry.  Co.  807 
Memphis  &  L.  R.  R.  R.  Co.  v.  R.  R, 

Com'rs  397 

Memphis  City  Bank  v.  Tennessee  397 
Memphis  Freight  Co  v.  Memphis  764 
Memphis  Gas  Light  Co.  v.  Shelby 

Co.  396 

Menard  Co.  r.  Kincaid  516 

Menasha  v.  Hazard  321 

Mendel  v.  Wheeling  301 

Mendota  v.  Thompson  363 

Menges  v.  Wertman  631,  533,  536 

Menken  v.  Atlanta  281,  850 

Menserdorff  v.  Dwyer  676 

Mercantile  Bank  v.  Tennessee  397 

Mercer  ».  Me  Williams  813 

Merchants'  Bank  v.  Bergen  Co.  323 

v.  Cook  351 

Merchants'  Bank  of  Danville  v.  Bal- 
lon 416,  516 
Merchants'  &  M.  Nat'l  Bank  v.  Penn- 
sylvania                                 34,  682,  712 
Merchant,  Union  Barb-wire  Co.  v. 

C.  R.  I.  &  P.  Ry.  Co.  816 

Meredith  v.  Christy  895 

v.  Ladd  198 

Merivale  v.  Carson  645 

Meriwether  v.  Garrett  267,  268,  345 

Merrick  v.  Amherst  313,  337,  704 

v.  Giddings  192 

v.  Van  Santvoord  178 

Merrifield  v.  Worcester  303,  304,  362 

Merrill  v.  Eastern  R.  R.  844 

v.  Humphrey  711 

v.  Monticello  319,  322 

v.  Plainfield  309,  311 

v.  Sherburne  134,  137,  611 

Merritt  v.  Cameron  105 

v.  Farris  743 

Mershon  v  State  449 

Merwin  v.  Ballard  629 

Merz  v.  Missouri  Pac.  Ry.  Co.  840 

Meshmeier  v.  State        163,  173,  248,  257, 

849,  850 

Messenger  r.  Mason  30 

Mestayer  v.  Corrige  283 

Metcalf  v.  Gilmore  83 

Methodist  Church  v.  Ellis  740 

w.  Wood  661 

Meth.  Ep.  Ch.  v.  Wyandotte  304,  783 
Metropolitan  Board  v.  Barrie  400,  845, 

846 

v.  Heister  286,  853,  854,  883 

Metropolitan  Gas  Light  Co.,  Matter 
of  209, 212 


TABLE   OF  CASES. 


Ixxv 


Page 

Metropolitan  Nat'l  Bk.  v.  Claggett         29 
Metropolitan  Police  Board  v.  Wayne 

Co.  Auditors  334 

Metropolitan  Tel.,  &c.  Co.  v.  Colwell 

L.  Co.  787 

Metropolitan  W.  S.  El.  Ry.  v.  John- 
son 827 
Metzger,  Matter  of                         495,  496 
Mewherter  v.  Price                         '209,  213 
Meyer  v.  Berlandi                    133,  249,  508 
v.  Muscatine  319 
v.  Richmond  21 
v.  San  Diego                                    592 
Meyers  v.  Baker                                     886 
v.  Chicago,  R.  I.  &  P.  Co.               285 
Miami  Coal  Co.  o.  Wigton                     762 
Michales  v.  Hine                                     589 
Michigan  State  Bank  v.  Hastings         392 
Michigan  Sugar  Co.  v.  Aud.  Gen'l       697 
Michigan    Telephone    Co.     v.     St. 

Joseph  130,  132,  392 

Middlebrook  v.  State  453 

Middlebrooks  v.  Ins.  Co.  41 

Middleport  v.  Ins.  Co.  212 

Middleton  v.  Lowe  162 

v.  Middleton  240 

v.  St.  Augustine  319,  696 

Middletown,  Matter  of  202 

Re  250 

Mifflin  v.  Railroad  Co.  792 

Mikesell  v.  Durkee  799 

Milam  Co.  v.  Batcman  344 

Milan  &  R.  P.  R.  Co.  v.  Husted  395 

Milan  M.  &  M.  Co.  v.  Gorton  180 

Milburn,  Ex  parte  495 

v.  Cedar  Rapids,  &e.  R.  R.  Co.      797 

Miles  v.  Albany  307 

v.  Caldwell  33 

».  State  381 

v.  Worcester  304 

Milhau  v.  Sharp      272,  291,  299,  306,  789 

Millard  v.  Board  of  Education  664 

v.  Webster  City  296 

Millaudon  v.  Gallagher  750 

Milledgeville  v.  Cooley  363 

Miller,  In  re  41,  375,  498 

v.  Ammon  850 

v.  Birch  884 

v.  Clark  900 

v.  Commonwealth  456,  487 

v.  Craig  880,  883 

v.  Dunn  88 

v.  English  661 

v.  Gable  660 

v.  Graham  543,  546 

v.  Grandy  333,  701 

v.  G.  B.  W.  &  St.  P.  Ry.  Co.         803 

v.  Hixson  529 

r.  Hurford  220 

v.  Johnson  61 

v.  Jones  213 

v.  Max  121 

v.  Miller  513 

v.  New  York  &  Erie  R.  R.  Co.      838, 

839 
v.  Nicholls  30 


Page 

Miller  v.  Parish  607 

v.  People  444 

v.  Rucker  927 

v.  State  (3  Ohio)     116,  193,  195,  200, 

214,  231 

v.  State  (8  Ind.)  469 

v.  State  (149  Ind.)     454,  472,  473,  589 

v.  State  (15  Wall.)  394 

v.  St.  Paul  301 

v.  Texas  46,  879 

o.  Troost  772 

Miller's  Case  652 

Miller's  Executor  v.  Miller  583 

Miller's  Exec'rs  v.  Swann  32,  834 

Millett  v.  People  659 

Millholland  v.  Bryant  911 

Milligan,  Ex  parte  436,  454 

Milligan's  Appeal  922 

Milliken  v.  City  Council  286 

v.  Pratt     '  834 

Mills,  Matter  of  481 

r.  Brooklyn  302,  356,  361 

v.  Charleton    209,  210,  265,  338,  542, 

700 

v.  Duryea  43 

v.  Gleason  271,  272,  750 

v.  Jefferson  225 

v.  Missouri  291 

v.  St.  Clair  Co.  567 

v.  United  States  782 

v.  Williams  266,  389,  392,  393 

Milne  v.  Davidson  883 

Milner  v.  Pensacola  267 

Milward  v.  Thatcher  894 

Milwaukee  v.  Gross  286,  854 

Milwaukee  County  v.  Isenring  194 

Milwaukee  Gaslight  Co.  v.  Schooner 

Gamecock  54 

Milwaukee    Ind.   School  v.  Super- 
visors 423,  589 
Milwaukee  Town  v.  Milwaukee  City    268 
Miner  v.  Detroit  Post  &  Tribune    629,  650 
v.  Markham  192 
Miners'  Bank  v.  Iowa  54 
v.  United  States                        149,  392 
Minneapolis  v.  Tanney                           697 
v.  Wilkin                                 648,  594 
Minneapolis  &  N.  EL  Co.  v.  Traill 

Co.  508 

Minneapolis   &   St.  L.   Ry.   Co.  v. 

Beckwith  18,  832 

v.  Emmons  841 

v.  Herrick  18 

».  Minn.  W.  R.  Co.          758,  806,  807 
Minneapolis  Gas  Light  Co.  v.  Minne- 
apolis 294 
Minnesota  v.  Barber                       854,  855 
v.  Young  144 
Minnetonka  Lake  Improvement,  Re    782 
Minor  v.  Board  of  Education                665 
v.  Happersett         18,  66,  57,  104,  568, 

901 

Minot  v.  West  Roxbury  198 

o.  Winthrop  708 

Misch  v.  Russell  926 

Miskimins,  Ex  parte  442 


Ixxvi 


TABLE  OF  CASES. 


Page 

Miss.,  &c.  Boom  Co.  v.  Prince  212 

Miss.  &  R.  R.  Boom  Co.  v.  Patterson    827 

Mississippi  Mills  v.  Cook  120,  706 

Mississippi  R.  R.  Co.  v.  McDonald       392 

Mississippi  Society  v.  Musgrove  392 

Missouri  v.  Andriano  30 

v.  Lewis  14,  19,  555 

v.  Murphy  207 

Missouri  K.  &  T.  Ry.  Co.  v.  Haber       854 

v.  McCann  &  Swizer  34,  852 

v.  Simonson  21 

Missouri  K.  &  T.  Trust  Co.  v.  Krum- 

seig  833, 836 

Missouri  Pac.  Ry.  Co.  v.  Finley  881 

v.  Fitzgerald  27 

v.  Houseman  818 

v.  Humes  18,  528,  841 

v.  Mackey  18,  20,  556 

v.  Nebraska  Bd.  of  T.       22,  125,  774, 

804,  876 

v.  Porter  827 

v.  Richmond  620 

v.  Sherwood  852,  853 

Mitchell  v.  Burlington  319 

v.  Clark  23,  383 

v.  Deeds  631,  635 

v.  Harmony  764 

v.  Illinois,  &c.  Coal  Co.  121,  760 

v.  Negaunee  696 

v.  Rome  296 

v.  State  470 

v.  St.  John  589 

v.  Tibbetts  177 

v.  Williams  881 

Mitchell's  Case  478 

Mithoffv.  Carrollton  769 

Moberly  v.  Preston  607 

Mobile  v.  Allaire  279,  280 

v.  Dargan  49,  703,  717 

v.  Kimball  688,  856,  858 

v.  Rouse  280 

v.  Watson  268,  415 

Mobile  &  Ohio  R.  R.   Co.  v.  Dis- 

mukes  876 

v.  Postal  T.  C.  Co.  828 

v.  State  218,  231,  246,  251 

v.  Tennessee  31,  396 

Mobile  Trans.  Co.  v.  Mobile  517 

Moers  v.  City  of  Reading  104,  167 

Moffatt  v.  Hardin  478 

Mohan  v.  Jackson  895 

Mohawk  &  Hudson  R.  R.  Co.,  Matter 

of  114 

Mohawk  Bridge  Co.  v.  Utica  &  Sche- 

nectady  R.  R.  Co.  667 

Mohr,  In  re  40 

Mok  v.  Detroit,  &c.  Association  216 

Moletor  v.  Sinnen  425 

Monday  v.  Hah  way  130 

Monette  v.  Guilbert  508 

Money  v.  Leach  428 

Monford  v.  Barney  691 

Monk  v.  Corbin  623 

Monmouth  v.  Leeds  111 

Monongahela  Navigation  Co.  v.  Coons  781, 

786 


Page 
Monongabela    Navigation     Co.    r. 

United  States          756,  778,  817,  827 
Monopolies,  Case  of  401,  662 

Monroe  v.  Collins      99,  249,  564,  906,  908 

927 

v.  Hoffman  286,  878 

Mon  Suck  v.  Sears  850 

Montana  Catholic  Mission  v.  L.  &  C. 

County  740 

Montana  Centr.  Ry.  Co.  v.  Helena, 

&c.  Co.  807 

Montana  Co.  v.  St.  Louis  Mining  & 

M.  Co.  424,  568 

Montclair  v.  New  York,  &c.  Ry.  Co.     839 
v.  Ramsdell  206 

Montee  v.  Commonwealth  464 

Montery  Co.  v.  Gushing  765 

Montgomery  v.  Deeley  605 

v.  Hobson  638 

v.  Kasson  386,  402 

o.  Meredith  631 

v.  Montgomery  Water  Works        311 
v.  Santa  Ana  &  W.  Ry.  Co.  803 

v.  State  464,  655 

v.  Townsend  296,  811,  812 

v.  Waseni  749 

Montgomery  B.  B.  Wks.  v.  Gaston      194 
Montgomery  Co.  v.  Elston  683 

Montgomery  Co.  Fiscal  Ct.  v.  Trimble  202 
Monticello  v.  Banks  730 

Monticello  Bank  v.  Coffin's  Grove         262 
Monticello  D.  Co.  v.  Mayor  of  Balti- 
more 231 
Montjoy  v.  Pillow                            649,  567 
Montpelier  v.  East  Montpelier       267,  268, 

345,  391 

Montpelier  Academy  v.  George    267,  268 

Montross  v.  State    '  129,  166,  468 

Mooar  v.  Harvey  905 

Moodalay  v.  East  India  Co.  360 

Moody  v.  State  186,  193,  194,  218 

v.  Trimble  900 

Moog  v.  Randolph  194 

Moon  v.  Atlanta  812 

v.  Durden  97 

v.  Stevens  692 

Moor  v.  Luce  621 

Moore,  Ex  parte  212 

Matter  of  481 

v.  Atlanta  296 

v.  Cass  647 

v.  Detroit  Locomotive  Works        676 

v.  Greenhow  406 

w.  Holland  407 

r.  Houston  237 

r.  Indiana  363,  400 

v.  Irby  611 

17.  Kent  614 

t7.  Kessler  935 

v.  Maxwell  146 

v.  Meagher  608 

v.  Missouri  472 

t7.  Monroe  666 

17.  Moore  685 

r.  Napier  251 

v.  Nat'l  Com.  K.  &  L.  of  S.  507 


TABLE  OF  CASES. 


Ixxvii 


Moore  v.  New  Orleans 

v.  People 

v.  Quirk 

».  Railway  Co. 

v.  Sanborne 

v.  Sanford 

v.  Smaw 

v.  State 

v.  Stephenson 

v.  Strickling 
Moores  v.  Nat.  Bank 
Moose  v.  Carson 


Page 

250 

46,  281 

684,  685 

760,  761 

861,  862 

775,  777 

763 

374,  406,  438,  467 

657 

389 

34 

298 


Moran  v.  Commissioners  of  Miami 

Co.  321 

v.  New  Orleans  691 

v.  Pullman  Pal.  Car  Co.  305 

v.  Ross  777 

v.  Sturges  25,  27 

Moreau  v.  Detchamendy  36 

Morehead  v.  State  445 

Morehouse  Parish  i;.  Brigham  710 

Morey  v.  Brown  881 

v.  New  fane  355,  357 

Morford  v.  Unger     166,  206,  209,  222,  546 

697,  704,  720 

Morgan,  Re  66,  570,  891 

v.  Beloit  345 

v.  Bufflngton  161 

v.  Cree  176 

v.  Des  Moines,  &c.  Ry.  Co.  797 

v.  Elizabeth  711 

v.  Gloucester  908 

».  King  52,  808,  861,  862,  863 

v.  Livingston  606 

v.  Orange  283 

v.  Plumb  81 

v.  Potter  44 

v.  Quackenbush  935,  939,  940 

v.  Smith  176 

v.  State  452 

Morgan's  S.  S.  Co.  v.  Louisiana  688 

Morley  v.  L.  S.  &  M.  S.  Ry.   Co. 

(95  N.  Y.)  387 

v.  L.  S.  &  M.  S.  Ry.  Co.  (146  U.  S.)  32, 

387 

Morrell  v.  Dickey  584 

v.  Fickle  256 

Morril  v.  Haines  930 

Morrill  v.  State  709,  888 

Morris  v.  Bark  ley  607 

v.  Bd.  of  Canvassers  900 

v.  Carter  463 

v.  Claimants,  The  184 

v.  Columbus  880 

v.  Council  Bluffs  304 

v.  People  237,  253 

v.  Powell  99,  908 

v.  Royal  Arch  Masons  740 

v.  State  267,  391,  470,  542,  865 

v.  Stout  183 

v.  Vanlaningham  929 

Morris  &  Essex  R.  R.  Co.  v.  Newark    791 

Morris  Canal  Banking  Co.  v.  Fisher    323 

Morrison  v.  M'Donald  453 

v.  Rice  514 

v.  Springer  237,  903 


Morrison  v.  State 
Morrissey  v.  People 
Morrow  v.  Wood 
Morrow  Co.  v.  Hendryx 
Morse  ?;.  Boston 

v.  Goold 
Morton,  Matter  of 

v.  Macon 

v.  New  York 

v.  Sharkey 

v.  Sims 

v.  Skinner 

v.  The  Controller 
Mortun  r.  Valentine 
Mose  v.  State 
Moseley  v.  State 
Moser  v.  White 


Page 
449 
177 

263,  486 
268 
363 

85,  406,  408 
431 

282,  290 
574 

521,  523 

829 

39 

207,  210 
409 
452 
469 
138 


Moses  v.  Pittsburg,  Fort  Wayne,  & 

C.  R.  R.  Co.  797 

v.  Sanford  822 

v.  State  180 

Moses  Taylor,  The,  v.  Hammons  45 

Mosier  v.  "Hilton  210 

Moss  v.  St.  Louis,  &c.  Ry.  Co.  757 

Motes  v.  U.  S.  450 

Mott  v.  Comstock  606 

v.  Dawson  610, 628,  649 

v.  Pennsylvania  R.  R.  Co.      176,  395 
Motz  v.  Detroit  251,  654 

Moulton  v.  Newburyport  Water  Co.    822 

v.  Raymond  700 

v.  Scarborough  306 

Mount  v.  Commonwealth  468 

v.  Richey  185 

Mount  Carmel  v.  Shaw  298 

v.  Wabash  Co.  268 

Mount  Pleasant  v.  Beckwith          268,  345 

v.  Breeze  272 

Mount  Veruon  v.  People  740 

Mount  Vernon    First  N.  Bank  v. 

Sarlls  290 

Mount  Washington  Road  Co.'s  Peti- 
tion 777,  817,  824,  825 
Mounts  v.  State  467, 468 
Mower  v.  Leicester                        351,  355 

v.  Watson  631,  633 

Moxley  v.  Ragan  252 

Moyer  v.  Van  De  Vanter  900,  906 

v.  Slate  Co.  95 

Moynier,  Ex  parte  286 

Mugler  v.  Kansas  11,  18,  849,  850,  883 
Muhlenbrinck  v.  Commissioners  283,285 
Muhlker  v.  N.  Y.  &  H.  R.  Co.  800 

Mulcairns  v.  Janesville  306 

Mulhearn  v.  Press  Pub.  Co.  483 

Mulholland  v.  Des  Moines,  &c.  Co.  404 
Mulinx  v.  Mut.  Ben.  L.  Ins.  Co.  (23 

Col.  71)  228 

v.  Mut.  Ben.  L.  Ins.  Co.  (23  Col. 

85)  119 

Mullan  v.  State  196 

Muller  v.  So.  Pac.  B.  Ry.  Co.  826 

Mulligan  v.  City  of  Perth- Amboy  814 
Mull  in  v.  People  455 

Mullinex  v.  People  464 

Mumford  v.  Sewall  694 


Ixxviii 


TABLE   OF  CASES. 


Page 

Muncie  Nat.  Bank  v.  Miller  631 

Mundt  v.  Sheboygan,  &c.  R.  R.  Co.       89, 

202 

Mundy  v.  Monroe  250,  412 

Munger  v.  Tonawanda  R.  R.  Co.          809 

Municipal  Full  Plants,  Re  696 

Municipal  Suffrage  to  Woman  164 

Municipality  v.Blanc  860 

v.  Cutting  888 

v.  Dunn  719 

v.  Wheeler  374 

r.  White  717,  733 

Munn  v.  Illinois  18,  46,  287,  510,  831,  871, 

874 

v.  People  870 

v.  Pittsburg  363 

Munson  v.  Hungerford  861 

Munster  v.  Lamb  633 

Murdock  v.  Ward  684 

Murphey  v.  Menard  208 

Murphy,  Ex  parte  497,  932 

In  re  89,  376 

v.  Chicago  296,  783 

v.  Commonwealth  376 

v.  Commonwealth  468 

v.  Curry  900,  926 

v.  Directors  263 

v.  Jacksonville  272,  310 

v.  Lowell  302,  362 

v.  Massachusetts  469 

v.  People  647,  717 

r.  Ramsey  64, 902,  907,  927 

v.  San  Luis  Obisho  324,  911 

v.  State  468,  470,  480 

Murray  v.  Bd.  of  Co.  Com'rs  666 

v.  Charleston  415 

v.  Commissioners  of  Berkshire     790, 

795 

r.  Hoboken  Land  Co.  681 

v.  Lehman  707 

v.  McCarty  37 

v.  Menifee  781,  787 

v.  Ramsey  Co.  Com'rs  184 

v.  Sharp 

Murray's  Lessee  v.  Hoboken  Land  Co.  602 

Murtaugh  v.  St.  Louis  356 

Musgrove  v.  Vicksburg,  &c.  R.  R.  Co.    516 

Musselman  v.  Logansport  531 

Mutual  Assurance  Co.  v.  Watts  33 

Mut.  Ben.  Life  Ins.  Co.  v.  Elizabeth    631 

Mutual  R.  F.  Life  Ass'n  v.  Boyer        180 

Myers  v.  Baltimore  Co.  Com'rs  719 

v.  Chalmers  937 

v.  English  120,  237 

v.  Manhattan  Bank  56 

v.  Park  606 

v.  People  177,  246 

Mygatt  v.  Washburn  719 

My  rick  v.  Hasey  86 

v.  La  Crosse  749 


N. 

Narregang  v.  Brown  County  194 

Narron  v.  Wilmington  &  W.  Ry.  Co.     669 


Page 

Nash  n.  Lowry  299 

Nashville  v.  Althorp  289 

v.  Nichol  296 

v.  Ray  271,  272 

Nashville,  &c.  R.  R.  Co.  v.  Hodges       740 

Nashville,  C.  &  St.  L.  Ry.   Co.  v. 

Alabama  19,  688,  844,  857 

Nashville  M.  &  S.  Turnpike  Co.  v. 

Davidson  Co.  392 

Natchez,  J.  &  C.  R.  R.  Co.  v.  Currie    824 

National  Bank  v.  Commonwealth         682 

v.  Stevens  26 

v.  United  States  681 

v.  Yankton  64 

National  Docks  &  N.  J.  J.  C.  Ry. 

Co.  v.  State  806 

National  Land  &  Loan  Co.  v.  Mead  221 
National  Life  Ins.  Co.  v  Mead  323,  324 
National  Trust  Co.  v.  Murphy  180 

Nations  v.  Johnson  581,  582 

Navasota  v.  Pearce  356 

Naylor  v.  Field  217 

N.  C.  Coal  Co.  v.  G.  C.  Coal  &  Iron 

Co.  97 

Neaderhouser  v.  State  867 

Neasrle,  In  re  492 

Neal  v.  Delaware  18,  19, 49,  901 

v.  Green  34 

v.  Shinn  925 

Neass  v.  Mercer  409 

Nebraska  v.  Campbell  356 

v.  Iowa  36 

Nebraska  Tel.  Co.  v.  State  844,  873 

Neeb  v.  Hope  628,  646 

Needham  v.  Thayer  683 

Neel  v.  State  453 

Neeley  v.  Henkle  41 

r.  Henry  252 

Neff  v.  Beauchamp  679 

Nefzger  v.  Davenport  907 

Negley  v.  Farrow  628,  644,  646 

Nehasane  Park  Ass'n  v.  Lloyd  749 

Neifing  v.  Pontiac  210 

Neil  v.  State  689 

Neill  ».  Keese  676 

Neilson  v.  Chicago,  &c.  Ry.  Co.  826 

Nels  v.  State  464 

Nelson  v.  Allen  84,  653 

v.  Borchenius  606 

v.  Canisteo  366 

v.  Cheboygan  Nav.  Co.  865 

v.  Gorree  85 

r.  Milford  307,  308 

v.  Rountree  546 

i\  State  465,  869 

v.  St.  Martin's  Parish  415 

Nesbitt  v.  Ind.  Dist.  of  Riverside          820 

v.  Trumbo  766 

Nesmith  v.  Sheldon  34 

Neumeyer  v.  Krakel  99,  168,  159 

Nevins  v.  Peoria  296 

New  v.  Walker  13 

New  Albany  &  Salem  R.  R.  Co.  v. 

Maiden  841 

v.  McNamara  841 

v.  O'Daily  786,  797 


TABLE  OF  CASES. 


Ixxix 


New  Albany  &  Salem  R.  R.  Co.  v. 

Tilton  830,  841,  844 

Newark  v.  Watson  881 

Newark  &  S.  O.  Co.  v.  Hunt  606 

Newark  Savings  Bank  v.  Forman         406 

Newbern  v.  McCann  289 

Newberry  v.  Carpenter  424 

v.  Trowbridge  80,  81 

New  Boston,  Petition  of  592 

v.  Dunbarton  277 

New  Brighton  v.  Peirsol  812 

New  Brunswick  v.  Fitzgerald  183 

v.  Williamson  217 

Newby  v.  Platte  County  823,  824 

Newby's  Adm'rs  v.  Blakey  621 

Newcastle,  &c.  R.  R.  Co.  v.  Peru  & 

Indiana  R.  R.  Co.  758 

Newcomb  v.  Indianapolis  158, 159 

v.  Light  595 

v.  Peck  42 

Newcome  v.  Smith  772 

New  Counties,  In  re  199 

Newcum  v.  Kirtley  933,  937 

Newell  v.  How  606 

v.  Minn.,  &c.  Ry.  Co.  802 

v.  Newton  683 

v.  People  89,  91 

v.  Smith  773 

17.  Wheeler  750 

New  England  Screw  Co.  v.  Bliven         34 

New    England    Tr.    &   S.  Club   v. 

Mather  671 

New  Era  Life  Ass.  v.  Musser        409,  838 
New  Hampshire  v.  Louisiana  24 

New  Haven  v.  New  H.  &  D.  Ry.  Co.    298 
New  Jersey  v.  Wilson  176,  395 

v.  Yard  395 

New  Jersey  ex  rel.  Kennelly  v.  Jersey 

City  803 

New    Jersey    Zinc    Co.    v.    Morris 

Canal,  &c.  Co.  775 

Newland  v.  Marsh  132,  237,  253,  256 

New  London  v.  Brainard  270,  310 

Newman,  Ex  parte  237,  258 

v.  Ashe  312 

New  Orleans  v.  Abagnatto  347 

v.  Cannon  506 

v.  Cazelaer  721 

N  ».  Clark  ^309,  332,  336 

v.  De  Annas  30 

17.  Dubarry  707 

v.  Faber  887,  888 

v.  Fourchy  739,  743 

v.  Great  South  Tel.  Co.  387 

v.  Home  Ins.  Co.  707 

v.  Houston  395,  400 

t7.  Kaufman  710 

v.  Miller  281 

v.  People's  Bank  739 

17.  Poutz  374 

17.  Savings  Bank  710,  742 

t7.  Southern  Bank  217 

17.  Stafford  887 

17.  Stempel  695 

».  St.  Romes  114 

17.  Turpin  265 


Page 

New  Orleans  v.  Warner  (175  U.  S.)     386 

r.  Warner  (167  U.  S.)  386,  695 

New  Orleans,  &c.  R.  R.  Co.  v.  Gay      775, 

809 

17.  New  Orleans  346,  789 

New  Orleans  C.  &  L.  R.  Co.  v.  New 

Orleans  396 

v.  Southern,  &c.  Tel.  Co.        759,  770 
New  Orleans  Gas  Co.  v.  Louisiana 

Light  Co.  62,  383,  402 

New  Orleans  Water  Works  v.  Lou- 
isiana Sugar  Co.  30 
v.  Rivers                                           402 
Newport  v.  Com.                                     739 
v.  Horton                                  244,  334 
v.  Newport                                        290 
New  Providence  v.  Halsey             274,  322 
Newsom  v.  Cocke                                   253 
v.  Earnheart                                     907 
17.  Greenwood                                   516 
Newson  v.  Galveston                              887 
Newton  v.  Atchison                                709 
17.  Belger                                           283 
v.  Commissioners             388,  610,  548 
v.  Newell                                   914,  916 
New  York,  Matter  of  Mayor,  &c.  of    717, 

741 

New  York  v.  Barker  16 

t7.  Furze  356 

v.  Hyatt  280 

v.  Lord  878 

«7.  Miln  690,  858 

17.  Nichols  279,  281,  291 

v.  Ryan  265 

v.  Second  Av.  R.  R.  Co.  283,  295,  710 

v.  Squire  860 

v.  Williams  286 

New  York  &  A.  R.  R.  Co.  v.  N.  Y., 

•&c.  R.  R.  Co.  807 

N.  Y.  &  Harlaem  R.  R.  Co.  v.  Kip  764,  766 

v.  New  York  789 

New   York   &  L.  B.  R.  R.  Co.  v. 

Drummond  807 

N.  Y.,  L.  E.  &  W.  Ry.  Co.  v.  Estill  32,  180 

v.  Pennsylvania  (153  U.  S.)  384 

17.  Pennsylvania  (158  U.  S.)  692 

N.  Y.  Life  Ins.  Co.  v.  Cravens  32,  34, 179, 

687 

i'.  English  664 

N.  Y.  &  N.  E.  Ry.  Co.  v.  Town  of 

Bristol  843 

N.  Y.,  N.  H.  &  H.  R,  Co.  ».  New 

York  853 

v.  Welsh  763 

New  York  &  N.  Tel.  Co.  v.  Mayor 

of  Bound  Brook  130 

New  York,  &c.  R.  R.  Co.,  Matter  of    769, 

778,  806 

17.  Commonwealth  404 

o.  New  York  306 

u.  Van  Horn  253,  840,  639 

New  York  Central,  &c.  R.  R.  Co.  v. 

Gaslight  Co.  778 

Niagara,  F.  &  W.  Ry.  Co.,  Matter  of  770, 

775 
Niagara  Ins.  Co.  v,  Cornell  573 


Ixxx 


TABLE   OF   CASES. 


Page 

Niccolls  v.  Rugg  661 

Nichol  v.  Nashville  167 

Nicholl  v.  New  York  &  N.  J.  Tel.  Co.  804 

Nicholls  v.  Barriek  900 

Nichols,  Matter  of  408,  560 

v.  A.  A.  &  T.  Ry.  Co.  803 

v.  Bertram  392 

v.  Bridgeport    717,  728,  761,  823,  825 

v.  Duluth  296 

v.  Griffin  156 

v.  Guy  606 

v.  Mudgett  924 

v.  School  Directors  663 

v.  Somerset,  &c.  R.  R.  Co.  813 

Nicholson  v.  N.  Y.  &  N.  H.  R.  R.  Co.  794, 

823 

Nickerson  v.  Boston  868 

v.  Howard  486 

Nicks  v.  Chicago,  St.  P.  &  K.  C.  Ry. 

Co.  828 

Nicolay  v.  St.  Clair  322 

Nicolls  v.  Ingersoll  487 

Nielson,  Petitioner  496 

Nightingale,  Petitioner  285 

v.  Bridges  609 

Nightingale's  Case  887 

Niles  Water  Works  v.  Mayor  311 

Nims  v.  Troy  363 

Nishimura  Ekin  v.  United  States        129, 

131 

Nix  v.  Caldwell  619 

Nixon  v.  Reid  66,  867 

Noble  v.  Mitchell  179 

v.  Richmond  356 

Noble  &  W.  v.  Mitchell  886 

Noble  v.  Union  Riv.  Log  Ry.  Co.  22 

Nobles  v.  Georgia  32 

Noel  v.  Ewing  156,  514 

v.  People         248,  509,  837,  849,  886 

Nolan  v.  State  468 

Nolin  v.  Franklin  886 

Nomaque  v.  People  452 

Nomination  of  Public  Officers,  Re        895 

Noonan  v.  Albany  363 

v.  Orton  611 

v.  State  52 

Norfolk  v.  Ellis  717 

v.  Young  712 

Norfolk  &  W.  Ry.  Co.  v.  Com.  859 

v.  Pendleton  397 

v.  Pennsylvania  179,  690 

Norman  v.  Curry  210 

v.  Heist  504,  512,  540 

v.  Kentucky  Bd.  of  Managers       176, 

696 

Norris,  Ex  parte  898 

v.  Abingdon  Academy  237,  392 

v.  Atkinson  417 

v.  Beyea  515,  529 

v.  Boston  247 

v.  Clymer  104,  144,  146 

v.  Crocker  644 

v.  Doniphan  617,  518 

v.  Hall  751 

v.  Harris  52 

v.  Newton  494 


Norris  v.  Norris 

v.  Vt.  Central  R.  R.  Co. 

v.  Waco 

v.  Wrenshall 
Norristown  v.  Fitzpatrick 


Page 
579 

757,  784 
722 
407 
305 


Norristown,  &c.  Co.  v.  Burket  591 

North  &  S.  Ala.  R.  R.  Co.  v.  Morris  664 
North  &  W.  B.  Ry.  Co.  v.  Swank  826 
North  Bloomfield  G.  M.  Co.  v.  Keyser  592 
North  Carolina  v.  Temple  24 

North  Carolina,  &c.  R.  R.  Co.  v.  Car. 

Cent.,  &c.  R.  R.  Co.  758 

North  Carolina  Coal  Co.  v.  Coal  & 

Iron  Co.  97 

North  Chicago  C.  R.  Co.  v.  Lake  View  884 
North  Milwaukee,  Application  of,  Re  164 
Northeastern  Neb.  Ry.  Co.  v.  Frazier  823 
Northern  Bank  v.  Porter  Township  322 
Northern  C.  I.  Trust  v.  Sears  68 

Northern  Indiana  R.  R.  Co.  v.  Con- 
nelly 716,  717,  729,  746 
Northern  Liberties  v.  Gas  Co.        286,  288 
v.  St.  John's  Church  717 
Northern  Pac.  &  M.  Ry.  Co.  v.  Forbis   826, 

827 

Northern  Pac.  Ry.  Co.  v.  Colburn          28 

v.  Myers  683 

Northern  R.  R.  v.  Concord  R.  R.  86 

North  Hempstead  v.  Hempstead   278,  312 

North  Missouri  R.  R.  Co.  v.  Gott         778 

v.  Lackland  778 

v.  Maguire  46,  396 

Northwestern  Fertilizing  Co.  v.  Hyde 

Park  98,  836 

Northwestern  Lumber  Co.  v.  Che- 

halis  County  691 

Northwestern  Mfg.  Co.  v.  Judge  882 

v.  Wayne  Cir.  Judge  213 

Northwestern  &  P.  H.  Bk.  v.  State         24 
Northwestern  Tel.  &  E.  Co.  v.  Min- 
neapolis 837 
North  Yarmouth  v.  Skillings  345 
Norton  v.  Dougherty  80 
v.  Ladd                                             677 
v.  Pettibone                                      633 
v.  Shelby  Co.                      33,  897,  898 
Norwalk  St.  Ry.  Co.'s  App.                   130 
Norwich  v.  County  Commissioners 

237,  253 
Norwich  Gas  Co.  v.  Norwich  City 

Gas  Co.  662 

Norwood  v.  Baker  714,  731 

v.  Cobb  42 

Nougues  r.  Douglass  119 

Noyes  v.  Butler  42 

Nugent  i>.  State  469 

Nunn  v.  State  499 

Nutting  v.  Massachusetts  834 


o. 

Oakland  v.  Carpentier 
Oakley  v.  Aspinwall 
Oates  v.  National  Bank 
Oatnian  v.  Bond 


TABLE  OF  CASES. 


Ixxxi 


Page 
O'Bannon  v.  Louisville,  &c.  R.  R.  Co. 

624,  842 

O'Brian  t\  Commonwealth  468 

O'Brien  v.  Baltimore  801 

v.  Commonwealth  451 

v.  Krenz  412,  413 

v.  Philadelphia  784 

17.  State  443 

r.  St.  Paul  784 

v.  Wheelock  252 

v.  Young  387 

Ocean  Beach  Ass.  v.  Brinley  87 

O'Connell  v.  People  437 

O'Conner  v.  Warner  137 

O'Connor  v.  Fond  du  Lac       159,  244,  334 

t>.  Memphis  415 

v.  Pittsburg  296,  783,  826 

i7.  Sill  620 

O'Dea  v.  O'Dea  42,  580,  584 

Odiorne  v.  Rand  113 

Odljn  v.  Woodruff  750 

O'Donaghue  v.  McGovern  619 

O'Donnell  v.  Bailey  396 

O'Ferrall  v.  Simplot  514 

O'Ferrell  v.  Colby  935 

Officer  v.  Young  530,  560 

Ogden  v.  Blackledge  134,  137 

v.  City  of  Madison  280,  454 

v.  Riley  606 

t7.  Saunders      104,  254,  374,  404,  405, 

406,  409,  416,  417,  525 

r.  Strong  89,  92 

Ogden  City  v.  Armstrong      745,  747,  750 

O'Grady  v.  Barnhisel  748 

O'Hara  v.  Carpenter  331 

v.  Stack  660 

O'Hare  v.  Chicago  M.  &  N.  Ry.  Co.      777 

Ohio  v.  Thomas  849 

Ohio  &  Lexington  R.  R.  Co.  v.  Ap- 

plegate  800 

Ohio  &  M.  R.  R.  Co.  v.  Lackey  150, 

528,  842 

v.  McClelland  399,  830,  843,  844 

v.  Taber  848 

Ohio  0.  Co.  v.  Indiana  21,  880 

Ohio,  &c.  R.  R.  Co.  r.  Ridge  316 

Ohio  Life  Ins.  &  Trust  Co.  v.  Debolt 

176,  395 

O'Kane  v.  Treat  183,  725,  743,  748 

O'Kelly  v.  Athens  Mauuf.  Co.  517 

v.  Williams  514 

Olcott  v.  Supervisors  35 

Old  Colony  Ry.  Co.  v.  Framingham 

Water  Co.  814 

Oldham,  In  re  453 

Oldknow  i7.  Wainwright  893,  931 

P'Leary,  Ex  parte  883 

v.  Cook  Co.  210 

».  Mankato  363 

Oleson  17.  Green  Bay,  &c.  R.  R.  Co. 

175,  217,  253 

Olive  v.  Ingram  895 

v.  State  863 

Oliver,  In  re  171 

i7.  McClure  138,  406 

v.  Steiglitz  178 


Oliver  v.  Union,  &c.  R.  R.  Co. 
v.  Washington  Mills 


Page 
817 

674,  6U3, 
694,  706 

v.  Worcester  3o'U 

Oliver  Lee  &  Co.'s  Bank,  Matter  of      (52, 

69,  97 

Olmstead  v.  Camp  772,  775,  777 

v.  Prop'rs  Norris  Aq.  769,  778 

Olmsted  v.  Miller  608 

Olney  v.  Harvey  267 

v.  Wharf  811 

Olson  v.  Phillips  751 

Olympia  v.  Mann  290 

Omaha  y.  Olmstead  363 

v.  Shaller  824 

Omaha  Bell  Ry.  Co.  v.  McDermott      827 

Omaha  &  R.  V.  R.  R.  Co.  v.  Standin    811, 

812 
Omaha  Horse  Ry.  Co.  v.  Cable,  &c. 

Co.  812 

Omaha  So.  Ry.  v.  Todd  827 

Omaha  V.  R.R.  Co.  v.  Rogers  797 

O'Maley  v.  Freeport  286 

O'Nail  v.  Craig  252 

O'Neil  v.  Am.  F.  Ins.  Co.  1(54 

y.  Vermont  46,  471,  474,  848 

Onslow  v.  Home  624 

Opel  v.  Shoup  24 

Opinions  of  Justices  (30  Conn.)  903 

(23  Fla.)  72 

(79  Ky.)  73 

(7  Mass.)  908 

(15  Mass.)  908 

(150  Mass.)  696 

(155  Mass.)  696 

(165  Mass.)  896 

(166  Mass.)  158,  159 

(175  Mass.)  696 

(18  Pick.)  58 

(1  Met.)  177,  905 

(6  Cush.)  60 

(99  Mass.)  219 

(115  Mass.)  896 

(117  Mass.)  (     99,388,937 

(124  Mass.)  902 

(138  Mass.)  158 

(148  Mass.)  72 

(16  Me.)  156 

(18  Me.)  115,  119 

(38  Me.)  917,  918,  932 

(45  Me.)  911 

(52  Me.)  330 

(58  Me.)  243,  700,  701 

(62  Me.)  901 

(64  Me.)  917,  935 

(49  Mo.)  73,  76 

(55  Mo.)  167 

(4  N.  H.)  144 

(41  N.  H.)  458,  690 

(44  N.  H.)  903 

(45  N.  H.)  219,  903 

(52  N.  H.)  194 

(53  N.  H.)  935 

(56  N.  H.)  189 

(58  N.  H.)  936 

(63  N.  H.)  184 


Ixxxii 


TABLE  OF  CASES. 


Page 

Opinions  of  Justices  (3  R.  I.)  137,  138 

(19  R.  I.)  910 

(37  Vt.)  903 

Orange,  &c.  R.  R.  Co.  v.  Alexandria     741 

Ordineal  v.  Barry  198 

Oregon  v.  Jennings  274,  322 

Oregon    &    C.   R.   Co.   v.  Jackson 

County  693 

v.  Portland  572 
Oregon  Ry.  &  Nav.  Co.  v.  Oregon, 

&c.  Co.  761 

Oregon  Ry.  Co.  v.  Portland  807 

O'Keiley  v.  Kankakee  Co.  735 

O'Reilley  v.  Kingston  730 

Oren  v.  Abbott  894 

v.  Pingree  327 

Orient  Ins.  Co.  v.  Daggs  20,  21,  38 

Oriental  Bank  v.  Freeze  517,  547 

Orkney  St.,  Re  718 

Orlando  v.  Pragg  292 

Orman  v.  State  478 

Ormicliund  v.  Barker  676 

Ormond  v.  Martin  553 

Ormsby  v.  Douglass  611 

O'Rourke  v.  Sioux  Falls  302 

Orphan  Asylum's  Appeal  719,  730 

Orphan  House  v.  Lawrence  82 

Orr  v.  Gilrnan  684,  708 

v.  Quimby  814 

v.  Skofield  606 

Orth  v.  City  of  Milwaukee  827 

Ortman  v.  Greenman  230 

Orton  n.  Noonan  539 

Ortwein  v.  Commonwealth  437 

Osage,  &c.  R.  R.  Co.  v.  Morgan  Co.      324 

Osborn  v.  Adams  Co.  700 

v.  Hart  508,  765 

v.  Jaines  523 

17.  Mobile  690 

v.  Nicholson  405,  410 

17.  State  .         459 

v.  United  States  160 

v.  United  States  Bank  29,  682 

v.  Wabash  Ry.  Co.  873 

Osborne  v.  Florida  689 

v.  Humphrey  395 

v.  Lindstrom  524 

Osburn  v.  Staley  193,  194,  231,  254 

Oscanyan  v.  Arms  Company  198 

Osgood  v.  Jones  936 

Oskaloosa    Water    Co.    v.    Bd.    of 

Equalization  720 

Otis  v.  Oregon  S.  S.  Co.  30 

Otis  &  G.  v.  Parker  673 

Otken  i7.  Lamkin  262 

Otoe  Co.  17.  Baldwin  210 

Ottawa  »i.  Carey  322 

v.  Nat.  Bank  322 

v.  People  209 

t7.  Spencer  861 

Ottawa,  O.  C.  &  C.  G.  Ry.  Co.  v. 

Larsen  828 

Ottawa,  &c.  R.  R.  Co.  v.  Larson  797 

Ottumwa  v.  Schwab  885 

v.  Zekind  291 


Ould  v.  Richmond 


266,  709,  712,  71J 


Page 

Our  House  v.  State  849,  850 

Over  17.  Hildebrand  619 

v.  Schiffling  611 

Overby  v.  Gordon  44 

Overstreet  v.  Brown  675 

Oviatt  v.  Pond  849,  850 

Owen  v.  Jordan  585 

17.  State  499 

Owens  v.  Henry  22 

v.  State  462,  911,  941 

Owensboro  v.  Com.  740 

v.  Hickman  90t't 

v.  Nat'l  Bk.,  Owensboro  682 

Owensboro  &  N.  Y.  Ry.  Co.  v.  Todd     164 
Owings  v.  Norwood's  Lessee  25,  30 

Owners  of  Ground  v.  Albany  770 

Owners  of  the  James  Gray  v.  Owners 
of  the  John  Frazer  856 


P. 

Pace  v.  Alabama  19 

v.  Burgess  680 

Pacheco  v.  Beck  936 

Pacific  Bridge  Co.  v.  Kirkham  729 

Pacific  Coast  Ry.  Co.  v.  Porter  825 

Pacific  Coast  S.  S.  Co.  v.  Board  R.  R. 

Com'rs  689 

Pacific  Exp.  Co.  ?7.  Seibert  689 

Pacific  Ins.  Co.  v.  Soule  680 

Pacific  Junction  v.  Dyer  693 
Pacific  Postal  Telph.  Cable  Co.  v. 

Irvine  804 

Pacific  R.  R.  Co.  v.  Chrystal  823,  824 

v.  Governor  194 

v.  Maguire  62,  395 

Pack  v.  Barton  199 

Packard  v.  Ryder  762 

Packet  Co.  v.  Gutlettsburg  691 

17.  Keokuk  691 

17.  Sickles  80 

v.  St.  Louis  691 

Packwood  v.  Kittitas  County  909 

Pacquette  v.  Pickness  653 

Padmore  v.  Lawrence  630,  633 

Page,  Ex  parte  473 

Re  243,  678,  705,  707 

v.  Allen  906 

v.  Commonwealth  444 

17.  Fazackerly  286,  888 

17.  Fowler  81 

v.  Hardin  619 

v.  Kuykendall  921 

17  Mathews'  Adm'r  138 

17.  Mervin  607 

Paine  v.  Wright  34. 

Paine's  Case  612 

Palairet's  Appeal  404 

Palfrey  v.  Boston  683 

Palmer  v.  Commissioners  of  Cuya- 

hoga  Co.  54, 55,  865 
17.  Concord                        608,  642,  648 

17.  Fitts  346,  348 

17.  Laberee  404 

v.  Larchmont  302,  804 


TABLE  OF  CASES. 


Ixxxiii 


Page 

Palmer  v.  Lawrence  84 

v.  McCormick  582 

v.  Napoleon  749 

v.  Smith  658 

v.  State  459 

v.  Stumph  717,  730,  741 

v.  Way  860 

Palmer  Co.  v.  Ferrill  824 

Palmore  v.  State  591 

Pana  v.  Bowler  274,  322,  583 

Pangborn  v.  Westlake  86 

v.  Young  194 

Paris  v.  Mason  761 

?;.  Norway  Water  Co.  720 

Parish  v.  Eager  521 

Parish  of  Bellport  v.  Tooker  660 

Park  v.  Detroit  Free  Press  Co.      560,  650 

Park  Com'rs  v.  Common  Council  of 

Detroit  65 

v.  Detroit  340 

Parke  v.  City  of  Seattle  784 

Parkens'  Case  475 

Parker  v.  Bidwell  487 

v.  Commonwealth  163,  171,  173 

v.  Cutler  Mill-dam  Co.  867 

v.  Hett  897 

v.  Hubbard  217 

v.  Kane  33 

v.  McQueen  644 

v.  Metropolitan  R.  R.  Co.      839,  867, 

875 

v.  Mill-dam  Co.  752 

v.  Ormsby  27 

v.  Orr  911 

v.  Phetteplace  34 

v.  Redfleld  395 

v.  Savage  92,  408,  517 

v.  School  District  262 

v.  Sexton  748 

v.  Shannohouse  516 

v.  State  676,  898,  931 

v.  Sunbury  &  Erie  R.  R.  Co.         565 

Parkersburg  v.  Brown  317,  322,  700 

Parkinson  v.  Brandenberg  223 

v.  State  92,  209,  223,  225 

Parkland  v.  Gains  726 

Parks,  Ex  parte  495 

v.  Boston  822 

v.  Goodwin  114 

v.  State  (Ga.)  205 

v.  State  (Ind.)  564 

Parmelee  v.  Lawrence       30, 617,  533,  537 

v.  Thompson  139 

Parmiter  ».  Coupland  656 

Parrish  v.  Commonwealth  435 

Parroti's  Chinese  Case  25 

Parsons  v.  Bangor  903 

v.  Casey  407 

v.  Clark  752 

v.  District  of  Columbia  711,  731 

v.  Goshen  311,  312 

v.  Howe  762 

v.  Russell  502 

Parsons  Oil  Co.  v.  Boy  178 

Parvin  v.  Wimberg  900 

Pasadena  r.  Stimson  775,  777 


Paschal  v.  Perez  406 

Paschall  v.  Whitsett  615 

Passavant  v.  United  States  22 

Passenger  Cases  832,  858 
Patapsco  Guano  Co.  v.  Bd.  of  Ag.  of 

N.  C.  855 

Patch  v.  Covington  301 

Paterson  v.  Society,  &c.  166,  266,  741 

Patten  v.  Florence  935 

v.  People  435 
Patten  Paper  Co.,  Ltd.  v.  Eaukauna 

Water  Power  Co.  782 

Patterson,  Ex  parte  272,  291 

v.  Barlow  74,  906 

v.  Collier  592 

v.  Commonwealth  832 

v.  Kentucky  13 

v.  Mississippi,  &c.  Boom  Co.  770 

v.  Nutter  486 

v.  Philbrook  516,  631,  543 

v.  State  450 

v.  Wilkinson  607 

v.  Winn  62 

v.  Wollman  66 

Pattison  v.  Jones  611 

v.  Yuba  89,  167 

Patton  v.  Coates  922 

v.  Stephens  310 

Patty  v.  Colgan  318 

Paul,  In  re  213 

o.  Davis  87 

v.  Detroit  591,  780 

v.  Hazelton  37 

v.  Virginia  38,  687 

Paulsen  v.  Portland     22,  86,  712,  722,  729 

Pawlet  v.  Clark  343',  386,  391 

Pawling  v.  Bird's  Executors  42,  579 

v.  Willson  583 

Paxson  v.  Sweet  860 

Paxton    &  H.  Irr.  C.   &  L.  Co.  v. 

Farmers'  &  M.  Irr.  &  L.  Co.       768,  777 

Payne  v.  Kansas,  &c.  Ry.  Co.  763 

v.  Treadwell  346,  537 

Pay  son  v.  Payson  579 

Peabody  v.  School  Committee  190 

Peak  v.  Swindle  63 

Pearce  v.  Atwood  52,  592 

v.  Olney  42 

v.  Patten  522 
Pearsall  v.  Eaton  County  Supervisors  781 

v.  Great  N.  Ry.  Co.  837,  852 

v.  Kenan  522 

Pearse  v,  Morrice  111 

Pearson  v.  Int.  Distill.  Co.  207,  850 

v.  Portland  556 

v.  Yewdall  20,  505 

Peart  v.  Meeker  754 

Pease  v.  Chicago  333 

v.  Peck  33 

Peavey  v.  Robbins  927 

Peay  v.  Duncan  80 

v.  Little  Rock  730 

Peck  v.  Batavia  357 

v.  Freeholders  of  Essex  592 

r.  Holcombe  898 

v.  Jenness  26 


Ixxxiv 


TABLE  OF  CASES. 


Page 

Peck  v.  Lock  wood  291 

r.  Louisville,  &c.  Ry.  Co.  754 

v.  Weddell  165,  920 

Pecot  v.  Police  Jury  97 

Peddicord  v.  Baltimore,  &c.  R.  R.  Co.   791 

Pedigo  v.  Grimes  905 

Pedrick  v.  Bailey  281,  286 

Peebles  v.  County  Commissioner          935 

Peel  v.  City  of  Atlanta  780 

Peel  Splint  Coal  Co.  v.  State        570,  572 

Peerce  v.  Carskadon  370,  372 

'  v.  Kitzmiller  411 

Peers  v.  Board  of  Education  262 

Peete  v.  Morgan  691 

Peik  v.  Chicago,  &c.  R.  R.  Co.       874,  875 

Pekin  v.  Brereton  363,  786 

v.  McMahon  302 

v.  Reynolds  319 

v.  Winkel  363,  786 

Pembina  Mining  Co.  v.  Pennsylvania    38 

Pemble  v.  Clifford  52 

Pendleton  v.  Russell  28 

Pendleton  Co.  v.  Amy  320,  321 

Penhallow  v.  Doane's  Administrator        9 

Peninsula  R.  R.  Co.  v.  Howard  595 

Peninsular  Lead  &  C.  Wks.  v.  Union 

Oil  &  P.  Co.  408 

Penn  v.  Tollison  62 

Penn  Mutual  Life  Ins.  Co.  v.  Austin    384 

Penn's  Case  461 

Pennie  v.  lleis  402 

Penniman's  Case  408 

Pennoyer  v.  McConnaughy  24 

v.  Neff  20,  505,  506 

Pennsylvania  Co.  v.  Commonwealth     738 

v.  James  285 

v.  McCann  525 

v.  Platt  815 

Pennsylvania  Hall,  In  re  341 

Pennsylvania  R.  R.  Co.  v.  Baltimore, 

&c.  R.  R.  Co.  392 

v.  Canal  Commissioners  565 

v.  Commonwealth  690 

v.  Duncan  392 

v.  Heister  823,  825 

v.  Jersey  City  282,  285 

v.  Lewis  840 

v.  Lippincott  812 

v.  Marcliant  810,  812 

v.  Montgomery  Co.,  &c.  808 

v.  Miller  392,  874 

v.  New  York,  &c.  R.  R.  Co.  787 

v.  Riblet  237,  841,  844 

Pennsylvania   S.   V.   R.   R.  Co.   v. 

Cleary  827 

w.Walsh  810,811,812 

Pennsylvania  Tel.  Co.,  Re  690 

Penny  wit  v.  Foote  42 

Penrice  v.  Wallace  824 

Penrose  v.  Erie  Canal  Co.  406,  410 

People  v.  Alameda  336 

v.  Albany,  &c.  R.  R.  Co.  938 

v.  Albertson  65,  99,  237,  242,  364,  389 

v.  Allen      106,  113,  209,  262,  468,  584 

v.  Amer.  Bell  Tel.  Co.  694 

v.  Angle  ..  92 


People  v.  Arensberg 
v.  Armstrong 
v.  Assessors 
v.  Auditor-General 
v.  Austin 
v.  Baker 


Page 
882 
289 
6'.)5 

402,  647 
695 
42,  580,  584 


v.  Baltimore,  &c.  R.  R.  Co.  865 

v.  Bangs  898 

v.  Banvard  389 

v.  Barker  389,  446,  468,  478 

v.  Barrett  468 

v.  Batcliellor    243,  338,  340,  346,  360, 

703 

v.  Bates  914,  921,  929 

v.  Bellet  860 

v.  Bennett  589 

v.  Berkeley  893 

v.  Berrien  Cir.  Judge  569 

v.  Biesecker  882 

v.  Bircham  160 

v.  Bissell  162 

v.  Blake  99 

v.  Blakely  478 

v.  Blanding  222 

v.  Blodgett  89,  101,  255,  903 

v.  Board  of  Assessors  684 

v.  Board  of  Canvassers  937 

v.  Board  of  Commissioners  454 

v.  Board  of  County  Canvassers  900 
v.  Board  of  Education  (55  Cal.)  262 
v.  Board  of  Education  (101  III.)  557 
v.  Board  of  Education  (18  Mich.)  557 
v.  Board  of  Education  (13  Barb.)  2H2 
v.  Board  of  Managers,  etc.  472 

v.  Board  of  Registration  936 

v.  Board  of  Supervisors  268,  344,  738 
v.  Board,  &c.  of  Nankin  936 

v.  Boston,  &c.  R.  R.  Co.  875 

v.  Bowen  220 

v.  Bradley  121 

v.  Brady  40,  564 

v.  Bragle  452 

v.  Bray  568 

v.  Brenahm  275,  909 

v.  Bridges  879 

v.  Briggs  206,  212,  247 

v.  Brighton  761 

v.  Brislin  209 

».  Brooklyn      338,  340,  679,  716,  717, 
729,  734,  812,  813 

v.  Brooklyn  Board  of  Assessors  680 
v.  Brooklyn  Common  Council  895 
v.  Broom  931 

v.  Brown  161,  893 

v.  Budd  871,  893 

v.  Buffalo  Fish  Co.  879 

v.  Bull  99,  248,  388,  389 

v.  Bunker  251 

v.  Burns  92,  927 

v.  Burt  194 

v.  Butler  383 

v.  Butler  St.  F.  &  I.  5t>3 

v.  Butte  166 

v.  Campbell  116,  200 

v.  Canaday  ""  ! 

v.  Canal  Appraisers  bu/ 


TABLE  OF  CASES. 


Ixxxv 


People  v.  Cannon 
v.  Canty 
v.  Carrigue 
v.  Cassels 
v.  Chase 


Page 
451 
339 
894 
496 
134 


v.  Chicago  243,  326,339, 340, 346, 643, 

695 

v.  Chicago  Gas  Trust  Co.  562,  877 
v.  Chicago  W.  D.  Ry.  Co.  278 

v.  Chung  ah  Chue  452 

v.  Cicott  85,  591,  912,  913,  914,  916, 

918,  920,  930,  931,  932,  938, 
941,  943,  944 

v.  Cipperly  882 

v.  Clapp  712 

v.  Clark  223,  468 

v.  Clute  932 

v.  Coleman  37,  86 

v.  Coler  274,  673,  877 

v.  Collins  163,  172 

v.  Colman  742 

v.  Commissioners  (59  N.  Y.)  400 

v.  Commissioners  (4  Wall.)  683 

v.  Commissioners  of  Highways  186, 
194,  195,  201 

v.  Commissioners  of  Taxes  396,683 
v.  Common  Council  of  Detroit  33i, 

340,  343,  361,  364,  699,  703 
v.  Compagnie  686,  832,  858 

v.  Comstock  462 

r.  Conley  661 

v.  Coolidge  656,  561,  837,  887 

v.  Cook  (14  Barb,  and  8  N.  Y.)  110, 

914,  915,  916,  918,  921,  929, 
935,  937,  941 

v.  Cook  (10  Mich.)  467,  468 

v.  Cook  397 

v.  Corning  462 

v.  County  Board  of  Cass  319 

v.  Courtney  447 

v.  Cover  940 

v.  Cowles  123,  276,  909 

v.  Croswell  465 

v.  Cullom  162 

v.  Cummings  160,  472,  589 

v.  Curry  222 

v.  Curtis  41,  469 

v.  Daniell  129 

v.  Davenport  396,  740 

v.  Dawell  42,  43,  579,  580 

v.  Dayton  104 

v .  Dean  564 

v.  Denahy  209,  213 

v.  D.  G.  H.  &  M.  Ry.  Co.  781 

v.  Dettenthaler  203 

v.  Devine  451 

v.  Devlin  219 

v.  Dill  462 

v.  Doe  114,  695 

v.  Donohue  39 

v.  Draper  78,  128,  239,  258,  265,  266, 

831 

v.  Dubois  389 

v.  Dudley  209 

v.  Dunn  165,  195,  454 

v.  Durston  473 


Page 

People  v.  Eaton  804 

v.  Eddy  744 

v.  Elk  River,  &c.  Ry.  Co.  757 

v.  Ewer  890 

v.  Fairman  496 

v.  Fancher  123 

v.  Father  Mathew  Society  207 

v.  Felker  474 

v.  Ferguson  916 

v.  Finley  437 

v.  Finnigan  464 

v.  Fire  Ass.  707 

v.  Fisher  240 


v.  Flagg 
v.  Flanagan 
v.  Fleming 
v.  Ford 
v.  Freeman 
v.  Freer 
v.  Frisbie 


258,  336,  703,  705 
389,  435 
166,  257 
481 
158 
643 
138,  559 


v.  Ft.  Wayne  &  E.  R.  Ry.  Co.       298 

v.  Gad  way  213 

v.  Gallagher  241,  242,  657,  849 

v.  Garbutt  437,  466 

v.  Gardner  177,  450 

v.  Gastro  461 

v.  Gates  686 

v.  Gay  38 

v.  Gerke  25 

v.  German,  &c.  Church  661 

v.  Gies  101,  593 

v.  Gilbert  524 

v.  Gillson  888 

v.  Goddard  895 

v.  Goodwin  468,  469,  937 

v.  Gordon  928 

v.  Governor  162,  228 

v.  Gray  320 
v.  Green              62,  388,  814,  816,  895 

r.  Hall  189,  247,  403 

v.  Hanifan  894 

v.  Hanrahan  203,  279,  281,  884 

v.  Harding  102,  469 

v.  Hardisson  469 

r.  Hart  well  114,  275,  909,  931 

v.  Haskell  389 

v.  Hatch  188,  220 

v.  Hauck  213 
v.  Haug             206,  473,  558,  851,  885 

v.  Ha  v  nor  837 

t7.  Hawes  340 

v.  Hawley  849 

v.  Hawker  376 

v.  Hawkins  855 

v.  Hayden  814,815 

v.  Hayes  375 

v.  Henderson  706 

v.  Hennessy  445 

»».  Henshaw  183 

v.  Higgins  917,  929,  930.  934, 
937,  941 

v.  Kill  246,  570 

v.  Milliard  035 

v.  Hobson  644 

v.  Hoffman  130,  894,  906 

v.  Hoge  121 


Ixxxvi 


TABLE  OF  CASES. 


People  v.  Holden  905,  915,  941 

v.  Holley  114 

v.  Holly  310 

v.  Howard  180,  205,  451 

v.  Howland  389 

v.  Hubbard  425 

v.  Hurlbut  69,  194,  207,  209,  243, 
263,  265,  334,  346,  360 

v.  Hutchinson  115 

r.  Imlav  37 

v.  Ingersoll  391,  404 

v.  Institution,  &c.                             205 
r.  Jackson  &  Michigan  Plank  R. 

Co.  392,  414,  838,  839 

v.  Jenkins  860,  868 

v.  Jenness  677 

v.  Jones  450,  935,  937 

•        v.  Kane  898 

v.  Keeler  193 

v.  Keenan  480 

v.  Kelly  496 

v.  Kelsey  265 

v.  Kennedy  919 

v.  Kenney  231,  247 

v.  Kent  County  Canvassers  922 

v.  Kerr  781,  794,  796,  801 

v.  Kerrigan  441 

v.  Kier  285 

v.  Kilduff  911,  935 

v.  Kipley  158,  159 

v.  Kniskern  817 

v.  Koeber  685 

v.  Kopplekom  906,  907 

v.  Lake  Co.  120 
v.  Lake  Shore,  &c.  Ey.  Co.     781,  839 

r.  Lamb  466 

v.  Lambert  445,  450 

v.  Lambier  566 

v.  Lawrence  115,  119,  202,  247 
257,309,  311 

v.  Leonard  895 

v.  Le  Roy  447 

v.  Levee  Dist.  No.  6                         182 

v.  Lippincott  388 

v.  Liscomb  471,  474,  495 

v.  Livingston  941 

v.  Londoner  911,  937 

v.  Loomis  915 

•v.  Lothrop  364 

v.  Lott  581 

v.  Lowrey  453 

v.  Lynch  531,  545 

v.  Lyng  693,  846 

v.  Mahaney  189,  193,  194,  204,  206, 
216,239,  346,  746 

v.  Majors  467 

v.  Mallett  375 

v.  Manhattan  Co.                             392 

v.  Martin  162,  908 

v.  Marx  882 

v.  Matteson  914,  920,  937,  940 

v.  Maynard  108,  276,  364,  926 

v.  Mayor,  &c.  of  Brooklyn              735 

v.  May  worm  916 

v.  McAdams  663 

v.  McCallum  207,  209,  216 


Page 

People  v.  McCann  209,  211,  437 

v.  McCreery  336,  744 

v.  McDonald  (Cal.)  468 

v.  McDonald  (5  Wyo.)  375 

v.  McDonnell  437 

v.  McKlroy  92,  194,  199,  200 

v.  McFadden  173 

v.  McGowan  467,  470 

v.  McKay  452 

v.  McKinney  99,  389 

v.  McMahon  443,  445,  446 

v.  McManus  914,  920,  929 

v.  McNealy  468 

v.  McNulty  R75 

v.  McRoberts  121,  761 

v.  Medical  Society  of  Erie  292 

v.  Mellen  207 

v.  Mercein  497 

v.  Merrill  177 

r.  Mills  61 

v.  Miner  468 

v.  Mitchell  527,  543 

v.  Molliter  932 

v.  Mondon  446 

v.  Monroe  Co.  Ct.                     160,  468 

v.  Moore  436 

v.  Morrell  89,  128 

v.  Morris  244,  268,  344,  360,  389 

v .  Mortimer  382 

v.  Morton  162 

v.  Mosher  158,  159 

v.  Most  603 

».  Mulholland  287 

v.  Murphy  451,  482 

v.  Murray  251,  441 

v.  Nally  167 

v.  Nearing  770 

v.  Newton  299 

v.  New  York  399,  754,  756,  838,  867 
v.  New  York  Catholic  Protectory  423 

v.  Nichols  748 

v.  Noelke  383,  449 

v.  Nostrand  894 
v.  N.  Y.  Central  R.  R.  Co.       93,  101, 
241,  242,  257 

v.  O'Brien  212,  449,  507 

v.  Olmstead  382 

».  O'Neil  852,  879 

v.  Ormsby  453 

v.  Osborne  128,  158 

v.  Otis  403 

v.  Parker  74 

v.  Pease    912,  914,  917,  920,  928,  935, 
941,  943 

r.  Peck  114 

v.  Phelps  382 

v.  Phillips  445,  933 

v.  Phippin  37,  560,  890 

v.  Phyfe  891 

r.  Pine  464 

v.  Pinkerton  40 

v.  Pinkney  267 

v.  Plank  Road  531 

v.  Platt  218,  386 

v.  Porter  445,  674,  908 

v.  Potrero,  &c.  R.  R.  Co.  55 


TABLE   OF  CASES. 


Ixxxvii 


Page 

Page 

People  ».  Potter                                   100 

People  r.  Supervisors  of  Columbia      327, 

17.  Powell                                        469 

528 

t7.  Power                   266,  336,  341,  390 

17.  Supervisors  of  La  Salle       77,  105 

Pritchard                                      216 

t7.  Supervisors  of  New  York  132,  135, 

.  Purdy        89,  92  100,  101,  115,  219 

340 

17.  Quigg                                     209,  217 

v.  Supervisors  of  Onondaga        218, 

i7.  Railroad  Co.                                 591 

308 

v.  Raymond                               99,  389 

v.  Supervisors  of  Orange       128,  237, 

v.  Reardon                                         937 

242,  256 

v.  Reed                                             868 

v.  Supervisors  of  Saginaw              698 

v.  Refining  Co.                                 562 

v  Supervisors  of  San  Francisco    336 

v.  Rensselaer,  &c.  R.  R.  Co.            232 

v.  Swafford                                         441 

v.  Rice  (129  N.  Y.)                  932,  936 

v.  Tallman                                        817 

«7.  Rice  (135  N.  Y.)                            74 

v.  Tappan                                         346 

v.  Riordan                                           166 

v.  Tazewell  County                        319 

v.  Riverside                                      265 

r.  Terry                                            898 

v.  Roberts  (148  N.  Y.)            121,  158, 

v.  Thacher                                       914 

159 

17.  Thayers                                          465 

v.  Roberts  (152  N.  Y.)                     180 

v.  Thomas                                  443,  450 

v.  Roberts  (159  N.  Y.)               15,  680 

v.  Thorn                                   450,  453 

v.  Roberts  (171  U.  S.)                15,  691 

v.  Thurber                                  37,  710 

v.  Robertson             937,  938,  940,  941 

v.  Tice                                               450 

v.  Rochester                             209,  250 

v.  Tighe                                            881 

v.  Roe                                       860,  868 

v.  Tisdale                          916,  917,  918 

v.  Roper                                    396,  547 

r.  Tompkins                                     114 

v.  Rotter                                           882 

17.  Townsend                                      720 

r.  Royal                                            462 

w.  Township  Board  of  Salem  313,  562, 

v.  Rucker                          128,  228,  240 

696,  697,  704,  773 

17.  Ruggles                                671,  673 

v.  Toynbee                                       242 

v.  Rumsey                                        121 

v.  Truckee  Lumber  Co.          879,  880 

v.  Runkel                                          114 

v.  Trustees  of  Schools                     741 

v.  Russell                    13,  283,  709,  832 

v.  Turner                          423,  523,  527 

v.  Sackett                                        941 

v.  Tweed                                           266 

v.  Salomon       167,  173,  259,  364,  695, 

v.  Tyler                            447,  448,  468 

927 

17.  United  States                               683 

v.  Sanderson                                     895 

v.  Van  Alstine                                  478 

v.  Saxton                          914,  915,  916 

v.  Van  Cleve                    935,  937,  941 

v.  Schermerhorn                              110 

v.  Van  Eps                                       681 

v.  Schiellein                                     936 

y.  Van  Home                                   438 

v.  Schryver                                      437 

v.  Van  Pelt                                       879 

v.  Seaman                 914,  915,  916,  937 

v.  Van  Slyck                                    935 

v.  Seymour                                       535 

v.  Van  Valkenburg                          319 

v.  Shaw                                               900 

v.  Videto                                           465 

v.  Simon                                    134,  508 

v.  Wagner                                        288 

17.  Simpson                                       452 

v.  Waite                                            930 

v.  Sligh                                               452 

v.  Wallace                                 116,  183 

17.  Smith    438,577,777,778,854,891 

v.  Walsh                                              344 

v.  Spicer                                            530 

17.  Wands                                             206 

v.  Springwells                            364,  703 

v.  Warden                                         886 

v.  Squire                                   400,  838 

i7.  Warden,  &c.                   67,  496,  510 

r.  Stapleton                                      646 

v.  Webb                              462,  467,  470 

v.  Starne                    116,119,194,200 

v.  Weissenbach                                497 

v.  State  Board  of  Canvassers         190 

r.  Welch                                           280 

v.  Stephens                                       467 

v.  Wemple  (117  N.  Y.)                    689 

v.  Stevens                                         280 

v.  Wemple  (138  N.  Y.)                    693 

v.  Stewart                         161,  447,  464 

r.  White                                            469 

v.  Stout                                       163,  170 

v.  Whitlock                                      209 

17.  Stuart                                             133 

v.  Whitman                                      895 

v.  Sullivan                                332,  434 

v.  Whyler                                         737 

v.  Supervisors                            320,  936 

v.  Williams                         47,  177,  894 

17.  Supervisor,  &c.  (16  Mich.)          325 

v.  Willsea                                         209 

v.  Supervisors,  &c.  (20  Mich  )        543 

17.  Wilson                          453,  64?,  929 

r.  Supervisors,  &c.  (16  N.  Y.)         137 

v.  Worden                                   26,  467 

v.  Supervisors,  &c.  (94  N.  Y.)         268 

17.  Worthington                                  739 

v.  Supervisors  of  Chenango  115,  193, 

v   Wright                     92,  105,  128,  215 

546,719 

v.  Yates                                             1C2 

Ixxxviii 


TABLE   OF   CASES. 


Page 

People  v.  Yonkers  574 

v.  Young  129,  365 

Peoria  v.  Callioun  281,  292 

v.  Kiclder  717,  728,  741 

Peoria,  &c.  R.  K.  Co.  v.  Duggan  528,  556, 

841 

v.  Peoria,  &c.  Co.  398 

Peoria  County  v.  Harvey  818 

Percy,  In  re  481 

Perdue  v.  Burnett  605 

Pereless  v.  Watertown  524 

Perkins,  Ex  parts,  454 

v.  Burlington  726 

v.  Carraway  915 

v.  Corbin  388 

v.  Grey  478 

v.  Heert  66 

v.  Lawrence  306 

v.  Lewis  325 

v.  Milford  ,  333 

v.  Mitchell  629 

v.  Perkins  529 

v.  St.  Louis,  I.  M.  &  S.  R.  Co.        571 

Perley  i\  Mason  417 

Perret  v.  New  Orleans  Times  650 

Perrin  v.  New  London  318 

Perrine  v.  Chesapeake  &  Delaware 

Canal  Co.  565 

v.  Farr  585 

v.  Serrell  80 

Perry  v.  Keene  238 

v.  Lewis  80 

v.  Man  606 

v.  Reynolds  904,  927 

v.  State  495 

v.  Washburn  678 

v.  Wheeler  661 

v.  Whittaker  936 

Perry  County  v.  Con  way  Co.  269 

Perry's  Case  374,  677 

Persons  v.  Jones  82 

Peru  v.  French  356 

Pesterfield  v.  Vickers  279 

Peterman  v.  Huling  226 

Peters  v.  Fergus  Falls  304 

v.  Iron  Mt.  R.  R.  Co.  836,  844 

v.  State  879 

Petersburg  v.  Cocke  719 

v.  Metzker  279 

Petersilea  v.  Stone  898 

Peterson  v.  Kittredge  749 

v.  Lothrop  82 

Petit  v.  Minnesota  21,  860 

Pettengill  v.  Chelsea  305 

Pettibone  v.  La  Crosse  &  Milwaukee 

R.  R.  Co.  819 

Pettigrew  v.  Evansville  757 

v.  Washington  Co.  595 

Petty  v.  Tooker  661 

Pfeiffer  v.  Board  of  Education  667 

Pharis  v.  Dice  412 

Phelps  v.  Goldthwaite  920 

v.  Meade  751 

v.  Phelps  252 

v.  Piper  900 

v.  Racey  879 


Page 

Phelps  v.  Schroder  935,  936 

Phelps'  Appeal  516 

Phenix  Ins.  Co.  v.  Burdett  38 

v.  Hart  671 

v.  Pollard  644 

Philadelphia  v.  Commonwealth  681 

v.  Dickson  818 

v.  Dyer  818 

v.  Fox  266,  267,  360 

v.  Gray's  Ferry  Co.'s  Appeal         398 
v.  Miller  712 

i;.  Rule  730 

v.  Scott  831,  868,  878 

v.  Smith  356 

v.  Tryon  736,  860 

v.  Ward  778 

Philadelphia  Assoc.,  &c.  v.  Wood          725 
Philadelphia  Fire  Ass'n  v.  New  York     20, 

31,  687 
Philadelphia   M.   &   S.   S.   R.   Co., 

Petition  of  764 

Philadelphia  &  Reading  R.  R.  Co.  v. 

Yeiser  826 

Philadelphia  &  Trenton  R.  R.  Co., 

Case  of  791 

Philadelphia,  &c.  R.  R.  Co.  v.  Bowers  874 
v.  Quigley  620 

Philadelphia,  &c.  Ry.  Co.'s  Appeal       759 
Philadelphia  S.   S."  Co.  v.  Pennsyl- 
vania 688 
Philips  v.  Bury                                        360 
Philleo  v.  Hiles  706 
Phillips  v.  Allen                                      292 
v.  Berick  81 
v.  Bridge  Co.                             902,  212 
v.  Council  Bluffs                              296 
v.  Covington,  &c.  Co.                        209 
v.  Dunkirk,  &c.  R.  R.  Co.                760 
v.  Gallagher                                     899 
v.  People                                           281 
v.  South  Park  Com'rs                     816 
v.  Stevens  Point                              712 
v.  Watson                                         766 
v.  Wickham                                      735 
v.  Wiley                                            607 
Phillips  Academy  v.  Andover               736 
Phillpotts  v.  Blasdel  80 
Phinizy  v.  Augusta                                   362 
Phinney  v.  Phinney                                  413 
Phipps  c.  State                                          868 
v.  West  Md.  R.  R.  Co.                    791 
Phoenix  Ins.  Co.  v.  Allen                        480 
v.  Commonwealth  37 
v.  Welch                                    165,  707 
Phoenix    Fire    Ass'n    Co.   v.   Mont- 
gomery Fire  Dept.                      215,  696 
Phoenix  F.  &  M.  Ins.  Co.  v.  State 

v.  Tennessee  397 

Piatt  v.  People  929 

Pickard  r.  Pullman,  &c.  Co.  689 

Pickett  v.  Boyd  516,  630 

v.  Russell  908,  930,  933 

v.  School  District  262 

Picquet,  Appellant  138 

Piek  v.  Chicago,  &c.  R,  R.  Co.  830 

Pierce  v.  Bartrum  854 


TABLE   OF   CASES. 


Ixxxix 


Pierce  v.  Beck  262 

v.  Boston,  &c.  R.  R.  Corp.  804 

F.  Drew  770,  787 

v.  Getchell  927 

v.  Hubbard  589 

v.  Kimball  517,  890 

v.  Maryland  882 

v.  New  Bedford  301 

v.  New  Orleans  Building  Co.        275 

v.  Pierce  259 

v.  Somerset  Ry.  36 

v.  State  464 

v.  Union  Dist.  557 

Pierpont  v.  Crouch  214 

Pierson  v.  State  52 

Pike  v.  Megoun  104,  927 

v.  Middleton  308 

v.  State  707 

Pike  Co.  v.  Barnes  167 

v.  Rowland  275 

Pilkey  v.  Gleason  226,  275 

Pirn  v.  Nicholson  118,  200,  214,  231 

Pine  Grove  v.  Talcott  711 

Pingree  v.  Dix  706 

v.  Michigan  Cent.  Ry.  Co.  836 

Pingrey  v.  Washburn  197,  838 

Pinney  v.  Providence  L.  &  Inv.  Co.      569 

Piper  v.  Chappell  284 

v.  Moulton  263 

Piqua  v.  Zimmerlin  885 

Piqua  Branch  Bank  v.  Knoop       176,  392, 

395 

Piquet,  Appellant  659 

Piscataqua  Bridge  v.  New  Hampshire 

Bridge  395,398,  549,  757 

Pitman  v.  Bump  522 

v.  Flint  89 

Pittock  v.  O'Neil  461,  637,  639,  655 

Pittsburg  v.  Coursin  111 

v.  Grier  356 

v.  Scott  764,  765 

Pittsburg,  &c.  R.  R.  Co.  v.  Brown        883 

v.  Hixon  81 

v.  Reich  824 

v.  S.  W.  Penn.  R.  R.  Co.  842 

Pittsburg  C.  C.  &  St.  Louis  Ry.  Co. 

v.  Backus  692 

v.  Board  of  Pub.  Wks.  606 

v.  Crown  Point  298 

v.  Long  Island  L.  &  T.  Co.  28 

v.  Montgomery  232 

v.  State  718 

Pittsburg  &  S.  Coal  Co.  v.  Bates  688 

v.  Louisiana  856 

Pittsburg  &  W.  E.  P.  Ry.  Co.  v.  Point 

Bridge  Co.  758 

Pittsburg  W.  &  K.  Co.  v.  Benwood 

Iron  Works  766,  767 

Pixley  v.  Clark  .  831 

Pizano  v.  State  468 

Plante,  Ex  pctrte  495 

Planter's  Bank  v.  Black  136 

Planter's  Ins.  Co.  v.  Tennessee  397 

v.  Sharp  175,  392 

Plainer  v.  Best  81 

Platt  Bros.  &  Co.  v.  Waterbury  782 


Page 

Platteville  v.  Bell  285 

Pleasant  v.  Kost  737 

v.  State  464 

Pleasant  Tp.  v.  Aetna  Life  Ins.  Co.        32 

Pleasants  v.  Rohrer  521 

Pledger  v.  Hathcock  607 

Plessv  v.  Ferguson  16,  19,  869 

Pleufer  v.  State  400,  709,  710 

Plimpton  v.  Somerset  341,  454 

Plitt  v.  Cox  801,  809 

Plumb  v.  Christie  845 

v.  Sawyer  615,  529 

Plumley  v.  Massachusetts  849,  858 

Plummer  v.  Coler  683 

v.  Yost  99 

v.  Plummer  104 

Plunkard  v.  State  19 

Plurality  Elections,  In  re  931 

Plymouth  v.  Painter  897  898 

Pocantico  Water  Wks.  Co.  v.  Bird       767 

Pocopson  Road  765 

Poertner  v.  Russell  86 

Poindexter  r.  Greenhow  24,  386,  403 

v.  May  841 
Police  Commissioners  v.  Louisville      831 

Police  Jury  v.  Britton  320 

v.  Shreveport  267,  268- 

Polinsky  v.  People  286 

Polk  v.  State  437 

Polk  Co.  Sav.  Bank  v.  State  695 

Polk's  Lessee  v.  Wendal  33 

Pollard  v.  Lyon  605,  606 

v.  State  437 

Pollard's  Lessee  v.  Hagan  52,  754,  755 

Polling  Lists,  In  re  906 

Pollock  v.  Farmers'   Loan  &  Trust 

Co.  (157  U.  S.)  685 

v.  Farmers'  L.   &   T.  Co.    (158 

U.  S.)  601 

v.  Hastings  605,  606 

v.  McClurken  655 

Pollock's  Adm.  v.  Louisville  805 
Pomeroy  v.  Chicago,  &c.  R.  R.  Co.       791 

Pomfrey  v.  Saratoga  863 

Pond  v.  Irwin  86 

v.  Negus  113 

v.  People  434,  435 

Ponder  v.  Graham  150 

Pontiac  v.  Carter  296,  783 

Pool  v.  Boston  310 

Pope  v.  Macon  627,  653 

v.  Phifer  65,  209 

o.  State  451 

Popham  v.  Pickburn  651 

Porter  r.  Botkins  608 

v.  Hill  80 

v.  Mariner  406 

v.  Ritch  369 

v.  Sabin 

v.  Sawyer  924 

Porterfield  v.  Clark  33 

Port  Huron  v.  Jenkinson  281,  837,  860 

Port  Huron,  &c.  Ry.  Co.  v.  Callanan    818 

v.  Voorheis  82S 

Portland  v.  Banger  18,  568 

v.  Portland  Bit.  Paving  I.  Co.        713 


xc 


TABLE  OF  CASES. 


Portland  v.  Schmidt  257,  291 

v.  Water  Co.  742 

Portland  &  R.  E.  R.  Co.  v.  Deering     822, 

839 

Portland  &  W.  V.  R.  R.  Co.  v.  Port- 
land 796 
Portland  Bank  v.  Apthorp                     679 
Portland  H.  B.  Society  v.  Kelly  741 
Port  Wardens  v.  The  Ward                   856 
Portwood  v.  Montgomery  Co.        268,  341 
Posnett  v.  Marble                                    628 
Post  v.  Boston  363 
v.  Supervisors                              83,  201 
Postal  Tel.  Co.  v.  Adams                687,  692 
Postal  Tel.  Cable  Co.  v.  Baltimore       690 
v.  City  Council  of  Charleston        689 
v.  Eaton  804 
v.  Richmond  689 
Postmaster  v.  Early  136 
Potter  v.  Brale                                        424 
v.  Hiscox  584 
Potts  v.  Penn.  S.  V.  R.  R.  Co.  823 
Poughkeepsie   Bridge   Co.,   Matter 

of  754 

Poundstone  v.  Baldwin  768,  770 

Powell,  Ex  parte  40,  160 

v.  Board  of  Education  261 

v.  Brandon  52 

v.  Holman  941 

v.  Jackson  Com.  Council  206 

v.  Pennsylvania  882 

v.  Sims  52 

v.  Spackman  903 

v.  State  77, 137,  469 

v.  Sup'rs  of  Brunswick  Co.  30 

Power  v.  Athens  567 

v.  Bowdle  751 

Powers  v.  Bears  815,  816 

v.  Bergen  148,  149 

v.  Com.  897 

v.  Dougherty  Co.  167 

v.  Dubois     '  607,  624 

v.  Skinner  198 

v.  Wright  544 

Powers's  Appeal  760,  817,  818 

Poyer  v.  Des  Plaines  883 

Pratt  v.  Brown          87,548,764,772,777 

v.  Donovan  681 

v.  Jones  625 

v.  Paris  G.  &  C.  Co.  26 

v.  People  925 

v.  Pioneer  Press  Co.  606,  644 

v.  Tefft  514 

Pray  v.  Northern  Liberties  741 

Prentice  v.  Weston  748 

Prentis  v.  Commonwealth  192 

Prentiss  v.  Boston  363 

v.  Holbrook  80 

Presbyterian  Society  v.  Auburn,  &c. 

R.  R.  Co.  791 

Prescott  v.  City  of  Chicago  209 

v.  State     '  46,  423 

v.  Tousey  630 

v.  Trustees  of  Illinois  &  M.  Ca- 
nal 195 
President  D.  &  H.  C.  Co. ».  Whitehall    807 


Presser  v.  Illinois  18,  46,  245 

Preston,  Re  570,  887 

v.  Boston  575 

v.  Browder  33 

Prettyman  v.  Supervisors,  &c.       167,  326 
Price  v.  Baker  932 

v.  Hopkin  224,  523,  524 

Price  v.  Lush  900 

v.  Mott  97 

v.  New  Jersey  R.  R.  Co.  842 

v.  State  467,  469,  470 

Prichard's  Case  192 

Priestly  v.  Watkins  403 

Priewe   v.   Wisconsin    State    L.   & 

Imp.  Co.  571,  782 

Primes  Estate,  Ee  740 

Primm  v.  Belleville  707,  743 

Prince  v.  Crocker  696 

v.  Skillin  935,  936,  937,  940 

Princeton  v.  Gieske  304 

Pritchard  v.  Citizen's  Bank  515 

v.  Magown  696 

Pritchett  v.  State  468 

Pritz,  Ex  parte  182 

Privett  v.  Bickford  894,  932 

Proctor  v.  Andover  765 

Prohibitory  Amendment  Cases     495,  849, 

893 
Proprietors,  &c.  v.  Laboree  523 

v.  Nashua  &  Lowell  R.  R.  Co.  757, 
804,  823,  825 
Proprietors  Mt.  Auburn  Cemetery  v. 

Cambridge  396 

Prospect    Park,   &c.   R.   R.  Co.   v. 

Williamson  ,  807 

Prosser  v.  Wapello  Co.  787 

v.  Warner  583 

Prother  v.  Lexington  356 

Protho  v.  Orr  119,  209 

Protzman  v.  Indianapolis,  &c.  R.  R. 

Co.  785,  797 

Prout  v.  Berry  138 

Providence  v.  Clapp  363 

Providence,  &c.   R.   R.   Co.   v.  Nor- 
wich, &c.  R.  R.  Co.  807 
Providence  &  W.  Ry.  Co.,  Petitioner  763, 

807 

Providence  Bank  v.  Billings  396,  565,  679 
Providence   Coal    Co.    v.  Prov.    & 

W.  R.  R.  Co.  875 

Providence     Savings     Institute    v. 

Skating  Rink  407 

Provident  List.  v.  Jersey  City  20 

Pryor,  Be  266 

v.  Downey  151,  546 

Pueblo  v.  Robinson  717,  729 

v.  Strait  784 

Pueblo  Co.  Com'rs  v.  Smith  168 

Puitt  v.  Com'rs  667,  708 

Pulford  v.  Fire  Department  200 

Pullman  Palace  C.  Co.  v.  Hayward      692 

v.  Pennsylvania  32,  692 

v.  State  709 

Pullen  v.  Raleigh  272 

Pumpelly  v.  Green  Bay,  &c.  Co.  783,  787 
Purcell  v.  Sowler        •  628 


TABLE   OF   CASES. 


XC1 


Page 

Purdy  v.  Erie  Ry.  Co.  875 

Purvear  v.  Commonwealth  46,  851 

Puryear  v.  State  451 

Putnam  v.  Johnson  903,  904 


Q. 

Quackenbush  v.  Banks  408,  529 

v.  District  of  Columbia  816 

v.  Wisconsin,  &c.  B.  R.  Co.  842 

Quarles,  Re  568 

v.  State  860 

Quarrier,  Ex  parte  372 

Queen,  The,  v.  Badger  439 

v.  Coaks  932 

v.  Collins  612-614 

v.  Hennessy  177 

v.  Justices  of  Hertfordshire  695 

v.  Justices  of  London  595 

v.  Justices  of  Suffolk  595 

v.  Lefroy  643 

v.  Newman  658 

v.  Pikesley  443 

Quick  v.  Whitewater  Township  92 

Quigley  v.  Pa.  S.  V.  R.  R.  Co.  811 

Quill  v.  Indianapolis  321 

Quimby  v.  Vermont  Central  R.  R. 

Co.  808 

Quincy  v.  Jackson  319,  745 

v.  Jones  296 

Quinn  v.  Markoe  911,  929 

ff.  State                               99,  902,  929 

Quong  Woo,  Matter  of,         294,  890,  891 


R. 


Rabb  v.  Supervisors  524 

Racine  I.  Co.  v.  McCommons  689 

Radcliffe  v.  Eden  346 
Radcliffe's   Executors  v.  Brooklyn    296, 

781,  783 

Rader  v.  Road  District  267 

v.  Union  212 

Rae  v.  Flint  272 

Rafferty  v.  Central  Traction  Co.  803 

Ragatz  v.  Dubuque  815 

Ragis  v.  State  213 

Rahrer,  Re  (43  Fed.)  259 

Re  (140  U.  S.)  847 

Railway  v.  Munday  415 

Rail  v.  Potts  927 

Railroad  Co.  v.  Alabama  24,  410 

v.  Bearss  915 

v.  Blake  779 

v.  Brown  20 

v.  Commissioners  694 

v.  Com'rs  of  Clinton  Co.  163,  167 

v.  Dayton  806 

v.  Ellis  886 

».  Ferris  813 

v.  Foreman  824 

v.  Fuller  836,  840,  874 

v.  Georgia  34,  47 

v.  Gregory  209 


Page 

Railroad  Co.  v.  Hambleton  802 
v.  Hicks  237 
v.  Husen  881 
v.  Jackson  694 
v.  Lake  760 
v.  Lawrence  802 
v.  Maine  394 
v.  McClure  62 
v.  Mississippi  23,  29 
v.  National  Bank  35 
v.  Peniston  684 
v.  Philadelphia  896,  740 
v.  Pounds  630 
i;.  Prescott  683 
v.  Renwick  787 
v.  Richmond  510,  781 
v.  Rock  30 
v.  Shurmeir  801 
v.  Tennessee  24,  410 
v.  Trimble  42 
v.  Warren  Co.  114 
v.  Whiteneck  209 
Railroad  Com.  Cases  18,  874 
Railroad    Commissioners    v.    Port- 
land, &c.  R.  R.  Co.  394,  843 
Railway  Gross  Receipts  Tax  689 
Raleigh  v.  Peace  730,  731 
v.  Sorrell  888 
Raleigh,  &c.  R.  R.  Co.  v.  Davis  777 
v.  Reid  395 
Ralston  v.  Lothain  515 
Ramsey  v.  People  570,  877 
Ramsey  County  v.  Lewis  Company 

(72  Minn.)  729,  731 

v.  Lewis  Company  (82  Minn.)      731 

v.  MacAlester  College  740 

Rand  v.  Commonwealth  382,  383 

Randall  v.  Eastern  R.  R.  Corp.  304 

v.  Jacksonville,  &c.  Co.  795 

v.  Kehlor  591 

v.  Railroad  Co.  301 

Randolph,  Ex  parte  231 

v.  Board  of  Freeholders  824 

v.  Good  99,  370 

Randolph  Co.  v.  Rails  588 

Randolph's  Executor  v.  Quidnick  32 

Rangely  v.  Webster  421 

Ranger  v.  Goodrich  607 

v.  Great  Western  R.  R.  593 

Rankin  v.  McCallum  267 

v.  West  95 

Rape  v.  Heaton  42,  583,  586 

Rash  v.  Farley  689 

Rasmussen  v.  Baker  944 

v.  Idaho  853 

Ratcliffe  v.  Anderson  138 

Rathbone  v.  Bradford  223 

v.  Wirth  158,  244 

Rathbun  v.  Wheeler  616 

Hatterman  v.  W.  U.  Tel.  Co.  689 

Ratzky  v.  People 

Rauch  v.  Chapman  321 
Rauenstein  v.  N.  Y.  L.  &  W.  Ry.  Co.  784 

Raw  ley  v.  Hooker  412 
Rawson  v.  Spencer          261,  268,  269,  345 

Ray  v.  Manchester  301 


XC11 


TABLE   OF   CASES. 


Kay  v.  St.  Paul 

v.  Sweeney 
Ray  Co.  v.  Bentley 
Raymond  v.  Fish 
Rea  v.  Harrington 
Read  v.  Case 

v.  Plattsmouth 
Reading  v.  Keppleman 

r.  Savage 


Page 

362 

62 

348 

858,  854 
606 
487 

183,  210,  336,  539 
296 
183 


Reading  &  P.  R.  R.  Co.  v.  Balthasar    822 
Reagan  v.  Farmers'  L.  &  T.  Co.      24,  872 
v.  Mercantile  T.  Co.  873,  874 

Ream  v.  Kearns  694,  595 

Reardon  v.  San  Francisco  296,  811 

v.  St.  Louis  355 

Rearick  v.  Wilcox  623,  624 

Reaume  v.  Chambers  52 

Recalling  Bills,  Re  219 

Recht  v.  Kelly  252 

Reciprocity  Bank,  Matter  of  the  62 

Reckner  v.  Warner  691 

Re-creation  of  New  Counties  199 

Rector  v.  Smith  612,  630,  631 

Red  River  Bridge  Co.  v.  Clarksville    757, 

786 

Red  River  Val.  Nat'l  Bk.  v.  Craig        407 

Red  Rock  v.  Henry  217 

Reddall  u.  Bryan  31,  755,  769 

Redell  r.  Moores  248 

Redfield  v.  Florence  923 

Redgate  v.  Roush  612 

Redmond  v.  Tarboro  739 

Redwood  Co.  v.  Winona,  &c.  Co.  631,  712 

Reed  v.  Beall  404 

v.  Belfast  303 

v.  Ohio,  &c.  Ry.  Co.  761 

v.  Reed  42,  579 

v.  Rice  46 

v.  State  209 

v.  Toledo  271 

v.  Tyler  627 

«.  Wright  603 

Reelfoot  Lake  Levee  Dist.  v.  Dawson  718 

Rees's  App.  770 

Reetz  t;.  Michigan  890 

Reeves  v.  Treasurer  of  Wood  Co.     717, 

728,  735,  754,  765,  770,  868 

Reformed   Church  v.  Schoolcraft      522, 

661 

Reformed  P.  D.  Church  v.  Mott    146,  149 

Regents  of  University  v.  Williams        149 

176,  232,  250 

Reggel,  Ex  parts.  39,  40 

Regina.     (See  Queen.) 

Regnier  v.  Cabot  607 

Rehoboth  v.  Hunt  386 

Reich  v.  State  281 

Reichert  v.  St.  Louis  791,  828 

Reid  v.  Delorme  618,619 

v.  Ham  41 

v.  Norfolk  City  Ry.  Co.  804 

v.  Smoulter  99 

Reilly  v.  Stephenson  607 

Reimsdyke  v.  Kane  36 

Reining  v.  N.  Y.,  L.  E.  &  W.  R. 

Co.  799,  811 


Page 

Reinken  v.  Fuehring  714 

Reiser  v.  Tell  Association  136,  137 

Reitan  v.  Goebel  607 
Reitenbaugh  v.  Chester  Valley  R.  R. 

Co.  761 

Reithmiller  v.  People  237 

Remington,  In  re  454 

r.  Congdon  619 

Remington  Paper  Co.  v.  Watson  31 

Remsen  v.  People  466 

Renner  v.  Bennett  933 

Kennselaer  v.  Leopold  759 

Reno  Smelting  Works  v.  Stevenson       52 

Rentz  v.  Detroit  729 

Requa  v.  Rochester  368 

Re-reading  of  Bills  200 

Response  to  House  Resolution       166,  167 

Respublica  v.  Dennie  603,  616 

v.  Duquet  286,  878 

v.  Gibbs  922,  923 

v.  Oswald  453,  643 

v.  Passmore  643 

Reusch  v.  Chicago,  &c.  R.  R.  Co.          757 

Revis  v.  Smith  629 

Rex.     (See  King,  The.) 

Rexford  v.  Knight  809,  814,  815 

Reymann  Brewing  Co.  v.  Brister          694 

Reynolds,  Ex  parte  104 

v.  Adden  44 

v.  Baker  66,  522,  817,  818 

v.  Baldwin  267,  268 

v.  Geary  849 

v.  New  Salem  275 

v.  Shreveport  296 

v.  State  937 

v.  Stockton  41,  42,  43,  44 

v.  United  States  662,  668 

Rhine  t'.  McKinney  817 

Rhinehart  v.  Lance  454 

Rhines  v.  Clark  691 

Rhodes  v.  Cincinnati  296 

v.  Cleveland  304 

v.  Iowa  847 

v.  Otis  861 

v.  Weldy  96 

Rice  v.  Austin  162 

v.  Des  Moines  363 

v.  Evansville  302 

v.  Foster  163,  171,  173 

v.  Parkman  141,  149 

v.  Ruddiman  224 

v.  State  183,  228 

v.  Turnpike  Co.  824 

Rice's  Case  481 

Rich  v.  Braxton  750 

v.  Chamberlain  160 

v.  Chicago  817 

v.  Flanders       253,  409,  611,  525,  630, 

544 

Richard  Oliver,  In  re  171 

Richards  v.  Raymond  261 

r.  Rote  151,  646 

v.  Wolf  764 

Richardson  v.  Boston  695 

v.  M  on  son  146 

v.  Morgan  717,  730 


TABLE   OF   CASES. 


XC111 


Richardson  v.  Roberts 
v.  Scott's  Bluff  Co. 
v.  State 

v.  Union  Cong.  Soc. 
v.  Vermont  Central  R.  R.  Co. 

v.  Webster  City 

v.  Welcome 

Riche  v.  Bar  Harbor  W.  Co. 
Richland  Co.  v.  Lawrence  Co.      266, 
339,  345 

v.  Richland  Center 
Richman  v.  Muscatine  Co. 

v.  Supervisors 
Richmond  v.  Daniel 

v.  Dudley  288 

v.  Long  306,  356,  357 

v.  McGirr 

v.  Richmond,  &c.  R.  R.  Co.   390, 

v.  Supervisors 
Richmond  &  A.  R.  R.  Co.  v.  Lynch- 

burg 

v.  Patterson 
Richmond  &  D.  R.  R.  Co.  v.  Reids- 

ville 
Richmond,  &c.  Co.  v.  Rogers        781, 

Richmond,  &c.  R.  R.  Co.  v.  Louisa, 

&c.  R.  R.  Co.  565, 

Richmond  Co.  Acad.  v.  Augusta 
Richmond  &  My.  Ry.  Co.  v.  Hum- 
phreys 

Richmond  N.  G.  Co.  v.  Clawson 
Ricketts  v.  Spraker  251,  587, 

Riddle  v.  Proprietors  of  Locks,  &c. 

351, 

Ridge  Street,  In  re 
Rigg  v.  Wilton 
Riggin's  Ex'rs  v.  Brown 
Rigney  v.  Chicago  296,  810, 

Riley  v.  Rochester 

Riley's  Case  383, 

Rima  v.  Cowan 

Rinard  v.  Burlington,  &c.  Ry.  Co. 
Ring,  Matter  of 

«7.  Wheeler 
Rio  Grande,  The 
Rippe  i'.  Becker 

Rison  v.  Farr  99,  406,  411.  518, 

Risser  v.  Hoyt  86,  129, 

Ritchie  v.  People 

River  Rendering  Co.  v.  Behr         286, 
Rivers  v.  Augusta 
Rixner's  Succession 
Roach  v.  Board,  &c. 
Roanoke,  &c.  R.  R.  Co.  v.  Davis 
Roanoke  City  v.  Berkowitz 
Robards  v.  Brown 
Ro  Bards  v.  Lamb 
Robb  v.  Connolly 
Robbins  v.  Fletcher 

v.  Shelby  Taxing  Dist.  688 

v.  State 

Robbins  v.  Treadway  •  606,  628 

Roberson  i\  Rochester,  &c.  Co. 


Page 
607 
198 
628 
661 

781, 
785 
296 
595 
769 

268, 
391 
346 
182 
182 
745 
290 
360 
320 

407, 
565 
630 

717 

852 

709 

785, 
822 

757 
21 

827 
877 
743 
348, 
356 
783 

85 

82 
811 
312 
496 
751 
797 
496 
633 

80 
327 
519 
590 
570 
291 
301 
708 
261 
316 
809 
412 

20 
494 
607 
,694 
464 
629 
510 


Roberts,  In  re 

v.  Caldwell 

v.  Calvert 

v.  Chicago 

v.  Lewis 

v.  Louisville 

v.  Ogle 

v.  People 

v.  Reilly 

v.  State 
Robertson  v.  Baldwin 

v.  Bullions 

v.  Land  Commissioner 

v.  Omaha 

v.  Rockford 
Robeson  v.  Brown 
Robie  v.  Sedgwick 
Robinson,  Ex  parte 

Re 

v.  Bank  of  Darien 

v.  Bidwell 


Page 
195,  201 
42 

922,  929,  933,  937 
296,  783 
27 
130 

286.  860,  884 
445 
39,40 
453 
14,  23 
660 
387 
713 

167,  266,  325 
412 
276 

13,  453,  492,  707 
425 

212,  247 
171,  247 


v.  Cheboygan  Superv.  189 
v.  Commonwealth  Insurance  Co.     35 

Estate  of  272 

v.  Evansville  301 

v.  Greenville  302 

v.  Hamilton  890 

v.  Howe  413 

t7.  Kalbfleish  924 

v.  N.  Y.  &  Erie  R.  R.  Co.  786 

v.  Oceanic  S.  N.  Co.  37 

v.  Pa.  Ry.  Co.  778 

v.  Richardson  434 

v.  Robinson  822 

v.  Schenck  253,  265 

v.  Skipworth  208 

v.  State  209 

v.  Swope  765 

v.  Ward's  Ex'rs  41,  583 

».  West  588 

v.  White  388 

Roby  v.  Colehour  30 

v.  Smith  38 

i>.  West  636 

Roche  v.  Waters  632,  546 

Rochester  17.  Collins  271 

v.  Rush  312,  695 

v.  Upman  710 

Rochester  H.  &  L.  R.  R.  Co.,  Matter 

of  807 

».  N.  Y.,  &c.  Co.  807 

Rochester  Water  Com'rs.  Re  758 

Rochester  White  Lead  Co.  v.  Roches- 
ter 356,  362 

Rockford,  &c.  R.  R.  Co.  v.  Coppin- 

ger  825 

v.  Hilmer  843 

Rockland  Water  Co.  v.  Camden,  &c. 
Co. 

Rockport  v.  Walden 

Rockwell  v.  Hubbell's  Adm'rs 


549 
522 

406,  408, 
515 

520,  582 
718 


v.  Nearing 
Rode  v.  Siebe 
Ro'demacher  v.  Milwaukee,  &c.  R.  R. 
Co.  394,  841 


XC1V 


TABLE  OF  CASES. 


Page 

Roderigas  v.  Savings  Institution  80 
Rodman  v.  Harcourt  895 
Roe  v.  Deming  263 
Roethke  v.  Philip  Best  Brewing  Co.    850 
Rogers  v.  Bradshaw  813 
v.  Buffalo                          158,  159,  894 
v.  Burlington                            167,  319 
v.  Coleman  42 
v.  Goodwin  106 
v.  Greenbush  529 
v.  Jacob  910 
v.  Jones  279 
v.  Manuf.  Imp.  Co.  213 
v.  State  216 
v.  Stephens  631 
v.  Vass  224 
Rohan-Chabot's  Estate,  Re  709 
Rohrbacker  v.  Jackson  901 
Rolfs,  In  re  454 
Roll  o.  Augusta  296 
Roller  v.  Holly  20 
Rollins,  Ex  parte  496 
Rolpli  v.  Fargo  731 
Rolston  v.  Missouri  Fund  Com'rs  24 
Romaine,  Re  708 
Rome  v.  Omberg  296 
Rood  v.  McCargar  246 
Roosevelt  v.  Meyer  31 
Roosevelt,  Estate  of,  Re  709 
Root  v.  Right  478 
Root's  Case  822 
Roper  v.  Laurinburg  272 
Ropes  v.  Clinch  25 
Rosdeitscher,  In  re  177 
Rose  v.  Hardie  860 
v.  Rose  513 
v.  Truax  198 
Roseberry  v.  Huff  749 
Rosenbaum  v.  Newbern  288 
Rosenblat,  Ex  parte  39 
Rosenblatt,  Ex  parte               259,  496,  694 
Rosenbloom  v.  State  887 
Rosenburg  v.  Des  Moines  358 
Rosenheim  v.  Hartsock  588 
Rosenthal  v.   State  Board  of  Can- 
vassers 935 
Rosier  v.  Hale  515 
Ross  v.  Clinton  307 
v.  Crockett  275 
v.  Davis                                     766,  825 
v.  Duval  33 
v.  Irving  552 
v.  Lister  252 
?'.  Mclntyre                                47,  456 
v.  McLung  33 
v.  State  446 
v.  Ward  620 
v.  Whitman  131 
Ross's  Case                                      383,  496 
Rosser,  Re  442 
Rossmiller  v.  State  673 
Roth  v.  Ehman  31 
v.  House  of  Refuge  423 
Rothermel  v.  Meyerle                     691,  693 
Rothschild  o.  Grix  86 
Rounds  v.  Mumford  296 


Page 

Rounds  v.  Way  mart  217 

Roundtree  v.  Galveston  717 

Rouse  H.  &  Co.  i>.  Donovan  671 

Roush  v.  Walter  867 

Roushlange  v.  Chicago,  &c.  Ry.  Co.     826 

Rousseau  v.  New  Orleans  406 

Routsong  v.  Wolf  538 

Rowan  v.  Runnels  33,  121 

v.  State  459,  503 

Rowe  v.  Addison  757 

v.  Granite  Bridge  Corporation       786 

v.  Portsmouth  304,  363 

Rowland  v.  Kalamazoo  Supts.  306 

v.  State  400 

Royal  v.  Thomas  592 

Royal  British  Bank  v.  Turquand          323 

Royall,  Ex  parte  493,  496 

Rozier  v.  Fagan  148 

Ruch  v.  New  Orleans  475 

Rude  v.  St.  Louis  810,  812 

Rue  High's  Case  903 

Ruggles  v.  Collier  294 

v.  Nantucket  757 

v.  People  875 

Rugh  v.  Ottenheimer  515 

Ruhl,  Re  161 

Ruhstrat  v.  People  668 

Rulison  v.  Post  263 

Ruloff  v.  People  447 

v.  State  445 

Rumney  v.  Keyes  484 

Rumsey  v.  N.  Y.,  &c.  Ry.  Co.  782 

t-.  People  108,  364 

Rundle  v.  Foster  478 

Runge  v.  Franklin  630 

Runnels  v.  State  444 

Runyon  v.  Coster's  Lessee  178 

Ruohs  v.  Backer  630,  633 

Rupert  v.  Martz  406,  548 

Rusch  v.  Davenport  356,  357 

Rush  v.  Cavenaugh  482 

Rushing  v.  Sebree  213 

Rushville  v.  Rushville  N.  G.  Co.  876 

Rushville  Gas  Co.  v.  Rushville     202,  272 

Russell  v.  Anthony  628 

v.  Ayer  120 

v.  Belcher  592 

v.  Burlington  296 

v.  Burton  196 

v.  Chittenden  751 

v.  Cooley  130 

v.  Croy  573,  708 

v.  Men  of  Devon  278,350,355 

v.  New  York  767,  878 

v.  Perry  42 

v.  Pyland  924 

v.  Rumsey  614,  539 

v.  State  262 

v.  Whiting  495 

Russellville  v.  White  284 

Rust  v.  Gott  924 

v.  Lowe  810 

Rutgers  v.  Mayor  of  Brunswick  563 

Ruth,  In  re  851 

Rutherford  v.  Hamilton  736 

Rutland  v.  Mendon  85 


TABLE  OF  CASES. 


XCV 


Rutledge  v.  Crawford 
Rutter  v.  Sullivan 
Ryalls  v.  Leader 
Ryan,  In  re 

v.  L.  &  U.  Terminal  Co 

v.  Lynch 

v.  Thomas 

Rychlicki  v.  St.  Louis 
Ryckman  v.  Delavan 
Ryder  v.  State 
Ryegate  v.  Wardsboro 
Ryerson  v.  Brown 

v.  Utley  207,  209, 

Ryhiner  v.  Frank 


S. 


Sackett  v.  Sackett 
Sacramento  v.  Crocker 
Sadler  r.  Langham 

Safford  v.  People 

Sage  v.  New  York 

Saginaw,  &c.  Ry.  Co.  v.  Bordner 

Sahlinger  v.  People 

Sailly  v.  Smith 

Sala  o.  New  Orleans 

Sale  u.  First  Bapt.  Ch. 

Salem  v.  Eastern  R.  R.  Co. 

v.  Maynes 

Salem  Turnpike  v.  Essex  Co. 
Saleno  r.  Neosho 
Salt  Co.  v.  Brown 
Salt  Creek  V.  T.  Co.  v.  Parks 
Sailers  v.  Tobias 
Saltmarsh  v.  Bow 
Saltpetre  Case 
Sam  Kee,  In  re 
Sammons  v.  Hplloway 
Sams  v.  King 
San  Antonio  v.  Jones 

v.  Lane 
San  Antonio  &  A.  P.  Ry.  Co.  v.  S. 

W.  Telpli.  &  Telne.  Co. 
San  Bernardino  v.  Southern  P.  Co. 
Sanborn  v.  Deerfield 

v.  Rice 
Sanders,  Re 

v.  Cabaniss 

v.  Getcliell 

v.  Hillsboro  Ins.  Co. 

v.  Metcalf 

v.  Rollinson 
Sand  ford  v.  Nichols 
San    Diego    v.   Linda  Vista  Irrig. 

Dist. 

San  Diego  Land  &  T.  Co.  v.  Nation- 
al City 

v.  Neale 

San  Diego  W.  Co.  v.  San  Diego 
Sands  v.  Kimbark 

v.  Mainstee  Riv.  Imp.  Co. 

Sands  v.  Richmond 
Sanford  v.  Bennett 


Page 

Page 

900,923 

San  Francisco  v.  Canaran              267,  346 

167 

v.  Liverpool,  &c.  Co.                        707 

637,  639 

v.  Western  U.  Tel.  Co.                   690 

217 

Sangamon  Co.  v.  Springfield                 391 

696,  768 

Sanitary     District    of    Chicago    v. 

116,200,201, 

Loughran                                             826 

31 

San  Mateo  Co.  v.  Sou.  Pac.  R.  R.  Co.    17, 

304 

505,  712,  723 

609 

San   Mateo   Waterworks   v.  Sharp- 

474 

stein                                                      788 

92 

Sans  v.  Joerris                                         644 

771.  773,  775 

Santa  Ana  v.  Harlan                              827 

,  213,  703,  706 

Santa  Clara  Co.  v.  Sou.  Pac.  R.  R. 

624 

Co.                                                  19,  706 

Santa  Cruz  v.  Enright                            777 

Santo  v.  State          163,  170,  237,  246,  248, 

846,  849 

Sargent  &  Co.  v.  Tuttle                          266 

62 

Sater  v.  Burlington  &  M.  P.  Plank 

725 

R.  Co.                                            821,  822 

106,  250,  764, 

Satterlee  v.  Matthewson        374,  637,  544 

765,  773 

v.  San  Francisco                              202 

464 

Saul  v.  His  Creditors                      178,  217 

782,  787 

Sauls  v.  Freeman                                    594 

'dner          777 

Saulsbury  v.  Ithaca                                 363 

453 

Saunders  v.  Baxter                                 637 

428 

v.  Haynes                                         932 

415 

v.  Mills                                      637,  658 

660 

v.  Rod  way                                        485 

884 

v.  Springstein                                   719 

286 

v.  Wilson                                          553 

o.                268 

Savage  v.  Commonwealth                     174 

321 

v.  Salem                                            298 

771 

v.  Walshe                                         114 

ks              571 

Savannah  o.  Hancock                             775 

136 

v.  Hartridge                                     271 

,363 

v.  Kelly                                             320 

878 

v.  Spears                                           304 

883 

v.  State                                      204,  247 

685 

v.  Weed                                            718 

92 

Sa  vannah,  &c.  R.  R.  Co.  v.  Savan- 

167 

nah                                                        796 

321 

Savannah  F.  &  W.  Ry.  Co.  v.  Geiger  213 

Co.  v.  S. 

Saving  Society  v.  Philadelphia              278 

762 

Savings  Bank  v.  Allen                           637 

P.  Co.      690 

v.  Bates                                             537 

323 

Savings  &  Loan  Society  v.  Multno- 

340,  703,  706 

mah  County                                  21,  695 

853 

Sawyer  v.  Alton                                      737 

138 

v.  Conn.                                            827 

905,  927 

v.  Corse                                            356 

406 

v.  Insurance  Co.                               100 

453 

v.  Northfield                                     303 

680 

v.  Vermont,  &c.  R.  R.  Co.              841 

430 

Saxton  v.  St.  Joseph                              302 

a  Irrig. 

Sayer  v.  Phillips                                      290 

740,  741 

Sayles  v.  Davis                                       685 

Nation- 

Sayre  v.  Wisner                                      529 

874,  875 

Sayward  v.  Denny                                    27 

827 

Scales  v.  Chattahoochee  Co.                  348 

iego           872 

v.  State                                             216 

696 

Scanlan  v.  Childs                              104,  106 

;o.       55,  864, 

Scanlon  v.  Wedger                                   306 

865 

Scates  v.  King                                           82 

860 

Schaaf  v.  Cleveland  M.  &  S.  Ry.  Co.    803 

644 

Schaezlein  v.  Cabaniss                           164 

XCV1 


TABLE   OF  CASES. 


Schattner  v.  Kansas  City  296 

Schee  v.  La  Grange  687 

Schenley  v.  Alleghany  City  717 

v.  Commonwealth  515,  529,  535 

Sehideler  v.  State  470 

Schipper  v.  Aurora  274 

Schliet  v.  State  859 

Schlitz  v.  Roentz  574 

Schmalz  v.  Woolley  66 

Schmidt,  Ex  parte  217,  454 

v.  Failey  719 

Schneider  v.  Detroit  785 

Schnier  v.  People  435 

Schoen  Bros.  v.  Atlanta  290 

Schoenheit  v.  Nelson  616 

Seholle  v.  State  163 

Schollenberger  v.  Pennsylvania  848 

School  Board  v.  Patten  120 

School  Directors  v.  Hart  262 

School  District  v.  Atherton  275 

v.  Board  of  Education  269,  275 

v.  Col  v  in  262 

v.  Fogelman  262 

v.  Fuess  362 

v.  Gage  262 

v.  Insurance  Co.  182,  348 

v.  Merrills  748 

v.  Stone  322 

v.  Wood  348,  349,  350 

Schoolfield  Exec.  v.  Lynchburg  707 

School  Law  Manual,  In  re  182 

Schooner  Paulina's  Cargo  v.  United 

States  89 
Schooner  Rachel  v.  United  States        516, 

544 

Schopp  v.  St.  Louis  298 
Schroers  v.  Fisk  80 
Schuchardt  v.  People  896 
Schular  v.  State  453 
Schulherr  v.  Bordeaux  118,  120,  174 
Schultz  v.  Milwaukee  301 
Schurman  v.  Marley  62 
Schurmeier  v.  St.  Paul,  &c.  R,  R.  Co.  791 
Schussler  v.  Hennepin  County  Com'rs  306 
Schuster  v.  Weiss  386 
Schuyler  v.  Curtis  510 
Schwab  v.  Berggren  22 
Schweiss  v.  First  Jud.  Dist.  Ct            183 
Scituate  v.  Weymouth  269 
Scofield  v.  Walk  ins  743 
Scotland  Co.  v.  Thomas  321 
Scotland  Co.  Court  v.  United  States     319 
Scott,  Re  442 
Ex  parte  161 
v.  Clark  225,  226 
v.  Coleman  43 
v.  Detroit   Young  Men's    Soci- 
ety's Lessee  56, 63 
v.  Donald  24,  847 
i;.  Fishblate  306 
v.  Hooper  677 
v.  Jones  30 
v.  Manchester  356 
».  Mather  553 
v.  McKinnish  608 
v.  McNeal  80,  575 


Scott  r.  Sandford 
v.  School  District 
v.  Smart's  Ex'rs 
v.  Willson 

Scoville  v.  Canfield 
v.  Cleveland 


Page 
89 
262 
237 
861 
181 
716,  728,  730 


Scranton  v.  Penn.  Coal  Co.  730 

v.  Wheeler  782,  787 

Scranton  School  Dist.,  App.  of  183 

Scribner  v.  Rapp  660 

Scripps  v.  Reilly  637,  650 

Scudder  v.  Coler  30 

v.  Trenton,  &c.  Co.  775 

Scuffletown  Fence  Co.  v.  McAllister    594 

699,  868 

Seaman's  Friend  Society  v.  Boston      741 

Seamster  v.  Blackstock  588 

Searcy  v.  Grow  932 

Searle  v.  Clark  941 

v.  Lead  754,  784 

Sears  v.  Board  of  Aldermen  717 

v.  Com'rs  of  Warren  Co.  37 
v.  Cottrell                  128,  242,  253,  506 

v.  Terry  586 

Seattle  v.  Smyth  891 
Seattle  &  M.  Ry.  Co.  v.  Murphine        826 
».  State                      756,  758,  778,  807 

Secombe  v.  Kittelson  59,  63 

v.  Railroad  Co.  760 
Second  Ward  Sav.  Bk.  v.  Schrank       404 

Secord  v.  Foutch  910 

Sedgwick  v.  Stanton  197 

Sedgwick  Co.  v.  Bunker  268,  515 

Seeley  v.  Bridgeport  590 

Seely  v.  Pittsburg  730 

Seery  v.  Viall  605 

Sego  v.  Stoddard  900,  911 

Seibert  v.  Lewis  406,  415 

v.  Linton  137 

Seifert  v.  Brooklyn  304 

Selby  v.  Bard  on  s  84 

Selden  t;.  Jacksonville  781,  783 

Selin  v.  Snyder  586 

Selkirk  v.  Stevens  879 

Seller  v.  Jenkins  605 

Selraa,  &c.  R.  R.  Co.,  Ex  parte  167 

Selman  v.  Wolfe  863 

Selsby  v.  Redlon  533 

Semayne's  Case  428 

Semler,  Petition  of  495 

Semple  v.  Vicksburg  306 

Senate  Bill,  Re  73 

Senate  File,  In  re  60 

Senate  of  Happy  Home  Club  v.  Al- 

pena  Co.  164 

Senate  Resolution,  In  re  73,  219 

Seneca  Min.  Co.  Sec'y  of  State  259 

Senior,  Ex  parte  455 

Sentell  v.  N.  O.  &  C.  Ry.  Co.  881 

Sequestration  Cases  414 

Sergeant  v.  Kuhn  146 

Sen-ill  v.  Philadelphia  726 

Servatius  v.  Pichel  619 

Servis  v.  Beatty  101 
Sessions  v.  Crunkilton            728,  735,  868 

Sessums  v.  Bolts  259 


TABLE  OF  CASES. 


XCV11 


Page 

Settle  v.  Van  Evrea  92 

Setzler  v.  Va.  &c.  R.  R.  Co.  825 

Seven  Hickory  v.  Ellery  220 

Severn  v.  Regina  832,  858 

Sewall  v.  Sewall  580 

v.  St.  Paul  363 

Sewell  v.  Board  of  Education  263 

v.  State  60 

Sewickley  v.  Sholes  213 

Sexton  v.  Todd  607 

Seymour  v.  Cummins  302 

v.  Hartford  741 

v.  Turnpike  Co.  316 

Shackford  v.  Newington  331,  701 

Shackleford  v.  Coffey  773 

Shadden  v.  McElwee  629 

Shafer  v.  Mumma  280,  286 

Shaffer  v.  Union  Mining  Co.  888 

Shanahan  v.  City  of  Waterbury  826 

Shannon  v.  Frost  660,  661 

Shapleigh  v.  San  Angelo  267 

Sharon  Ry.  Co.'s  App.  807 

Sharp  v.  Contra  Costa  Co.  336 

v.  New  York  210 

v.  Spier  717 

v.  State  159 

v.  Thompson  898 

Sharpe  v.  United  States  828 

Sharp's  Ex'rs  v.  Dunavan  702 

Sharpless  v.  Mayor,  &c.  167,  331,  679,  701 

Shartle  v.  Minneapolis  363 

Shattuck  v.  Allen  656 

v.  Chandler  52 

Shaver  v.  Penn.  Ry.  Co.  556 

Shaw,  Ex  parte  495 

v.  Charlestown  818 

v.  Crawford  861 

v.  Dennis  702,  738 

v.  Macon  176 

v.  Moore  677 

v.  Nachwes  497 

v.  Norfolk  R.  R.  Corp.  541 

v.  Thompson  484 

Shawnee  County  v.  Carter  111 

Shawneetown  v.  Mason  296 

Sheahan  v.  Collins  644 

Shealy  v.  Chicago,  &c.  Ry.  Co.  786 

Shear  v.  Box  68 

Shearlock  v.  Beardsworth  609 

Sheckell  v.  Jackson  642 

Sheehan  v.  Sturges  486 

Sheehy  v.  Kansas  City,  &c.  Co.  812 

Sheely  v.  Biggs  605 

Shehan's  Heirs  v.  Barnett's  Heirs        146 

Shelby  v.  Guy  33,  522 

Shelby  County  v.  Tennessee  C.  Exp. 

Co.  696 

v.  Union  and  Planters'  Bk.  31,  738, 

740 

Shelbyville  Water  Co.  v.  People  720 

Sheldon,  Ex  parte  40 

v.  Fox  288 

v.  Kalamazoo  362 

v.  Wright                          685,  586,  587 

Sheley  v.  Detroit  719,  728 

Shelter  v.  Gooding  613 


Page 

Shelly's  Appeal  £52 

Shonandoah  V.  R.  R.  Co.  v.  Griffith       83 
v.  Shepherd  822,  825 

Sliepard  v.  Dowling  240,  848 

Shepard's  Case  15 

Sliepardson  v.  Milwaukee,  &c.  R.  R. 

Co.  267,  815,  816,  817 

Shephard  v.  Wheeling  132 

Shepherd  v.  Chelsea  301 

v.  Commissioners  891 

v.  People  381 

Shepherd's  Fold  v.  Mayor,  &c.  N.  Y.    698 

Sheppard's  Election  Case  929 

Sherbourne  v.  Yuba  Co.  355,  357 

Sheridan  v.  Salem  216 

Sherman  v.  Buick  765 

v.  Carr  308 

v.  Langham  387 

v.  Milwaukee,  &c.  R.  R.  Co.  761 

v.  Story  194 

Sherman  Co.  v.  Simons  322,  348 

Sherrard  v.  Lafayette  Co.  320 

Sherwood  v.  Dist.  Columbia  363 

v.  Fleming  540 

Shideler  v.  State  470 

Shields  v.  Bennett  209,  216 

v.  Clifton  H.  Land  Co.  535 

v.  Coleman  27 

v.  Durham  305 

v.  Jacob  900 

v.  McGregor  911,  932 

Shifflet  v.  Commonwealth  444 

Shiner  v.  Jacobs  402 

Shipley  v.  Todhunter  612 

Shipp  v.  McGraw  605 

v.  Miller  83 

v.  State  453 

Shipper  v.  Pennsylvania  R.  R.  Co.          38 

Shires  v.  Commonwealth  13 

Shissler  v.  People  577 

Shobert  v.  May  454 

Shock  v.  McChesney  629 

Shoemaker  v.  United  States         756,  768, 

775,  778,  824,  826 

Sholl  v.  German  Coal  Co.  765,  777 

Shonk  v.  Brown  151,  529,  540 

Shore  v.  State  438 

Short  v.  Bullion  B.  &  C.  Mining  Co.    891 
Shorter,  Matter  of  371 

v.  People  434 

v.  Smith  398 

Shotridge,  Re  455,  638 

Shotwell  v.  Moore  683 

Shoultz  v.  McPheeters  129 

Shover  v.  State  676,  859 

Shrader,  Ex  parte  133,853 

Shreveport  v.  Levy  658,  663 

v.  Prescott  279 

Shrunk  v.  Schuylkill  Nav.  Co.      781,  782 
Shuman  v.  Fort  Wayne  425 

Shumate  v.  Heman  714 

Shumway  v.  Bennett  133,  143,  263 

v.  Stillman  42 

Shurbun  v.  Hooper  895 

Shurtleff  v.  Parker  619 

v.  Stevens  619,  637,  647,  648 


XCVU1 


TABLE   OF   CASES. 


ShurtleffV  Wiscasset 
Sibley  v.  Williams 
Sic,  In  re 

Sidgreaves  v.  Myatt 
Sidwell  v.  Evans 
Siebold,  Ex  parte 
Siegfried  v.  Kaymond 
Sifers  v.  Johnson 
Sigourney  v.  Sibley 
Sikes,  Ex  parte 
Silberman  v.  Hay 


Page 
322 
62 
281 
607 
861 

281,  492,  901 
687 
879 

592,  595 
283 
182 


Silkman  v.  Bd.  Water  Com'rs  287 

Sill  v.  Corning  237,  242 

Silliman  v.  Cummins  538 

Sills  v.  Brown  452 

Silsbee  v.  Stockle  546,  751 

Silver  Bow  Co.  v.  Strombaugh  618 

Silver  Lake  Bank  v.  North  180 

Silvey  v.  Lindsay  905 

Silvus  v.  State  466 

Simmer  v.  St.  Paul  304 

Simmonds  v.  Simmonds.  139 

Simmons,  Ex  parte  495 

v.  Camden  296 

v.  Commonwealth  177 

v.  Holster  605 

v.  Saul  42,  43 

v.  United  States  469 

».  West.  U.  T.  Co.  656 

v.  Wilson  745 
Simmons  Hardware  Co.  v.  McGuire    694 

Simms  v.  Railroad  Co.  814 

Simon  r.  Craft  (182  U.  S.)  572,  581 

v.  Craft  (118  Ala.)  672 

v.  Durham  936 

v.  Northrup  337 

Simonds  v.  Simonds  154,  558 

Simonds's  Ex'rs  v.  Gratz  676 

Simons  v.  People  930 

Simpson  v.  Bailey  210 

v.  Savings  Bank  406,  530 

v.  State  62,  177 

Simrall  v.  Covington  290 

Sims,  Re  (118  Fed.  Rep.)  695 

Re  (54  Kan.)  425 

v.  Daniels  900 

v.  Gay  587 

v.  Irvine  33 

v.  Jackson  707 

v.  Sims  43 

v.  State  470 

Sinclair  v.  Jackson  232 

Singer  v.  Bender  606 

v.  State  886 

Singer  Mfg.  Co.  v.  Fleming  180 

v.  McCollock  256 
v.  Wright                         688,  690,  876 
Single  v.  Supervisors  of  Marathon       209, 

642 

Sing  Lee,  Ex  parte  291 

Singleton  v.  State  160 

Sinking  Fund  Cases  394 

Sinks  v.  Roese  177,  905 

Sinton  v.  Ashbury  267,  336 

Sioux  City  v.  School  District  742 

Sioux  City  B.  Co.  v.  Dakota  Co.  719 


Page 

Sioux  City,  &c.  R.  R.  Co.  v.  Washing- 
ton Co.  712 
Sioux  City  T.  &  W.  Co.  v.  Trust  of 

N.  A.  32 

Sioux  Falls  v.  Kirby  290 

Sipe,  Re  290 

Skaggs  v.  State  450 

Skaneateles  Water  Works  Co.  v.  Skan- 

eateles  383,  393,  565 

Skelding  v.  Whitney  80,  81 

Skellenger  v.  Smith  539 

Skillman  v.  Chicago,  &c.  Ry.  Co.     404, 809 

Skinner,  Ex  parte  497 

i;.  Hartford  Bridge  Co.  296,  783 

v.  Henderson  697 

v.  Santa  Rosa  819 

Slack  v.  Jacob  89,  253,  254,  258 

v.  Maysville,  &c.  R.  R.  Co.      99,  167, 

325,  699 

Slade  v.  Slade  80 

Slater,  Ex  parte  436 

Slatten  v.  Des  Moines  Valley  R.  R. 

Co.  785,  826 

Slaughter  v.  Commonwealth  37 

v.  Louisville  706 

v.  O'  Berry  289 

v.  People  281 

Slaughter-House  Cases     18,  38,  401,  402, 

418,  457,  567,  668,  832 

Slauson  v.  Racine  248,  249 

Slave  Grace,  The  422 

Slaven  v.  Wheeler  595 

Slay  maker  v.  Phillips  911 

Slayton  r.  Hulings  110,  114 

Sleght  v.  Kane  ,   370 

Slemmer  v.  Wright  482 

Slinger  v.  Henneman  167,  174 

Sloan  v.  Biemiller  752 

v.  Cooper  80 

v.  Pacific  R.  R.  Co.         392,  838,  839 

v.  State  2G6 

Smails  v.  White  209 

Small  v.  Danville  360 

Smalley  v.  Anderson  607 

Smead  v.  Indianapolis,  &c.  R.  R.  Co.     321 

Smeaton  v.  Martin  778,  814 

Smiley  v.  McDonald  562 

Smith,  Ex  parte  39,  40,  278,  934 

Matter  of  46 

Petition  of  496 

v.  Adrian  173 

v.  Alabama  688,  844,  857 

v.  Appleton  415 

v.  Ballantyne  82 

r.  Bohler  208 

v.  Brown  422 

v.  Bryan  615 

v.  Burrus  645 

v.  Callanan  761 

v.  Cheshire  320 

v.  Clark  Co.  324 

v.  Cleveland  627,  545 

v.  Commonwealth  210,  212,  444 

v.  Connelly  773 

v.  Eastern  R.  R.  Co.  841 

».  Frisbie  689 


TABLE  OF  CASES. 


XC1X 


Page 

Smith  v.  Good  63 

v.  Gould  422 

v.  Hard  631 

v.  Howard  629 

v.  Hoyt  225,  218 

v.  Hunter  30 
v.  Inge 

v.  Jackson  687 

v.  Janesville  169, 171 

v.  Judge  131,  242 

v.  Kingston  730,  860 

v.  Knoxville  285 

v.  Leavenworth  363 

v.  Levinus  265 

v.  Long  478 

v.  Louisville  710 

v.  Macon  238 

v.  Maryland  46 

v.  McCarthy  166,  232 

v.  McDowell  572 

v.  Merchand's  Ex'rs  533 

v.  Milwaukee  B.  &  T.  E.  288 

w.  Moore  895 

v.  Morrison  224,  524 

v.  Morse  272,  294 

»>.  Myers  162 

v.  Nelson  660 

v.  Norment  162 

v.  Packard  406,  413 

v.  People  100,  452 

v.  Reeves  24 

v.  Rice  585 

v,  Scott  639 

v.  Sedalia  782 

v.  Sellinsgrove  301 
v.  Sherry                   348,  523,  546,  722 

t>.  Short  684 
v.  St.  Louis  &  S.  W.  Ry.  Co.          854 

v.  Shriver  34 

v.  Silence  607 
v.  Smith         42, 44,  222,  679,  580,  606 

v.  Speed  231,  453 
v.  State                  16,  40,  160,  473,  87!) 

v.  Stewart  606 

v.  Strother  132 

v.  Swormstedt  661 

v.  Thomas  611 

v.  Thursby  89 

v.  Township  Board  262 

v.  Trimble  589 

v.  Van  Gilder  406 

v.  Washington  296,  783 

v.  Worcester  714 

Smith,  Mary,  Case  of  444 

Smith  M.  P.  Co.  v.  McGroosty  38 

Smither  v.  Campbell  194 

Smoot  v.  Wetumpka  356 

Smyth  v.  Ames  (169  U.  S.)  20,  24 

v.  Ames  (171  U.S.)  874,875 

v.  McMasters  924 

v.  Titcomb  166 

Sneider  v.  Heidelberger  408 

Snell,  In  re  496 

Snider  v.  St.  Paul  805 

Snohomish  Co.  v.  Hay  wood  815 

Snow  v.  Fitchburg  736 


Snowhill  v.  Snowhill 
Snyder  v.  Andrews 

v.  Bull 

v.  Ft.  Madison  St.  Ry.  Co. 

.v.  Fulton 

v.  Pennsylvania  R.  R.  Co. 

v.  Rockport 
Society,  &c.  v.  Wheeler 


Page 
146 
656 
640 
803 
658 
791 
296 

34,  523,  530, 
553 

Society  for  Savings  v.  Coite  683 

Society  of  Scriveners  v.  Brooking         282 

Sohier  v.  Massachusetts  Hospital          146 

v.  Trinity  Church  660 

Solomon  v.  Cartersville  219 

v.  Commissioners  220 

v.  Oscoda  749 

Somers  v.  Met.  El.  Ry.  Co.  801 

Somerset  &  Stoystown  Road  217 

Somerville  v,  Hawkins  610 

Somerville  &  Eastou  R.  R.  Co.  ads. 

Doughty  821,  823,  825 

Sommers  v.  Johnson  408 

Sommersett's  Case  422 

Soon  Hing  v.  Crowley  258 

Soper  v.  Harvard  College  888 

Sorchan  v.  Brooklyn  114 

Sorocco  v.  Geary  757,  878 

Sortwell  v.  Hughes  850 

South  &  North  Alabama  R.  R.  Co.  v. 


Morris 

Southard  v.  Central  R.  R.  Co. 
South  Bend  v.  Martin 

v.  Reynolds 

South  Branch  L.  Co.  v.  Ott 
South  Carolina  R.  R.  Co.  v.  Steiner 


246,  556 
540 
690 

318,  321 
32 
791, 
794 

South  Chicago  Ry.  Co.  v.  Dix  766 

South  Covington  &  C.  S.  Ry.  Co.  v. 

Berry  288 

Southern  B.  &  L.  Ass'n  v.  Norman       180 
Southern  Express  Co.  v.  Com.  472 

Southern  Pac.  Ry.  Co.  v.  Denton    27, 179 
South  Ottawa  v.  Perkins  194,  320 

Southport  v.  Ogden  279 

Southwark  Bank  v.  Commonwealth      89, 

193,  194 

South-western  R.  R.  Co.  v.  Paulk          844 

v.  Telegraph  Co.  814,  817 

Southwest  Mo.  L.  Co.  v.  Toplin  383 

South  wick  v.  South  wick  525 

Southworth  v.  Edmonds  749 

v.  Palmyra  &  Jacksonburg  R.  R. 

Co.  201 

Soutter  v.  Madison  415 

Sovereign  v.  State  215 

Sowders  v.  Edmunds  585 

Spaids  v.  Barrett  634 

Spain,  Re  689 

Spangler  v.  Jacoby  116,  193,  201 

Spangler's  Case  26,  494 

Sparhawk  v.  Sparhawk  138,  156 

Sparrow  v.  Kingman  86 

Spaulding  v.  Lowell  888 

Speakership,  Re  190 

Spealman  r.  Railroad  Co.  841 


Spears  v.  State 


445 


TABLE  OF  CASES. 


Specht  v.  Commonwealth 
Speer  v.  Athens 

v.  Plank  Road  Co. 

v.  School  Directors 
Speidel  v.  Schlosser 
Speight  v.  People 


Page 

675,  859 

194,  732 

218 

330.  699 

.121 

183 


Spencer  v.  Board  of  Registration         901 
v.  Dearth  80,  83 

v.  McMasters  607 

v.  Merchant      698,  699,  711,  714,  722, 

729 

v.  Met.  St.  Ry.  Co.  827 

v.  State  89,90,216,217 

Spengler  v.  Trowbridge  271 

Sperry  v.  Flygare  713 

v.  Willard  192 

Spickler,  Re  259 

Spier  v.  Baker  900 

Spiering  v.  Andrae  628 

Spies  v.  Illinois  46,  457  459 

Spill  17.  Maule  647 

Spiller  v,  Woburn  263,  665 

Spillman  v.  Williams  588 

Splane  v.  Commonwealth  860 

Split  Rock  Cable  Road  Co.,  Re  767 

Spooner  v.  McConnell  65,  56,  176 

Sporrer  v.  Eifler  11,  685 

Spragg  v.  Shriver  151 

Sprague  v.  Birdsall  566 

v.  Brown  99 

v.  Fletcher  38 

v.  Norway  929 

v.  Tripp  306 

v.  Worcester  784,  786 

Spraigue  v.  Thompson  688 

Spreckler  v.  Wakeley  406,  408,  521 

Spreckles  v.  Spreckles  513 

Sprigg  v.  Telegraph  Co.  394 

Spriggins  v.  Houghton  928 

Spring  17.  Russell  700 

Springer  v.  Foster  34,  417 

v.  United  States  680,  748 

Springfield    v.    Connecticut    River 

R.  R.  Co.  757,  789,  791 

v.  Doyle  358,  363 

v.  Green  717 

v.  Le  Claire  356,  362 

t7.  Springfield  St.  Ry.  Co.  393 

Springfield  F.  &  M.  Ins.  Co.  v.  Kes- 

seville  305 

Springfield,   &c.  R.  R.  Co.  v.  Cold 

Spring  319 

v.  Hall  760 

Spring    Valley    Water    Works     v. 

Barber  720 

v.  San  Francisco  565,  872 

v.  San  Mateo  W.  Works  778 

v.  Schottler  394 

Springville  City  v.  Thomas  458, 460 

Squire  v.  Mudgett  408 

Staats  v.  Washington  285 

Stackhonse  v.  Lafayette  356 

Stackpole  v.  Hallahan  900 

17.  Hennen  633 

Stacy  17.  Vermont  Central  R.  R.  Co.    761 

St.  Albans  v.  Bush  583 


Stamp  v.  Cass  Co.  310 

Stanchfield  v.  Newton  304 

Stand  if  ord  -.-.  Wingate  389 

Stanfield  v.  Boyer  607 

Stanfill  v.  Court  of  Co.  Kev.  265 

Stanford,  Matter  of  317 

17.  Worn  760 

Staniford  v.  Barry  136 

Stanley,  Ex  parte  440 

v.  Colt  146 

v.  Davenport  797,  806 

v.  Schwalby  27,  28,  524 

v.  Stanley  844 

t7.  State  178 

v.  Wabash  St.  L.  &  P.  Ry.  Co.      853 

17.  Webb  637,  638,  640 

Stannard's  Corners  R.  C.  A.  v.  Brandes 

767,  770 

Stanton  v.  Metropolitan  R.  C.  Co.        859 
St.    Anthony   Falls    W.   P.   Co.   v. 

Com'rs  26,  387,  863 

Stanwood  v.  Maiden  781 

Starbuck  v.  Murray  42,  583 

Starin  v.  Genoa  140,  320 

Starkweather  v.  Bible  Society  180 

Starr  v.  Camden,  &c.  R.  R.  Co.     791,  806 

v.  Pease  156,  157 

State,  Ex  parte  1 19 

v.  Adams          138,  370,  372,  393,  534, 

896,  941 

17.  Adams  Exp.  Co.  163,  570 

v.  Agee  694 

v.  Ah  Chew  885 

v.  Ah  Sam  205,  208 

v.  Aiken  848 

v.  Albee  459 

17.  Aldrich  904 

v.  Algood  195,  205 

v.  Allen  466,  656,  591,  655 

17.  Allmond  845 

17.  Alman  452,  468 

17.  Almy  454 

17.  Alston  709 

v.  Arabs  676,  869 

v.  Amery  250 

v.  Anderson        183, 456, 893,  899, 900 
17.  Applegarth  690,  713 

v.  Arlin  376,  377 

v.  Armington  680 

17.  Arms  899 

t7.  Armstrong  144 

v.  Ashbrook  558,  837 

v.  Ashley  237 

r.  Askew  99 

17.  Associated  Press  877 

v.  Atwood  629 

17.  Avery  937 

v.  Auditor  517,  529 

t7.  Austin  288 

v.  Babcock  121,  272 

v.  Bacon  194 

v.  Bailey  224,  878 

v.  Baker  99,  906,  907 

17.  Balch  628 

r.  Baltimore,  &c.  R.  R.  Co.      517,  675 
v.  Bank  410 


TABLE   OF   CASES. 


Cl 


Page 

Pag* 

State  v.  Bank  of  South  Carolina          410 

State  v.  Brewster                                93,  99 

v.  Banker's,  &c.  Association          212 

v.  Broadbelt                                     882 

v.  Barbee                                      97,  529 

v.  Brock  man                                    445 

v.  Harden                                            923 

v.  Brookhart                                       96 

v.  Barge                                            282 

v.  Brooks                          441,  446,  469 

v.  Barker                          244,  386,  859 

v.  Brown     129,  177,  195,  423,  462,  485 

v.  Barnes                                             101 

v.  Brown  &  S.  Mfg.  Co.                   568 

v.  Barnett                                             46 

v.  Brunetto                                       452 

v.  Barrels  of  Liquor                        850 

v.  Brunst                                             389 

v.  Barrett                                  402,  485 

v.  Buchanan                         62,  73,  891 

v.  Bartlett                                 177,  448 

v.  Buck                                             451 

v.  Bate                                              941 

v.  Buckeley                                    897 

v.  Bates                                               47 

v.  Bundy                                           437 

v.  Battle                                              469 

v.  Bunker                                         276 

v.  Beacon                                          183 

v.  Burbridge                                     929 

v.  Beal                                              449 

v.  Burdge                                  164,  880 

v.  Beattie                                          287 

v.  Burdick                                        900 

v.  Beddo                                           215 

v.  Burgdoerfer                         212,  574 

v.  Bee  Pub.  Co.                                646 

v.  Burgoyne                                     400 

v.  Behimer                                       470 

v.  Burlington                                    303 

v.  Belvel                                            436 

v.  Burlington  &  Mo.  Ry.  Co.          194 

v.  Beneke                          163,  170,  591 

v.  Burnett                                         938 

v.  Benham                                        470 

v.  Burnham             612,  619,  630,  636, 

v.  Bennett                                 177,  709 

648,  658 

v.  Berg                                      934,  936 

v.  Burns                                            462 

v.  Berka                                            205 

v.  Burr                                                481 

v.  Berkley                                           441 

v.  Butman                                        644 

v.  Berlin                                   555,  849 

v.  Butt                                                 129 

v.  Bernoudy                                     372 

v.  Butts                                               906 

v.  Berry                                              217 

v.  Buzine                                            39 

v.  Beswick                                        451 

v.  Buzzard                                        499 

v.  Bibb  St.  Ch.                                661 

v.  Cadigan                                          38 

v.  Bienvenu                                      619 

v.  Cain                                      215,  217 

v.  Billings                                           572 

v.  Caldwell                                       689 

»;.  Binder                                  893,  931 

v.  Callendine                            467,  468 

v.  Bishop                                            66 

v.  Callicut                                 «79,89l 

v.  Bixman                                           686 

v.  Camden  Common  Pleas              183 

v.  Black                             899,  900,  923 

v.  Cameron                                       447 

v.  Blaisdell                                        469 

v.  Campbell                  12,  52,  451,  882 

v.  Bland                                            893 

v.  Canfield                                        507 

v.  Blasdel                                            89 

v.  Cape  Girardeau,  &c.  R.  R.  Co.     49. 

v.  Bloom                                           898 

253 

v.  Blossom                                        897 

v.  Cape  May  (59  N.  J.  L.)              297 

v.  Board  of  Assessors  (55  N.  J.  L.)  690 

v.  Cape  May  (59  N.  J.  L.)              297 

v.  Board  of  Assessors  (57  N.  J.  L  )  690 

v.  Cape  May  (59  N.  J.  L.)              298 

v.  Board  of  Education    262,  263,  679 

v.  Capital  City  Dairy  Co.       849,  882 

v.  Board  of  Health                            853 

v.  Cardozo                                        253 

v.  Board  of  Ins.  Com'rs                     38 

v.  Carew                                           414 

v.  Board  of  Liquidation                  262 

v.  Carman                                         458 

v.  Boardtnan                                      289 

v.  Can                                     363,  896 

v.  Bode                                              900 

v.  Carro                                              46 

v.  Bond                                     224,  906 

v.  Carroll                                    898,  928 

v.  Bonnell                                         275 

v.  Cassidy                                   284,  710 

v.  Bonney                                         575 

v.  Cavers                                  920,  935 

v.  Boone  County  Court                     74 

v.  Cawood                                          62 

v.  Borowsky                                      458 

v.  Central  N.  J.  T.  Co.                   762 

v.  Bostick                                         445 

v.  Chambers                                     444 

v.  Boswell                                         436 

v.  Champeau                                      468 

v.  Bott                                       675,  676 

v.  Chandler                 43,  670,  671,  672 

v.  Boucher                                        159 

v.  Chapel 

v.  Bowers                                  206,  209 

f.  Chapman                                      848 

t\  Bracco                                             694 

v.  Charleston    691,  728,  745,  868,  935 

v.  Branin                                    266,  267 

v.  Chicago  M.  &  St.  P.  Ry.  Co.    837, 

v.  Brassfield                                       893 

889 

v.  Brecht                                             469 

v.  Chicago,  &c.  Ry.  Co.   (70 

v.  Brennan's  Liquors               434,  591 

Iowa)                                 787,  875 

Cll 


TABLE   OF   CASES. 


Page 

Page 

State  v.  Chicago,  &c.  Ry.  Co.  (40 

State  v.  Crawford                                  437 

Minn.)                                       875 

v.  Creeden                                        848 

v.  Church                                          924 

v.  Crenshaw                                     284 

v.  Churchill                                        592 

v.  Crescent  City  C.  Co.                   882 

v.  Cincinnati                             348,  722 

v.  Cross                                             216 

i:  Cincinnati  Gas  Co.             306,  562, 

v.  Croteau                                          464 

789,  797 

v.  Crounse                                        222 

v.  Circuit  Court        174,  213,  455,  646 

v.  Crowell                                         661 

v.  City  Council  of  Charleston        8r>9 

v.  Crummey                                     280 

v.  Clark                      183,  202,  285,  470 

v.  Cumberland  R.  R.  Co.                707 

v.  Clarke    247,  279,  284,  285,  286,  895, 

v.  Cummings                      52,  177,  372 

932 

v.  Cunningham  (81  Wis.)   74,  931,  932 

v.  Clausmeire                           424,  425 

v.  Cunningham  (83  Wis.)          74,  931 

v.  Cleaves                                         448 

v.  Curtis                                           469 

v.  Clerk  of  Passaic          935,  937,  941 

v.  Dahl                                               60 

v.  Click                                             114 

?'.  Daley                                            616 

v.  Clinton                                           44!) 

v.  Dalton                           669,  885,  889 

v.  Coahoma  Co.                       220,  223 

v.  Danforth                                       472 

v.  Cobaugh                                       846 

v.  Daniels                                         927 

v.  Coffee                                           446 

v.  Davis                                    218,  458 

v.  Coleman                                       437 

v.  Dawson                                        478 

v.  Coleman  &  Maxcy                       505 

v.  Dean                                             717 

v.  Colgate                                         467 

v.  De  Gress                                      895 

v.  Collector  of  Jersey  City              743 

v.  Demorest                                     331 

v.  Collier                                          924 

r.  Denny    158,  166,  194,  218,  243,  248, 

v.  Colon                                              66 

334,  894 

v.  Commissioners                      217,  321 

v.  Dent                                       20,  890 

v.  Com'rs  of  Baltimore                    247 

v.  Denton                                         459 

v.  Com'rs  of  Clinton  Co.                 167 

v.  De  Ranee                                     437 

v.  Com'rs  of  Hancock                     167 

v.  Des  Moines                                   163 

v.  Com'rs  of  Ormsby  Co.                130 

v.  Dews                                             389 

v.  Com'rs  of  Perry  Co.            248,  249 

v.  Dierberger                                   898 

v.  Com'rs  of  R.  R.  Taxation           394 

v.  Dillon                                    900,  902 

v.  Com'rs  of  School,  &c.  Lands      414 

v.  Dimick                                            177 

v.  Common  Council  of  Madison    272 

v.  District  Board                              666 

v.  Common  Pleas                             676 

v.  District  Court              173,  722,  814 

v.  Cone                                       .       901 

v.  Divine                                          437 

v.  Congdon                                       453 

v.  Dodson                                          160 

v.  Connor                                         468 

v.  Doherty        153,  159,  505,  546,  938 

v.  Constantino                                  931 

v.  Dombaugh                                   248 

v.  Constitution                                 858 

v.  Donehey                                       849 

v.  Cook                                             487 

v.  Donewirth                                    937 

v.  Cooke                                    174,  400 

v.  Donovan                                       183 

v.  Cooler                                           381 

r.  Doron                                      89,  101 

v.  Cooley                                        740 

v.  Dortch                                          937 

v.  Cooper                                          470 

v.  Douglass                                      388 

v.  Copeland                     163,  173,  246 

v.  Dousman                                      249 

v.  Copp                                             453 

v.  Dow                                              879 

v.  Corbett                                 886,  887 

v.  Draper                          216,  389,  940 

v.  Cornell  (53  Neb.)                         696 

o.  Duckworth                                   854 

v.  Cornell  (60  Neb.)                         212 

v.  Duffy                                    657,  559 

v.  Corner                                          906 

».  Dugan                                          751 

v.  Corson                                          382 

v.  Duket                                           154 

».  County  Canvassers                     935 

v.  Dunning                                         161 

v.  County  Commissioners       555,  936 

v.  Du  Paquier                                  882 

v.  County  Com'rs  of  Baltimore     114, 

v.  Dwyer                                          279 

555 

v.  Eason                                            312 

v.  County  Court                       183,  742 

v.  Easterbrook                                 247 

v.  County  Court  of  Boone              182 

v.  East  Fifth  St.  Ry.  Co.                297 

v.  County  Judge                              936 

v.  Eby                                               674 

v.  County  Judge  of  Davis      205,  207 

v.  Echols                                  893,  908 

v.  Covington                             158,  214 

v.  Edwards  (La.  Ann.)                     381 

v.  Cowan                                   266,  280 

v.  Edwards  (86  Me.)                       871 

v.  Cox                                       246,  458 

v.  Eidson                                           722 

v.  Craig                                               694 

v.  Elder                                            938 

v.  Crane                                            594 

v.  Elizabeth  (66  N.  J.  L.)                182 

TABLE    OF   CASES. 


cm 


Page 

Page 

State  v.  Elizabeth 

(58  N.  J.  L.)             288 

State  v.  George                                159,  894 

v.  Elliott 

451 

v.  Georgia  Medical  Society           279 

17.  Ellis 

177,  225,  923 

v.  Gerger                                            215 

r.  Elting 

925 

v.  Gerhardt                               173,  845 

r.  Elwood 

914,  917,  920 

v.  Gerry                                            591 

i7.  Emery 

469 

v.  Gibbs                                    474,  936 

v.  Endom 

707 

v.  Gibson                                  455,  557 

v.  Engle 

487 

v.  Giles                                              932 

v.  Engleman 

775 

v.  Oilman                   3V,  189,  837,  849 

v.  Epliraitn 

•       467,  468 

v.  Gladson                                        852 

v.  Estabrook 

707 

v.  Gleason                                           132 

v.  Everett 

458 

v.  Glenn                     104,  115,  218,  455 

v.  Fagan 

220,  259 

v.  Godwin                                         259 

v.  Falley 

900 

17.  Goetze                                           909 

v.  Farris 

G61 

t7.  Goff                                               895 

v.  Feibleman 

895 

v.  Goldstucker                                  99 

v.  Felton 

437 

17.  Good                                             931 

v.  Ferguson 

211,  270,  271,  292,  529 

r.  Goodwill                        559,  572,  877 

v  Ferris 

709 

v.  Gordon                                         280 

v.  Fetter 

937 

v.  Gorham                                         690 

v.  Field 

170,  173 

17.  Governor  (5  Ohio  St.)                 162 

v.  Finch 

289 

v.  Governor  (25  N.  J.)             162,  935 

t7.  Findley 

902 

w.  Governor  (39  Mo.)                       162 

v.  Fire  Creek,  &c.  Co.    234,  559,  572, 

v.  Graham                                           262 

877 

v.  Graves           295,  299,  449,  813,  816 

v.  Fireman's  Fund  Ins.  Co.               66 

v.  Gravette                                561,  563 

v.  Fisher 

888 

v.  Green                    467,  560,  748,  893 

v.  Fiske 

294 

17.  Greer                                     393,  530 

v.  Fitzgerald 

451 

v.  Gregory                                        676 

v.  Fitzpatrick 

430,  591 

v.  Grey                                                62 

«.  Fleming 

138 

v.  Griffey                                  915,  920 

v.  Foley 

160,  336,  414,  860 

v.  Griffin                                    754,  880 

v.  Fooks 

441 

v.  Griswold                                 424,  442 

v.  Foraker 

202 

v.  Guilbert                                134,  569 

v.  Ford 

628 

v.  Guild                                     445,  447 

v.  Forkner 

164 

v.  Gurney                                  210,  591 

v.  Forshner 

647 

v.  Gut     '                                           209 

v.  Fosdick 

38 

v.  Gutierrez                                      242 

v.  Foster 

887,  888,  936 

v.  Guttenberg                                   531 

v.  Fox 

244 

i7.  Haben                           337,  343,  703 

v.  Fraelich 

832 

v.  Hager                                            469 

17.  Framburg 

452 

r.  Hairston                                       557 

v.  Francis 

173,  189,  194,  893,  937 

v.  Halifax                                          737 

i?.  Frank 

194 

v.  Hall                                           39,  41 

v.  Franklin  Falls  Co.                       524 

r.  Halliday                                        692 

v.  Franks 

922 

17.  Hallock                                           98 

v.  Frederic 

451 

t?.  Hamlin                                            708 

v.  Freeman 

243,  281,  285,  335,  452 

v.  Hammer                                       183 

v.  French 

708,  718 

v.  Hammonton                                 307 

v.  Frew 

643 

v.  Hannibal,  &c.  R.  R.  Co.              740 

v.  Friedley 

64 

v.  Harbourne                                    885 

v.  Fritz 

589 

v.  Hardin                                          449 

v.  Fry 

156 

v.  Harrington                           233,  888 

v.  Fuller 

711,  728 

v.  Harris                                           333 

i'.  Furnell 

709 

».  Harrison               209,  275,  935,  937 

17.  Gaffney 

695 

v.  Hart                                                311 

v.  Gaines 

215 

v.  Hartley                                         458 

t?.  Gammon 

91 

v.  Haskins                                        626 

v.  Garbroski 

184 

17.  Haun                                     568,  570 

v.  Gardiner 

443 

v.  Hawkins                               159,  183 

v.  Garesche 

372 

77.  Haworth                                       262 

v.  Garton 

685 

v.  Hawthorn                                     411 

t7.  Garvey 

447 

i?.  Hay                                               880 

v.  G  ates 

467,  917,  918 

?7.  Hayden                                         495 

v.  Gatzweiler 

405 

v.  Hayes                                              170 

v.  Geer 

879 

17.  Hayne                                   709,  935 

CIV 


TABLE    OF    CASES. 


Page 

Page 

State  v.  Hays                                        259 

State  v.  Johnson     115,  177,  451,  530,  691, 

v.  Heard                                           105 

932,  937,  938 

v.  Hebrew  Congregation                661 

v.  Johnson  (30  Fla.)                        159 

v.  Height                                          443 

v.  Johnson  (61  Kan.)                       130 

v.  Henderson                            159,  215 

v.  Johnson  (18  Mont.)                     900 

v.  Henley                                            67 

v.  Jones  (5  Ala.)                      464,  466 

v.  Henry                                              466 

v.  Jones  (  19  Ind.)              275,  909,  929 

v.  Heppenheimer  (54  N.  J.  L.)        768 

v.  Jones  (21  Md.)                             621 

v.  Heppenheimer  (58  N.  J.  L.)       740 

v.  Jones  (50  N.  H.)                          437 

v.  Hernan                                         580 

v.  Jones.  (7  S.  E.  Rep.)                    453 

v.  Herod                                            283 

v.  Jones  (66  Ohio)                           183 

v.  Heyward                                      392 

v.  Jones  (6  Wash.)                           195 

v.  Heywood                                      207 

».  Judge            225,  595,  675,  940,  941 

f.  Hicks                                            876 

v.  Judge  of  Co.  Court                     257 

r.  Higgins                                 425,  570 

v.  Judges                                    28,  144 

v.  Higgs                                            289 

v.  Julow                              67,  560,  887 

v.  Hilbert                                  395,  396 

v.  Jumel                                            499 

v.  Hill                                289,  935,  936 

v.  Justices  of  Middlesex                 937 

v.  Hilmantel      906,  913,  914,  932,  941 

v.  Kalb                                              388 

943 

v.  Kanouse                                        462 

v.  Hinman                                        560 

v.  Kansas  City                         741,  825 

v.  Hitchcock                               74,  182 

v.  Karstendick                          287,  884 

v.  Hoagland                      173,  183,  208 

v.  Kason                                           468 

v.  Hoboken                                      283 

v.  Kattleman                                    470 

v.  Hocker                                          592 

v.  Kaufman                                      468 

v.  Hockett                                         133 

v.  Keenan                                         884 

v.  Hogan  (63  Ohio)            16,  473,  558 

v.  Keith                               62,  281,  376 

v.  Hogan  (24  Mont.)                        900 

v.  Kelly                                     177,  452 

v.  Hogriever                                     859 

v.  Kelsey                                     73,  104 

r.  Holcomb                                       286 

v.  Kemp                                            462 

v.  Holden                                          166 

v.  Kempf                                           190 

v.  Holladay                                       121 

v.  Kennedy                                       849 

v.  Holleyman                                   848 

v.  Kenney                                         557 

v.  Hooker                                         451 

v.  Kennon                                 101,  158 

v.  Hopper                        134,  137,  138 

f.  Kent                                              460 

v.  Hoskins                                845,  880 

v.  Keokuk                                         740 

v.  Hosmer                                         589 

v.  Kettle                                            470 

v.  Hostetter                                      896 

v.  Kiesewetter                         118,  218 

v.  Howell                                  218,  220 

v.  King                                                90 

v  Hoyt                                             437 

v.  Kinsella                                        213 

v.  Hudson  Co.                                  355 

v.  Kirke                                   481,  895 

v.  Hudson  County  Bd.,  &c.             827 

v.  Kirkley                                 165,  274 

v.  Hudson  Co.  Com'rs             163,  740 

v.  Kirkwood                                     162 

v.  Hufford                                            40 

v.  Kirschner                                      160 

v.  Humphreys                                  895 

v.  Klein                                             710 

».  Hundley                                       437 

v.  Klinger                                         437 

v.  Hunter                                 334,  573 

v.  Knight                                          177 

v.  Hurley                                          437 

v.  Knowles                                          19 

v.  Hutt                                              895 

v.  Kolsem                                          182 

v.  Hyde                                               159 

v.  Kramer                                         938 

v.  111.  Centr.  R.  R.  Co.                    205 

v.  Krebs                                            665 

r.  Ind.  &  I.  S.  R.  Co.                       853 

v.  Kreitzberg                                    887 

v.  Indiana  &  O.  G.  &  M.  Co.  853,  858 

v.  Kruttschnitt                                 236 

v.  Indianapolis                           556,  741 

v.  Lafayette  Co.  Court    209,  213,  236 

v.  Ingersoll                                         215 

i\  Laiche                                           199 

v.  Ins.  Co.                                         707 

v.  Lamberton                                    937 

r.  Itzcovitch                                       290 

v.  Lancaster                                       37 

v.  Jackman                       286,  784,  861 

v.  Lancaster  Co.                       212,  893 

v.  Jackson                 331,  557,  683,  878 

v.  Langlie                                           893 

v.  Jacksonville  St.  Ry.  Co.            803 

v.  Lansing                                         100 

v.  Jarrett                                          189 

v.  Lash                                                95 

v.  Jay                                                  655 

v.  Lathrop                                         707 

v.  Jefcoat                                         453 

v.  Layton                                          882 

r.  Jennings                                         267 

v.  Laverack                       790,  800,  804 

v.  Jersey  City          281,  292,  294,  717, 

v.  Lawrence                                     448 

840,  861 

v.  Lean                                      113,  225 

TABLE   OF  CASES. 


CV 


Page 

Page 

State  v.  Learned 

382 

State  v.  McNiell                                    167 

v.  Lebanon  &  N.  T.  Co. 

392 

v.  Mead                                             218 

v.  Le  Blanch 

177 

v.  Meek                                             863 

v.  Lee 

452,  467 

v.  Medbury                                 37,  674 

v.  Lehre 

603,  608,  656 

v.  Menaugh                                        899 

v.  Leiber 

887 

v.  Merchants'  Ins.  Co.                     725 

v.  Leonard 

262 

v.  Messenger                            623,  814 

v.  Lewis 

879,  938 

v.  Messmore                                     389 

v.  Linn  Co.  Court 

167 

v.  Metschan                                      120 

v.  Litchfield 

432 

v.  Metzger                                685,  920 

v.  Little 

467 

v.  Michel                                           187 

v.  Lock  wood 

458 

r.  Middleham                                   435 

v.  Loomis 

-   674,877 

v.  Mikesell                                       467 

v.  Lonsdale 

611 

v.  Miller     119,  209,  212,  268,  496,  547 

v.  Losatee 

204 

v.  Mills                                              740 

v.  Lowe 

437 

v.  Milwaukee  Gas  Co.                     562 

v.  Lowhorne 

447 

v.  Minnetonka                                    721 

v.  Lowry 

467 

v.  Missouri  Pac.  Ry.  Co.                 746 

v.  Ludwig 

280,  285 

v.  Mitchell                                499,  574 

v.  Lupton 

591 

v.  Mobile                                   804,  806 

v.  Lurch 

442 

v.  Moffltt                           162,  193,  863 

v.  Lyles 

237 

v.  Monahan                                      183 

v.  Mace 

93,  102 

v.  Montana  Ry.  Co.                        845 

v.  Mack 

286 

v.  Montclair  R.  Co.                          806 

v.  Macon  Co.  Court 

97 

v.  Montgomery                        322,  573 

v.  Main 

177,  878,  881 

v.  Mooney                                         459 

v.  Maine  Cent.  R.  R.  Co.                394 

v.  Moore  (Minn.)                             900 

v.  Manning 

382,  544 

v.  Moore  (104  N.  C.)                       555 

v.  Mannion 

451 

v.  Moore  (113  N.  C.)                 67,885 

v.  Mansfield 

458 

v.  Moran                                           900 

v.  Marler 

437 

v.  Morrill                                  463,  643 

v.  Mario  w 

937 

v.  Morris                                           400 

v.  Marshall 

882 

v.  Morris  Co.                                     174 

v.  Martin 

160,  470 

v.  Morristown                                  270 

v.  Mason 

922 

v.  Mott                                      282,  883 

v.  Mathews 

836 

v.  Mounts                                         202 

v.  Matthews 

191,  453 

v.  Mrozinski                                     879 

v.  Maxwell 

743 

v.  Munchrath                                     459 

v.  Mayhew 

104,  106,  506 

v.  Murphy  (130  Mo.)                       298 

v.  Maynard 

129 

v.  Murphy  (134  Mo.)               297,  298 

v.  Mayor,  &c. 

262,  299,  893 

v.  Murray                                 894,  932 

v.  Mayor  of  Newark 

394,  562 

v.  Myers                                           882 

v.  McAdoo 

372 

v.  Myrick                                           453 

v.  McAllister 

893 

v.  Nash                                              162 

v.  McBride 

60,  201 

v.  Neal                                61,  372,  902 

v.  McCabe 

604 

v.  Ned                                               467 

v.  McCallister 

99 

v.  Neff                                               244 

v.  McCann                119,  185,  212,  557 

v.  Nelson  (26  Ind.)                           467 

v.  McCarty 

459 

v.  Nelson  (66  Minn.)                        288 

v.  McClaugherty 

453,'  482,  509 

v.  Nelson  (62  Ohio)                 845,  880 

v.  McConnell 

194,  200 

v.  Nelson  (19  R.  I.)                  468,  470 

v.  McCracken 

209,211 

v.  Nelson  County                             697 

v.  McDaniel 

205,  933 

v.  Newark      210,  631,  535,  539,  748, 

v.  McDonald 

212 

868 

v.  McElroy 

900,  926 

v.  Newark  (37  N.  J.  L.)                  714 

v.  McGeary 

932 

v.  Newark  (53  N.  J.  L.)                   182 

v.  McGinley 

114 

v.  Newark  (54  N.  J.  L.)                    767 

v.  McGinnis 

461 

v.  New  Brunswick                           129 

v.  McGuire 

487 

v.  New  Haven,  &c.  Co.            165,  836 

v.  Mclver 

817 

v.  New  Orleans                411,  517,  711 

v.  McKee 

603 

v.  New  Orleans  &  L.  R.  Co.           284 

v.  McKenna 

436 

v.  Newton                                         466 

v.  McLellan 

240 

v.  Nichols                                          161 

v.  McMahon 

287 

v.  Noble                              95,  129,  139 

v.  McNally 

281 

v.  Nolan                                            436 

v.  McNaspy 

41 

v.  North                                          742 

CV1 


TABLE   OF   CASES. 


Page 

Page 

te  v.  Northern  Central  R.  R.  Co.     138 

State  v.  Prince 

468,  469 

v.  Norvell                                 467,  470 

v.  Pritchard 

468 

v.  Norwood                       616,  539,  644 

17.  Pugh 

183,  248 

v.  Noyes  (47  Me.)    149,  171,  172,  265, 

v.  Purdy 

923,  924,  925 

392,  399,  767,  838,  839 

v.  Quarrel 

458 

v.  Noyes  (87  Wis.)                           436 

v.  Quick 

452 

v.  Ober                                             449 

v.  Quimby 

647 

v.  O'Brien                                         726 

17.  Railroad  Co.                        8"  7,  859 

v.  O'Day                                           929 

v.  Kankin 

46,  281,  468 

v.  O'Flaherty                           382,  436 

17.  Ranscher 

888 

v.  Ohio  O.  Co.                                  880 

17.  Ranson 

205,  206 

v.  Old                                                906 

17.  Read 

459 

v.  Oleson                                          280 

t7.  Redemeier 

437 

v.  Olin                               914,  923,  942 

17.  Redman 

469 

v.  Oliver                                           452 

v.  Reed 

467 

v.  Omaha  C.  B.  R.  &  B.  Co.    690,  875 

17.  Reid 

128,  499 

v.  O'Neil                          474,  848,  850 

17.  Reis 

736 

v.  O'Neill                                  171,  265 

t7.  Reynolds 

167,  171,  462 

v.  Orange                                          925 

17.  Rice 

464 

v.  Orr                                                288 

17.  Rich 

232 

v.  Orton                                            495 

t7.  Richards 

694 

v.  Orvis                                    275,  909 

17.  Richardson 

40,  467 

v.  Osawkee                               317,  700 

v.  Richland 

530 

v.  Osborue                                        263 

v.  Richmond 

392,  496 

v.  Oskins                                           175 

17.  Richter 

39 

v.  Oswalt                                          467 

t7.  Rickards 

199 

17.  Palmer                                          212 

17.  Robart 

291 

v.  Parker    163,  165,  170,  172,  469,  742 

17.  Robb 

928 

v.  Parkinson                             104,  183 

17.  Robbins 

182,  574 

v.  Passaic                                          516 

i7.  Roberts 

283,  447 

v.  Paterson  (34  N.  J.)                      294 

v.  Robertson 

290 

v.  Patterson  (45  Vt.)                       466 

17.  Robinson 

237,  253,  459,  462,  846, 

v  Patterson  (63  N.  C.)                   466 

850,  888 

v.  Payne                                           437 

».  Robitshek 

288 

v.  Peace                                            464 

v.  Roby 

470,  885 

v.  Peacock                                        485 

17.  Rockafellow 

438 

v.  Pendergrass                                 486 

t7.  Rodman 

935,  936 

v.  Pennoyer                              560,  887 

v.  Rogers 

118,  217,  683,  849,  882 

v.  Peoples                                         657 

i7.  Rolle 

710 

17.  Perth  Amboy                              815 

17.  Rollins 

62 

v.  Peters                                           161 

t7.  Rook 

467 

v.  Peterson                       195,  454,  690 

17.  ROSS 

470 

v.  Pettineli                                       275 

17.  Russell 

900 

v.  Phalen                                  400,  410 

v.  Rutledge 

923 

v.  Philadelphia,  &c.  R.  R.  Co.        690 

t7.  Ryan 

20,  382,  456 

v.  Phillips                                 689,  911 

t7.  Sackett 

459 

v.  Phipps                                  180,  687 

17.  Santee 

563,  574 

v.  Pierce                            118,  915,  940 

t7.  Sarradat 

287,  887,  888 

v.  Pike                                              437 

17.  Saunders 

449,  452 

v.  Piland                                           624 

t7.  Sauvinet 

159 

v.  Pillsbury                                      731 

17.  Savannah 

281 

v.  Pinckney                                      530 

v.  Saxon 

923 

v.  Pittsburg,  &c.  Co.                        686 

v.  Scheele 

435 

v.  Plainfield                                      748 

v.  Scheve 

667 

t7.  Platt                              186,  193,  194 

17.  Schlemmer 

754,  837,  891 

v.  Poison                                           458 

17.  Schlenker 

882 

v.  Pond                                     174,  183 

17.  School  Board  Fund                     226 

v.  Portage                                         734 

v.  School  Dist. 

508,  524 

v.  Poston                                          899 

17.  Schoonover 

922 

v.  Powder  Mfg.  Co.                         216 

17.  Schuman 

669 

v.  Powell  (77  Miss.)          96,  132,  187 

17.  Scott 

166,  181,  587,  760,  876 

v.  Powell  (58  Ohio)                         859 

17.  Scougal 

572 

17.  Pratt                                     437,  693 

v.  Seavey 

334 

v.  Prescott                                        849 

17.  Seay 

177 

v.  Price                                             207 

t7.  Seymour 

761,  813 

i7.  Prichard                                     619 

v.  Shadle 

209 
bt. 

TABLE    OF   CASES. 


CV11 


Page 

Page 

State  v.  Shattuck                                    496 

State  v.  Stumpf                                       929 

v.  Shelby                                          499 

v.  Sullivan                                  543,  894 

v.  Shelly                                           486 

v.  Summons                                     438 

v.  Sheppard                                      290 

v.  Sumter  Co.                                     182 

v.  Sherod                                            882 

v.  Superior  Ct.  King  Co.        417,  827 

v.  Shores                                           222 

v.  Superior  Ct.  Milwaukee  Co.      130 

v.  Shumpert                                       46 

v.  Supervisors  of  Portage               924 

v.  Silver                            205,  206,  207 

v.  Sutfin                                            469 

v.  Simmons  Hdwe.  Co.                   443 

v.  Sutterfield                            324,  893 

v.  Simonds                                          265 

v.  Sutton                                             895 

v.  Simons                  144,  163,  602,  505 

».  Swearingen                                  932 

v.  Simpson                                         467 

v.  Swift                                 61,  194,  893 

v.  Sioux  City  O.  &  W.  Ry.  Co.      571 

v.  Swisher                                 163,  170 

v.  Skirving                                       909 

v.  Switzler                                696,  708 

v.  Slack                                             469 

v.  Swope                                             40 

v.  Slamon                                         431 

v.  Symonds                         99,  372,  902 

v.  Slevin                                   406,  548 

v.  Syphrett                                       656 

v.  Smily                                            606 

v.  Taft                                              290 

v.  Smith  (1  Bailey)                         161 

v.  Tait                                               462 

v.  Smith  (35  Minn.)                          205 

v.  Tally                                             464 

v.  Smith  (53  Mo.)                            437 

v.  Tappan          309,  333,  338,  702,  703 

v.  Smith  (90  Mo.)                            453 

v.  Taylor                                   462,  931 

v.  Smith  (35  Neb.)                           159 

v.  Telephone  Co.                                13 

v.  Smith  (44  Ohio)    185,  194,  240,  334 

v.  Tenant                                            291 

v.  Smith  (44  Tex.)                           217 

v.  Thierault                                      880 

v.  Smith  (14  Wis.)                   894,932 

v.  Thomas  (47  Conn.)                      451 

v.  Smyth                                           882 

v.  Thomas  (64  N.  C.)                       450 

v.  Snow                     246,  431,  465,  888 

v.  Thomas  (25  Mont.)                       183 

v.  Snowman                                       879 

v.  Thompson                     ..         97,  164 

i\  Somer's  Point                                183 

v.  Thome                                          134 

v.  South  Carolina  R.  R.  Co.            707 

v.  Thornton                                      466 

v.  South  Kingston                            190 

v.  Thorson                                          (54 

v.  Spier                                     467,  469 

v.  Thurston                                       216 

v.  Spokane                                        120 

v.  Tiedemann                                   262 

v.  Sponangle                                     748 

v.  Tim  me                                            60 

v.  Springer                                       336 

v.  Tipton                                          453 

v.  Squires          182,  209,  213,  529,  543 

v.  Tisdale                                          464 

v.  Staley                                           445 

v.  Toledo                                           697 

v.  Standard  Oil  Co.    179,  180,  253,  443 

v.  Tombeckbee  Bank              392,  414 

v.  Stanley                                         159 

v.  Tooker                                   96,  900 

v.  Stark                                            884 

v.  Tools                                              39 

v.  Starling                                        437 

v.  Topeka                                 279,  881 

v.  State  Canvassers                 935,  936 

v.  Towle                                           496 

v.  State  Med.  Ex.  Board                890 

v.  Traders'  Bank                             236 

v.  Staten    99,  162,  240,  370,  502,  505, 

v.  Travellers'  Ins.  Co.                     705 

509,  519 

v.  Treasurer                                     217 

v.  Steers                                            935 

v.  Trenton                                 183,  789 

v.  Sterling                                          400 

v.  Trenton  (51  N.  J.  L.)                  293 

v.  Stewart                   41,  183,  458,  778 

v.  Trenton  (53  N.  J.  L.)                  298 

v.  St.  Joseph                                    931 

v.  Trenton  (61  N.  J.  L.)                  713 

v.  St.  Louis                                       893 

v.  Trenton  Pass.  Ry.  Co.                803 

v.  St.  Louis  (145  Mo.)                     804 

v.  Trumpf                                         932 

v.  St.  Louis  (161  Mo.)                     298 

v.  Trustees  of  Union                      167 

v.  St.  Louis,  &c.  Ry.  Co.                630 

v.  Tucker                                          182 

v.  St.  Louis  Cathedral                     210 

v.  Tuckman                                      730 

v.  St.  Louis  Co.  Court                     345 

v.  Tufly                               60,  214,  892 

v.  Stone                                            458 

v.  Tugwell                                        646 

v.  Stone  (118  Mo.)                           886 

v.  Turner                                            577 

v.  Stone  (120  Mo.)                           162 

v.  Tuttle                            247,  902,  937 

v.  Stout                                             716 

v.  Underwood                                  177 

v.  Strauder                                       437 

v.  Union                    206,  207,  531,  535 

v.  Strauss                                           885 

v.  Vaigneur                                      447 

v.  Street  Commissioners                 883 

v.  Vail                                         591,  932 

v.  Stripling                                       876 

v.  Van  Baumbach                            388 

v.  Stucker                                         846 

v.  Van  Beek                                     894 

v.  Studt                                            217 

v.  Vanderbilt                                  263 

cvm 


TABLE    OF   CASES. 


Page 

State  v.  Vanderpool  41 

v.  Vandersluis  887,  890 

v.  Van  Home  167 

v.  Vansant  452 

v.  Virginia  &  T.  Ry.  Co.  693 

v.  Wabash,  &c.  Ry.  Co.  843 

v.  Wagener  (69  Minn.)  887 

v.  Wagener  (74  Minn.)  456 

v.  Wagener  (77  Minn.)  661,  569,  886, 

887 

v.  Walker  205,  469 

v.  Wall  593 

v.  Walsh  (62  Conn.)  923 

v.  Walsh  (136  Mo.)  182 

v.  Wapello  Co.  318,  325 

v.  Ward  449,  468,  469 

v.  Warford  215 

v.  Warmoth  162 

v.  Warren  540,  574,  937 

v.  Washington  469 

v.  Watson  911 

v.  Webber  261 

v.  Webster  890 

v.  Weir  163,  171,  173 

v.  Welch  281,  285 

v.  Wendler  194,  218 

v.  Wentworth  449 

v.  West  436 

v.  Western  U.  Tel.  Co.  853 

v.  Weston  121,  895 

v.  Wheeler  247,  846,  849,  850 

v.  Wheelock  848 

v.  Whisner  221 

v.  Whitaker  (48  La.  Ann.)  471,  474 
v.  Whitaker  (160  Mo.)  845,880 

v.  Whitcomb  162 

v.  White  184,  453,  658,  665 

v.  Whitworth  86 

v.  Wiggin  693 

v.  Wilburn  499 

v.  Wilcox  163,  166,  167,  170,  174,  265 
v.  Wilkesville  330 

v.  Wilkinson  464 

v.  Williams  99,  286,  878,  382,  431, 

917 

r.  Williams  (68  Conn.)  244,  269,  340 
v.  Williams  (18  Wash)  437 

v.  Willingham  858 

v.  Wilmington  City  Council  895 

v.  Wilson  183,  382,  895,  935 

v.  Wilson  (61  Kan.)  887 

v.  Wiltz  389,  451 

v.  Winkelmeier  893 

v.  Winters  687 

v.  Winton  482 

v.  Wiseman  469 

r.  Witham  449 

v.  Wolfer  674 

v.  Wollem  930 

v.  Woodfin  453 

v.  Woodmansie  672 

v.  Woodruff  68 

v.  Woodruff,  &c.  Co.  689 

v.  Woodson  129 

v.  Woodward  120,  400 

v.  Worden  458 


State  v.  Workman  879 

v.  Wright  188,  216,  547 

v.  Wrightson  894 

v.  Wurts  61 

v.  Yard  ley  408 

v.  Young  144,  207,  212,  213,  909 

v.  Young  (31  Fla.)  592 

v.  Zeno  886 

v.  Zophy  690 

State  Auditor  v.  Jackson  Co.  113 

State  Bank  v.  Curran  895 

v.  Knoop  85 

State  Board  v.  Central  R.  R.  Co.  706 

State  Board  of  Tax  Com'rs  v.  Holli- 

day  739 

State  Census,  In  re  74 

State  Center  v.  Barenstein  284 

State  Freight  Tax  Case  688 

Staten  Island  Trans.  Co.,  Matter  of   764, 

780 

State  Prison  v.  Day  389 

State  Railroad  Tax  Cases  706 

State  Tax  on  Foreign-Held  Bonds    693, 

694,  695,  720 

State  Tonnage  Tax  Cases  691 

State  Treasurer  v.  Auditor  General     706, 

720 

Stay  ton  v.  Rulings  114 

St.  Charles  v.  Nolle  720 

St.  Clair  v.  Cox  42,  856 

Steamship  Co.  v.  Jolliffe  858 

v.  Port  Wardens  691 

Stearns  v.  Barre  164,  753,  778,  815 

v.  Gittings  521,  522,  524 

v.  Minnesota  396,  739 

Stebbins  v.  Com'rs  Pueblo  Co.  136 

v.  Jennings  278 

Steck  v.  Colorado  F.  &  I.  Co.  590 

Steckert  v.  East  Saginaw  201 

Steele  v.  Boston  301 

v.  Calhoun  911,  930 

v.  County  Com'rs  765 

v.  Gellatly  614 

v.  Smith  43 

v.  Southwick  606,  607 

v.  Spruance  653 

Steenerson  v.  Great  N.  Ry.  Co.  873 

Stein  v.  Bienville  Water  S.  Co.  565 

v.  Burden  757 

v.  Mobile  167,  404 

Steinecke  i?.  Marx  629 

Steiner  v.  Ray  882 

Steines  v.  Franklin  Co.  324 

Steinman,  Ex  parte  482,  509 

Steketee  v.  Kimm  606 

Stemper  v.  Higgins  930,  940 

Stensoff  v.  State  894 

Stephens  v.  People  (,*08 

Stephenson  v.  Bd.  of  El.  Com'rs  899 

Sterling  v.  Jackson  808 

v.  Jugenheimer  605 

Sterling's  Appeal  791 

Sternberger  r.  Railroad  Co.  875 

Stetson  v.  Kempton  266,  327,  749 

Stettinus  v.  United  States  464 

Steuart  v.  Baltimore  691 


TABLE  OF  CASES. 


C1X 


Page 

Stevens  v.  Andrews  414 

v.  Middlesex  Canal  777 

v.  Muskegon  300 

v.  Paterson,  &c.  R.  R.  Co.  786 

v.  Rutland,  &c.  R.  R.  Co.  394 

r.  Sampson  637 

v.  State  437,  509 

Stevenson  v.  Colgan  255 

v.  Lexington  301 

v.  School  Directors  262 

Steward  t;.  Jefferson  166 

Stewart  v.  Blaine  191 

v.  Clinton  304,  783 

v.  Father  Mathew  Society  212 

v.  Griffith  146 

v.  Hartman  765 

v.  Hunter  506 

v.  New  Orleans  357 

v.  Peyton  936 

v.  Potts  709 

17.  Riopell  205 

v.  Ripon  363 

v.  Stewart  42 

v.  Supervisors  of  Polk  Co.  167 

v.  Swift  Spec.  Co.  606 

v.  Trevor  712 

v.  W.  &  L.  E.  Ry.  Co.  28 

Stewarts'  Application  758,  768 

Sticknoth's  Estate  538,  541 

Stiefel  v.  Maryland  Inst.  212 

Stiles  v.  Nokes  637,  639 

Stiltz  v.  Indianapolis  721 

Stilwell  v.  Kellogg  590 

Stine  v.  Bennett  224 

Stingle  v.  Nevel  217 

Stinson  v.  Smith  220 

Stipp  v.  Brown  521 

Stirling  v.  Winter  522 

Stitzell  17.  Reynolds  605 

St.  Johnsbury  v.  Thompson  279,  284 

St.  Joseph  v.  Anthony  717 

r.  Ernst  709 

r.  O'Donohue  717,  730 

v.  Rogers  320,  321 

St.   Joseph   &   Gr.    Is.   Ry.   Co.   v. 

Palmer  853 
St.  Joseph,   &c.   R.  R.   Co.  v.  Bu- 
chanan County  Court  99,  167 
v.  Callender 
St.  Louis  v.  Alexander 
v.  Allen 


761 
167 

266,  270 
271 

279,  280,  287 
710 
266,  279,  280,  859 


v.  Bell  Tel.  Co. 

v.  Bentz 

r.  Bowler 

v.  Cafferata 

».  Consol.  Coal  Co. 

v.  Dorr  267,  278 

r.  Foster  118 

v.  Goebel  281 

17.  Green  .  285 

v.  Gurno  296 

v.  Heitzeberg  P.  &  P.  Co.       289,  883 

v.  Hill  572,  787 

v.  Knox  282 

v.  Oeters  737 


v.  Russell 


265,  266,  268,  347 


St.  Louis  v.  Russell  (116  Mo.)  293 

t?.  Sclmuckelberg  883 

v.  Schoenbusch  280 

v.  Shields  182 

v.  Spiepel  287 

v.  St.  Louis  R.  R.  Co.  287 

v.  Tiefel  204,  207 

v.  Weber  279,  281,  282,  284 

17.  Western  U.  Tel.  Co.  297,  689 

St.  Louis,  A.  &  T.  Ry.  Co.  v.  Fire  Ass'n   180 
v.  Henderson  827 

St.  Louis,  H.  &  K.  C.  Ry.  Co.  v. 

Hannibal  U.  1).  Co.  758 

St.  Louis  Iron  M.  &  S.  Ry.  Co.  v.  Paul       1 5 

v.  Petty  766,  767,  778 

v.  Worthen  708 

St.   Louis   &    S.   F.   R.   R.  '  Co.   v. 

Evans,  &c.  Brick  Co.  817 

17.  Foltz  763,  777 

v.  Gill  397,  872,  873,  875 

v.  Matthews  16,  841,  842 

St.  Louis,  &c.  Co.  v.  Harbine  407 

St.  Louis,  &c.  R.  R.  Co.  v.  Clark  89 

v.  Loftin  396 

v.  Richardson  823 

r.  Teters  761 

17.  Vickers  25 

St.  Louis,  I.  M.,  &c.  Co.  v.  Berry          397 

v.  McCormick  181 

St.  Mary's  Industrial  School  v.  Brown  698 

Stock  v.  Boston  362 

v.  Jefferson  783 

Stockard  v.  Morgan  689 

Stockbridge  v.  West  Stockbridge         277 

Stockdale  v.  Hansard  193,  651 

17.  State  499 

Stocking  v.  Hunt  406,  410,  516 

u.  State  237,  253,  465 

Stockton  17.  Powell  200,  864 

v.  Whitmore  766 

Stockton,  &c.  R.  R.  Co.  v.  Stockton     167 

Stockwell  u.  White  Lake  692 

Stoddard  v.  Martin  924 

Stoddart  v.  Smith  237 

Stokes,  In  re  495 

u.  New  York  286 

v.  People  382 

v.  Scott  Co.  318 

Stone  v.  Basset  413 

v.  Charlestown  265,  268 

v.  Cooper  607 

v.  Dana  430 

17.  Graves  859 

v.  Inh.  of  Heath  825 

v.  Mississippi  176,  400,  885 

v.  New  York  757 

v.  School  District  275 

Stoner  v.  Flournoy  722 

Stoney  v.  Life  Ins.  Co.  321 

Storey  v.  Challands  611 

v.  People  454,  643 

v.  Wallace  637 

Stork  v.  Philadelphia  826 

Storrie  v.  Houston  City  St.  Ry.  Co.      861 

Storrs  v.  Utica  362 

Storti,  Re  473 


ex 


TABLE  OF  CASES. 


Storti  v.  Com.  375 

Story  v.  Furnam  406,  407 

v.  New  York  Elevated  Railway 

Co.  799 

Story's  Case  799,  800 

Stoughton  v.  State  867 

Stout  v.  Hyatt  54 

v.  Keyes  521 

v.  Martin  751 

Stoutenburg  v.  Frazier  425,  478 

Stover  v.  People  449 

Stow  v.  Wise  275,  449 

Stowell  v.  Lord  Zouch  91 

Stowers  v.  Postal  Telph.  Co.         801,  804 

St.  Paul  v.  Coulter  292 

v.  Gilfillan  883 

v.  Seitz  362 

v.  Smith  285 

v.  Traeger  281,  285,  291 

v.  Umstetter  129 

?>.  Chicago  M.  &  St.  P.  Ry.  Co.      298 

St.  Paul  Gas  Light  Co.  v.  St.  Paul       405 

St.  Paul  M.  &  M.  Ry.  Co.  v.  Pbelps     105 

p.  Minneapolis  807 

v.  Todd  Co.  396 

St.  Paul  &  N.  P.  Ry.  Co.,  In  re    756,  775, 

778 

St.  Paul,  &c.  R.  R.  Co.  i>.  Gardner        689 
v.  Parcher  396 

St.  Paul  Un.  Depot  Co.  v.  St.  Paul       807 
Strader  v.  Graham  64 

Strafford  v.  Sharon  617 

Strahl,  Ex  parte  495 

Strang,  Ex  parte  897,  928 

Strait  v.  Strait  680 

Stratton  v.  Collins  711,  739,  750 

Strauch  v.  Shoemaker  630 

Strauder  v.  West  Virginia       19,  655,  559 
Strauss  v.  Heiss  218 

v.  Meyer  630,  647 

v.  Pontiac  291 

Street  v.  New  Orleans  346 

Street  Railroad  Co.  v.  Morrow  531,  694, 

738 

Street  Railway  v.  Cumminsville  785,  797, 

802 

Streety  v.  Wood  619,  620 

Streight  v.  Durham  712 

Streitwolf  v.  Streitwolf  44,  679 

Streubel  v.  Milwaukee,  &c.  R.  R.  Co.   617 
Striker  v.  Kelley  114 

Stringfellow  v.  State  446 

Strode  v.  Washer  626 

Stroebel  v.  Whitney  606 

Strong  v.  Clem  614 

v.  Daniel  259 

v.  State  376,  378 

Strosser  v.  Fort  Wayne  642 

Stroud  v.  Philadelphia  736,  861 

Strout  v.  Proctor  482 

Struthers  v.  Phila.  &  D.  C.  Ry.  Co.       827 
v.  R.  R.  Co.  791 

Stryker  v.  Goodnow  33 

St.  Tammany  Water  Works  v.  New 

Orleans  Water  Works  383,  402 

Stuart  17.  Blair  896 


Page 

Stuart  v.  Clark  8til 

v.  Commonwealth  470 

v.  Hamilton  93 

v.  Kinsella  209,  213 

v.  Laird  103,  lUo 

v.  Mechanics',  &c.  Bank  693 

v.  Palmer  722 

v.  School  District  261 

v.  Warren  642 

Stubbs  v.  Lea  895 

Stump  c.  Hornback  653 

Stupp,  Re  495 

Sturdevant  v.  Norm  614 

Sturgeon  v.  Kitchens  209 

v.  Korte  908 

Sturges  i7.  Carter  631,  738 

i;.  Crowinshield  45,  89,  407,  409,  416, 

449 

Sturgis  v.  Hull  629 

v.  Spofford  645 

Sturm  v.  Fleming  622 

Sturoc's  Case  643 

Sturtevant  v.  State  497 

Stutsman  Co.  v.  Wallace  32 

Stuyvesant  v.  New  York  278,  843 

Sublett  v.  Bedwell  895,  932 

Suburban   R.  T.  Co.  v.  New  York 

(128N.  Y.)  806 

v.  New  York  (135  N.  Y.)  758 

Succession  of  Lanzetti  208 

Succession  of  Tanner  129 

Succession  of  Townsend  681 

Sue,  The  840 

Suesenbach  v.  Wagner  40 

Suffolk  Witches,  Case  of  444 

Sullings  17.  Shakespeare  658 

Sullivan  v.  Adams  257 

v.  Blackwell  585 

17.  Haug  672 

v.  Oneida  282,  382,  431,  437 

Sully  v.  Am.  Natl.  Bk.  30,  38 

Sultan,  Re  41 

Summer  v.  Mitchell 

Summers  v.  Com'rs  Daviess  Co.  305 

Summerville  v.  Pressley  837 

Summons  v.  State  451 

Sumner  v.  Beeler  259 

17.  Buel  608 

v.  Hicks  33 

v.  Miller  616 

Sunberg  17.  Babcock  607 

Sunbury  &  Erie  R.  R.  Co.  v.  Cooper    258 

v.  Hummel  786 

Sunderlin  v.  Bradstreet  611 

Sun   Mutual   Ins.  Co.   v.  Board  of 

Liquidation  262 

t7.  New  York  204,  255 

Sun  P.  &  P.  Ass'n  v.  New  York    318,  &M 

Supervisors  v.  Davis  940 

t7.  People  195,  208 

v.  United  States  33 

17.  Wisconsin  Cent.  R.  R.  Co.         631 

Supervisors,  &c.  v.  Keenan  194 

u.  People  208 

Supervisors  of  Doddridge  v.  Stout      120, 

760 


TABLE   OF   CASES. 


CXI 


Page 

Supervisors  of  Du  Page  v.  People        9'29 
Supervisors  of  Election  130,  133 

Supervisors  of  Iroquois  v.  Keady          224 
Supervisors  of  Jackson  v.  Brush  294,  324 
Supervisors  of  Knox  Co.  v.  Davis         246 
Supervisors  of  Sadsbury  v.  Dennis       336 
Supervisors  of  Schuyler  Co.  v.  Peo- 
ple 200,  201 
Surgett  v.  Lapice  104 
Susquelianna  Canal  Co.  v.  Wright       786 
Susquehanna  Depot  v.  Barry                332 
v.  Simmons                                      362 
Sutherland  v.  De  Leon                           615 
Sutliff  v.  Board  of  Com'rs      320,  322,  323 
Sutton  v.  Asken  514 
v.  Board                                            355 
v.  State                                             478 
v.  State  (96  Tenn.)                          556 
v.  Tiller  764 
Sutton  Hospital,  Case  of                       278 
Sutton's  Heirs  v.  Louisville           823,  824 
Suydam  v.  Moore                            836,  842 
v.  Williamson                       33,  34,  144 
Suydham  v.  Broadnax  417 
Swain  v.  McRae  937 
v.  Mizner                                          435 
Swan  v.  Williams                      54,  755,  777 
Swann,  Ex  parte                                       473 
v.  Buck                             118,  194,  217 
Swan  Point  Cera.  v.  Tripp  741 
Swanson  v.  Ottumwa                             272 
Swart  v.  Kimball                            458,  459 
Swartwout  v.  Railroad  Co.                     216 
Swayze  v.  Hull                                        198 
Swearingen,  Ex  parte  40 
Sweeney  r.  Baker                           624,  628 
v.  Chicago,  &c.  Ry.  Co.                  865 
v.  Hunter                                          408 
v.  McLeod                                        198 
Sweet  v.  Rechel                       754,  770,  814 
Swepston  v.  Barton                         929,  932 
Swift  v.  Calnan                                       841 
v.  Fletcher                                        406 
v.  Newport                                        720 
v.  People                                         671 
v.  Sutphin                                        854 
v.  Tousey  62 
v.  Tyson                                      35,  130 
v.  United  States                               106 
v.  Williamsburg                       273,  324 
Swift's  Estate,  Re                                   709 
Swindle  v.  Brooks                                   647 
Swindell  v.  State                                    187 
Sydnor  v.  Palmer                                    138 
Symonds  v.  Carter                                  607 
o.  Clay  Co.                                          355 
Synod  of  Dakota  v.  State                      664 
Syracuse  Bank  v.  Davis                 531,  636 
Syracuse  W.  Co.  v.  Syracuse       297,  383, 

393 


T. 


Tabor  v.  Cook 
Tacoma  v.  Kreech 
v.  State 


590 
292 
762 


Page 

Tafoya  v.  Garcia  217 
Taft  v.  Adams  389 
Taggart  v.  Claypole  671 
Tainter  v.  Worcester  274,  301 
Tait's  Exec.  v.  Central  Lunatic  Asy- 
lum 398,  777 
Talbot  v.  Dent  167,  313 
v.  Fidelity  &  C.  Co.  179 
v.  Hudson                  253,  697,  770,  815 
v.  Talbot  614 
v.  Taunton  363 
Talcott  v.  Philbrick  923 
Talkington  v.  Turner  917 
Tallman  v.  Janesville  540,  545 
Tampa,  St.  R.  &  P.  Co.  v.  Tampa  S. 

Ry.  Co.  595 

Tanner  v.  Albion  265,  883 

v.  Alliance  860 

Tappan  v.  School  District  262 

Tarble's  Case  26,  494 

Tarbox  v.  Sughrue  922,  932,  933 

Tarleton  v.  Baker  924 

Tarlton  v.  Fisher  192 

v.  Peggs  221 

Tarpley  v.  Hamer  406 

Tash  v.  Adams  310 

Tate  v.  Bell  254 

v.  Greensboro  298 

v.  Railroad  Co.  304 

v.  Stooltzfoos  638 

Tate's  Executors  v.  Bell  237,  254 

Taunton  v.  Taylor  853 

Tayloe,  Ex  parte  438 

Taylor  v.  Beckham  (Ky.)  64,  74 

v.  Beckham  (178  U.  S.)  509 

v.  Bleakeley  900 

v.  Boyd  716,  730 

v.  Chambers  80 

w.  Church  611 

v.  Commissioners  of  Ross  Co.      242, 

249 

v.  Commonwealth  159 

v.  Cumberland  801 

v.  French  87 

t7.  Hall  606 

v.  Hawkins  647,  649 

v.  Marcy  814,  816 

v.  McCracken  83 

v.  Miles  627 

v.  Nashville,  &c.  R.  R.  Co.  764 

r.  Newberne  167 

17.  Peckham  303 

t7.  Penn.  Co.  181 

17.  Place  132,  137,  162 

v.  Plymouth  767 
v.  Porter     128,  134,.  503,  508,  754,  765 

v.  Sample  614 

17.  Skrine  898 

v.  State  469,  886 

v.  Stearns  414 

t7.  St.  Louis  29(3 
t7.  Taylor   101,  892,  929,  930,  935,  037 

v.  Thompson  331 

v.  Wilson  218 

v.  Ypsilanti  33 

Tebbe  v.  Smith  911,  929 


CX11 


TABLE   OF   CASES. 


Tecumseh  v.  Phillips  212 

Teel  v.  Yancey  138 

Teft  v.  Teft  154,  558 

Telefson  v.  Fee  23 

Telegram  M.  Co.  v.  Com.  455 

Telegraph  Co.  v.  Texas  689 

Templar  v.  Examining  Bd.  of  Bar- 
bers 889 
Temple  v.  Mead                       123,  911,  912 
Templeton  v.  Linn  Co.  68 
Ten  Eyck  ».  D.  &  R.  Canal           316,  764 
Tennessee  v.  Davis                 20,  24,  26,  29 
v.  Sneed                                            406 
».  Whitworth                                   397 
Tennessee,  &c.  R.  R.  Co.  v.  Adams     789 
v.  Moore                                            162 
Tenney  v.  Lenz                                       284 
Tenney's  Case                                        643 
Terre  Haute  v.  Evansville  &  T.  H. 

Ry.  Co.  159,  758 

v.  Hudnut  302 

Terre  Haute,  &c.  R.  R.  Co.  v.  Bissell  786, 

791,  797 

r.  McKinley  826 

Terrett  v.  Taylor    234,  244,  343,  386,  391 

Terrill  v.  Rankin  517 

Territorial  Ins.  Asylum  v.  Wolfley       162 

Territory  v.  Ah  Lim  572 

v.  Connell  845 

v.  Daniels  726 

v.  Evans  879 

v.  Guyot  849 

v.  Ketehum  473 

P.  O'Connor  174, 194,  849,  851 

v.  Pyle  389 

v.  Richardson  160 

v.  Romine  459 

v.  School  District  183 

v.  Scott  165 

v.  Stewart  165 

Terry,  Ex  parte  455 

v.  Anderson  623 

v.  Bright  607 

v.  Fellows         627,  629,  637,  639,  647 

Teutonia  Ins.  Co.  v.  O'Connor  288 

Texas  v.  White  8,  8,  11,  45,  63 

Texas  &  P.  Ry.  Co.  v.  Rosedale,  &c. 

Co.  794 

v.  So.  Pac.  Ry.  Co.  30,  44 

Texas  &  St.  L.  Ry.  Co.  v.  Cella  825 

Texas  B.  &  I.  Co.  v.  State  710 

Texas,  Mex.  Ry.  Co.  v.  Locke  409 

Texas  W.  Ry.  Co.  v.  Cave  826 

Thacker  v.  Hawk  564 

Thames  Bank  v.  Lovell  865 

Thames  Manuf.  Co.  v.  Lathrop    114,  545, 

712 

Tharp  v.  Fleming  149 

Thatcher  v.  Powell  33 

Theobold  v.  Louisville,  &c.  Ry.  Co.      791, 

802 

Theresa  Drainage  Dist.,  Re  762,  770 

The  Slave  Grace  "422 

Tliien  v.  Voegtlander  772 

Thieson  v.  McDavid  280 

Third  Cong.  Soc.  v.  Springfield  740 


Page 
Third  Nat.  Bk.  v.  Divine  Grocery 

Co.  880 

Third  Nat.   Bank   of  Louisville  v. 

Stone  682 

Thistle  v.  Frostbury  Coal  Co.  407 

Thomas's  Appeal  252 

Thomas,  Ex  parte  093 

v.  Board  of  Commissioners  182 

v.  Collins  218,  529 

v.  Croswell  629 

v.  Dakin  278 

v.  Dunnaway  608 

v.  Gain  712,  729,  736 

v.  Hubbell  82 

v.  Leland  338,  340,  543,  679,  735 

v.  Mason  696 

v.  Owens  99 

v.  People  455 

v.  Railroad  Co.  52 

v.  Richmond  274,  320 

v.  Scott  225,  530 

v.  State  685 

v.  Stickle  751 

v.  Wabash,  St.  Louis  &  P.  Ry. 

Co.  211 

Thorn  ason  v.  Ruggles  60 

Thomasson  v.  State  845 

Thompson,  Ex  parte  495,  547 

v.  Alexander  629 

v.  Bunton  14 

v.  Caldwell  622 

v.  Carr  370 

v.  Circuit  Judge  935 

v.  Commonwealth  410,  447 

v.  Luverne  213 

v.  Missouri  382 

v.  Morgan  637,  640 

».  Pacific  R.  R.  Co.  682 

v.  Pittston  311,  333 

v.  Read  522 

v.  Reed  522 

v.  Schermerhorn  294 

v.  State  447,  679,  684 

r.  Steamboat  Morton  676 

v.  Taylor  43 

v.  United  States  469 

v.  Utah  374,  453,  458 

v.  Waters  178,  180 

v.  Whitman  42,  43 

Thomson  v.  Booneville  294 

v.  Lee  Co.  167,  320,  542 

v.  Grand  Gulf  R.  R.  Co.  246 

Thomson-Houston  El.  Co.  v.  Simon     762 

Thorington  v.  Montgomery  4(5 

v.  Smith  412 

Thorn  v.  Blanchard  618 

Thorndike  v.  Camden  308 

Thorndyke  v.  Boston  904 

Thome  v.  Cramer  163 

Thornton  v.  McGrath  629 

v.  Territory  174 

v.  Turner  517,  523 

Thorpe  v.  Rutland  &  Burlington  R.  R. 

Co.        128,  176,  316,  396,  399,  831,  834, 

841,  843 
Thrap  v.  Fleming  149 


TABLE  OF  CASES. 


CXU1 


Threadgill  v.  Railroad  Co.  898 

Thrift  v.  Elizabeth  City  279 

Throop  v.  Langdon  895 

Thunder  Bay,  &c.  Co.  v.  Speedily  807,  865 

Thurber  v.  Blackbourne  42 

Tliursfield  v.  Jones  361 

Thurston  v.  Little  749 

v.  St.  Joseph  304 

v.  Thurston  80,  146 

Thweatt  v.  Bank  544 

v.  Howard  751 

Tide-water  Canal  Co.  v.  Archer  822,  823 

Tide  Water  Co.  v.  Costar  704,  706 

Tiernan  v.  Rinker    250,  687,  688,  846,  858 

Tierney  v.  Tierney  156 

Tiffany  v.  Stewart  82 

v.  U.  S.  111.  Co.  787 

Tift  v.  Griffin  626,  585 

Tildon  v.  Blair  834 

Tillinghast  v.  Can-  193 

Tillman  v.  Arlles  458 

v.  Cocke  132,  249 

v.  Shackleton  95 

Tillson  v.  Robbins  629 

Tilton  v.  Swift  531 

Timm  v.  Harrison  208 

Tims  v.  State  257,  454 

Tindal  v.  Wesley  24 

Tindley  v.  Salem  305 

Tingue  v.  Port  Chester  205 

Tinicum  Fishing  Co.  v.  Carter  781 

Tinkler  v.  Cox  52 

Tinsley  v.  Anderson           15,  21,  453,  493 
Tinsman  v.  Belvidere  &  Del.  R.  R. 

Co.  316, 786 
Tioga  R.  R.  Co.  v.  Blossburg,  &c. 

R.  R.  Co.  80 

Tipton,  Re  194 

v.  Locomotive  Works  564 

v.  Tipton  579 

Title  Guaranty  Co.  v.  Wrenn  556 

Titus  v.  Boston  808 

Titusville  Iron  Works  v.  Keystone 

Oil  Co.  136,  200 

Tod,  Ex  parte  39 

v.  Wick  13 

Todd  v.  Birdsall  348 

v.  Election  Com'rs  900 

v.  Hawkins  611 

v.  Kankakee,  &c.  R.  R.  Co.  825 

v.  Kerr  679,  580 

v.  Munson  478 

v.  Rough  605 

v.  Troy  362 

Toffey  v.  Atcheson  413 

Toledo  v.  Cone  306 

Toledo,  &c.  R.  R.  Co.  v.  Deacon  836 

v.  East  Saginaw,  &c.  Co.  766 

v.  Jacksonville                 285,  400,  843 

Toledo,  &c.  Ry.  Co.  v.  Detroit  806 

v.  Munson  825 

Toledo  Bank  v.  Bond  395 

Tolen  v.  Tolen  679 

Toll  v.  Wright  621 

Tomlin  v.  Dubuque,  &c.  R.  R.  Co.      394, 

786 


Page 

Tomlinson  v.  Branch  394 

v.  Indianapolis  297 

v.  Jessup  394 

Tonawanda  v.  Lyon  714 

Tonawanda  R.  R.  Co.  v.  Hunger  788, 842 

Tong  v.  Marvin  95,  513 

Toogood  v.  Spyring  647,  648 

Tool  Company  v.  Norris  198 

Topeka  v.  Boutwell  288 

Torbush  v.  Norwich  301 

Toronto,  &c.  R.  Co.  v.  Crookshank      237 

Torrey  v.  Corliss  529 

».  Field  631,  637,  647 

v.  Milbury  112,  749 

Touchard  v.  Touchard  360 

Tourne  v.  Lee  884 

Towanda  Bridge  Co.,  Re  758,  759 

Tower  v.  Lamb  688 

Towle  v.  Brown  269 

v.  Eastern  Railroad  516,  528 

v.  Forney  146 

r.  Marrett  217 

Towler  v.  Chatterton  525 

Town  of  Pawlet  v.  Clark        343,  386,  391 

Townsend  v.  Des  Moines  363 

v.  Griffin  156,  585 

v.  Kendall  684 

v.  State  880 

v.  Todd  47 

v.  Townsend  114 

Trabue  v.  Mays  606 

Tracy  v.  Elizabethtown,  &c.  R.  R.  Co.   778 

Trade-mark  Cases  11 

Tragesser  v.  Gray  848,  885,  889 

Train  v.  Boston  Disinfecting  Co.  688, 854 

Trainor  v.  Wayne  Co.  Aud.  159 

Trammell  v.  Russellville  306 

Transportation  Co.  v.  Chicago       510,  781, 

782 

v.  Parkersburg  691 

v.  Wheeling  691 

Travellers'  Ins.  Co.  v.  Brouse  413 

r.  Connecticut  706 

v.  Frick  179 

v.  Johnson  City  323 

Traver  v.  Merrick  Co.  700 

Tray  hern  v.  Colburn  83 

Traylor  v.  Lide  682 

Tread  way  o.  Schnauber  64 

Treat  v.  Lord  862,  863 

Treat  Mfg.  Co.  v.  Standard  Steel  & 

I.  Co.  590 

Tredway  v.  Railway  Co.  841 

Tremain  v.  Cohoes  Co.  786 

Trenton  Water  P.  Co.  v.  Roff  786 

Trestor  v.  Missouri  P.  R.  Co.  763 

Trevett  v.  Weeden  55,  229 

Trevino  v.  Trevino  579 

Trice  v.  Hannibal,  &c.  R.  R.  Co. 
Trigally  v.  Memphis  265 

Trim  v.  Macpherson 

Trimble  v.  Anderson  606 

v.  Foster  606 

Trinitarian  Cong.  Soc.  v.  Union  Cong. 

Soc.  660 

Trinity  &  S.  Ry.  Co.  v.  Meadows    809,  812 


CX1V 


TABLE    OF   CASES. 


Tripp  v.  Goff  202 

v.  Overocker  817 

v.  Santa  Rosa  St.  Ry.  Co.  27 

Trist  P.  Child  198 

Troia,  Matter  of  439 

Trombley  v.  Auditor-General        765,  756 

Troppman,  Trial  of  442 

Trott  v.  Warren  277 

Troup  v.  Haight  104 

Trowbridge  v.  Spinning  44 

Troy  v.  Winters  286 

Troy  &  Boston  R.  R.  Co.  v.  Lee  823 

v.  Northern  Turnpike  Co.  785 

Truchelut  v.  Charleston  642 

True  v.  Davis  267 

v.  Plumley  606 

Truehart  v.  Addicks  929 

Truman  v.  Taylor  607 

Trussell  v.  Scarlett  611 

Trustees  v.  Bailey  132,  138,  560 

v.  Davenport  722 

v.  McCaughy  615,  531,  536 

v.  McConnell  743 

v.  Schroeder  305 

Trustees   of  Atlanta  University  v. 

Atlanta  758, 762 

Trustees  of  Cass  v.  Dillon  330 

Trustees  of  Erie  Academy  v.  Erie        267 
Trustees  First  M.  E.  Ch.  v.  Atlanta    669, 

741 

Trustees  of  Griswold  College  v.  State     741 
Trustees  of  Kentucky  F.  O.  S.  v. 

Louisville  741 

Trustees  of  M.  E.  Church  v.  Ellis        740 
Trustees  of  Paris  v.  Cherry  167 

Trustees  of  Richmond  Co.  Academy 

v.  Augusta  720 

Trustees  of  Schools  v.  Tatman     266,  268, 

339,  345,  389 

Trustees  of  University  v.  Mclver  60 

Trustees   of   Vincennes  University 

v.  Indiana  392 

Trustees  of  W.  &  E.  Canal  v.  Spears     786 
Trustees,  &c.  v.  Auburn  &  Rochester 

R.  R.  Co.  316,  806 

v.  Bailey  132 

v.  Champaign  Co.  695 

v.  Shoemaker  167 

Tuckahoe  Canal  Co.  v.  Railroad  Co.    662, 

665,  757 

Tucker  v.  Aiken  898,  928 

v.  Harris  374 

v.  Magee  486 

v.  Virginia  City  272,  312 

Tucker  et  «/.,  Trials  of  476 

Tuaman  ».  Chicago  265,  282,  288 

Toiler,  In  re  86,  529 

Tullis  v.  Fleming  39 

v.  Lake  Erie  &  W.  Ry.  Co.         15,  34 

Tally,  Ex  parte  619 

Tuolumne  Redemption  Co.  v.  Sedg- 

wick  411 

Turin-vine  v.  Stampe  831 

Turley  v.  Logan  Co.  193 

Turlock  Irrig.  Dist.  v.  Williams  736 

Turnbull  v.  Giddings  191 


Page 

Turner,  Ex  parte  18 

Matter  of  423 

v.  Com'rs  247 

p.  Com'rs  of  Wilkes  Co.  31,  36 

v.  Malone  586 

p.  Maryland  687,  854 

v.  Newburgh  362 

v.  New  York  524 

p.  Richardson  30 

v.  State  376,  687,  889 

p.  Thompson  680 

Turnpike  v.  Champney  927 

Turnpike  Co.  v.  News  Co.  770 

v.  Davidson  Co.  392 

v.  People  85 

v.  State  549 

p.  Union  R.  R.  Co.  399 

p.  Wallace  316 

Tuscaloosa  Bridge  Co.  v.  Olmsted       209, 

213,  216 

Tuthill,  Re  735,  768 

Tuttle  v.  Cary  275 

v.  Justice  of  Knox  Co.  814 

v.  Strout  207 

Twambly  v.  Henley  82 

Twenty -second  Street,  In  re          398,  758 

Twitchell  v.  Commonwealth  46 

Tyler,  Ex  parte  24,  27 

Tyler  ».  Beacher  705,  765,  773,  775 

v.  Board  of  Registration  134,  508,  582 

v.  Judges  of  Registration  608 

v.  People  177,  237,  253 

P.  Tyler  85 

Tyrone  Sch.  Disk,  Appeal  of  807 

Tyson,  In  re  381 

Tyson,  Re  (13  Col.)  375 

v.  School  Directors         243,  311  332, 

333,  630,  697,  701 

Tyzee  P.  Commonwealth  458 


u. 


Uhrig  v.  St.  Louis  728 

Uffert  v.  Vogt  182 

Ulman  v.  Baltimore  730 

Uline  P.  N.  Y.,  &c.  R.  R.  Co.          783,  786 

Ullery  v.  Commonwealth  438 

Umlauf  v.  Umlauf  83 

Underbill  v.  Manchester  346 

v.  Welton  606,  607 

Underwood,  Matter  of  495 

v.  Lily  633,  638,  541 

p.  McDuffee  589 

p.  McVeigh  581 

p.  Wood  696 

Ungericht  p.  State  859 

Union  p.  Durkes  304 

Union  Bank  v.  Com'rs  of  Oxford  Co.     196 

».  Hill  684 

P.  State  62 

Union  C.  Life  Ins.  Co.  v.  Chowning     671 

Union  El.  Co.  v.  Kansas  City  S.  B. 

Ry.  Co.  828 

Union  Ferry  Co.,  Matter  of,         564,  757, 

775,  777 


TABLE   OF   CASES. 


CXV 


Page 

Union  Imp.  Co.  v.  Commonwealth  394 
Union  Ins.  Co.  v.  Hoge  104 

Union  Iron  Co.  v.  Pierce  136,  407,  544 
Union  Pac.  Ry.  Co.  v.  Botsford  424 

Union  Pac.  R.  R.  Co.  v.  United  States  105 
Union  Railway  Co.  v.  Cambridge  285 
Union  Hef.  Trail.  Co.  v.  Lynch  691 

Union  R.  R.  Co.  v.  Traube  80 

Union  Savings  Bank  v.  Taber  522 

Union  Trust  Co.  v.  Durfee  709 

Union  Water  P.  Co.  v.  Auburn  719 

United  Cos.  v.  Weldon  406 

United  N.  J.   Ry.  &  C.  Co.  v.  Natl. 

Docks,  &c.  806 

United  States,  Matter  of  Petition  of    756 
».  Ala.  G.  S.  Ry.  Co.  104 

r.  Alexander  783 

v.  Ames  177 

v.  Aredondo  25 

v.  Barney  48 

v.  Barr  217 

v.  Battiste  464 

v.  Bellingham  Bay,  &c.  862 

v.  Benner  450 

v.  Brown  237 

v.  Callendar  480,  613 

v.  Cashiel  468 

v.  Cathcart  11 

v.  Claflin  217 

v.  Conway  410 

v.  Coolidge  48 

v.  Cooper  613,  768 

v.  Cornell  177 

v.  Cox  444 

v.  Cruikshank       14,  19,  38,  418,  423, 
498,  568,  832,  922 

v.  Dallas  M.  R.  Co.  524 

v.  Davenport  470 

v.  DeWalt  436 

v.  DeWitt  11,  831 

v.  Fisher  89,  98 

v.  Forty-three  Gallons  of  Whisky  851 
v.  Fox  181,  440 

v.  French  493 

v.  Gale  251 

v.  Gettysburg  E.  Ry.      756,  758,  778, 

780 

v.  Gilmore  104 

v.  Goldman  901 

v.  Greathouse  464 

v.  Guiteau  177 

«.  Hamilton  438 

v.  Harris  18..777 

v.  Hartwell  388 

v.  Has  well  613 

v.  Hoar  524 

v.  Hudson  48,  453,  613 

v.  Hunter  433 

v.  Jailer  of  Fayette  492 

v.  .Joint-Traffic  Ass'n  687 

v.  Jones  438,  754,  756,  817 

v.  Kagama  177 

p.  Lancaster  48 

v.  Lee  24 

r.  Little  450 

v.  Lynch  30 


Page 

United  States  v.  Lyon  613 

t».  Mann  34 

v.  Marble  73 

v.  Marigold  46 

r.  McComb  451 

v.  McKee  160 

t7.  Minn.,  &c.  R.  R.  Co.  813 

v.  More  462 

v.  Morris  464 

r.  Morrison  33 

v.  Nashville,  &c.  Ry.  Co.  524 

v.  New  Bedford  Bridge  48, 54, 453, 866 

i'.  Northern  Securities  Co.  687 

v.  Ortega  450 

v.  Owens  684 

v.  Palmer  202 

v.  Parker  80 

v.  Parkhurst  D.  M.  Co.  26 

v.  Passmore  616 

v.  Percheman  25 

v.  Perez  468,  469 

v.  Perkins  680 

v.  Ragsdale  89 

v.  Railroad  Bridge  Co.  755 

v.  Railroad  Co.  685 

v.  Rauscher  41 

v.  Rector  494 

v.  Reed  760,  761 

v.  Reese  19,  120,  668,  832 

v.  Reynolds  54 

v.  Riley  464,  467 

v.  Rio  Grande  D.  &  I.  Co.  863 

v.  Sacramento  441 

v.  Samperyac  515 

v.  Snyder  682 

v.  State  468,  470 

v.  Taylor  464 

v.  Texas  23 

v.  Tierney  177 

».  Tobacco  Factory  25 

v.  Tract  of  Land,  &c.  778 

v.  Tynen  618,  544 

v.  Union  Pacific  R.  R.  Co.  202,  560 

a.  Waddell  14 

v.  Wilson  48,  465 

United  States  Bank  v.  Daniel  33 

v.  Halstead  103 

v.  Norton  26 

v.  Planters'  Bank  360 

United  States  Dist.  Co.  v.  Chicago  283,  709 

Unity  v.  Burrage  631,  555 

Universalist  Society  v.  Providence       741 

University  v.  Illinois  395 

v.  Skidmore  739 

University  of  N.  C.  v.  Foy  386 

Updegraph  v.  Commonwealth  671,  673 

Upjohn  ».  Board  of  .Health  881 

Upshaw,  Ex  parte  207,  209,  212 

Upton  v.  Hume  629,  644 

v.  South  Reading  Br.  R.  R.  823,  824 

Urquhart  v.  Ogdenburg  302 

Usher  v.  Colchester  333 

v.  McBratney  1S>8 

v.  Severance  638, 639,  640 

Utley  v.  Campbell  606 

Utter  v.  Franklin  535 


CXV1 


TABLE   OF   CASES. 


V. 


Vale  Mills  v.  Nashau  303 

Valin  v.  Langlois  128 
Valparaiso  v.  Chicago  &  G.  T.  Ry.  Co.  806 

v.  Hagen  782 

Van  Allen  v.  Assessors  683 

Van  Alstyne  v.  Railroad  Co.  82 

Van  Ankin  v.  Westfall  606 

Van  Antwerp,  Matter  of  212 

Van  Arsdale  v.  Laverty  618 

Van  Baalen  v.  People  283 

Van  Baumbach  v.  Bade  404,  406 
Van  Bokelen  v.  Brooklyn  City  R.  R.  Co.  34 

Van  Bokkelin  v.  Ingersoll  82 

Van  Broeklin  v.  Tennessee  683 
Van  Camp  v.  Board  of  Education        564 

Vance,  Ex  parte  291 

v.  Little  Rock  272 

v.  Vance  407 

v.  Vandercook  Co.  847 

Vanderberg,  Matter  of  195 

Vanderbilt  v.  Adams  400,  855 

Vanderhurst  v.  Bacon  252 

Vanderlip  v.  Grand  Rapids  788 

Vanderpoel  v.  O'Hanlon  904,  905 

Vanderslice  v.  Philadelphia  358 

Vanderzee  v.  McGregor  620 

Van  Deusen  v.  Newcomer  830 

Vandine,  Petitioner  286 

Van  Fossen  v.  State  42 

Van  Giesen  v.  Bloomfield  183 

Van  Hagan,  Ex  parte  495 

Van  Horn  v.  Des  Moines  301 

v.  People  678,  881 

Van  Home  v.  Dorrance  237 

Van  Inwagen  v.  Chicago  517 

Van  Kleek  v.  Eggleston  80 

Van  Ness  v.  Hamilton  606 

v.  Pacard  48,  51 

Van  Norman  v.  Gordon  45 

Van  Orsdal  v.  Van  Orsdal  579 

Van  Pelt  v.  Davenport  304,  363 

Van  Reipen  v.  Jersey  City  768 

Van  Rensselaer  v.  Ball    '  406,  515 

v.  Hays  406,  515 

v.  Kearney  33 

v.  Read  516 
v.  Snyder                          406,409,410 

Van  Riper  v.  North  Plainfield  212 
v.  Parsons                         183,  215,  563 

Vansant  v.  Harlem  Stage  Co.  283 

Van  Sly ke  v.  Ins.  Co.  129,139 

Vanvactor  v.  State  486 

Van  Valkenburg  v.  Brown  568,  901 
Van  Witsen  v.  Gutman          764,  775,  777 

Van  Wormer  v.  Albany  853,  854 

Van  Wyck  v.  Aspinwall  620,  629 
Vanzant  v.  Waddell       502,  504,  506,  559 

Varden  v.  Mount  506 
Varick  v.  Smith                      237,  777,  788 

Varner  v.  Martin  765 

Varney  v.  Justice  115,  930 

Vason  v.  Augusta  281 

Vasser  v.  George  717 

Vaughan  v.  Seade  458 

Vaughn  v.  Ashland  745 


Vaughn  v.  Harp 
Vausse  v.  Lee 
Veazie  v.  China 

v.  Mayo 

v.  Moore 

Veazie  Bank  v.  Fenno 
Veeder  v.  Lima 


Page 
130 
630 
110 

836,  843 
864 

680,  681,  685 
274,  323 


Vega  Steamship  Co.  v.  Con.  El.  Co.     527 
Venard  r.  Cross  772 

Veneman  v.  Jones  285 

Venice  v.  Murdoch  321 

Veon  v,  Creaton  848 

Verges  v.  Milwaukee  Co.  561 

Verner  v.  Carson  80 

v.  Simmons  896 

v.  Verner  629 

Vesta  Mills  v.  Charleston  164 

Vestal  v.  Little  Rock  721,  722 

Vickers  v.  Stoneman  619 

Vicksburg  v.  Tobin  691 

Vicksburg  &  M.  R.  R.  Co.  v.  Lowry  162 
Vicksburg  S.  &  P.  R.  R.  Co.  v.  Den- 
nis 396 
Vicksburg  W.  W.  Co.  v.  Vicksburg  393 
Victory,  The  30 
Vidal  v.  Girard's  Executors  670 
Vigo  County  v.  Stout  130 
Vilas  v.  Milwaukee,  &c.  R.  R.  Co.  819 
Vinas  v.  Merch,  &c.  Co.  630 
Vincennes  v.  Citizens  Gas  L.  &  C. 

Co.  ,  288,  297 

v.  Richards  302,  783 

Vincennes  University  v.  Indiana  54 

Vincent  v.  Nantucket  309,  311 

Violett  v.  Violett  550 

Violette  v.  Alexandria  712,  731 

Virginia,  Ex  parte  18,  19,  492,  555 

v.  Rives  19,  556 

v.  Tennessee  36 

Vischer  v.  Vischer  578,  580 

Vise  v.  Hamilton  Co.  477 

Vogel  v.  Gruaz  478 

v.  State  895 

Vogle  v.  Pekoe  556 

Voglesong  v.  State  676,  859 

Voight  v.  Wright  655 

Von  Hoffman  v.  Quincy  415 

Voorhees,  Matter  of  39 

Vose  v.  Morton  677 


W. 

Wabash,  &c.  Co.  v.  Beers  386 

Wabash,  &c.  Ry.  Co.  i;.  Illinois  874 

Wabash  Ry.  Co.  v.  Defiance  297 

v.  Tourville  42 
Wabash,  St.    L.   &  P.    Ry.   Co.   v. 

McDougall  783 

Waco  v.  Powell  286 

Wade  v.  La  Moille  320 

v.  Richmond  267 

v.  State  452 

v.  Travis  Co.  32 

v.  Walnut  33 

Wadleigh  v.  Gilman  286,  878 


TABLE   OF   CASES. 


CXV11 


Page 

Wadsworth's  Adm'r  v.  Smith  86i 
Wadsworth  v.  Union  Pac.  Ry.  Co.  67<5 
Wagaman  v.  Byers 

Wager  v.  Troy  Union  R.  R.  Co.  791,  794 

Wagner  v.  Bissell  5! 

v.  Gage  Co.  824 

v.  Railway  Co.  817,  818 

Wahoo  v.  Dickinson  144,  165 

Wait  v.  Ray  26: 

Waite  v.  Merrill  660 

Walcott  v.  People  690 

Walcott  W.  M.  Co.  v.  Upham  657 

Waldo  v.  Portland  330 

v.  Waldo  679 

Waldron  v.  Haverhill  306 

v.  Rensselaer,  &c.  R.  R.  Co.  836,  84i 
Wales  v.  Lyon 

v.  Stetson 

v.  Wales 
Walker  o.  Allen 

v.  Caldwell 

v.  Chapman 

v.  Cincinnati 


80 

392,  56. 
406 
861 

204,  216 
712 

109,  128,  167,  184 
236,  240 

r.  Deaver  614 

v.  Dunham  207 

v.  Harbor  Commissioners 
v.  Jameson  562 

v.  New  Mexico,  &c.  Ry.  Co.  32 

v.  Oswald  893 

v.  Peelle  389 

v.  Sanford  929,  930 

v.  Sauvinet  18,  46 

v.  Southern  Pac.  Ry.  Co.  690 

v.  Springfield  710 

v.  State  209,  212,  481 

v.  Taylor  31 

v.  Towle  881 

v.  Villavaso  30 

v.  Whitehead  411 


Wall,  Ex  parte 

v.  State 

v.  Trumbull 

Walla  Walla  v.  W.  W.  Water  Co. 
Wallace,  In  re 

v.  Georgia  C.  &  N.  Ry.  Co. 

v.  Menaslia 

i'.  Meyers 

v.  Richmond 

r.  Sharon  Trustees 

v.  Shelton 
Waller  v.  Loch 
Walling  v.  Michigan 
Wallis  v.  Bazet 
Walls,  Ex  parte 
Wally's  Heirs  v.  Kennedy 
Walnut  v.  Wade 
Walpole  r.  Elliott 
Walschlager  v.  Liberty 
Walsh,  Re 

v.  Barron 
.      v.  Columbus,  H.  V.  &  A.  Ry.  Co. 

r.  State 
Walston  v.  Commonwealth 

v.  Nevin 
Walter  v.  Bacon 


121,  163,  170,  173,  482 
176 

585,  587 
383 
481 
604 
305 
708 

310,  878 
267 

717,  736 
610 

688,  693 
651 
481 

502,  659 

186,  218,  274,  546 
242 
327 
442 


714 
26 

187 

382 
20 

631 


Page 

Walter  v.  People  382 

Walters  v.  Duke  710 

Waltham  v.  Kemper  335,  356 

Walther  v.  Warner  813,  817 

Walton  v.  Develing  910 

v.  Greenwood  163 

Walton's  Lessee  v.  Bailey  638 

Waltz  v.  Waltz  579 

Wamesit  Power  Co.  v.  Allen  760 

Warn  mack  v.  Holloway  937 

Wanek  v.  Winona  424 

Wanser  v.  Atkinson  251,  511 

Wantlan  v.  White  627 

Wanzer  v.  Howland  587 

Warbiglee  v.  Los  Angeles  303 

Warburton  v.  White  32 

Ward  v.  Barnard  517 

v.  Boyce  42 
v.  Farwell                         407,  589,  887 

v.  Flood  263,  657 

v.  Greencastle  292 

v.  Greenville  285 
v.  Maryland        37,  667,  684,  685,  693 

v.  Morris  693 

v.  New  England,  &c.  Co.  146 

v.  Peck  788 

v.  Race  Horse  291 

v.  State  446 

v.  Warner  862 

Ward  law  v.  Buzzard  522 

Ware  v.  Hylton  9,  25 

v.  Little  751 

v.  Miller  408 

v.  Owens  514 

Warickshall's  Case  446 

Waring  v.  Jackson  33 

v.  Savannah  707 
Warner  v.  Bowdoin  Sq.  Bap.  Ch.          660 

v.  Curran  656 

v.  Grand  Haven  736 

v.  Paine  629,  634 

v.  People  388,  389 

v.  Scott  80 

v.  Trow  80 

Warren  v.  Board  Registration  903 

v.  Charlestown  246,  248 

v.  Chicago  722 

v.  Commonwealth  382 

v.  Glynn  588 
v.  Henley                          732,  734,  737 

v.  Lyons  City  344 

v.  McCarthy  42 

v.  Paul  684 

v.  Shuman  92 

v.  Sohn  20 

v.  State  465 
r.  St.  Paul,  &c.  R.  R.  Co.        765,  778 
Warren  Manuf.  Co.  v.  ./Etna  Ins.  Co.     38 

Warshung  v.  Hunt  630 

Wartman  v.  Philadelphia  888 

Warwick  v.  Underwood  80 

Wasliburn  v.  Franklin  517,  537 

v.  Milwaukee,  &c.  R.  R.  Co.  824 

v.  Oshkosh  722 

Washburne  v.  Cooke  611,  619 

Washington  v.  Hammond  281 


cxvm 


TABLE   OF   CASES. 


Washington  v.  Meigs  881 

v.  Nashville  860 

v.  Page  104,118,214 

Washington  Avenue  698,716,717, 

730,  734 

Washington  Bridge  Co.  v.  State   838,  840 
Washington  Co.  v.  Berwick  330 

v.  Franklin  R.  R.  Co.  206 

Washington  Gas  Light  Co.  v.  Dis- 
trict of  Columbia  357 
Washington  Home  v.  Chicago  121 
Washington  Ins.  Co.  r.  Price  592, 693,  595 
Washington  St.,  Re  184 
Washington  University  v.  Rouse  395 
Wason  v.  Walter  600,  627,  628,  639,  647 

882 

Wasson  v.  Wayne  Co.  Com.  718 

Waterbury  v.  Newton  846,  858 

Waterhouse  v.  Public  Schools  170 

Waterloo  W.  Mfg.  Co.  v.  Shanahan    697, 

775 

Waters  v.  Leech  281 

Waters-Pierce  Oil  Co.  v.  Texas     179,  386 
Watertown  v.  Mayo  854,  883,  886 

Watertown  Bank,  &c.  v.  Mix  691 

Waterville  v.  County  Commissioners  336, 

338 

v.  Kennebeck  Co.  269 

Water  Works  Co.  v.  Burkhart      217,  754 

775,  777,  796,  809 

Watkins,  Ex  parte  495,  496 

v.  County  Court  354 

v.  De  Armond  484 

v.  Haight  629 

v.  Holman's  Lessee  146 

v.  Inge  897 

v.  Walker  Co.  757 

Watson  v.  Avery  660 

v.  Blackstone  129 

v.  Jones  660,  661 

v.  Kent  218 

v.  McCarthy  606 

v.  Mercer  374,  537,  638,  543 

v.  Needham  302 

v.  New  York  Cent.  R.  R.  Co.  407, 409 

v.  State  177 

r.  Thurber  95 

v.  Town  of  Thorn  278 

Watson's  Case  177 

Watt  v.  People  449 

Watts  v.  Greenlee  607 

v.  Norfolk  &  Western  Ry.  Co.       827 

v.  State  440 

Waxahachie  v.  Brown  272 

Way  v.  Lewis  80 

v.  Way  91,  92 

Wayland  v.  County  Commissioners      695 

Way  man  v.  Southard  132 

Wayne  Co.  v.  Waller  477 

Wayrick  t.  People  459 

Weare  v.  Dearing  81 

Weaver  v.  Cherry  312 

v.  Davidson  County  66,  184 

v.  Lapsley         119,  138,  209,  212,  213 

v.  Mississippi,  &c.  Co.  787 

Webb  v.  Baird  477,  563 


Webb  v.  Beavan 

v.  Den 

v.  Dunn 

v.  State 
Webber  v.  Donnelly 


Page 
605 

625,  526 
691 
437 
850 


Weber  v.  Harbor  Commissioners          755 
v.  Morris,  &c.  80 

v.  Reinhard  237,  707,  728 

v.  State  468 

Webster  v.  Fargo  729 

v.  French  114 

v.  Harwinton  263,  266,  327 

v.  Reid  583,  586 

v.  Rose  414 

Webster,  Professor,  Trial  of  467 

Wecherley  v.  Guyer  927 

Weckler  v.  Chicago  813 

Weed  v.  Black  198 

r.  Boston  731 

v.  Donovan  532 

v.  Foster  647 

Weeks  v.  Gilmanton  268 

v.  Milwaukee  266,  545,  703,  717,  722, 
725,  732,  735,  742,  746,  883,  884 
Weet  v.  Brockport  356,  357 

Wehn  v.  Commissioners  302 

Weidenfield  v.  Sugar  Run  Ry.  Co.       767 
Weidenger  v.  Spruance  407,  511 

Weightman  v.  Washington  304,  356 

Weil  v.  Ricord  884 

Weill  v.  Kenfield  200,  214 

Weimer  v.  Bunbury  237,  506,  748 

Weir  v.  Cram  248 

v.  Day  262 

v.  St.  Paul,  &c.  R.  R.  Co.  754 

Weis  v.  Ashley  203 

Weise  v.  Smith  861,  862,  863 

Weismer  v.  Douglas  317,  698,  700 

Weiss -r.  Guerineau  58S 

v.  Whittemore  606 

Weister  v.  Hade        11,  242,  253,  331,  332 
633,  543,  679 

Welborn  v.  Akin  411 

Welch  v.  Hotchkiss  283,  286,  710 

v.  Post  212 

v.  State  38 

v.  Stowell  286,  884 

v.  Sykes  42 

v.  Wadsworth  416,  517,  633,  537 

Weldon  v.  Winslow  544 

Welker  v.  Potter  183 

Weller  v.  Burlington  301 

Wellington,  Petitioner  232,  246,  253 

v.  Boston  &  M.  Ry.  Co.  827 

Wellman,  In  re  194,  223 

v.  Wickerman  764 

Wells,  Ex  parte  210 

v.  Bain  69,  61 

v.  Burbank  748 

v.  Hyattsville  Com'rs  739 

v.  McClenning  80 

v.  Missouri  Pac.  Ry.  Co  222 

v.  People  262 

v.  Salina 

v.  Savannah  740 

v.  Scott  688 


TABLE  OF  CASES. 


CX1X 


Wells  v.  Somerset,  &c.  R.  R.  Co.         757 

v.  Supervisors  320 

v.  Taylor  925,  929 

v.  Weston  546 

Wells,  Fargo  &  Co.  Exp.  v.  Crawford  693 

Welsh  v.  St.  Louis  360 

Welton  v.  Dickson  764,  765,  775 

v.  Missouri  687,  688,  693 

Wendel  r.  Durbin  113 

Wenliam  v.  State  891 

Wenner  v.  Thornton  218 

Wenzler  v.  People  209,  218 

Werner,  Re  212 

v  Galveston  167 

Wernwag  v.  Pawling  43 

Werth  v.  Springfield  296 

West  v.  Bancroft  800 

v.  First  Pres.  Ch.  661 

v.  Sansom  410 

West  Branch,  &c.  Canal  Co.  v.  Mul- 

liner  783 

Westbrook,  Appeal  of  843 

v.  Deering  198 

v.  Miller  104 

West  Chicago  Park  Com'rs  v.  Mc- 

Mullen  183 

Westerfield,  Ex  parte  182 

Westerly  Water- Works  v.  Westerly    383, 

393 

Western  &  A.  Ry.  Co.  v.  Atlanta         884 

v.  State  24 

Western  &  A.  R.  R.  Co.  v.  Young       293, 

843 

Western  College  v.  Cleveland      301,  347, 

360 
Western  Fund  Savings  Society  v. 

Philadelphia  361 

Western  Ry.  Co.  v.  Alabama  G.  T. 

Ry.  Co.  803 

Western  R.  R.  Co.  v.  De  Graff  162 

Western  Union  Telegraph  Co.  v.  Call 

Pub.  Co.  48 

v.  Carew  281 

v.  Eubank  876 

v.  Freemont  689 

v.  Howell  853 

v.  Indiana  692 

v.  James  852 

v.  Massachusetts  683,  692 

v.  Mayer  679 

v.  Mayor  857 

v.  New  Hope  690 

v.  Pendleton  862,  858 

v.  Philadelphia  709 

r.  State  249,  297 

v.  Taggart  691 

v.  Williams  787,  804 

Westervelt  v.  Gregg        505, 513, 516,  517 
v.  Lewis  42 

Westfall  v.  Preston  .          750 

Westfield  Cem.  Ass'n  v.  Danielson       770 
West  Hartford   v.  Water  Commis- 
sioners 695 
Westingliausen  v.  People                 77, 132 
West  Jersey  R.  R.  Co.  v.  Cape  May, 
&c.  R.  R.  Co.  791 


Weston  v.  Barnicoat 

v.  Charleston 

v.  Foster 

v.  Loyhed 

v.  Syracuse 
West  Orange  v.  Field 


606 

45,  682,  683 
808 
590 

259,  306 
304 


West  River  Bridge  Co.  v.  Dix       398,  757 
West  Virginia  P.  &  T.  Ry.  Co.  v. 

Gibson  826,  827 

West  Virginia  Trans,   v.  Volcanic 

Oil  Co.  761,  763,  770 

West   Wisconsin  R.  Co.   v.   Super- 
visors of  Trempeleau  Co.          394,  395 
Wetherell  v.  Stillman  42 

Wetmore  v.  Multonomah  Co.  707 

Wetumpka  v.  Winter  167 

Weyerhauser  v.  Minnesota     21,  506,  748, 

749 

Weyl  v.  Sonoma  R.  R.  Co.  791 

Weymann  v.  Jefferson  296,  304 

Weymouth,  &c.  Fire  Commissioners 

v.  County  Com'rs  267,  269,  345 

Weyrich  v.  People  436 

Whalin  v.  Macomb  114 

Whallon  v.  Ingham  Circ.  Judge  240 

Wheat  v.  Ragsdale  941 

v.  Smith  894,  905,  908,  938,  940 

Wheaton  r.  Beecher  624 

v.  Peters  48,  52 

Wheeler  v.  Chicago  111,112 

v.  Chubbuck  223,  224 

v.  Cincinnati  301 

v.  Jackson  624 

v.  New  York,  N.  H.  &  H.  R.  Ry. 

Co.  26,  247 

v.  Patterson  927 

v.  Philadelphia  183 

v.  Plymouth  301 

v.  Rochester,  &c.  R.  R.  Co.  809 

v.  Shields  644 

v.  Spencer  924 

v.  State  209 

v.  Wall  238,  459 

Wheeling  &  B.  Bridge  Co.  v.  Wheel- 
ing Bridge  Co.  396 
Wheeling  Bridge  Case                   863,  866 
Wheelock  v.  Young                                766 
Wheelock's  Election  Case                    929 
Whipley  v.  McCune  929 
Whipple  v.  Farrar'  616 
Whitcomb's  Case  454 
White,  Ex  parte  40 
Re                                                     689 
v.  Barker  65 
v.  Buchanan                                    676 
v.  Carroll                                          629 
v.  Charleston                                  757 
v.  Clark                                          765 
v.  Com'rs  of  Norfolk  Co.                825 
v.  Crow                                             587 
v.  Farmer's  Highline  C.  &  R.  Co.  873 
v.  Flynn                                            627 
v.  Hart                                62,  405,  505 
v.  Hinton                                         195 
v.  Kendrick 
v.  Kent                                    285,  887 


cxx 


TABLE   OF   CASES. 


White  v.  Manhattan  Ry.  Co.  816 

v.  Met.  W.  S.  El.  Ry.  Co.  828 

v.  Multnomah  Co.  906 

v.  Nashville,  &c.  R.  R.  Co.  814 

v.  N.  W.  N.  C.  Ry.  Co.  803 


v.  Nichols 
v.  People 
v.  Phillipston 
v.  Sanderson 
v.  Schloerb 
v.  Scott 
v.  Smith 
v.  Stamford 
v.  Tallman 
v.  The  Mayor 
v.  White 
r.  Yazoo  City 
v.  Zane 


610,611 
716,  717,  730,  734 
303 
899 
416 
231 
741 

239,  312 
282 
281 

164,  634,  764 

296,  302 

95 


Whitebread  v.  The  Queen 
Whitecar  v.  Michenor 
White  County  v.  Given 
Whited  v.  Lewis 
Whitehead  v.  Latham 


473 
G61 
130 
209 
407 


Whitehouse  v.  Androscoggin  R.  R. 

Co.  826 

Whitehurst  v.  Coleen  681 

v.  Rogers  80 

Whiteley  v.  Adams  610,  648 

v.  Miss.,  &c.  Co.  824 

White  Lick  Meeting  v.  White  Lick 

Meeting  661 

Whiteman's   Ex'rs   v.  Wilmington, 

&c.  R.  R.  Co.  74,  777 

White  Mountains  R.  R.  Co.  v.  White 

Mountains  R.  R.  Co.  of  N.  H.  541 

White  River  Turnpike  Co.  v.  Cen- 
tral R.  R.  Co.  757,  777 
White  School  House  v.  Post  615 
White  Star  Co.  v.  Gordon  Co.               355 
Whitfleld  v.  Longest               286,  860,  884 
v.  Paris  306 
Whiting  v.  Barney                                478 
v.  Earle                                             485 
v.  Mt.  Pleasant                                206 
v.  West  Point  272 
Whiting's  Estate,  Re  720 
Whitley  v.  State                            436,  452 
Whitman  v.  Boston,  &c.  R.  R.  Co.       825 
v.  Nat'l  Bk.  of  Oxford  122 
Whitmore  v.  Harden  64 
v.  State                                             468 
Whitney  v.  Allen                          618,  619 
v.  Ragsdale                                       707 
v.  Richardson                                 652 
v.  Robertson  25 
v.  State                                      19,  436 
v.  Stow                                           268 
v.  Township  Board                 849,  850 
v.  Wyman                                      118 
Whitsett  v.  Union  D.  &  R.  Co.             300 
Whitson  v.  Franklin                      285,  840 
Whittaker  v.  Johnson  Co.  80 
Whittemore  v.  Weiss                            668 
Whitten  v.  State                            468,  469 
v.  Tomlinson                               39,  41 
Whittier  v.  Wendell  42 


Whittingham  v.  Bowen 
Whittington  r.  Polk 
Whittle  v.  Saluda  Co. 
Whitwell,  Ex  parte 
Whorton  v.  Morange 
Whyte  v.  Nashville 


765 

79,  228,  237 
474 
886 
677 
294 


Wick  v.  The  Samuel  Strong  34 

Wicks  v.  De  Witt  802 

Wider  v.  East  St.  Louis  339 

Wiggins  r.  Chicago  285 

Wiggins  .&  Johnson  v.  Williams  591 

Wiggins  Ferry  Co.  v.  East  St.  Louis  691, 

710,  867 

Wight  v.  Davidson  714,  731 

Wilbraham  v.  Ludlow  904 

Wilbur  v.  Springfield  730 

Wilby  v.  Elston  607 

Wilcox  v.  Chicago  305 

v.  Deer  Lodge  Co.  340,  702 

v.  Hemming  286,  860 

v.  Jackson  33 

v.  Kassick  42,  586 

v.  Luco  23 

v.  Meriden  824 

v.  Nolze  39 

r.  Smith  898 

v.  St.  Paul,  &c.  Ry.  Co.  823 

v.  Wilcox  579 

Wild  v.  Deig  765 

r.  Paterson  355 

Wilder  v.  Boston  &  A.  Ry.  Co.  763 

v.  Case  81 

v.  Chicago  &  W.  M.  Ry.  Co.  628,  656, 

84  1 

v.  Maine  Cent.  R.  R.  Co.  841 

Wildes  v.  Van  Voorhis  513 

Wildey  v.  Collier  196 

Wiley  v.  Bluffton  267 

v.  Flournoy  113 

v.  Parmer  691 

v.  Sinkler  668 

Wilkerson  v.  Rahrer  259 

Wilkes  v.  Wood  433 

Wilkes's  Case  428 

Wilkes-Barre  v.  Meyers  183 

Wilkes  County  v.  Coler  324 

Wilkins  v.  Detroit  717 

v.  Miller  209 

v.  Rutland  362 

v.  State  890 

Wilkinson  v.  Cheatham  647,  648 

v.  Leland  134,  146,  149,  234,  244 

Willamette  Iron  Bridge  Co.  v.  Hatch     65, 

688,  864,  866 

Willamette    Iron  Wks.  v.   Oregon 

R.  &  N.  Co.  784 

Willard  v.  Harvey  530 

v.  Killingworth  266,  287 

v.  Longstreet  412 

v.  People  247,  250 

v.  Presbury  719,  730 

Willey  r.  Belfast  363 

Williams  v.  Augusta  881 

v.  Bank  of  Michigan  64 

v.  Bidleman  182 

v.  Brooklyn  El.  Ry.  Co.  803 


TABLE   OF   CASES. 


CXX1 


Williams  v.  Bryant 
r.  Clayton 
v.  Commonwealth 
v.  Conger 
v.  Courtney 
v.  Davidson 


17.  Detroit 
i7.  Eggleston 
17.  Fears 
v.  Haines 
17.  Heard 
v.  Hill 
v.  Johnson 
17.  Kirkland 
v.  Mississippi 


607 
897 

444,  467,  470 
33 
514 
271,  272 


120,  237,  716,  729,  735 

269,  340,  711 

16,  687,  693 

407 

29 

607 

529 

83 

16 


v.  Natural  Bridge  Plank  R.  Co.     790 
v.  Newport  388,  389 

17.  N.  Y.  Central  R.  R.  Co.      791,  806 
17.  Norris  30 

17.  Oliver  30 

v.  Payson  209,  212,  247 

77.  People  209 

v.  Potter  930 

v.  Roberts  275 

17.  School  District     113,  700,  743,  769 
v.  Smith  606 

v.  State  209,434,458,911 

i?.  State  Board  706 

v.  Stein  912 

v.  Wing  398 

Williamson  v.  Carlton  232 

v.  Lane  591,  938 

17.  Louisville  Ind.  Sch.  305 

v.  New  Jersey  '         390 

17.  Suydam  144 

v.  Williamson  146 

Williamsport  v.  Beck  719,  730 

Williar  v.  Baltimore,  &c.  Ass.  617 

Willis  v.  Baylis  495 

v.  Mabon  122 

v.  Owen  87,  163 

v.  State  459 

17.  St.  Paul  Sanitation  Co.  122 

v.  Winona  784 

Williston  17.  Colkett  531 

Willoughby  v.  George  530 

Wills  17.  State  441 

Wilmarth  v.  Burt  193 

Wilmington  v.  Ewing  356 

v.  Macks  713 

r.  Vandegrift  301 

Wilmington  R.  R.  Co.  v.  Reid  395 

Wilmington  &  W.  Ry.  Co.  v.  Alsbrook  397 
Wilmot  v.  Horton  346 

Wilson,  Ex  parte  436 

Re  (8  Mackey)  687,  846 

fie  (ION.  M.)  687 

v.  Ala.  G.  S.  Ry.  Co.        272,  291,  854 
v.  Blackbird   Creek  Marsh  Co.  688, 
767,  776,  863,  867 

17.  Brown  408,  909 

v.  Chilcott  717 

v.  Collins  630 

v.  Cottman  607 

v.  Crockett  764 

v.  Eureka  City  21,  293 


I 

Page 

Wilson  w.  Fitch  628 

v.  Franklin  764 

t7.  Hardesty  637 

v.  Jackson  42 

v.  Johns  Island  Church  661 

v.  King  895,  898 

t7.  McKenna  618,  527 

t7.  McNamee  688,  858 

v.  New  York  742,  783,  856 

17.  Noonan  628,  658 

17.  North  Carolina  20 

v.  Ohio,  &c.  R.  R.  Co.  374,  375 

v.  People  473 

i?.  Rockford,  &c.  R.  R.  Co.  825 

v.  Runyan  607 

17.  Salamanca  321 

v.  School  District  262 

v.  Simon  516 

v.  Simonton  591 

v.  State       60,  425,  447,  466,  482,  499 

v.  Sullivan  630 

17.  Supervisors  of  Sutter  740 

v.  Troy  358 

v.  Wheeling  362 

v.  Wood  527 

Wilson's  Case  490 

Wilson's  Exec.  v.  Deen  80 

Wimmer  v.  Eaton  917 

Winbigler  v.  Los  Angeles  363 

Winchell  v.  State  452 

Winchester  v.  Ayres  677,  589 

17.  Capron  804 

Winchester  &  L.  T.  R.  Co.  v.  Crox- 

ton  873,  875 

Wind  v.  Her  &  Co.  690 

Windham  v.  Portland  268 

Wingate  v.  Sluder  679 

Winkley  v.  Newton  719 

Winklemans  v.  Des  Moines  783 

Winnsboro  v.  Smart  284 

Winona,  &c.  R.  R.  Co.  v.  Dcnman        825 
17.  Waldron  823,  841 

Wiuona  &  St.  Peter  L.  Co.  v.  Minne- 
sota 22,  740 
v.  Plainview  322 
Winslow,  Ex  parte                                 495 
v.  Grindall  80 
r.  State                                             445 
"  17.  Winslow                                         868 
Winsor  v.  The  Queen                             469 
Winter  v.  City  Council                          295 
17.  Jones                                            403 
v.  Thistlewood                                 937 
Winterton  v.  State                                 217 
Wires  v.  Farr                                          522 
Wirth  w.  Wilmington                               279 
Wisconsin  v.  Pelican  Ins.  Co.          43,  181 
Wisconsin  Centr.  R.  R.  Co.  v.  Corn- 
stock                                          683 
v.  Taylor  Co.                    101,  707,  739 
Wisconsin  Keeley  Inst.  v.  Milwaukee 

Co.  696 

Wisconsin  M.  &  P.  Ry.  Co.  v.  Jacob- 
son  856 
Wisconsin  River  Imp.  Co.  v.  Lyons       54 
Wisconsin  Tel.  Co.  v.  Oshkosh             283 


cxxn 


TABLE   OF   CASES. 


Page 

Wisconsin  Water  Co.  v.  Winans    765, 768, 

777 

Wise  v.  Bigger  194 

Wisners  v.  Monroe  209,  212 

Witliam  v.  Osborn  765 

Withers  v.  Buckley  755 

v.  State  481 

Withington  v.  Corey  653 

Witmer  v.  Schlatter  80 

Witt  v.  State  452 

v.  St.  Paul,  &c.  R.  R.  Co.  815 

Wixon  v.  Newport  305,  355 

Woart  v.  Winnick  374,  376,  522,  530 

Wolcott  v.  Holcomb  903,  906,  928 

v.  Rickey  485 

v.  Wigton  92,  115 

Wolcott  Manuf.  Co.  v.  Uphara  771 

Wolf  v.  Lansing  283,  851 

Wolfe  v.  Covington,  &c.  R.  R.  Co.        791 

v.  McCaull  187,  219,  220 

Wolff  v.  New  Orleans  415 

Wonderly  v.  La  Fayette  28 

Wong  v.  Astoria  280,  454 

Wong  Kim  Ark's  Case  14 

Wood  v.  Brady  32,  36 

v.  Brooklyn  279 

v.  Brush  16 

v.  Fitzgerald  18 

v.  Fort  223 

v.  Kennedy  416,  637 

v.  McCann  197,  198 

v.  Randall  688 

v.  Stephen  82 

v.  Watkinson  41 

Wood's  Estate,  Re  580 

Woodard  v.  Brien  655 

Woodbridge  v.  Detroit    716,  732,  812,  860 

Woodburn  v.  Kilbourn  Manuf.  Co.   55, 867 

Woodbury  v.  Grimes  407 

v.  Thompson  607 

Woodcock  v.  Bennett  603 

Woodfall's  Case  652 

Woodfolk  v.  Nashville  R.  R.  Co.  825 

Woodhull  v.  Wagner  417 

Woodlawn  Cemetery  v.  Everett  881 

Woodman  v.  Pitman  863 

Woodmere  Cem.  v.  Ruolo  755 

Woodruff  w.  Bradstreet  Co.  611 

v.  Fisher  735 

v.  Mississippi  32 

v.  Neal  788 

v.  Parham  687,  694 

v.  Scruggs  618,  637 

v.  Trapnall  35,  403 

Woods  v.  Miller  433 

v.  State  845 

Woods's  Appeal  61 

Woodside  v.  Wagg  898 

Woodson  v.  Murdock  123,  206 

Woodward  v.  Commonwealth  38 

v.  Lander  620 

v.  Worcester  362 

Woodward  Iron  Co.  v.  Cabaniss  121 

Wood  worth  v.  Bowles  122 

v.  Spring  684 

v.  Tremere  41 


Wool,  Matter  of 
Woollen  v.  Banker 
Woolsey,  Matter  of 

t\  Commercial  Bank 
Wooten,  Ex  parte 

v.  State 


Page 
482 
13 
344 
259 
456 
240 


Worcester  v.  Norwich,  &c.  R.  R.  Co.     394 

v.  Worcester  St.  Ry.  Co.  393 

Worcester  Co.  v.  Worcester  695 

Worden  v.  New  Bedford  306 

Work  v.  Corrington  40,  41 

v.  State  458,  577 

Worley  v.  Columbia  305 

v.  Harris  364 

Worman  v.  Hagan  132,  163 

Wormley  v.  Uist.  Col.  714 

Worsham  v.  Stevens  407 

Worth  v.  Butler  607 

v.  Norton  192 

v.  Wilmington,  &c.  R.  R.  Co.          706 

Worthen  v.  Badget  194 

v.  Prescott  487 

Worthley  v,  Steen  183 

Worthy  r.  Commissioners  30 

Wortman,  In  re  894 

Wray,  Ex  parte  438 

v.  Pittsburg  717 

Wreford  v.  The  People  286, 292,  730,  883 

Wren,  Ex  parte  194 

Wright,  Re  382 

v.  Augusta  301 

v.  Boon  689 

r.  Boston  728,  736 

v.  Carter  790,  806 

v.  Chicago  717 

v.  Cradlebaugh,  527 

v.  De  Frees  258,  259 

v.  Dressel  430 

v.  Dunham  626 

v.  Graham  544 

v.  Hawkins  517,  540 

v.  Le  Glair  80 

v.  Lindsay  606 

v.  Lothrop  620,  629 

v.  Nagle  -    »                      662 

v.  Oakley  621 

v.  People  437 

».  State  467, 469 

v.  Straub  409 

v.  Woodgate  610 

v.  Wright  156 

Wroth  v.  Johnson  924 

Wurts  v.  Hoagland  868 

Wyandotte  v.  Drennan  388 

Wyatt  v.  Buell  630 

v  Smith  514 

Wynehamer  v.  People  128,  237,  239,  241, 

604,  606,  520,  831,  849,  850,  853 

Wynne,  In  re  223 


Y. 

Yancy  v.  Yancy 
Yarbrough,  Ex  parte 
Yates  v.  Lansing 


237,  522 

14,  18,  496 

453 


TABLE  OF  CASES. 


CXX111 


Page 

Page 

Yates  v.  Milwaukee         286,  787,  788,  883 

Young  v.  Commissioners,  &c                355 

r.  People                                           434 

v.  Harrison                                       813 

v.  Yates                                             679 

v.  Joslin                                             111 

Yazoo  &  M.  R.  R.  Co.  v.  Thomas      396, 

v.  McKenzie                                     765 

740 

v.  Miller                                            605 

Yazoo  Delta  Levee  Board  v.  Daney     817 

v.  State  Bank                                   137 

Yeager  v.  Tippecanoe                            365 

v.  Thomas                                        709 

Yeaker  v.  Yeaker                                      25 

v.  Wolcott                                        514 

Yeatman  v.  Crandell               71  7,  736,  868 

Youngblood  v.  Sexton  266,  284,  336,  707, 

v.  Day                                               546 

709,  712,  851,  886 

Yeaton  v.  Bank  of  Old  Dominion          394 

v.  United  States                       616,  544 

Yeazel  v.  Alexander                               881 

Z. 

Yerger  v.  Rains                                       120 

Yick  Wo,  Matter  of                               286 

Zabriskie  v.  R.  R.  Co.                     167,  324 

v.  Hopkins                    19,  35,  286,  657 

Zanesville  v.  Auditor  of  Muskingum    744 

Yonoski  v.  State                                     859 

Zeiler  v.  Chapman                                  907 

York  v.  Pease                                          619 

Zeisweiss  v.  James                                  672 

Yorty  v.  Paine                                         897 

Zimmerman  v.  Canfield                  760,  865 

Yost  v.  Stout                                            764 

v.  Union  Canal  Co.                   781,  867 

Yost's  Report                                          631 

Zitske  v.  Goldberg                                  268 

Young  v.  Beardsley                               627 

Zottman  v.  San  Francisco                      311 

v.  Black                                              80 

Zumhoff  v.  State                                     849 

v.  Charleston                                  356 

Zylstra's  Case                                        605 

CONSTITUTIONAL   LIMITATIONS. 


CONSTITUTIONAL   LIMITATIONS. 


CHAPTER    I. 

DEFINITIONS. 

A  STATE  is  a  body  politic,  or  society  of  men,  united  together 
for  the  purpose  of  promoting  their  mutual  safety  and  advantage 
by  the  joint  efforts  of  their  combined  strength.1  The  terms 
nation  and  State  are  frequently  employed,  not  only  in  the  law  of 
nations,  but  in  common  parlance,  as  importing  the  same  thing  ; 2 
but  the  term  nation  is  more  strictly  synonymous  with  people,  and 
while  a  single  State  may  embrace  different  nations  or  peoples,  a 
single  nation  will  sometimes  be  so  divided  politically  as  to  consti- 
tute several  States. 

In  American  constitutional  law  the  word  State  is  applied  to  the 
several  members  of  the  American  Union,  while  the  word  nation 
is  applied  to  the  whole  body  of  the  people  embraced  within  the 
jurisdiction  of  the  federal  government. 

Sovereignty,  as  applied  to  States,  imports  the  supreme,  absolute, 
uncontrollable  power  by  which  any  State  is  governed.3  A  State 
is  called  a  sovereign  State  when  this  supreme  power  resides  within 
itself,  whether  resting  in  a  single  individual,  or  in  a  number  of 
individuals,  or  in  the  whole  body  of  the  people.4  In  the  view  of 
international  law,  all  sovereign  States  are  and  must  be  equal 

1  Vattel,  b.  1,  c.  1,  §  1 ;  Story  on  Const.  rt  Story  on   Const.   §  207 ;    1   Black. 
§  207  ;  Wheat.  Int.  Law.  pt.  1,  c.  2,  §  2 ;  Com.  49 ;  Wheat.  Int.  Law,  pt    1,  c.  2, 
Halleck,  Int.  Law,  63;  Bouv.  Law  Diet.  §  6;  Halleck,  Int.  Law,  63,  64  ;  Austin, 
"  State."    "  A  multitude  of  people  united  Province    of   Jurisprudence,   Lee.    VI.  ; 
together  by  a  communion  of  interest,  and  Chipman   on   Government,   137.     "  The 
by  common  laws,  to  which  they  submit  right    of    commanding    finally  in    civil 
with   one  accord."     Burlamaqui,  Politic  society."      Burlamaqui,     Politic      Law, 
Law,  c.  5.     See  Chishohn  v.  Georgia,  2  c.  6. 

Ball.  467  ;  Georgia  v.  Stanton,  6  Wall.  65.          4  Vattel,  b.   1,   c.   1,  §    2  ;  Story  on 

2  Thompson,  J.,  in  Cherokee  Nation  v.  Const.  §  207  ;  Halleck,  Int.  Law,  65.     In 
Georgia,  5  Pet.    1,  52;  Chase,  Ch.  J.,  in  other   words,  when  it  is  an   independent 
Texas  v.  White,  7  Wall.  700,  720 ;  Vattel,  State.    Chipman  on  Government,  137. 
supra. 


4  CONSTITUTIONAL   LIMITATIONS.  [CH.  L 

in  rights,  because  from  the  very  definition  of  sovereign  State,  it 
is  impossible  that  there  should  be,  in  respect  to  it,  any  political 
superior. 

The  sovereignty  of  a  State  commonly  extends  to  all  the  sub- 
jects of  government  within  the  territorial  limits  occupied  by  the 
associated  people  who  compose  it ;  and,  except  upon  the  high 
seas,  which  belong  equally  to  all  men,  like  the  air,  and  no  part  of 
which  can  rightfully  be  appropriated  by  any  nation,1  the  dividing 
line  between  sovereignties  is  usually  a  territorial  line.  In  Amer- 
ican constitutional  law,  however,  there  is  a  division  of  the  powers 
of  sovereignty  between  the  national  and  State  governments  by 
subjects :  the  former  being  possessed  of  supreme,  absolute,  and 
uncontrollable  power  over  certain  subjects  throughout  all  the 
States  and  Territories,  while  the  States  have  the  like  complete 
power,  within  their  respective  territorial  limits,  over  other  sub- 
jects.2 In  regard  to  certain  other  subjects,  the  States  possess 
powers  of  regulation  which  are  not  sovereign  powers,  inasmuch 
as  they  are  liable  to  be  controlled,  or  for  the  time  being  to  become 
altogether  dormant,  by  the  exercise  of  a  superior  power  vested  in 
the  general  government  in  respect  to  the  same  subjects. 

A  constitution  is  sometimes  defined  as  the  fundamental  law  of 
a  State,  containing  the  principles  upon  which  the  government  is 
founded,  regulating  the  division  of  the  sovereign  powers,  and 
directing  to  what  persons  each  of  these  powers  is  to  be  confided, 
and  the  manner  in  which  it  is  to  be  exercised.3  Perhaps  an 
equally  complete  and  accurate  definition  would  be,  that  body  of 
rules  and  maxims  in  accordance  with  which  the  powers  of  sover- 
eignty are  habitually  exercised. 

In  a  much  qualified  and  very  imperfect  sense  every  State  may 
be  said  to  possess  a  constitution  ;  that  is  to  say,  some  leading 

1  Vattel,  b.  1,  c.23,  §  281 ;  Wheat.  Int.  506,  516.     See  Tarble's  Case,  13  Wall. 
Law,  pt.  2,  c.  4,  §  10.  397.    That  the  general  division  of  powers 

2  McLean,  J.,  in  License  Cases,  5  How.  between  the  federal   and  State   govern- 
504,  588.     "  The  powers  of  the  general  ments  has  not  been  disturbed  by  the  new 
government  and  of  the   State,  although  amendments  to  the  federal  Constitution, 
both  exist  and  are  exercised  within  the  see  United  States  v.  Cruikshank,  92  U.  S. 
same  territorial  limits,  are  yet  separate  Rep.  542. 

and   distinct   sovereignties,  acting   sepa-         8  1  Bouv.  Inst.  9 ;  Duer,  Const.  Juris, 

rately  and  independently  of  each  other,  26.     "  By  the  constitution  of  a  State  I 

within  their  respective  spheres.     And  the  mean  the  body  of  those  written  or  un- 

fcphere    of    action    appropriated  to    the  written  fundamental  laws  which  regulate 

United  States  is  as  far  beyond  the  reach  the  most  important  rights  of  the  higher 

of  the  judicial  process  issued  by  a  State  magistrates  and  the  most  essential  privi- 

judge  or  a  State  court,  as  if  the  line  of  leges  of  the  subjects."     Mackintosh  on 

division    was  traced   by  landmarks  and  the   Study  of  the  Law   of   Nature   and 

monuments  visible  to  the  eye."     Taney,  Nations. 
Ch.  J.,   in  Ableman  v.  Booth,  21  How. 


CH.  I.]  DEFINITIONS.  5 

principle  has  prevailed  in  the  administration  of  its  government, 
until  it  has  become  an  understood  part  of  its  system,  to  which 
obedience  is  expected  and  habitually  yielded  ;  like  the  hereditary 
principle  in  most  monarchies,  and  the  custom  of  choosing  the 
chieftain  by  the  body  of  the  people,  which  prevails  among  some 
barbarous  tribes.  But  the  term  constitutional  government  is  ap- 
plied only  to  those  whose  fundamental  rules  or  maxims  not  only 
locate  the  sovereign  power  in  individuals  or  bodies  designated  or 
chosen  in  some  prescribed  manner,  but  also  define  the  limits  of 
its  exercise  so  as  to  protect  individual  rights,  and  shield  them 
against  the  assumption  of  arbitrary  power.1  The  number  of  these 
is  not  great,  and  the  protection  they  afford  to  individual  rights 
is  far  from  being  uniform.2 

hi  American  constitutional  law,  the  word  constitution  is  used 
in  a  restricted  sense,  as  implying  the  written  instrument  agreed 
upon  by  the  people  of  the  Union,  or  of  any  one  of  the  States,  as 
the  absolute  rule  of  action  and  decision  for  all  departments  and 
officers  of  the  government,  in  respect  to  all  the  points  covered  by 
it,  which  must  control  until  it  shall  be  changed  "by  the  authority 
which  established  it,  and  in  opposition  to  which  any  act  or  regu- 
lation of  any  such  department  or  officer,  or  even  of  the  people 
themselves,  will  be  altogether  void. 

The  term  unconstitutional  law  must  have  different  meanings  in 
different  States,  according  as  the  powers  of  sovereignty  are  or  are 
not  possessed  by  the  individual  or  body  which  exercises  the  pow- 
ers of  ordinary  legislation.  Where  the  law-making  department 
of  a  State  is  restricted  in  its  powers  by  a  written  fundamental 
law,  as  in  the  American  States,  we  understand  by  unconstitu- 
tional law  one  which,  being  opposed  to  the  fundamental  law,  is 
therefore  in  excess  of  legislative  authority,  and  void.  Indeed, 
the  term  unconstitutional  law,  as  employed  in  American  jurispru- 
dence, is  a  misnomer,  and  implies  a  contradiction  ;  that  enactment 
which  is  opposed  to  the  Constitution  being  in  fact  no  law  at  all. 
But  where,  by  the  theory  of  the  government,  the  exercise  of 

1  Calhoun's   Disquisition  on  Govern-  a   constitutional    government,    until   the 
ment,  Works,  I.  p.  11.  monarch  is  deprived  of  power  to  set  it 

2  Absolute  monarchs,  under  a  pressure  aside    at    will.     The    grant    of    Magna 
of  necessity,  or  to  win  the  favor  of  tlit-ir  Charta  did  not  make  the  English  a  con- 
people,    sometimes   grant    them    what  is  stitutional  monarchy  ;  it  was  only  after 
called  a  constitution ;  but  this,  so  long  as  repeated  violations  and  confirmations  of 
the  power  of  the  monarch  is  recognized  that  instrument,  and  when  a  further  dis- 
as    supreme,  can   be   no   more   than   his  regard  of  its  provisions  had  become  dan- 
promise   that   he   will   observe    its    pro-  gerous  to  the  Crown,  that  fundamental 
visions,    and    conduct    the    government  rights   could   be   said   to  have  constitu- 
accordingly.     The  mere  grant  of  a  con-  tional  guaranties,  and  the  government  to 
stitution  does  not  make  the  government  be  constitutional. 


6  CONSTITUTIONAL   LIMITATIONS.  [CH.  L 

complete  sovereignty  is  vested  in  the  same  individual  or  body 
which  enacts  the  ordinary  laws,  any  enactment,  being  an  exercise 
of  power  by  the  sovereign  authority,  must  be  obligatory,  and,  if  it 
varies  from  or  conflicts  with  any  existing  constitutional  principle, 
it  must  have  the  effect  to  modify  or  abrogate  such  principle,  in- 
stead of  being  nullified  by  it.  This  must  be  so  in  Great  Britain 
with  every  law  not  in  harmony  with  pre-existing  constitutional 
principles ;  since,  by  the  theory  of  its  government,  Parliament  ex- 
ercises sovereign  authority,  and  may  even  change  the  constitution 
at  any  time,  as  in  many  instances  it  has  done,  by  declaring  its 
-will  to  that  effect.1  And  when  thus  the  power  to  control  and 
modify  the  constitution  resides  in  the  ordinary  law-making  power 
of  the  State,  the  term  unconstitutional  law  can  mean  no  more  than 
this  ;  a  law  which,  being  opposed  to  the  settled  maxims  upon 
which  the  government  has  habitually  been  conducted,  ought  not 
(to  be,  or  to  have  been,  adopted.2  It  follows,  therefore,  that  in 
'<  Great  Britain  constitutional  questions  are  for  the  most  part  to  be 
discussed  before  the  people  or  the  Parliament,  since  the  declared 
will  of  the  Parliament  is  the  final  law  ;  but  in  America,  after  a 
constitutional  question  has  been  passed  upon  by  the  legislature, 
^  there  is  generally  a  right  of  appeal  to  the  courts  when  it  is 
attempted  to  put  the  will  of  the  legislature  in  force.  For  the  will 
of  the  people,  as  declared  in  the  Constitution,  is  the  final  law ; 
and  the  will  of  the  legislature  is  law  only  when  it  is  in  harmonv 
with,  or  at  least  is  not  opposed  to,  that  controlling  instrument 
which  governs  the  legislative  body  equally  with  the  private 
citizen.3 

1  1  Black.  Cora.  161 ;  De  Tocqueville,  gina,  2  Sup.  Ct.  R.  (Ont.)  70;  Leprohn*. 

Democracy   in   America,   c.   6 ;   Broom,  Ottawa,  2  App.  R.  522. 
Const.  Law,  795 ;   Fischel,  English  Con-         2  Mr.  Austin,  in  his  Province  of  Juris 

stitution,  b.  7,  c.  5.     In  the  Dominion  of  prudence,  Lee.  VI.,  explains  and  enlarges 

Canada,  where  the  powers  of  sovereignty  upon  this  idea,  and  gives  illustrations  to 

are  confided  for  exercise,  in  part  to  the  show  that  in  England,  and  indeed  under 

Dominion  Parliament  and  in  part  to  the  most  governments,  a  rule  prescribed  by 

Provincial  Parliaments,  with  a  superin-  the   law-making   authority  may  be   un- 

tending  authority  over  all  in  the  imperial  constitutional,  and  yet  legal  and  obliga- 

government,   the    term    unconstitutional  tory. 

law  has  a  meaning  corresponding  to  its         8  See  Chapter  VII.  post. 
use  in  the  United  States.    Severn  v.  Re- 


CH.  IL]     THE  CONSTITUTION  OF  THE  UNITED  STATES. 


CHAPTER  II. 

THE  CONSTITUTION  OF  THE   UNITED   STATES. 

THE  government  of  the  United  States  is  the  existing  repre- 
sentative of  the  national  government  which  has  always  in  some 
form  existed  over  the  American  States.  Before  the  Revolution, 
the  powers  of  government,  which  were  exercised  over  all  the 
colonies  in  common,  were  so  exercised  as  pertaining  either  to  the 
Crown  of  Great  Britain  or  to  the  Parliament ;  but  the  extent  of 
those  powers,  and  how  far  vested  in  the  Crown  and  how  far  in 
the  Parliament,  were  questions  never  definitely  settled,  and  which 
constituted  subjects  of  dispute  between  the  mother  country  and 
the  people  of  the  colonies,  finally  resulting  in  hostilities.1  That 
the  power  over  peace  and  war,  the  general  direction  of  commer- 
cial intercourse  with  other  nations,  and  the  general  control  of 
such  subjects  as  fall  within  the  province  of  international  law, 
were  vested  in  the  home  government,  and  that  the  colonies  were 
not,  therefore,  sovereign  States  in  the  full  and  proper  sense  of 
that  term,  were  propositions  never  seriously  disputed  in  America, 
and  indeed  were  often  formally  conceded  ;  and  the  disputes  re- 
lated to  questions  as  to  what  were  or  were  not  matters  of  internal 
regulation,  the  control  of  which  the  colonists  insisted  should  be 
left  exclusively  to  themselves. 

Besides  the  tie  uniting  the  several  colonies  through  the  Crown, 
of  Great  Britain,  there  had  always  been  a  strong  tendency  to  a 
more  intimate  and  voluntary  union,  whenever  circumstances  of 
danger  threatened  them  ;  and  this  tendency  led  to  the  New  Eng- 
land Confederacy  of  1643,  to  the  temporary  Congress  of  1690,  to 
the  plan  of  union  agreed  upon  in  Convention  of  1754,  but  rejected 
by  the  Colonies  as  well  as  the  Crown,  to  the  Stamp  Act  Con- 
gress of  1765,  and  finally  to  the  Continental  Congress  of  1774. 
When  the  difficulties  with  Great  Britain  culminated  in  actual 
war,  the  Congress  of  1775  assumed  to  itself  those  powers  of 
external  control  which  before  had  been  conceded  to  the  Crown 

1  1  Pitkin's  Hist.  U.  S.  c.  6 ;  Life  and  Colonial   Congress  of  1765 ;    Ramsay's 

Works  of  John  Adams,  Vol.  I.  pp.  122,  Revolution  in  South  Carolina,  pp.  6-11; 

161;  Vol.  II.  p.  311  :  Works  of  Jefferson,  5   Bancroft's  U.  S.   c.  18;   1   Webster's 

Vol.  IX.  p.  294 ;  2  Marshall's  Washing-  Works,  128 ;  Von  Hoist,  Const.  Hist   5. 

ton,  c.    2  ;    Declaration    of   Rights    by  1 ;  Story  on  Const.  §  183  et  seq. 


8 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  II. 


or  to  the  Parliament,  together  with  such  other  powers  of  sov- 
ereignty as  it  seemed  essential  a  general  government  should  ex- 
ercise, and  thus  became  the  national  government  of  the  United 
Colonies.  By  this  body,  war  was  conducted,  independence  de- 
clared, treaties  formed,  and  admiralty  jurisdiction  exercised.  It 
is  evident,  therefore,  that  the  States,  though  declared  to  be  "  sov- 
ereign and  independent,"  were  never  strictly  so  in  their  individ- 
ual character,  but  were  always,  in  respect  to  the  higher  powers  of 
sovereignty,  subject  to  the  control  of  a  central  authority,  and 
were  never  separately  known  as  members  of  the  family  of  na- 
tions.1 The  Declaration  of  Independence  made  them  sovereign 
and  independent  States,  by  altogether  abolishing  the  foreign 
jurisdiction,  and  substituting  a  national  government  of  their  own 
creation. 

But  while  national  powers  were  assumed  by  and  conceded  to 
the  Congress  of  1775-76,  that  body  was  nevertheless  strictly  rev- 
olutionary in  its  character,  and,  like  all  revolutionary  bodies,  its 


1  "All  the  country  now  possessed  by 
the  United  States  was  [prior  to  the  Revo- 
lution] a  part  of  the  dominions  appertain- 
ing to  the  Crown  of  Great  Britain.  Every 
acre  of  land  in  this  country  was  then 
held,  mediately  or  immediately,  by  grants 
from  that  Crown.  All  the  people  of  this 
country  were  then  subjects  of  the  King 
of  Great  Britain,  and  owed  allegiance  to 
him  ;  and  all  the  civil  authority  then  ex- 
isting or  exercised  here  flowed  from  the 
head  of  the  British  empire.  They  were 
in  a  strict  sense  fellow-subjects,  and  in  a 
variety  of  respects  one  people.  When 
the  Revolution  commenced,  the  patriots 
did  not  assert  that  only  the  same  affinity 
and  social  connection  subsisted  between 
the  people  of  the  colonies,  which  subsisted 
between  the  people  of  Gaul,  Britain,  and 
Spain,  while  Roman  provinces,  namely, 
only  that  affinity  and  social  connection 
which  result  from  the  mere  circumstance 
of  being  governed  by  one  prince  ;  differ- 
ent ideas  prevailed,  and  gave  occasion  to 
the  Congress  of  1774  and  1775. 

"  The  Revolution,  or  rather  the  Dec- 
laration of  Independence,  found  the 
people  already  united  for  general  pur- 
poses, and  at  the  same  time  providing 
for  their  more  domestic  concerns  by 
State  conventions  and  other  temporary 
arrangements.  From  the  Crown  of 
Great  Britain  the  sovereignty  of  their 
country  passed  to  the  people  of  it ;  and 


it  was  not  then  an  uncommon  opinion 
that  the  unappropriated  lands  which  be- 
longed to  the  Crown  passed,  not  to  the 
people  of  the  colony  or  State  within 
whose  limits  they  were  situated,  but  to 
the  whole  people.  On  whatever  princi- 
ples this  opinion  rested,  it  did  not  give 
way  to  the  other,  and  thirteen  sov- 
ereignties were  considered  as  emerged 
from  the  principles  of  the  Revolution, 
combined  with  local  convenience  and 
considerations ;  the  people,  nevertheless, 
continued  to  consider  themselves,  in  a 
national  point  of  view,  as  one  people; 
and  they  continued  without  interruption 
to  manage  their  national  concerns  accord- 
ingly. Afterwards,  in  the  hurry  of  the 
war,  and  in  the  warmth  of  mutual  confi- 
dence, they  made  a  confederation  of  the 
States  the  basis  of  a  general  government. 
Experience  disappointed  the  expectations 
they  had  formed  from  it ;  and  then  the 
people,  in  their  collective  capacity  estab- 
lished the  present  Constitution."  Per 
Jay,  Ch.  J.,  in  Chisholm  v.  Georgia,  2 
Dall.  419,  470.  See  this  point  forcibly  put 
and  elaborated  by  Mr.  A.  J.  Dallas,  in 
his  Life  and  Writings  by  G.  M.  Dallas, 
200-207.  Also  in  Texas  »•.  White,  7 
Wall.  724.  Professor  Von  Hoist,  in  his 
Constitutional  History  of  the  United 
States,  c.  1,  presents  the  same  view 
clearly  and  fully.  Compare  Hurd, 
Theory  of  National  Existence,  125. 


CH.  II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES.  9 

authority  was  undefined,  and  could  be  limited  only,  first,  by  in- 
structions to  individual  delegates  by  the  States  choosing  them ; 
second,  by  the  will  of  the  Congress ;  and  third,  by  the  power  to 
enforce  that  will.1  As  in  the  latter  particular  it  was  essentially 
feeble,  the  necessity  for  a  clear  specification  of  powers  which 
should  be  exercised  by  the  national  government  became  speedily 
apparent,  and  led  to  the  adoption  of  the  Articles  of  Confederation. 
But  those  articles  did  not  concede  the  full  measure  of  power  es- 
sential to  the  efficiency  of  a  national  government  at  home,  the  en- 
forcement of  respect  abroad,  or  the  preservation  of  the  public 
faith  or  public  credit ;  and  the  difficulties  experienced  induced 
the  election  of  delegates  to  the  Constitutional  Convention  held 
in  1787,  by  which  a  constitution  was  formed  which  was  put  into 
operation  in  1789.  As  much  larger  powers  were  vested  by  this 
instrument  in  the  general  government  than  had  ever  been  exer- 
cised in  this  country  by  either  the  Crown,  the  Parliament,  or  the 
Revolutionary  Congress,  and  larger  than  those  conceded  to  the 
Congress  under  the  Articles  of  Confederation,  the  assent  of 
the  people  of  the  several  States  was  essential  to  its  acceptance, 
and  a  provision  was  inserted  in  the  Constitution  that  the  ratifica- 
tion of  the  conventions  of  nine  States  should  be  sufficient  for  the 
establishment  of  the  Constitution  between  the  States  so  ratifying 
the  same.  In  fact,  the  Constitution  was  ratified  by  conventions 
of  delegates  chosen  by  the  people  in  eleven  of  the  States,  before 
the  new  government  was  organized  under  it ;  and  the  remaining 
two,  North  Carolina  and  Rhode  Island,  by  their  refusal  to  accept, 
and  by  the  action  of  the  others  in  proceeding  separately,  were 
excluded  altogether  from  that  national  jurisdiction  which  before 
had  embraced  them.  This  exclusion  was  not  warranted  by  any- 
thing contained  in  the  Articles  of  Confederation,  which  purported 
to  be  articles  of  "  perpetual  union  ; "  and  the  action  of  the  eleven 
States  in  making  radical  revision  of  the  Constitution,  and  exclud- 
ing their  associates  for  refusal  to  assent,  was  really  revolutionary 
in  character,2  and  only  to  be  defended  on  4  the  same  ground  of 
necessity  on  which  all  revolutionary  action  is  justified,  and  which 
in  this  case  was  the  absolute  need,  fully  demonstrated  by  experi- 
ence, of  a  more  efficient  general  government.3 

1  See  remarks  of  Iredell,  J.,  in  Penhal-  8  "  Two  questions  of  a  very  delicate 
low   v.  Doane's   Adm'r,  3   Dall.   54,  91,  nature  present  themselves  on  this  occa- 
and  of  Blair,  J.,  in  the  same  case,  p.  111.  sion  :  1.  On  what  principle  the  confedera-  \ 
The  true  doctrine  on  this  subject  is  very  tion,  which  stands  in  the  form  of  a  solemn 
clearly  explained  by  Chase,  J.,  in  Ware  compact  among  the  States,  can  be  super- 
v.  Hylton,  3  Dall.  199,  231.  seded  without  the  unanimous  consent  of 

2  Mr.  Van  Buren  has  said  of  it  that  it  the  parties  to  it ;  2.  What  relation  is  to 
was  "  an  heroic,  though  perhaps  a  law-  subsist  between  the  nine  or  more  States, 
less,  act."    Political  Parties,  p.  50.  ratifying   the  Constitution,   and   the   re- 


10 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  H. 


Left  at  liberty  now  to  assume  complete  powers  of  sovereignty 
as  independent  governments,  these  two  States  saw  fit  soon  to 
resume  their  place  in  the  American  family,  under  a  permission 
contained  in  the  Constitution ;  and  new  States  have  since  been 
added  from  time  to  time,  all  of  them,  with  a  single  exception, 
organized  by  the  consent  of  the  general  government,  and  embra- 
cing territory  previously  under  its  control.  The  exception  was 
Texas,  which  had  previously  been  an  independent  sovereign  State, 
but  which,  by  the  conjoint  action  of  its  government  and  that  of 
the  United  States,  was  received  into  the  Union  on  an  equal  foot- 
ing with  the  other  States. 

Without,  therefore,  discussing,  or  even  designing  to  allude  to 
any  abstract  theories  as  to  the  precise  position  and  actual  power 
of  the  several  States  at  the  time  of  forming  the  present  Constitu- 
tion,1 it  may  be  said  of  them  generally  that  they  have  at  all  times 
been  subject  to  some  common  national  government,  which  has 
exercised  control  over  the  subjects  of  war  and  peace,  and  other 

maining  few  who  do  not  become  parties 
to  it.  The  first  question  is  answered  at 
once  by  recurring  to  the  absolute  neces- 
sity of  the  case ;  to  the  great  principle  of 
self-preservation  ;  to  the  transcendent  law 
of  nature  and  of  nature's  God,  which  de- 
clares that  the  safety  and  happiness  of 
society  are  the  objects  at  which  all  politi- 
cal institutions  aim,  and  to  which  all  such 
institutions  must  be  sacrificed.  Perhaps, 
also,  an  answer  may  be  found  without 
searching  beyond  the  principles  of  the 
compact  itself.  It  has  been  heretofore 
noted,  among  the  defects  of  the  confed- 
eration, that  in  many  of  the  States  it  had 
received  no  higher  sanction  than  a  mere 
legislative  ratification.  The  principle  of 
reciprocality  seems  to  require  that  its 
obligation  on  the  other  States  should  be 
reduced  to  the  same  standard.  A  com- 
pact between  independent  sovereigns, 
founded  on  acts  of  legislative  authority, 
can  pretend  to  no  higher  validity  than 
a  league  or  treaty  between  the  parties. 
It  is  an  established  doctrine  on  the  sub- 
ject of  treaties,  that  all  of  the  articles  are 
mutually  conditions  of  each  other ;  that  a 
breach  of  any  one  article  is  a  breach  of  the 
whole  treaty  ;  and  that  a  breach  commit- 
ted by  either  of  the  parties  absolves  the 
others,  and  authorizes  them,  if  they 
please,  to  pronounce  the  compact  vio- 
lated and  void.  Should  it  unhappily  be 
necessary  to  appeal  to  these  delicate 
truths  for  a  justification  for  dispensing 


with  the  consent  of  particular  States  to 
a  dissolution  of  the  federal  pact,  will  not 
the  complaining  parties  find  it  a  difficult 
task  to  answer  the  multiplied  and  impor- 
tant infractions  with  which  they  may  be 
confronted  1  The  time  has  been  when  it 
was  incumbent  on  us  all  to  veil  the  ideas 
which  this  paragraph  exhibits.  The 
scene  is  now  changed,  and  with  it  the 
part  which  the  same  motives  dictate. 
The  second  question  is  not  less  delicate, 
and  the  flattering  prospect  of  its  being 
merely  hypothetical  forbids  an  over- 
curious  discussion  of  it.  It  is  one  of 
those  cases  which  must  be  left  to  pro- 
vide for  itself.  In  general  it  may  be  ob- 
served, that  although  no  political  relation 
can  subsist  between  the  assenting  and 
dissenting  States,  yet  the  moral  relations 
will  remain  uncancelled.  The  claims  of 
justice,  both  on  one  side  and  on  the  other, 
will  be  in  force,  and  must  be  fulfilled ;  the 
rights  of  humanity  must  in  all  cases  be 
duly  and  mutually  respected  ;  whilst  con- 
siderations of  a  common  interest,  and 
above  all  the  remembrance  of  the  endear- 
ing scenes  which  are  past,  and  the  antici- 
pation of  a  speedy  triumph  over  the  ob- 
stacles to  reunion,  will,  it  is  hoped,  not 
urge  in  vain  moderation  on  one  side,  and 
prudence  on  the  other."  Federalist,  No. 
43  (\>y  Madison). 

1  See  this  subject  discussed  in  Gib- 
bons v.  Ogden,  9  Wheat.  1. 


CH.  II.]  THE  CONSTITUTION   OF   THE   UNITED   STATES.  11 

matters  pertaining  to  external  sovereignty;  and  that  when  the 
only  three  States  which  ever  exercised  complete  sovereignty 
accepted  the  Constitution  and  came  into  the  Union,  on  an  equal 
footing  with  all  the  other  States,  they  thereby  accepted  the  same 
relative  position  to  the  general  government,  and  divested  them- 
selves permanently  of  those  national  powers  which  the  others 
had  never  exercised.  And  the  assent  once  given  to  the  Union 
was  irrevocable.  "The  Constitution  in  all  its  provisions  looks 
to  an  indestructible  Union  composed  of  indestructible  States."1  / 
The  government  of  the  United  States  is  one  of  enumerated 
powers;  the  national  Constitution  being  the  instrument  which 
specifies  them,  and  in  which  authority  should  be  found  for  the 
exercise  of  any  power  which  the  national  government  assumes  to 
possess.2  In  this  respect  it  differs  from  the  constitutions  of  the 
several  States,  which  are  not  grants  of  powers  to  the  States, 
but  which  apportion  and  impose  restrictions  upon  the  powers 
which  the  States  inherently  possess.  The  general  purpose  of 
the  Constitution  of  the  United  States  is  declared  by  its  founders 
to  be,  "to  form  a  more  perfect  union,  establish  justice,  insure 
domestic  tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity."  To  accomplish  these  purposes,  the 
Congress  is  empowered  by  the  eighth  section  of  article  one :  — 

1  Chase,   Ch.  J.,   in   Texas  v.  White,  States  respectively,   or  to  the   people." 
7  Wall.  700,  725.     See  United  States  v.  No  power  is  conferred  by  the  Constitu- 
Cathcart,  1  Bond,  556.  tion   upon    Congress   to   establish    mere 

2  "  The    government    of    the    United  police    regulations    within     the     States. 
States  can  claim    no  powers   which  are  United  States  v.  Dewitt,  9  Wall.  41.     Nor 
not  granted   to  it  by  the   Constitution ;  is  power  conferred  to  provide  for  copy- 
and  the  powers  actually   granted   must  righting  trademarks.     Trademark  Cases, 
be  such  as  are  expressly  given,  or  given  100   U.   S.   82.     The  fourteenth  amend- 
by  necessary  implication."    Per  Marshall,  ment  does  not  take  from  the  States  police 
Ch.  J.,   in   Martin    v.   Hunter's   Lessee,  powers  reserved  to  them  at  the  time  of 
1    Wheat.   304,   326.     "This   instrument  the  adoption  of   the  Constitution.     See 
contains   an  enumeration  of  the  powers  Slaughter    House   Cases,   16   Wall.   36; 
expressly  granted  by  the  people  to  their  Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup. 
government."     Marshall,  Ch.  J.,  in  Gib-  Ct.    Rep.    367 ;    Mugler  v.   Kansas,    123 
bonsr.  Ogden,  9  Wheat.  1,  187.    See  Gal-  U.  S.  623,  8  Sup.  Ct.  Rep.  273.     [But  it 
der  v.  Bull,  3  Dall.  386;  Briscoev.  Bank  of  prevents  their  making,  under  the  guise 
Kentucky,  11  Pet.  257;  Gilman  v.  Phila-  of  police  regulations,  rules  which  abridge 
delphia,  3   Wall.  713 ;   United  States  v.  the  liberty  of  the  citizen  to  acquire  con- 
Cruikshank,  92  U.  S.  542,  650,  651,  per  tract  rights  outside  his  own  State  and  to 
Waite,  Ch.  J. ;  United  States  v.  Harris,  enjoy  the  same.     Allgeyer  v.  Louisiana, 
106  U.  S.  629,  1  Sup.  Ct.  Rep.  601 ;  Weis-  165  U.  S.  578,  17  Sup.  Ct.  Rep.  p.  427, 
ter  v.  Hade,  52  Pa.  St.  474 ;   Sporrer  v.  rev.  48  La.  Ann.  104,  18  S.  W.  904.     See 
Eifler,  1  Heisk.  633.     The  tenth  amend-  note,  infra,  883.] 

ment   to   the  Constitution  provides  that  As  to  the  general  division  of    powers 

"  the  powers  not  delegated  to  the  United  between   the  Dominion  of   Canada  and 

States  by  the  Constitution,  nor  prohibited  the   provinces,  see   Citizens'  Ins.  Co.  ». 

by  it  to  the  States,  are  reserved  to  the  Parsons,  4  Can.  Sup.  Ct  216. 


12  CONSTITUTIONAL  LIMITATIONS.  [CH.  IL 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,-  to 
pay  the  debts  and  provide  for  the  common  defence  and  general 
welfare  of   the    United   States.     But   all   duties,    imposts,    and 
excises  shall  be  uniform  throughout  the  United  States,  (a) 

2.  To  borrow  money  on  the  credit  of  the  United  States. 

3.  To  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes.1 

4.  To  establish  a  uniform  rule  of  naturalization,  (i)  and  uni- 
form laws  on  the  subject  of  bankruptcy,  throughout  the  United 
States. 

5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the  secur- 
ities and  current  coin  of  the  United  States. 

7.  To  establish  post-offices  and  post-roads.2 

8.  To  promote  the  progress  of  science  and  the  useful  arts,  by 
securing;  for  limited  terms  to  authors  and  inventors  the  exclusive 
right  to  their  respective  writings  and  discoveries.3 

1  Commerce  on  the  high  seas,  though  crimes   by   or  against    Indians.     As   to 

between  ports  of  the  same  State,  is  held  what   lands  of  tribal  Indians  cannot  be 

to  be  under  the  controlling  power  of  Con-  taxed  by  State,  see  Allen  Co.  Comrnrs.  p. 

gress.     Lord  v.  Steamship  Co.,  102  U.  S.  Simons,   129  Ind.   193,  28  N.  E.  420,  13 

641.     See   cases   infra,  688,  847.     [Acts  L.  R.  A.  512.] 

committed  by   Indians  within  the  limits          2  As  to  the  power  to  exclude  matter 

of  their  reservations  are  not  subject  to  from  the  mail,  see  Ex  parte  Jackson,  96 

the  criminal  laws  of  the   State  wherein  U.  S.  727. 

the  reservation  lies.     State  v.  Campbell,          »  This  power  is  exclusive.    The  States 

53  Minn.  354,  55  N.  W.  553,  21  L.  R.  A.  cannot  pass    laws  regulating  the  sale  of 

169  and   note   on  jurisdiction  to  punish  patents.      Hollida  v.   Hunt,  70  111.   109, 

(a)  [Some  interesting  legal  questions  have  grown  out  of  the  acquisition  of  the 
island  of  Porto  Rico  under  the  treaty  with  Spain,  following  the  Spanish  War,  and 
among  them  the  status  of  the  island  under  the  revenue  clauses  of  the  Constitution. 

In  Downes  v.  Bid  well,  182  U.  S.  244,  21  Sup.  Ct.  Rep.  770,  it  is  held  that  by  the 
treaty  of  cession  Porto  Rico  became  territory  appurtenant  to  the  United  States  but 
not  a  part  of  it  within  the  meaning  of  those  clauses  of  the  Constitution.  That 
Section  8  of  Article  1,  requiring  duties,  imposts,  and  excises  to  be  uniform  "  through- 
out the  United  States  "  did  not  apply  to  the  island  of  Porto  Rico. 

The  other  "  Insular  Cases,"  so  called,  involving  the  status  of  Porto  Rico  under  the 
revenue  clauses  of  the  Constitution  are  De  Lima  v.  Bidwell,  182  U.  S.  1,  21  Sup.  Ct. 
Rep.  743 ;  Goetz  v.  United  States  and  Grossman  v.  United  States,  182  U.  S.  221,  21 
Sup.  Ct.  Rep.  742;  Dooley  v.  United  States,  182  U.  S.  222,  21  Sup.  Ct.  Rep.  762; 
Armstrong  v.  United  States,  243,  and  Huus  v.  New  York  &  Porto  Rico  Steamship 
Company,  182  U.  S.  392,  21  Sup.  Ct.  Rep.  827.  The  same  doctrine  with  reference  to 
the  Phillipine  Islands  is  announced  in  Dooley  v.  United  States,  183  U.  S.  151,  22  Sup. 
Ct.  Rep.  62,  and  Fourteen  Diamond  Rings  v.  United  States,  183  U.  S.  176,  22  Sup. 
Ct.  Rep.  69.] 

(l>)  [Naturalization  may  be  by  treaty,  and  also  by  organic  act  creating  a  State. 
Boyd  v.  Nebraska,  143  U.  S.  135,  12  Sup  Ct.  Rep.  375,  and  cases  there  cited.  But 
such  naturalization  applies  only  to  those  who  were  citizens  of  the  admitted  territory 
or  country  at  the  time  of  such  admission.  Contzen  v.  United  States,  179  U.  S.  191, 
21  Sup.  Ct.  Rep.  98.3 


CH.  II.]  THE  CONSTITUTION   OF  THE   UNITED   STATES.  13 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court;  to 
define  and  punish  piracies  and  felonies  committed  upon  the  high 
seas,  and  offences  against  the  law  of  nations. 

10.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water. 

11.  To   raise   and   support   armies;   but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two  years. 

12.  To  provide  and  maintain  a  navy. 

13.  To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces. 

14.  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  union,  suppress  insurrections,  and  repel  invasions. 

15.  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in   the  service  of  the  United   States,    reserving  to  the  States 
respectively  the  appointment  of  the  officers,  and  the  authority 
of  training  the  militia  according  to  the  discipline  prescribed  by 
Congress.1 

16.  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  not  exceeding  ten  miles  square  as  may,   by 
cession  of   particular   States,  and  the  acceptance  of   Congress, 
become  the  seat  of  government  of  the  United  States;   and  to 
exercise  like  authority  over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  State  in  which  the  same  shall  be,  for 
the  erection  of  forts,  magazines,  arsenals,  dockyards,  and  other 
needful  buildings,  (a) 

17.  To  make  all  laws  which  shall  be  necessary  and   proper 

22  Am.  Rep.  63;   Crittenden  v.  White,  articles.    Patterson  ».  Kentucky,  11  Bush, 

23  Minn.  24,  23  Am.  Rep.  676  ;  Cranson  311 ;  21  Am.  Rep.  220 ;  s.  c.  in  error,  97 
v.  Smith,  37  Mich.  309,  26  Am.  Rep.  514;  U.   S.   501;    State  v.  Telephone  Co.,  36 
Ex  parie.  Robinson,  2  Hiss.  309 ;  Woollen  Ohio  St.  296 ;   38  Am.   Rep.   683.    One 
v.  Banker,  2  Flipp.  33,  Swayne,  J.     In  who  peddles  articles  made  under  a  patent 
some   States,  however,  statutes  are  up-  may  be  required  to  comply  with  an  ordi- 
held  which  require  that  notes  given  for  nance  requiring  licenses  for  all  peddlers, 
a  patent  right  shall  express  their  purpose  People  v.  Russell,  49  Mich.  617,  14  N.  W. 
on  the  face  of  the  paper.     Tod  v.  Wick,  578.     QState   cannot  require   vendor  of 
36  Ohio  St.  370 ;  Herdic  v.  Roessler,  109  patent-rights  to  take  out  license.     Com. 
N.  Y.  127,  16  N.  E.  198;  Shires  v.  Com.,  v.  Petty,  96  Ky.  452,  29  S.  W.  291,  29 
120  Pa.   St.  368,  14  Atl.  251 ;  New  v.  L.  R.  A.  786 ;  and  upon  power  of  State 
Walker,  108  Ind.  365,  9  N.  E.  386 ;  QMa-  over  patent-rights,  see  note    hereto    in 
son  v.  McLeod,  57  Kan.  105,  45  Pac.  76,  L.  R.  A.] 

41  L.  R.  A.  548,  57  Am.  St.  327;  Bohon's  *  Houston  v.  Moore,  5  Wheat.  1 ;  Mar- 
Assignee  v.  Brown,  101  Ky.  354,  41  S.  W.  tin  v.  Mott,  12  Wheat.  19 ;  Kneedler  v. 
273,  38  L.  R.  A.  503.]  The  States  may  Lane,  45  Penn.  St.  238 ;  Dunne  v.  People, 
pass  laws  regulating  the  use  of  patented  94  111.  120,  34  Am.  Rep.  213. 

(a)  (^Perjury  committed  in  a  State  court  holden  by  permission  of  State  law  and 
of  federal  officials  in  a  federal  building,  is  not  outside  the  jurisdiction  of  the  State 
to  punish.  Exum  v.  State,  90  Tenn.  601, 17  S.  W.  107, 15  L.  B.  A.  381-3 


14  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  the  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof.1 

Congress  is  also  empowered  by  the  thirteenth,  fourteenth,  and 
fifteenth  amendments  to  the  Constitution  to  enforce  the  same  by 
appropriate  legislation.  The  thirteenth  amendment  abolishes 
slavery  and  involuntary  servitude,  (a)  except  as  a  punishment 
for  crime,  throughout  the  United  States  and  all  places  subject 
to  their  jurisdiction.  The  fourteenth  amendment  (6)  has  several 
objects.  1.  It  declares  all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  to  be 
citizens  of  the  United  States  and  of  the  State  wherein  they 
reside  ;(c)  and  it  forbids  any  State  to  make  or  enforce  any  law 

1  Within  the  legitimate  scope  of  this  expressly  withheld  from  Congress  by  the 
grant  Congress  can  determine  for  itself  Constitution;  we  are  irresistibly  impelled 
what  is  necessary.  Ex  parte  Curtis,  106  to  the  conclusion  that  the  impressing 
U.  S.  371.  "  Congress  as  the  legislature  upon  the  treasury  notes  of  tlie  United 
of  a  sovereign  nation,  being  expressly  States  the  quality  of  being  a  legal  ten- 
empowered  by  the  Constitution  'to  lay  der  in  payment  of  private  debts  is  an 
and  collect  taxes,  to  pay  the  debts  and  appropriate  means,  conducive  and  plainly 
provide  for  the  common  defence  and  adapted  to  the  undoubted  powers  of  Con- 
general  welfare  of  the  United  States,'  gress,  consistent  with  the  letter  and  spirit 
and  '  to  borrow  money  on  the  credit  of  of  the  Constitution,  and,  therefore,  within 
the  United  States,'  and  'to  coin  money  the  meaning  of  that  instrument,  'neces- 
and  regulate  the  value  thereof  and  of  sary  and  proper  for  carrying  into  execu- 
foreign  coin  ; '  and  being  clearly  author-  tion  the  powers  vested  by  this  Constitu- 
ized,  as  incidental  to  the  exercise  of  those  tion  in  the  government  of  the  United 
great  powers,  to  emit  bills  of  credit,  to  States.' "  Gray,  J.,  in  Legal  Tender  Case, 
charter  national  banks,  and  to  provide  a  110  U.  S.  421. 

national  currency  for  the  whole  people,  Congress  has  implied  power  to  protect 
in  the  form  of  coin,  treasury  notes,  and  voters  at  federal  elections  from  intimi- 
national  bank  bills;  and  the  power  to  dation  :  Ex  parte  Yarbrough,  110  U.  S. 
make  the  notes  of  the  government  a  legal  651 ;  to  protect  the  right  to  make  home- 
tender  in  payment  of  private  debts  being  stead  entry  upon  public  lands.  United 
one  of  the  powers  belonging  to  sover-  States  v.  Waddell,  112  U.  S.  76. 
eignty  in  other  civilized  nations,  and  not 

(a)  [This  does  not  extend  to  the  case  of  seamen  compelled  to  serve  in  fulfilment 
of  their  contracts.  Robertson  v.  Baldwin,  165  U.  S.  275, 17  Sup.  Ct.  Rep.  326.  Dissent 
by  Harlan,  J.  But  a  law  authorizing  the  hiring  out  of  a  vagrant  to  the  highest  bid- 
der for  a  specified  term  is  void.  Thompson  v.  Bunton,  117  Mo.  83,  22  S.  W.  863,  20 
L.  R.  A.  462.] 

(6)  EThe  adoption  of  the  fourteenth  amendment  has  not  extended  to  the  several 
States  of  the  Union  the  restrictions  imposed  by  the  first  ten  amendments  to  the 
Constitution  of  the  United  States  upon  the  Federal  Government.  See  Maxwell  v. 
Dow,  176  U.  S.  581,  20  Sup.  Ct.  Rep.  448;  Brown  v.  New  Jersey,  175  U.  S.  172,  20 
Sup.  Ct.  Rep.  77;  Leeper  v.  Texas,  139  U.  S.  462,  11  Sup.  Ct.  Rep.  577;  Caldwell  v. 
Texas,  137  U.  S.  692,  11  Sup.  Ct.  Rep.  224;  Re  Converse,  137  U.  S.  624,  11  Sup.  Ct. 
Rep.  191 ;  Missouri  v.  Lewis,  101  U.  S.  22 ;  United  States  v.  Cruikshank,  92  U.  S. 
542 ;  Slaughter  House  Cases,  16  Wall.  36.] 

(o)  QA  child  of  alien  parentage  born  in  this  country  is  a  citizen.  Wong  Kim 
Ark's  Case,  169  U.  S.  649,  18  Sup.  Ct.  Rep.  456.  See  Fong  Yue  Ting  v.  U.  S.,  149 
U.  S.  698, 13  Sup.  Ct.  Rep.  1016.] 


CH.  II.]  THE  CONSTITUTION   OF   THE   UNITED   STATES.  15 

which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States,1  or  to  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law,  or  to  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws,  (a) 

1  As  to  this  clause,  see  p.  667,  note  4,  infra. 

(a)  £A  discrimination  between  agricultural  lands  and  other  lands  with  regard  to 
the  right  of  a  city  to  annex  them  by  extension  of  its  corporate  limits  so  as  to  include 
them  is  no  denial  of  the  equal  protection  of  the  laws.  A  State  may  classify  the 
objects  of  legislation  so  long  as  its  attempted  classification  is  not  clearly  arbitrary  )- 
and  unreasonable.  Clark  i;.  Kansas  City,  176  U.  S.  114,  20  Sup.  Ct.  Rep.  284,  aff. 
59  Kan.  427,  53  Pac.  468.  Many  cases  upon  the  power  of  the  legislature  to  annex 
rural  lands  to  municipalities  are  collected  in  a  note  to  this  case  in  44  L.  ed.  U.  S.  392. 
Nor  does  a  statute  making  a  railroad  company  liable  to  an  employee  injured  by  the 
negligence  of  a  fellow-servant  deny  to  such  company  the  equal  protectioa  of  the 
laws,  since  there  are  peculiar  hazards  in  the  operation  of  a  railroad  which  warrant 
the  discrimination  between  railroad  companies  and  ordinary  employers  in  this  regard. 
Tullis  v.  Lake  Erie  &  Western  R.  Co.,  175  U.  S.  348,  20  Sup.  Ct.  Rep.  136.  The 
act  (Burns's  An.  Stat.  of  Ind.,  Rev.  of  1894,  §§  7083-7)  applies  in  terms  only  to  cor- 
porations. The  point  was  raised  in  the  defence  that  this  discrimination  between  cor- 
porations operating  railroads  and  other  persons  or  associations  operating  railroads 
was  unconstitutional,  but  it  was  not  noticed  by  the  court.  That  the  exception  of  a 
dummy  railroad  operated  by  steam  or  of  an  electric  railroad  from  an  ordinance 
limiting  the  speed  with  which  railroad  trains  may  run  within  the  city  limits  is  not 
an  arbitrary  and  unreasonable  classification  in  denial  of  the  equal  protection  of  the 
laws,  see  Erb  v.  Morasch,  177  U.  S.  584,  20  Sup.  Ct.  Rep.  819,  aff.  60  Kan.  251,  56 
Pac.  133.  On  validity  of  ordinance  requiring  possession  of  good  character  and  repu- 
tation in  one  seeking  license  to  sell  cigarettes  and  vesting  mayor  with  power  to  deter- 
mine whether  or  not  applicant  possesses  such,  see  Gundling  v.  Chicago,  177  U.  S- 
183,  20  Sup.  Ct.  Rep.  633,  aff.  176  111.  340,  52  N.  E.  44. 

A  county  board  of  education  maintained  primary  schools  for  white  children  and 
for  negro  children.  They  also  maintained  a  high  school  for  white  children,  but  had 
discontinued  a  high  school  for  negro  children  for  the  reason  that  the  funds  were 
needed  for  primary  schools  for  a  much  larger  number  of  negro  children  than  attended 
the  negro  high  school.  Such  discontinuance  of  high  school  privileges  for  negroes 
while  high  school  privileges  are  continued  for  white  children  cannot  be  corrected  by 
injunction  against  maintenance  of  high  school  for  white  children,  and  refusal  to 
grant  such  injunction  is  no  denial  of  the  equal  protection  of  the  laws  nor  of  any 
privileges  and  immunities  of  citizens  of  the  United  States.  Gumming  i;.  Board  of 
Education,  175  U.  S.  528,  20  Sup.  Ct.  Rep.  197,  aff.  103  Ga.  641,  29  S.  E.  488. 

Upon  equality  of  exemption  under  State  taxation,  see  People  v.  Roberts,  171  U.  S. 
658,  19  Sup.  Ct.  Rep.  58,  aff.  91  Hun,  158,  149  N.  Y.  608,  44  N.  E.  1127.  State  may 
abridge  right  of  trial  by  jury  in  city  courts  without  making  same  provision  for 
county  courts,  Chappell  Chem.  &  Fertilizer  Co.  v.  Sulphur  Mines  Co.,  172  IJ.  S.  474, 
19  Sup.  Ct.  Rep.  268,  citing  Hayes  v.  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  Rep.  350,  and 
Missouri  v.  Lewis,  101  U.  S.  22.  Jury  trial  is  not  necessary  in  a  commitment  for 
contempt  of  court.  Tinsley  v.  Anderson,  171  U.  S.  101,  18  Sup.  Ct.  Rep.  805.  Nor 
in  disbarment  proceedings,  Shepard's  Case,  109  Mich.  631,  67  N.  W.  971. 

State  may  provide  that  plaintiff  in  an  action  against  a  railroad  company  for  loss 
by  fire  caused  by  operation  of  the  road  shall,  if  successful,  recover  a  reasonable 
attorney's  fee  in  addition  to  damages,  while,  if  unsuccessful,  no  attorney's  fee  shall 
be  assessed  against  him.  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Matthews,  174  U.  S. 
96,  19  Sup.  Ct.  Rep.  609.  See  in  this  case  a  vigorous  dissenting  opinion  of  Harlan, 
J.,  concurred  in  by  Brown,  Peckham,  and  McKenna,  JJ.  That  state  may  require 
railroad  companies  to  pay  discharged  employees  at  regular  rate  until  time  of  full 
payment,  not  to  exceed  sixty  days  after  discharge,  see  St.  Louis,  L  M.  &  S.  R. 


16  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

2.  It  provides  that  when  the  right  to  vote  at  any  election  for 
the  choice  of  electors  (a)  for  President  or  Vice-President  of  the 

Co.  v.  Paul,  173  U.  S.  404, 19  Sup.  Ct.  Rep.  419,  aff.  64  Ark.  83,  40  S.  W.  705,  37 
L.  R.  A.  504. 

A  statute  providing  that  if  a  tramp  shall  threaten  to  injure  the  person  or  property 
of  any  person  he  shall  be  imprisoned  in  the  penitentiary,  is  not  void  as  denying  equal 
protection.  State  v.  Hogan,  63  Ohio,  202,  58  N.  E.  572,  81  Am.  St.  626.  The  equal 
protection  of  the  laws  is  not  denied  to  negroes  by  those  provisions  of  the  Constitu- 
tion of  Mississippi  which  place  burdens  and  limitations  upon  persons  subject  to 
vices  and  guilty  of  crimes  that  are  characteristic  of  the  negro  race,  nor  is  there  any 
discrimination  thus  brought  about  against  the  race  itself.  Williams  v.  Mississippi, 
170  U.  S.  213,  18  Sup.  Ct.  Rep.  583.  Or  by  a  law  requiring  whites  and  negroes  to 
occupy  different  compartments  of  passenger-cars.  Plessy  v.  Ferguson,  163  U.  S. 
637,  16  Sup.  Ct.  Rep.  1138.  See  Smith  v.  State,  100  Tenn.  494,  46  S.  W.  566,  and 
Anderson  v.  Louisville  &  N.  Ry.  Co.,  62  Fed.  46.  Accused  cannot  insist  that  his  race 
be  represented  upon  the  jury,  either  trial  or  grand.  Wood  v.  Brush,  140  U.  S.  278, 
370,  11  Sup.  Ct.  Rep.  738,  942 ;  Jugiro  v.  Brush,  140  U.  S.  291, 11  Sup.  Ct.  Rep.  770. 

A  State  may  abolish  the  fellow-servant  rule  with  regard  to  a  particular  class  of 
employers  only,  e.g.  railroad  companies.  Chicago,  K.  &  W.  R.  Co.  v.  Pontius,  157 
U.  S.  209,  15  Sup.  Ct.  Rep.  585.  State  may  provide  that  coming  into  court  to  chal- 
lenge the  validity  of  an  alleged  service  upon  the  defendant  shall  constitute  a  general 
appearance.  York  v.  Texas,  137  U.  S.  15,  11  Sup.  Ct.  Rep.  9;  Kauffman  v.  Wooters, 
138  U.  S.  285,  11  Sup.  Ct.  Rep.  298.  Exemption  by  statute  of  "  planters  and  farmers 
grinding  and  refining  their  own  sugar  and  molasses  "  from  a  license  tax  upon  per- 
sons and  corporations  carrying  on  the  business  of  refining  sugar  and  molasses  is  not  a 
denial  of  the  equal  protection  of  the  laws  to  the  persons  taxed.  Am.  Sugar  Ref.  Co. 
v.  Louisiana,  179  D.  S.  89,  21  Sup.  Ct.  Rep.  43.  State  may  levy  a  specific  tax 
upon  persons  engaged  in  the  business  of  hiring  laborers  to  be  employed  beyond  the 
limits  of  the  State,  while  levying  none  upon  those  hiring  laborers  to  be  employed 
within  the  State.  Williams  v.  Fears,  179  U.  S.  270,  21  Sup.  Ct.  Rep.  128,  aff.  110 
Ga.  584,  35  S.  E.  699.  A  person  cannot  complain  that  he  is  denied  the  equal  protec- 
tion of  the  laws  when  valid  laws  are  fairly  administered  as  to  him,  although  there  is 
maladministration  as  to  his  neighbors,  as,  e  g.  by  underassessment  of  property  for 
taxation,  New  York  v.  Barker,  179  U.  S.  279,  21  Sup.  Ct.  Rep.  121.  The  levy  of  a 
tax  upon  owners  of  lands  abutting  on  streets  along  which  conduits  for  public  water 
supply  run,  in  excess  of  that  levied  upon  owners  of  lands  not  so  located,  upon  the 
theory  that  better  fire  protection  is  afforded  is  unconstitutional.  Lemont  v.  Jenks, 
197  111.  363,  64  N.  E.  362.  State  may  classify  cities  for  regulation  of  registration  of 
voters.  Mason  v.  Missouri,  179  U.  S.  328,  21  Sup.  Ct.  Rep.  125.  In  Cotting  v. 
Kansas  City  Stock  Yards  Co.  et  al,  183  U.  S.  79,  22  Sup.  Ct.  Rep.  30,  a  statute  of 
Kansas  defining  what  shall  constitute  public  stock  yards  and  regulating  all  charges 
thereof,  is  held  to  be  in  conflict  with  the  fourteenth  amendment  for  the  reason  that 
the  definition  of  a  "  public  stock  yard "  was  made  to  depend  upon  the  volume  of 
business  done  and  the  facts  showed  that  the  Kansas  City  Stock  Yards  Co.  was  the 
only  one  within  the  definition,  and  the  legislation  was  therefore  a  denial  to  the 
Kansas  City  Co.  of  the  equal  protection  of  the  law. 

For  other  cases  on  "  equal  protection,"  see  Lowe  v.  Kansas,  163  U.  S.  81,  16  Sup. 
Ct.  Rep.  1031 ;  Jones  v.  Brim,  165  U.  S.  180,  17  Sup.  Ct.  Rep.  282;  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Ellis,  165  U.  S.  150, 17  Sup.  Ct.  Rep.  255,  rev.  87  Tex.  19 ;  26  S.  W.  985 ;  St. 
L.  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  1, 17  Sup.  Ct.  Rep.  243 ;  Merchant  v.  Pa.  R.  Co., 
153  U.  S.  380, 14  Sup.  Ct.  Rep.  894;  Jennings  v.  Coal  Ridge  Imp.  &  Coal  Co.,  147  U.  S. 
147,  13  Sup.  Ct.  Rep.  282;  Fielden  v.  Illinois,  143  U.  S.  452,  12  Sup.  Ct.  Rep.  528; 
Commercial  Nat'l  Bank  v.  Chambers,  182  U.  S.  556,  21  Sup.  Ct.  Rep.  863,  aff.  21 
Utah,  324,  61  Pac.  560;  Estate  of  Mahoney,  133  Cal.  180,  65  Pac.  389,  85  Am. 
St.  155.] 

(a)  £The  appointment  and  mode  of  appointment  of  electors  from  a  State  are 
within  the  power  of  the  State  acting  in  such  manner  as  its  legislature  may  direct; 


CH.  II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES. 


17 


United  States,  representatives  in  Congress,  the  executive  and 
judicial  officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United  States, 
or  is  in  any  way  abridged,  except  for  participation  in  rebellion 
or  other  crime,  the  basis  of  congressional  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State.  3.  It  disqualifies  from 
holding  Federal  or. State  offices  certain  persons  who  shall  have 
engaged  in  insurrection  or  rebellion  against  the  United  States, 
or  given  aid  or  comfort  to  the  enemies  thereof.  4.  It  declares 
the  inviolability  of  the  public  debt  of  the  United  States,  and 
forbids  the  United  States  or  any  State  assuming  or  paying  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss  or  emanci- 
pation of  any  slave.1  The  fifteenth  amendment  declares  that 


1  "  That  amendment  was  undoubtedly 
proposed  for  the  purpose  of  fully  pro- 
tecting the  newly-made  citizens  of  the 
African  race  in  the  enjoyment  of  their 
freedom,  and  to  prevent  discriminating 
State  legislation  against  them.  The  gen- 
erality of  the  language  used  necessarily 
extends  its  provisions  to  all  persons,  of 
every  race  and  color.  Previously  to  its 
adoption,  the  Civil  Rights  Act  had  been 
passed,  which  declared  that  citizens  of 
the  United  States  of  every  race  and 
color,  without  regard  to  any  previous 
condition  of  slavery  or  involuntary  servi- 
tude, except  as  a  punishment  for  crime, 
should  have  the  same  rights  in  every 
State  and  Territory  to  make  and  enforce 
contracts,  to  sue,  be  parties,  and  give 
evidence,  to  inherit,  purchase,  lease,  sell, 
own,  and  convey  real  and  personal  prop- 
erty, and  to  full  and  equal  benefit  of  all 
laws  and  proceedings  for  the  security  of 
person  and  property  as  is  enjoyed  by 
white  citizens,  and  should  be  subject  to 
like  punishments,  pains,  and  pena'ties, 
and  to  none  other.  The  validity  of  this 
act  was  questioned  in  many  quarters, 
and  complaints  were  made  that,  notwith- 


standing the  abolition  of  slavery  and  in- 
voluntary servitude,  the  freedmen  were 
in  some  portions  of  the  country  subjected 
to  disabilities  from  which  others  were  ex- 
empt. There  were  also  complaints  of  the 
existence  in  certain  sections  of  the  South- 
ern States  of  a  feeling  of  enmity,  growing 
out  of  the  collisions  of  the  war,  towards 
citizens  of  the  North.  Whether  these 
complaints  had  any  just  foundation  is  im- 
material ;  they  were  believed  by  many 
to  be  well  founded,  and  to  prevent  any 
possible  legislation  hostile  to  any  class 
from  the  causes  mentioned,  and  to  obvi- 
ate objections  to  legislation  similar  to 
that  embodied  in  the  Civil  Rights  Act, 
the  fourteenth  amendment  was  adopted. 
This  is  manifest  from  the  discussions  in 
Congress  with  reference  to  it.  There  was 
no  diversity  of  opinion  as  to  its  object 
between  those  who  favored  and  those  who 
opposed  its  adoption."  Mr.  Justice  Field 
in  San  Mateo  County  v.  Sou.  Pac.  R.  R. 
Co.,  13  Fed.  Rep.  722. 

"A  State  acts  by  its  legislative,  its 
executive,  or  its  judicial  authorities.  It 
can  act  in  no  othe/  way.  The  constitu- 
tional provision,  therefore,  must  mean 


and  a  law  directing  that  one  elector  and  one  alternate  shall  be  elected  from  each 
congressional  district,  and  one  elector  and  one  alternate  shall  be  elected  at  large  in 
each  of  two  districts  into  which  the  legislature  divides  the  State  for  the  purpose  of 
electing  the  remaining  two  electors,  is  a  valid  exercise  of  the  power  of  the  legisla- 
ture in  this  regard.  McPherson  v.  Blacker,  146  U.  S.  1,  13  Sup.  Ct.  Rep.  3,  aft 
92  Mich.  377,  52  N.  W.  469,  16  L.  R.  A.  475,  31  Am.  St.  587.] 

2 


18 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  II. 


the  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State,  on 
account  of  race,  color,  or  previous  condition  of  servitude.1 


that  no  agency  of  the  State,  or  of  the 
officers  or  agents  by  whom  its  powers  are 
executed,  sliall  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the 
laws.  Whoever  by  virtue  of  public  posi- 
tion under  a  State  government  deprives 
another  of  property,  life,  or  liberty  with- 
out due  process  of  law,  or  denies  or  takes 
away  the  equal  protection  of  the  laws, 
violates  the  constitutional  inhibition  ;  and 
as  he  acts  in  the  name  and  for  the  State, 
and  is  clothed  with  the  State's  authority, 
his  act  is  that  of  the  State.  This  must 
be  so,  or  the  constitutional  prohibition  has 
no  meaning."  Strong,  3.,  in  Ex  parte  Vir- 
ginia, 100  U.  S.  339.  Approved,  Neal  v. 
Delaware,  103  U.  S.  370,  397.  An  act 
of  Congress  declaring  that  certain  acts 
committed  by  individuals  shall  be  deemed 
offences  and  punished  in  the  United  States 
courts  is  invalid.  The  fourteenth  amend- 
ment does  not  "  invest  Congress  with 
power  to  legislate  upon  subjects  which 
are  within  the  domain  of  State  legisla- 
tion ;  but  to  provide  modes  of  relief 
against  State  legislation  or  State  action 
of  the  kinds  referred  to.  It  does  not 
authorize  Congress  to  create  a  code  of 
municipal  law  for  the  regulation  of  pri- 
vate rights  ;  but  to  provide  modes  of  re- 
dress against  the  operation  of  State  laws 
and  the  action  of  State  officers,  executive 
and  judicial,  when  these  are  subversive 
of  the  fundamental  rights  specified  in 
the  amendment."  Bradley,  J.,  in  Civil 
Bights  Cases,  109  U.  S.  3,  3  Sup.  Ct. 
Rep.  18.  See  also  United  States  v.  Har- 
ris, 106  U.  S.  629,  1  Sup.  Ct.  Rep.  601 ; 
Baldwin  v.  Franks,  120  U.  S.  678,  7  Sup. 
Ct.  Rep.  656.  But  Congress  may  pun- 
ish the  intimidation  by  individuals  of 
voters  at  federal  elections.  Ex  parte 
Yarbrough,  110  U.  S.  651,  4  Sup.  Ct. 
Rep.  152. 

1  See,  as  to  these  amendments,  Story 
on  Const.  (4th  ed.)  c.  46, 47,  48,  and  App. 
to  Vol.  II.  The  adoption  of  an  amend- 
ment to  the  Federal  Constitution  has  the 
effect  to  nullify  all  provisions  of  State 
constitutions  and  State  laws  which  con- 
flict therewith.  Ex  parte  Turner,  Chase 
Dec.  157;  Neal  v.  Delaware,  103  U.  S. 
370;  Wood  v.  Fitzgerald,  3  Oreg.  568; 


Portland  v.  Bangor,  65  Me.  120,  20  Am. 
Rep.  681.  See  Griffin's  Case,  Chase  Dec. 
368.  The  new  amendments  do  not  en- 
large the  privilege  of  suffrage  so  as  to 
entitle  women  to  vote.  Bradwell  v.  State, 
16  Wall.  130;  Minor  «;.  Happersett,  21 
Wall.  162.  They  do  not  prevent  a  State 
forbidding  a  body  to  parade  without 
license  from  the  Governor.  The  privi- 
lege of  citizens  of  the  United  States  is  not 
thereby  infringed.  Presser  v.  Illinois,  116 
U.  S.  252,  6  Sup.  Ct.  Rep.  580.  The  four- 
teenth amendment  does  not  entitle  per- 
sons as  of  right  to  sell  intoxicating  drinks 
against  the  prohibitions  of  State  laws; 
Bargprneyer  v.  Iowa,  13  Wall.  129 ;  nor  is 
property  taken  without  due  process  of 
law  by  such  a  law,  although  without  com- 
pensation an  existing  brewery  is  rendered 
valueless  thereby:  Mugler  v.  Kansas,  123 
U.  S.  623,  8  Sup.  Ct.  Rep.  273;  it  is 
not  violated  by  the  grant  by  a  State, 
under  its  police  power,  of  an  exclusive 
right  for  a  term  of  years  to  have  and 
maintain  slaughter-houses,  landings  for 
cattle,  and  yards  for  inclosing  cattle  in- 
tended for  slaughter,  within  certain  speci- 
fied parishes :  Slaughter  House  Cases,  16 
Wall.  36 ;  nor  by  denying  the  right  of 
jury  trial  in  State  courts :  Walker  v. 
Sauvinet,  92  U.  S.  90 ;  it  does  not  pre- 
clude a  State  from  taxing  its  citizens  for 
debts  owing  to  them  from  foreign  debtors : 
Kirtland  v.  Hotchkiss,  100  U.  S.  491; 
nor  from  regulating  warehouse  charges ; 
Munn  v.  Illinois,  94  U.  S.  113;  or  charges 
for  the  transportation  of  freight  and 
passengers  by  common  carriers :  Chicago, 
&c.  R.  R.  Co.  v.  Iowa,  94  U.  S.  155 ;  Rail- 
road  Com.  Cases,  116  U.  S.  307,  6  Sup. 
Ct.  Rep.  388 ;  Dow  v.  Beidleman,  125  U.  S. 
680, 8  Sup.  Ct.  Rep.  1028;  nor  from  mak- 
ing railroads,  and  not  other  masters, 
liable  to  servants  for  the  negligence  of 
fellow-servants :  Missouri  Pac.  Ry.  Co. 
v.  Mackey,  127  U.  S.  206,  8  Sup.  Ct.  Rep. 
1161;  Minneapolis  &  St.  L.  Ry.  Co.  v. 
Herrick,  id.  210 ;  nor  from  giving  double 
damages  for  killing  stock  through  failure 
to  fence  :  Missouri  Pac.  Ry.  Co.  v.  Humes, 
116  U.  S.  612,  6  Sup.  Ct.  Rep.  110;  Min- 
neapolis &  St.  L.  Ry.  Co.  v.  Beck  with, 
129  U.  S.  26,  9  Sup.  Ct.  Rep.  3;  nor  from 


CH.  II.] 


THE   CONSTITUTION   OF  THE   UNITED   STATES. 


19 


The  executive  power  is  vested  in  a  president,  who  is  made 
commander-iu-chief  of  the  army  and  navy,  and  of  the  militia  of 


requiring  a  railroad  to  pay  for  examina- 
tion of  its  servants  for  color-blindness : 
Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Alabama, 
128  U.  S.  96,  9  Sup.  Ct.  Kep.  28 ;  contra, 
Louisville  &  N.  R.  R.  Co.  v.  Baldwin,  85 
Ala.  619,  6  So.  311. 

The  fourteenth  amendment  does  not 
profess  to  secure  to  all  persons  in  the 
United  States  the  benefit  of  the  same 
laws  and  the  same  remedies.  Great  di- 
versities may  and  do  exist  in  these  re- 
spects in  different  States.  One  may  have 
the  common  law  and  trial  by  jury;  an- 
other the  civil  law  and  trial  by  the  court. 
But  like  diversities  may  also  exist  in  dif- 
ferent parts  of  the  same  State.  The  States 
frame  their  laws  and  organize  their  courts 
with  some  regard  to  local  peculiarities 
and  special  needs,  and  this  violates  no 
constitutional  requirement.  All  that  one 
can  demand  under  the  last  clause  of  §  1 
of  the  fourteenth  amendment  is,  that  he 
shall  not  be  denied  the  same  protection 
of  the  laws  which  is  enjoyed  by  other 
persons  or  other  classes  in  the  same  place 
and  under  like  circumstances.  Missouri 
v.  Lewis,  101  U.  S.  22 ;  Hayes  v.  Missouri, 
120  U.  S.  68,  7  Sup.  Ct.  Rep.  350.  So 
railroads,  as  a  class,  may  be  taxed  differ- 
ently from  other  property,  and  if  the  law 
provides  for  a  hearing  and  judicial  con- 
test, it  is  due  process  of  law.  Kentucky 
R.  R.  Tax  Cases,  115  U.  S.  321,  6  Sup. 
Ct.  Rep.  57. 

The  fourteenth  amendment  not  only 
gave  citizenship  to  colored  persons,  but 
by  necessary  implication  it  conferred 
upon  them  the  right  to  exemption  from 
unfriendly  legislation  against  them  dis- 
tinctively as  colored,  —  exemption  from 
discriminations  imposed  by  public  author- 
ity which  imply  legal  inferiority  in  civil 
society,  lessen  the  security  of  their  rights, 
and  are  steps  towards  reducing  them  to 
the  condition  of  a  subject  race.  The  de- 
nial by  State  authority  of  the  right  and 
privilege  in  colored  persons  to  participate 
as  jurors  in  the  administration  of  justice 
is  a  violation  of  this  amendment.  Strau- 
der  v.  West  Virginia,  100  U.  S.  303  ;  Vir- 
ginia v.  Rives,  100  U.  S.  313 ;  Ex  pirte 
Virginia,  100  U.  S.  339  ;  Neal  v.  Dela- 
ware, 103  U.  S.  370 ;  FJBush  v.  Kentucky, 
107  U.  S.  110, 1  Sup.  Ct.  Rep.  625 ;  Gibson 


v.  Mississippi,  162  U.  S.  665,  16  Sup.  Ct. 
Rep.  904;  Carter  v.  Texas,  177  U.  S.  442, 
20  Sup.  Ct.  Rep.  687.  On  negroes  as  grand 
jurors  see  note  to  44  L.  ed.  U.  S.  839.  State 
may  require  negroes  and  whites  to  occupy 
separate  compartments  in  passenger  cars 
on  roads  operating  wholly  within  the 
State.  Plessy  v.  Ferguson,  163  U.  S.  537, 
16  Sup.  Ct.  Rep.  1138,  aff.  45  La.  Ann.  80, 
11  So.  948,18  L.  R.  A.  639.]  A  trial  jury 
may  be  made  up  entirely  of  whites,  if  ne- 
groes are  not  excluded  from  jury  lists,  but 
an  indictment  is  bad,.if  found  by  a  grand 
jury  on  which  whites  only  are  allowed  by 
law.  Bush  v.  Kentucky,  107  U.  S.  110, 
1  Sup.  Ct.  Rep.  625.  See,  further,  United 
States  v.  Reese,  92  U.  S.  214  ;  QLewis  v. 
State,  29  Tex.  Ct.  Ap.  201, 59  S.  W.  1116, 
25  Am.  St.  720.  Negroes  called  for  jury- 
service  may  be  peremptorily  challenged 
if  peremptory  challenges  are  not  yet  ex- 
hausted. Whitney  v.  State,  —  Tex.  Cr. 
Ap.  — ,  63  S.  W.  879.]  A  law  prohib- 
iting adultery  between  a  white  and  a 
negro  under  heavier  penalty  than  be- 
tween two  whites  or  two  blacks,  is  valid. 
Pace  v.  Alabama,  106  U.  S.  683,  1  Sup. 
Ct.  Rep.  637.  See  Plunkard  v.  State,  67 
Md.  364.  Since  these  amendments,  as 
before,  sovereignty  for  the  protection  of 
life  and  personal  liberty  within  the  re- 
spective States  rests  alone  with  the 
States ;  and  the  United  States  cannot 
take  cognizance  of  invasions  of  the  privi- 
lege of  suffrage  when  race,  color,  or  pre- 
vious condition  is  not  the  ground  thereof, 
United  States  v.  Reese,  92  U.  S.  214; 
United  States  v.  Cruikshank,  id.  542. 
Police  regulations  which  affect  alike  all 
persons  similarly  situated  are  valid : 
Barbier  v.  Connolly,  113  U.  S.  27,  5  Sup. 
Ct.  Rep.  357 ;  so  of  regulations  of  the 
practice  of  medicine :  Dent  v.  West  Vir- 
ginia, 129  U.  S.  114,  9  Sup.  Ct.  Rep.  231  ; 
rjState  v.  Knowles,  90  Md.  646,  45  Atl. 
877,  49  L.  R.  A.  695 ;]  but  the  adminis- 
tration of  such  police  ordinances  so  as  to 
deny  to  Chinese  rights  accorded  to  whites 
in  similar  circumstances  is  prohibited. 
Tick  Wo  v.  Hopkins,  118  U.  S.  356,  6 
Sup.  Ct.  Rep.  1064. 

Corporations  are  "  persons  "  within  the 
meaning  of  the  amendment.  Santa  Clara 
Co.  v.  Southern  Pac.  R.  R.  Co.,  118  U.  S. 


20 


CONSTITUTIONAL   LIMITATIONS. 


[OH.  II. 


the  several  States  when  called  into  the  service  of  the  United 
States;   and   who  has  power,  by  and   with  the   consent  of  the 


394,  6  Sup.  Ct.  Rep.  1132;  Missouri  Pac. 
Ry.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup. 
Ct.  Rep.  1161  ;  [[Smyth  v.  Ames,  169  U.  S. 
466,  18  Sup.  Ct.  Rep.  418 ;  Hawley  v. 
Kurd  et  al.,  72  Vt.  122,  47  Atl.  401.  But 
are  not  "  citizens  "  within  the  meaning 
of  that  term  as  used  in  the  fourteenth 
amendment.  Orient  Ins.  Co.  v.  Daggs, 
172  U.  S.  557,  19  Sup.  Ct.  Rep.  281; 
Hawley  v.  Hurd  et  al.,  supra  ;]  but  a  for- 
eign corporation  is  not  deprived  of  equal 
protection  of  the  laws  because  it  is  taxed 
by  the  State  at  as  high  a  rate  as  are  cor- 
porations of  that  State  in  its  home  State. 
Phila.  Fire  Ass.r.  New  York,  119  U.  S. 
110,  7  Sup.  Ct.  Rep.  108. 

The  repeal  of  a  limitation  statute  after 
a  personal  debt  is  barred  by  it,  does  not 
deprive  the  debtor  of  property  without 
due  process  of  law.  Campbell  v.  Holt, 
115  U.  S.  620,  6  Sup.  Ct.  Rep.  209.  See, 
further,  Railroad  Co.  v.  Brown,  17  Wall. 
446  ;  Kennard  v.  Louisiana,  92  U.  S.  480; 
Pennoyer  v.  Neff,  95  U.  S.  714 ;  Pearson 
v.  Yewdall,  95  U.  S.  294;  McMillen  v. 
Anderson,  95  U.  S.  37;  Davidson  v.  New 
Orleans,  96  U.  S.  97 ;  Kirkland  v.  Hotch- 
kiss,  100  U.  S.  491 ;  Tennessee  v.  Davis, 
100  U.  S.  257 ;  Louisiana  v.  New  Orleans, 
109  U.  S.  285,  3  Sup.  Ct  Rep.  211 ;  Prov- 
ident Inst.  ».  Jersey  City,  113  U.  S.  506, 
5  Sup.  Ct.  Rep.  612;  RoBards  v.  Lamb, 
127  U.  S.  58,  8  Sup.  Ct.  Rep.  1031  ;  Wal- 
ston  v.  Nevin,  128  U.  S.  578,  9  Sup.  Ct. 
Rep.  192;  Freeland  v.  Williams,  131  U.  S. 
405,  9  Sup.  Ct.  Rep.  794;  Board  of 
Com'rs  v.  Merchant,  103  N.  Y.  143 ;  State 
v.  Ryan,  70  Wis.  676,  36  N.  W.  823; 
Warren  v.  Sohn,  112  Ind.  213,  13  N.  E. 
863 ;  State  v.  Dent,  25  W.  Va.  1 ;  Allen 
v.  Wyckoff,  48  N.  J.  L.  90,  2  Atl.  659. 
£Upon  what  constitutes  "due  process  of 
law,"  see  cases  collected  in  valuable 
notes  upon  this  topic  appended  to  42  L. 
ed.  U.  S.  865,  and  24  L.  ed.  U.  S.  436 ; 
see  also  latter  part  of  note  1,  page  605, 
and  note  1,  page  568,  post.  Personal  ser- 
vice on  non-residents  outside  the  jurisdic- 
tion of  the  court  may,  if  reasonable  time 
is  given  in  which  to  appear  and  answer,  be 
due  process  of  law  in  a  suit  for  the  foreclos- 
ure of  a  lien  upon  land  within  the  jurisdic- 
tion of  the  court ;  but  five  days'  notice,  one 
of  those  days  being  a  Sunday,  is  insuffi- 


cient when,  with  the  utmost  diligence  and 
without  any  accident  or  delay  whatever, 
the  party  notified  could  not  reach  the 
court  with  less  than  four  days  of  constant 
travelling,  and  the  fact  that  by  the  local 
practice  there  would  be  several  days 
after  return  day  before  the  case  could  be 
called  for  trial  or  default  taken,  or  that 
the  court  would  probably,  in  view  of  the 
circumstances,  set  aside  any  default  that 
might  have  been  entered,  will  not  nega- 
tive this  conclusion  of  insufficiency,  since 
non-residents  are  not  presumed  to  know 
the  law  and  practice  of  the  State.  Roller 
v.  Holly,  176  U.  S.  398,  20  Sup.  Ct.  Rep. 
410,  rev.  13  Tex.  Civ.  Ap.  636,  35  S.  W. 
1074.  "  It  is  no  longer  open  to  contention 
that  the  due  process  clause  of  the  four- 
teenth amendment  .  .  .  does  not  control 
mere  forms  of  procedure  in  State  courts  or 
regulate  practice  therein.  All  its  require- 
ments are  complied  with,  provided,  in  the 
proceedings  which  are  claimed  not  to 
have  been  due  process  of  law,  the  person 
condemned  has  had  sufficient  notice,  and 
adequate  opportunity  has  been  afforded 
him  to  defend.  Iowa  C.  R.  Co.  v.  Iowa, 
160  U.  S.  389,  16  Sup.  Ct.  Rep.  344  ;  Wil- 
son v.  North  Carolina,  169  U.  S.  686,  18 
Sup.  Ct.  Rep.  435,"  per  Mr  Justice  White 
in  Louisville  &  N.  R.  Co.  v.  Schmidt, 
177  U.  S.  230,  236,  20  Sup.  Ct.  Rep.  620, 
aff.  99  Ky.  148,  35  S.  W.  135,  36  S.  W. 
168.  In  this  case  the  L.  &  N.  R.  Co.  had 
been  an  actual  defendant,  although  never 
served  with  notice  and  not  a  party  to  the 
record.  After  judgment  it  was  brought 
in  by  rule  to  show  cause  and  upon  appear- 
ing and  claiming  a  set-off  it  was  con- 
demned to  pay  the  judgment.  The 
garnishment  of  a  resident  debtor  of  a 
non-resident  defendant  to  reach  a  debt 
due  from  the  latter  who  has  no  other 
property  within  the  jurisdiction  of  the 
court  does  not  deprive  him  of  his  property 
without  due  process  of  law,  the  situs  of 
debt  being,  for  purposes  of  attachment, 
with  the  debtor.  King  v.  Cross,  175  U.  S. 
396,  20  Sup.  Ct.  Rep.  131 ;  Chicago, 
R.  I.  &  P.  R.  Co.  i>.  Sturm,  174  U.  S.  710, 
19  Sup.  Ct.  Rep.  797.  Upon  right  to  cor- 
rect gross  undervaluations  of  property 
assessed  for  taxation  in  prior  years,  even 
when  ownership  has  since  changed,  see 


CH.  II.] 


THE   CONSTITUTION   OF   THE   UNITED   STATES. 


21 


Senate,   to   make   treaties,    provided  two-thirds   of  the    Senate 
concur,    and,   with   the   same   advice   and   consent,    to   appoint 


Weyerhauser  v.  Minnesota,  176  U.  S.  550, 
20  Sup.  Ct.  Rep.  485,  aft.  72  Minn.  519, 
75  N.  W.  718,  in  which  right  of  State  so 
to  do  is  sustained.  Assessment  and  col- 
lection of  taxes  upon  money  loaned 
within  the  State  is  not  a  taking  without 
due  process  merely  because  creditor  re- 
sides without  the  State,  and  such  taxes  if 
unpaid  may  be  made  a  lien  enforceable 
against  estate  of  decedent  creditor  except 
as  limited  by  Statute  of  Limitations. 
Bristol  v.  Washington  County,  177  U.  S. 
133,  20  Sup.  Ct.  Rep.  585. 

A  State  may  tax  the  interest  of  the 
non-resident  mortgagee  of  lands  within 
its  boundaries,  even  though  he  holds  the 
mortgage  at  his  residence.  Savings  &  L. 
Society  v.  Multonomah  County,  169  U.  S. 
421,  18  Sup.  Ct.  Rep.  392.  As  to  taxes 
on  judgments,  see  Kingman  Co.  Com'rs 
v.  Leonard,  57  Kan.  631,  46  Pac.  960,  34 
L.  R.  A.  810;  moneys  of  non-residents 
deposited  in  State,  Re  Houdayer,  150 
N.  Y.  37,  44  N.  E.  718,  34  L.  R.  A.  235, 
65  Am.  St.  642;  place  of  taxation  of 
trust  property,  Richmond  County  Acad. 
v.  Augusta,  90  Ga.  634,  17  S.  E.  61,  20 
L.  R.  A.  151,  and  note.  Subjecting  the 
logs  of  an  individual  who  voluntarily 
runs  them  into  a  boom  to  a  lien  in  favor 
of  the  surveyor-general  for  services  of 
inspection  compelled  by  law  and  ren- 
dered indiscriminately  upon  all  logs  in 
the  boom  is  not  a  taking  without  due 
process.  Lindsay  &  Phelps  Co.  v.  Mul- 
len, 176  U.  S.  120,  20  Sup.  Ct.  Rep. 
325.  Legislation  restricting  a  land- 
owner's right  to  permit  natural  gas  to 
escape  from  his  oil  wells  and  go  to  waste 
does  not  deprive  him  of  property  without 
due  process.  Ohio  Oil  Co.  v.  Indiana,  177 
U.  S.  190,  20  Sup.  Ct.  Rep.  576.  Denying 
a  right  of  action  for  defamatory  words 
used  in  a  pleading  is  not  a  taking  of 
property  without  due  process,  even  if 
reputation  could  be  considered  property. 
Abbott  v.  National  Bank  of  Commerce, 
175  U.  S.  409,  20  Sup.  Ct.  Rep.  153,  aff. 
20  Wash.  552,  56  Pac.  376.  On  power  of 
State  to  declare  keeping  of  barber-shops 
open  on  Sunday  not  a  work  of  charity  or 
necessity,  see  Petit  v.  Minnesota,  177 
U.  S.  164,  20  Sup.  Ct.  Rep.  666.  On 
power  of  city  to  restrict  prostitutes  to 


certain  localities,  even  though  such  re- 
striction depreciates  the  property  in  those 
localities,  see  L'Hote  v.  New  Orleans,  177 
U.  S.  587,  20  Sup.  Ct.  Rep.  788.  Valid 
commitment  for  contempt  does  not  de- 
prive of  liberty  without  due  process,  and 
jury  trial  is  unnecessary.  Tinsley  v. 
Anderson,  171  U.  S.  101,  18  Sup.  Ct.  Rep. 
805.  In  the  distribution  of  the  assets  of 
an  insolvent,  postponing  a  foreign  corpo- 
ration's claims  until  after  those  of  resi- 
dents of  the  State  are  satisfied,  is  not  a 
denial  of  due  process.  Blake  v.  McClung, 
172  U.  S.  239, 19  Sup.  Ct.  Rep.  165.  Nor 
is  making  the  face  of  the  policy  conclu- 
sive as  to  the  value  of  the  property 
insured  in  case  of  total  loss.  Orient  In- 
surance Co.  v.  Daggs,  172  U.  S.  557,  19 
Sup.  Ct.  Rep.  281,  aff.  136  Mo.  382,  38 
S.  W.  85,  35  L.  R.  A.  227,  58  Am.  St. 
638.  But  see  Missouri,  K.  &  T.  Ry.  Co. 
v.  Simonson,  —  Kan. — ,  68  Pac.  653,  where 
it  is  held  that  statute  making  state- 
ment of  weight  in  a  bill  of  lading  conclu- 
sive evidence  between  the  carrier  and 
shipper  was  void.  Nor  is  requirement  of 
bond  in  attachment  against  a  resident 
while  none  is  required  against  a  non-resi- 
dent. Central  Loan  &  T.  Co.  v.  Campbell 
Commn.  Co.,  173  U.  S.  84,  19  Sup.  Ct. 
Rep.  346.  State  may  forfeit  lands  for 
non-payment  of  taxes  if  reasonable  op- 
portunity is  given  the  owner  to  redeem 
by  payment  of  taxes  and  charges.  King 
v .  Mullins,  171  U.  S.  404,  18  Sup.  Ct.  Rep. 
925.  Consequential  damage  arising  from 
allowing  an  obstruction  of  a  street  is  not 
a  taking  without  due  process.  Meyer  i>. 
Richmond,  172  U.  S.  82,  19  Sup.  Ct.  Rep. 
106.  Discretion  may  be  vested  in  a  single 
officer  to  permit  or  refuse  to  permit  a 
building  to  be  moved  through  the  streets. 
Wilson  v.  Eureka  City,  173  U.  S.  32,  19 
Sup.  Ct.  Rep.  317.  State  cannot  impose 
upon  a  non-resident  lot  owner  a  liability 
in  personam  in  respect  of  the  lot.  Dewey 
v.  Des  Moines,  173  U.  S.  193, 19  Sup.  Ct. 
Rep.  379.  For  note  on  what  constitutes 
due  process  of  law,  see  2  L.  R.  A.  258. 
In  appropriation  under  eminent  domain, 
the  State  may  provide  that  the  appropri- 
ator  may  go  into  possession  upon  giving 
adequate  security  that  the  duly  assessed 
compensation  will  be  paid,  and  may  also 


22 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  II. 


ambassadors  and  other  public  ministers  and  consuls,  judges  of 
the  Supreme  Court,  and  other  officers  of  the  United  States, 
whose  appointments  are  not  otherwise  provided  for.1 

The  judicial  power  of  the  United  States  extends  to  all  cases  (a) 
in  law  and  equity  arising  under  the  national  Constitution,  the 


provide  different  tribunals  for  passing 
upon  the  necessity  of  the  appropriation 
and  upon  the  amount  of  compensation. 
Backus  v.  Fort  St.  Union  Depot  Co.,  169 
U.  S.  557,  18  Sup.  Ct.  Rep.  445.  If  dur- 
ing the  pendency  of  an  appeal,  the  day 
set  for  the  execution  of  a  death  sentence 
passes,  it  is  no  denial  of  due  process  to 
set  another  day,  particularly  when  such 
is  in  conformity  to  the  statute  of  the 
State.  Craemer  o.  Washington,  168  U.  S. 
124,  18  Sup.  Ct.  Rep.  1.  An  information 
which  charges  a  crime  in  the  general 
words  of  a  statute  without  specifying 
kind,  quantity,  price,  etc.,  but  sets  out 
these  and  other  particulars  in  a  specifi- 
cation attached  to  the  information,  which 
specification  the  accused  might  lawfully 
require  but  has  not  in  fact  required,  is  not 
too  defective  to  be  due  process.  Hodgson 
v.  Vermont,  168  U.  S.  262,  18  Sup.  Ct. 
Rep.  80,  aff.  66  Vt.  134,  28  Atl.  1089. 
State  may  confiscate,  without  judicial 
process,  nets  and  seines  used  in  violation 
of  its  fish  and  game  laws.  Lawton  o. 
Steele,  152  U.  S.  133,  14  Sup.  Ct.  Rep. 
499,  aff.  119  N.  Y.  226,  23  N.  E.  878,  7 
L.  R.  A.  134.  Indictment  by  grand  jury 
not  necessary.  McNulty  v.  California, 
149  U.  S.  645,  13  Sup.  Ct.  Rep.  959,  aff.  93 
Cal.  427,  26  Pac.  597,  29  Pac.  61.  State 
can  impeach  title  to  lands  granted  by  it 
only  by  suing  in  equity.  A  second  patent 
to  the  lands  issued  before  such  impeach- 
ment of  the  former  is  void.  Chandler  v. 
Calumet  &  H.  M.  Co.,  149  U.  S.  79,  13 
Sup.  Ct.  Rep.  798;  Noble  v.  Union  Riv. 
Logging  R.  Co.,  147  U.  S.  165,  13  Sup. 
Ct.  Rep.  271. 

The  State  may  provide  that  the  acts  of 
its  de  facto  officers  shall  be  valid.  Man- 
ning r.  Weeks,  139  U.  S.  504,  11  Sup.  Ct. 
Rep.  624.  An  erroneous  decision  upon  a 


matter  within  the  jurisdiction  of  the 
court  is  not  a  denial  of  due  process. 
Ex  parte  Converse,  137  U.  S.  624,  11  Sup. 
Ct.  Rep.  191.  Execution  of  a  criminal 
by  one  officer  or  another,  the  executioner 
being  duly  appointed  under  the  statute,  is 
no  part  of  due  process.  Davis  v.  Burke, 
179  U.  S.  399,  21  Sup.  Ct.  Rep.  210.  For 
other  important  cases  on  due  process,  see 
Missouri  Pac.  Ry.  v.  Nebraska,  164  U.  S. 
403,  17  Sup.  Ct.  Rep.  130;  Allen  v.  Geor- 
gia, 166  U.  S.  138,  17  Snp.  Ct.  Rep.  525; 
Lowe  v.  Kansas,  163  U.  S.  81,  16  Sup.  Ct. 
Rep.  1031 ;  Jones  v.  Brim,  165  U.  S.  180, 
17  Sup.  Ct.  Rep.  282  ;  Kohl  v.  Lehlback, 
160  U.  S.  293,  16  Sup.  Ct.  Rep.  304; 
Winona  &  St.  Peter  Land  Co.  v.  Minne- 
sota, 159  U.  S.  526,  16  Sup.  Ct.  Rep.  83; 
Hamilton  v.  Brown,  161  U.  S.  256,  16 
Sup.  Ct.  Rep.  685;  Iowa  C.  Ry.  Co.  v. 
Iowa,  160  U.  S.  389,  16  Sup.  Ct.  Rep.  344; 
Cram  v.  United  States,  162  U.  S.  625,  16 
Sup.  Ct.  Rep.  952 ;  Owens  v.  Henry,  161 
U.  S.  642, 16  Sup.  Ct.  Rep.  693;  Andrews 
v.  Swartz,  156  U.  S.  272,  15  Sup.  Ct.  Rep. 
389;  Bergeman  v.  Backer,  157  U.  S.  655, 
15  Sup.  Ct.  Rep.  727;  Duncan  v.  Mis- 
souri, 152  U.  S.  377,  14  Sup.  Ct.  Rep.  570; 
McKane  v.  Durston,  153  U.  S.  684,  14 
Sup.  Ct.  Rep.  913  ;  Marchant  v.  Penn.  Ry. 
Co.,  153  U.  S.  380,  14  Sup.  Ct.  Rep.  894; 
Giozza  v.  Tiernan,  148  U.  S.  657,  13  Sup. 
Ct.  Rep.  721 ;  Passavant  v.  United  States, 
148  U.  S.  214,  13  Sup.  Ct.  Rep.  572; 
Paulsen  v.  City  of  Portland,  149  U.  S.  30, 
13  Sup.  Ct.  Rep.  750 ;  Schwab  v.  Berg- 
gren,  143  U.  S.  442,  12  Sup.  Ct.  Rep.  525; 
Davis  v.  Texas,  139  U.  S.  651,  11  Sup. 
Ct.  Rep.  675 ;  Leeper  v.  Texas,  139  U.  S. 
462,  11  Sup.  Ct.  Rep.  577;  Lent  v.  Till- 
son,  140  U.  S.  316,  11  Sup.  Ct.  Rep.  825. 
See  also  cases  in  note  1,  page  568,  postJ] 
1  U.  S.  Const,  art.  2. 


(a)  fjlncludes  a  proceeding  for  mandamus.  Am.  Express  Co.  v.  Michigan,  177 
U.  S.  404,  20  Sup.  Ct.  Rep.  695,  reversing  118  Mich.  682,  77  N.  W.  317.  "Judicial 
power  of  United  States  extends  only  to  the  trial  and  determination  of  '  cases '  in  courts 
of  record,  and  .  .  .  Congress  is  still  at  liberty  to  authorize  the  judicial  officers  of  the 
several  States  to  exercise  such  power  as  is  ordinarily  given  to  officers  of  courts,  not  of 
record  ;  such,  for  instance,  as  the  power  to  take  affidavits,  to  arrest  and  commit  for 
trial  offenders  against  the  laws  of  the  United  States,  to  naturalize  aliens,  and  to  per- 


CH.  II.]  THE   CONSTITUTION   OF   THE   UNITED   STATES.  23 

laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority;  to  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls; (a)  to  all  cases  of  admiralty 
and  maritime  jurisdiction;  (6)  to  controversies  to  which  the 
United  States  shall  be  a  party  ;(V)  to  controversies  between  two 
or  more  States ;  between  a  State  and  citizens  of  another  State ; 
between  citizens  of  different  States ;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States;  and 
between  a  State  or  citizens  thereof  and  foreign  States,  citizens 
or  subjects.1  But  a  State  is  not  subject  to  be  sued  in  the  courts 
of  the  United  States  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State.2 

1  U.  S.  Const,  art.  3,  §  2.    A  State  can-  conspiring  to  kill  one  in  the  custody  of 

not  make  it  a  condition  to  the  doing  of  the   United   States   Marshal.     Logan   v. 

business  by  a  foreign  corporation  within  United  States,  144  U.  S.  263,  12  Sup.  Ct. 

its  limits  that  the  corporation  shall  agree  Rep.  617.     A  mere  maladministration  of 

not  to  remove  cases  against  it  to  the  Fed-  the  quarantine  laws  of  one  State  to  the 

eral   courts.      Barron    v.    Burnside,    121  injury  of  the  citizens  of  another  does  not 

U.  S.  186,  7  Sup.  Ct.  Rep.  931  ;  Goodrel  constitute  a  controversy  among   States. 

v.  Kreichbaum,  70  Iowa,  362,  30  N.  W.  Louisiana  v.  Texas,  176  U.  S.  1,  20  Sup. 

872.     See  Elston  v.  Pigsott,  94  Ind.  14.  Ct.  Rep.  251.     Application  of  interstate 

Congress  may  vest  exclusive  jurisdic-  commerce  to  a  Federal  court  for  the  pun- 
tion  in  Federal  courts  of  suits  arising  ishment  of  disobedience  of  the  command 
from  acts  done  under  color  of  authority  of  the  subpoena  of  the  commission  is  not 
of  the  United  States,  and  may  regulate  a  "case"  within  the  meaning  of  the 
all  incidents  of  such  suits.  Mitchell  v.  Constitution,  and  the  court  has  not  juris- 
Clark,  110  U.  S.  633,  4  Sup.  Ct.  Rep.  170.  diction.  Re  Inter-State  Commerce  Corn- 
So,  in  an  action  to  recover  money  exacted  mission,  53  Fed.  476.] 
by  a  customs  collector,  the  United  States  2  U.  S.  Const,  llth  Amendment.  But 
limitation  law  governs.  Arnson  v.  Mur-  a  suit  in  a  State  court,  to  which  a  State  is 
phy,  109  U.  S.  238,  3  Sup.  Ct.  Rep  184.  a  party,  may  be  removed  to  the  Federal 
["Federal  courts  have  jurisdiction  in  a  court  for  trial  if  a  federal  question  is  in- 
case of  conspiracy,  charging  persons  with  volved.  Railroad  Co.  v.  Mississippi,  102 

form  such  other  duties  as  may  be  regarded  as  incidental  to  the  judicial  power  rather 
than  a  part  of  the  judicial  power  itself."  Robertson  v.  Baldwin,  165  U.  S.  275,  17 
Sup.  Ct.  Rep.  326,  holding  that  Congress  may  authorize  justices  of  the  peace  to 
arrest  deserting  seamen  and  return  them  to  their  ships.] 

(a)  rjlf  a  consul  wishes  to  enjoy  his  exemption  from  the  jurisdiction  of  a  State 
court,  he  must  specially  plead  it,  and  must  plead  it  at  the  proper  time.     Wilcox  v. 
Luco,  118  Cal.  639,  45  Pac.  676,  60  Pac.  758,  45  L.  R.  A.  579,  62  Am.  St.  305,  upon 
privileges  and  exemptions  of  consuls,  see  note  to  this  case  in  L.  R.  A.     And  upon 
jurisdiction  of  consuls  over  actions  between  citizens  of  their  own  nations,  temporarily 
in  a  State,  to  the  exclusion  of  the  State  courts,  see  Telefsen  v.  Fee,  168  Mass.  188, 
46  N.  E.  562,  45  L.  R.  A.  481  and  note,  60  Am.  St.  379.] 

(b)  £A  bill  to  enforce  a  lien  for  towage  by  foreclosure  of  the  lien  on  a  raft  of  lum- 
ber in  complainant's  possession,  the  suit  being  brought  against  individual  defendants 
and  seeking  a  decree  against  them  and  in  default  of  payment  a  sale  of  the  lumber  to 
satisfy  it  is  not  a  proceeding  in  rem  within  exclusive  admiralty  jurisdiction,  but  is  a 
suit  in  personam  and  may  be  brought  in  a  State  court.     Knapp,  Stout,  &c.  Co.  v. 
McCaffrey,  177  U.  S.  638,  20  Sup.  Ct.  Rep.  824,  aff.  178  111.  107,  52  N.  E.  898;  69  Am. 
St.  290.] 

(c)  F^This  includes  a  suit  by  the  United  States  against  a  State.    United  States 
Texas,  143  U.  S.  621,  12  Sup.  Ct.  Rep.  488.] 


24 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  II. 


The  Constitution  and  the  laws  of  the  United  States,  made  in 
pursuance  thereof,  and  all  treaties  made  under  the  authority  of 
the  United  States,  are  declared  to  be  the  supreme  law  of  the 
land ; 1  and  the  judges  of  every  State  are  to  be  bound  thereby, 


U.  S.  135.  That  States  are  not  suable 
except  with  their  own  consent,  see  Rail- 
road Co.  v.  Tennessee,  101  U.  S.  337; 
Railroad  Co.  r.  Alabama,  101  U.  S.  832. 
A  State  by  appearing  in  a  suit  against  it 
may  waive  its  immunity.  Clark  v.  Bar- 
nard, 108  U.  S.  436,  2  Sup.  Ct.  Rep.  878. 
It  may  attach  any  conditions  it  pleases 
to  its  consent.  DeSaussure  v.  Gaillard, 
127  U.  S.  216,  8  Sup.  Ct.  Rep.  1053.  But 
apart  from  such  conditions  its  liability 
must  be  determined  like  that  of  an  in- 
dividual. Green  v.  State,  73  Cal.  29,  11 
Pac.  602,  14  Pac.  610;  Bowen  v.  State, 

108  N.  Y.  166, 15  N.  E.  56.     [Statutes  per- 
mitting suits  against  the  State  are  to  be 
strictly  construed.     Interest  is  not  allow- 
able on  the  claim  unless  the  statute  ex- 
pressly so  provides.     Western  &  A.  R.  Co. 
v.  State,  —  Ga.  — ,  14  L.  11.  A.  438.     And 
upon  suits  against  a  State,  see  in  general, 
Carr  v.  State,  127  Ind.  204,  26  N.  E.  778, 
11  L.  R.  A.  370  and  note ;  22  Am.  St. 
624 ;  Hans  v.  Louisiana,  134  U.  S.  1,  10 
Sup.   Ct.    Rep.    504 ;    North   Carolina   c. 
Temple,  134  U.  S.  22,  10  Sup.  Ct.  Rep. 
509.    A  suit  by  one  State  against  another 
will  not  lie,  if  in  legal  effect  prosecuted 
in   the   name  of  the   State  by   citizens 
thereof  as  the   real   parties  in  interest. 
New  Hampshire  v.  Louisiana,  108  U.  S. 
76.    A  suit  nominally  against  an  officer, 
but  really  against  a  State,  to  enforce  per- 
formance of  its  obligation  in  its  political 
capacity,  will  not  lie.    Louisiana  v.  Jumel, 
107  U.  S.  711,  2  Sup.  Ct.  Rep.  128;  Ha- 
good  v.  Southern,  117  U.  S.  52,  6  Sup.  Ct. 
Rep.  608 ;  In  re  Ayers,  123  U.  S.  443,  8 
Sup.  Ct.  Rep.  104  ;  [Smith  v.  Reeves,  178 
U.  S.  436,  20  Sup.  Ct.  Rep.  919.    And  as 
to  suits  against  States,  see  notes  to  33  L. 
ed.  U.  S.  842;  11  L.  R.  A.  370;  8  L.  R. 
A.  399.     See  also  Fitts  v.  McGhee,  172 
U.  S.  516,  19  Sup.  Ct.  Rep.  269.]     Other- 
wise if  officers,  claiming  to  act  as  such, 
invade  private  right  under  color  of  un- 
constitutional laws.      United    States    v. 
Lee,  106  U.  S.  196,  1  Sup.  Ct.  Rep.  240 ; 
Cunningham   v.  Macon,   &c.   R.  R.  Co., 

109  U.   S.  446,   3    Sup.   Ct.   Rep.   292; 
Poindexter  v.  Greenhow,  114  U.  S.  270, 
5  Sup.  Ct.   Rep.  903,  962;   [Smyth  v. 


Ames,  169  U.  S.  466,  18  Sup.  Ct.  Rep. 
418  ;  Scott  v.  Donald,  165  U.  S.  58,  107, 
17  Sup.  Ct.  Rep.  265,  262  ;  Reagan  v. 
Farmers'  L.  &  J.  Co.,  154  U.  S.  362,  14 
Sup.  Ct.  Rep.  1047 ;  Ex  pane  Tyler,  149 
U.  S.  164,  13  Sup.  Ct.  Rep.  785 ;  Pen- 
noyer  v.  McConnaughy,  140  U.  S.  1,  11 
Sup.  Ct.  Rep.  699.  Where  individuals 
claiming  to  be  in  possession  as  officers  of 
a  State,  holding  for  the  State,  are  sued  in 
an  action  of  ejectment  and  the  State  does 
not  intervene  and  become  a  party  to  the 
record,  the  suit  is  not  one  against  the 
State.  Tindal  v.  Wesley,  167  U.  S.  204, 

17  Sup.  Ct.   Rep.   770.]     See  Antoni  v. 
Greenhow,  107  U.  S.  769,  2  Sup.  Ct.  Rep. 
91.     Allen  v.  Baltimore  &  O.  R.  R.  Co., 
114  U.  S.  311,  6  Sup.  Ct.  Hep.  425,  962. 
An  action  lies  to  compel  an  officer  to  do 
what  the  statute   requires.      Rolston   o. 
Missouri  Fund   Cora'rs,  120   U.  S.  390, 
7  Sup.   Ct.   Rep.   599.     No  claim  arises 
against  any  government  in  favor  of  an 
individual,  by  reason  of  the  misfeasance, 
laches,  or  unauthorized  exercise  of  power 
by   its   officers    or    agents.      Gibbons   v. 
United  States,  8  Wall.  269  ;  Clodfelter  v. 
State,  86  N.  C.  f>l,  53;  Langford  v.  United 
States,  101  U.  S.  341.    [Upon  what  claims 
constitute  valid  demands  against  a  State, 
see  Northwestern  &  P.  H.  Bank  v.  State, 

18  Wash.  73,  50  Pac.  586,  42  L.  R.  A.  33, 
and  note.     See,  on  suits  against  a  State, 
34  Am.  L.  Rev.  670.] 

1  "The  United  States  is  a  government 
with  authority  extending  over  the  whole 
territory  of  the  Union,  acting  upon  the 
States  and  the  people  of  the  States. 
While  it  is  limited  in  the  number  of  its 
powers,  so  far  as  its  sovereignty  extends 
it  is  supreme.  No  State  government  can 
exclude  it  from  the  exercise  of  any  au- 
thority conferred  upon  it  by  the  Consti- 
tution, obstruct  its  authorized  officers 
against  its  will,  or  withhold  from  it  for 
a  moment  the  cognizance  of  any  subject 
which  that  instrument  has  committed  to 
it."  Strong,  J.,  in  Tennessee  v.  Davis, 
100  U.  S.  257, 263.  [Iowa  statute  exclud- 
ing aliens  from  holding  lands  is  overridden 
by  treaty  with  Bavaria.  Opel  v.  Shoup, 
100  Iowa,  407,  69  N.  W.  560,  37  L.  R.  A. 


CH.  II.] 


THE   CONSTITUTION   OF   THE  UNITED   STATES. 


25 


any  thing  in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding. 1 

It  is  essential  to  the  protection  of  the  national  jurisdiction, 
and  to  prevent  collision  between  State  and  national  authority,  («) 


683.  And  the  Louisiana  statute  taxing 
inheritances  and  legacies,  received  by 
foreigners  is  overridden  by  the  treaty 
with  Italy.  Succession  of  Rixner,  48  La. 
Ann.  552,  19  So.  697,  82  L.  R.  A.  177; 
upon  effect  of  treaties  upon  aliens'  right 
to  inherit,  see  note  hereto  in  L.  R.  A.] 

1  U.  S.  Const,  art.  6;  Owings  r.  Nor- 
wood's Lessee,  5  Cranch,344;  McCulloch 
v.  Maryland,  4  Wheat.  316;  Foster  v. 
Neilson,  2  Pet.  253,  314;  Cook  v.  Moffat, 
6  How.  295;  Dodge  v,  Woolsey,  18  How. 
331.  A  State  constitution  cannot  pro- 
hihit  federal  judges  from  charging  juries 
as  to  matters  of  fact.  St.  Louis,  &c.  Ry. 
Co.  v.  Vickers,  122  U.  S.  360,  7  Sup.  Ct. 
Rep.  1216.  Congress  may  empower  a 
corporation  to  take  soil  under  navigable 
water  between  two  States  for  the  build- 
ing of  a  bridge  for  use  in  interstate  com- 
merce, although  the  legislature  of  one  of 
the  States  protests  against  it.  Decker 
v.  Baltimore,  &c.  R.  R.  Co ,  30  Fed.  Kep. 
723.  When  a  treaty  has  been  ratified 
by  the  proper  formalities,  it  is,  by  the 
Constitution,  the  supreme  law  of  the 
land,  and  the  courts  have  no  power  to 
inquiie  into  the  authority  of  the  persons 
by  whom  it  was  entered  into  on  behalf 
of  the  foreign  nation.  Doe  v.  Braden, 
16  How.  635,  657  ;  or  the  powers  or  rights 
recognized  by  it  in  the  nation  with  which 
it  was  made.  Maiden  v.  Ingersoll,  6 


Mich.  373.  Its  force  is  such  that  it  may 
even  take  away  private  property  with- 
out compensation.  Cornet  v.  Winton,  2 
Yerg.  143.  It  may  operate  retroactively. 
Hauenstein  v.  Lynham,  100  U.  S.  483. 
A  State  law  in  conflict  with  it  must  give 
way  to  its  superior  authority.  Ware  r. 
Hylton,  3  Dall.  99 ;  Yeaker  v.  Yeaker,  4 
Met.  (Ky.)  33 ;  People  v.  Gerke,  5  Cal.  381. 
So,  a  provision  in  a  State  constitution. 
Parrott's  Chinese  Case,  6  Sawy.  349. 
See,  further,  United  States  r.  Aredondo, 

6  Pet.  691 ;  United  States  v.  Percheman, 

7  Pet.  61 ;  Garcia  v.  Lee,  12  Pet.  511 ; 
Hauenstein  v.   Lynham,   100  U.  S.  483 ; 
Ropes  v.  Clinch,  8  Blatch.  304 ;   United 
States  v.  Tobacco  Factory,  1  Dill.  264; 
The    Cherokee    Tobacco,  11   Wall.  616. 
In  this  last  case  it  is  decided,  as  before  it 
had  been  at  the  Circuit,  that   a  law  of 
Congress  repugnant  to  a  treaty,  to  that 
extent  abrogates  it.     To  the  same  effect 
are  Head   Money  Cases,  112  U.  S.  580, 
6  Sup.  Ct.  Rep.  247  ;  Whitney  v.  Robert- 
son, 124  U.  S.  190,  8  Sup.  Ct.  Rep.  456 ; 
Chinese  Exclusion  Case,  130  U.  S.  581, 
9  Sup.  Ct.  Rep.  623.     FJA  provision  of  a 
State  constitution   against   limitation  of 
liability  for  injuries  resulting  in  death  is 
overridden  by  an  act  of  Congress  permit- 
ting such  limitation  in  maritime  affairs. 
Loughin   v.  McCaulley,  186  Pa.  517,  40 
Atl.  1020,  48  L.  R.  A.  33, 65  Am.  St.  872.] 


(a)  FJ"  The  possession  of  the  res  vests  the  court  which  has  first  acquired  jurisdic- 
tion with  the  power  to  hear  and  determine  all  controversies  relating  thereto,  and  for 
the  time  being  disables  other  courts  of  co-ordinate  jurisdiction  from  exercising  a  like 
power.  This  rule  is  essential  to  the  orderly  administration  of  justice,  and  to  prevent 
unseemly  conflicts  between  courts  whose  jurisdiction  embraces  the  same  subjects  and 
persons.  Nor  is  this  rule  restricted  in  its  application  to  cases  where  property  has 
been  actually  seized  under  judicial  process  before  a  second  suit  is  instituted  in  an- 
other court,  but  it  often  applies  as  well  where  suits  are  brought  to  enforce  liens 
against  specific  property,  to  marshal  assets,  administer  trusts,  or  liquidate  insolvent 
estates,  and  in  suits  of  a  similar  nature  where,  in  the  progress  of  the  litigation,  the 
court  may  be  compelled  to  assume  the  possession  and  control  of  the  property  to  be 
affected.  The  rule  has  been  declared  to  be  of  especial  importance  in  its  application 
to  Federal  and  State  courts.  Peck  v.  Jenness,  7  How.  612;  Freeman  v.  Howe,  24 
How.  450;  Moran  v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  Rep.  1019;  Central  Nat'l 
Bank  v.  Stevens,  169  U.  S.  432,  18  Sup.  Ct.  Rep.  403;  Harkrader  v.  Wadley,  172 
U.  S.  148,  19  Sup.  Ct.  Rep.  119."  Per  Shiras,  J.,  in  Farmers'  Loan  &  T.  Co.  v.  Lake 
St.  Elevated  R.  Co.,  177  U.  S.  51,  20  Sup.  Ct.  Rep.  564,  rev.  173  111.  439,  61  N.  E.  55. 
Under  U.  S.  Rev.  Stat.  §  720,  a  Federal  court  is  precluded  from  granting  an  in  June- 


26  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

that  the  final  decision  upon  all  questions  arising  in  regard  thereto 
should  rest  with  the  courts  of  the  Union;1  and  as  such  questions 

1  Martin  v.  Hunter's  Lessee,  1  Wheat,  tain  act  of  legislature  does  not  impair  ob- 

304,  334  ;  Cohens  v.  Virginia,  6  Wheat,  ligation  of  contract  raises  a  federal  ques- 

264  ;  Bank  of  United  States  v.  Norton,  3  tion,  see  Walsh  v.  Columbus,  H.  V.  &  A.  R. 

Marsh.  423 ;  Braynard  v.  Marshall,  8  Pick.  Co.,  176  U.  S.  469,  20  Sup.  Ct.  Rep.  393  ; 

194,  per  Parker,  Ch.  J.,  Spangler's  Case,  also  Bellingham  Bay  &  B.  C.  R.  Co.  v. 

11  Mich.  298;   Tarble's   Case,  13  Wall.  New  Whatcom,  172  U.S.  314,  19  Sup.  Ct. 

397 ;  Tennessee  v.  Davis,  100  U.  S.  257.  Rep.  205.      Whether  an  act,  authorized 

QUpon   necessity  of  federal   question  in  by  legislation  decided  by  the  courts  of  a 

jurisdiction  of  Federal  over  State  courts,  State  to  be  in  conformity  to  its  Consti- 

see  notes  to  42  L.  ed.  U.  S.  998,  and  37  tution,  amounts  to  a  taking  of  property 

L.  ed.  U.  S.  267.     Upon  what  is  federal  without  due  process  is  a  federal  question, 

question,  see  note  to  39  L.  ed.  U.  S.  884.  Wheeler  v.  N.  Y.(  N.  H.  &  H.  R.  Co.,  178 

That  decision  by  a  State  court  that  a  cer-  U.  S.  321,  20  Sup.  Ct.  Rep.  949J 

tion  against  enforcing  claims  against  Indians  in  a  State  court.  U.  S.  v.  Parkhurst- 
Davis  Mercantile  Co.,  176  U.  S.  317,  20  Sup.  Ct.  Rep.  423.  See,  upon  injunctions 
restraining  proceedings  in  State  courts,  notes  to  16  C.  C.  A.  90,  and  27  C.  C.  A.  575. 
No  State  court  has  authority  to  order  execution  against  a  national  bank  in  the 
hands  of  a  receiver  for  the  enforcement  of  a  lien  in  attachment  against  the  bank  as 
garnishee,  even  though  the  lien  were  obtained  before  the  receiver's  appointment. 
Earle  v.  Pennsylvania,  178  U.  S.  449,  20  Sup.  Ct.  Rep.  915.  But  the  State  court 
may  entertain  an  action  in  attachment  against  such  bank  and  its  receiver,  and  the 
receiver  must  report  such  fact  and  the  judgment  upon  the  action  to  the  Comptroller 
of  the  Currency  whose  duty  it  is  to  hold  the  proceeds  of  the  bank's  assets  subject 
to  all  rights  acquired  by  the  plaintiff  through  the  attachment  proceedings.  Earle  v. 
Pennsylvania,  above;  Earle  r.  Con  way,  .178  U.  S.  456,  20  Sup.  Ct.  Rep.  918,  aff.  189 
Pa.  610, 42  All.  303.  A  Federal  court  controlling  receivership  of  bank  cannot  restrain 
a  prosecution  brought  by  State  against  an  officer  of  the  bank  for  crime  committed 
in  respect  to  the  bank  property  before  the  civil  suit  was  brought.  Harkrader  v. 
Wadley,  172  U.  S.  148,  19  Sup.  Ct.  Rep.  119.  A  receiver  appointed  by  a  Federal 
court  voluntarily  going  into  a  State  court  cannot  question  the  right  of  the  State 
court  to  determine  the  controversy.  Grant  v.  Buckner,  172  U.  S.  232,  19  Sup.  Ct. 
Rep.  163,  aff.  49  La.  Ann.  668,  21  So.  580.  A  State  court  cannot  compel  the  com- 
plainants in  a  suit  pending  in  a  Federal  court  to  come  into  the  State  court  and  there 
relitigate  the  question  in  controversy  in  the  Federal  court,  nor  can  it  by  injunction 
restrain  them  from  proceeding  under  the  final  decree  of  sale  of  the  Federal  court, 
and  from  enforcing  the  other  remedies  adjudged  to  them  by  that  decree.  Central 
Nat.  Bk.  v.  Stevens,  169  U.  S.  432, 18  Sup.  Ct.  Rep.  403.  Proceedings  in  rem  for  the 
enforcement  of  a  lien  against  a  vessel  given  by  a  State  statute  for  repairs  made  upon 
her  in  her  home  port  under  contract  with  her  owners  or  their  agent  are  within  the 
exclusive  jurisdiction  of  the  Federal  courts,  being  in  admiralty.  The  Glide,  167 
U.  S.  606,  17  Sup.  Ct.  Rep.  930,  rev.  167  Mass.  525,  33  N.  E.  163,  159  Mass.  60,  34 
N.  E.  258.  That  such  lien  will  be  enforced  in  admiralty,  see  The  J.  E.  Rumbell,  148 
U.  S.  1,  13  Sup.  Ct.  Rep.  498.  The  same  act  may  be  a  crime  against  both  a  State 
and  the  United  States,  and  each  then  has  jurisdiction  to  punish  it.  Crossley  v.  Cali- 
fornia, 168  U.  S.  640,  18  Sup.  Ct.  Rep.  242,  8.  c.  below;  People  v.  Worden,  113  Cal. 
569,  45  Pac.  844.  Where  the  question  of  the  validity  of  a  patent  arises  collaterally, 
the  State  court  has  jurisdiction  to  pass  upon  it.  Pratt  v.  Paris  Gaslight  &  Coke 
Co.,  168  U.  S.  255,  18  Sup.  Ct.  Rep.  62:  see  also  Marsh  v.  Nichols,  Shepard  and  Co., 
140  U.  S.  344,  11  Sup.  Ct.  Rep.  798.  The  rights  of  riparian  owners  are  determined 
by  the  State  law.  St.  Anthony  Falls  Water  Power  Co.  v.  Board  of  Water  Com'rs, 
168  U.  S.  349,  18  Sup.  Ct.  Rep.  157;  Eldredge  v.  Trezevant,  160  U.  S.  452,  16  Sup. 
Ct.  Rep.  245.  State  courts  have  jurisdiction  of  crimes  committed  on  Indian  reser- 
vations where  crime  is  neither  by  nor  against  Indians.  Draper  v.  United  States,  164 
U.  S.  240,  17  Sup.  Ct.  Rep.  107.  National  banks  are  subject  to  State  authority  in 


CH.  II.]  THE  CONSTITUTION   OF  THE  UNITED   STATES.  27 

must  frequently  arise  first  in  the  State  courts,  provision  is  made 
by  the  Judiciary  Act  for  removing  to  the  Supreme  Court  of  the 

all  respects  except  where  the  attempted  exercise  of  such  authority  "expressly 
conflicts  with  the  laws  of  the  United  States,  and  either  frustrates  the  purpose  of  the 
national  legislation,  or  impairs  the  efficiency  of  these  agencies  of  the  Federal  govern- 
ment to  discharge  the  duties  for  the  performance  of  which  they  were  created." 
Davis  v.  Elmira  Sav.  Bk.,  161  U.  S.  283,  16  Sup.  Ct.  Rep.  502 ;  and  the  power  vested 
in  a  national  bank  by  federal  law  to  take  property  "  such  as  shall  be  conveyed  to  it 
in  satisfaction  of  debts  previously  contracted  in  the  course  of  its  dealings"  is  not 
infringed  by  a  State  statute  making  such  conveyances  voidable  in  case  of  insolvency 
within  a  limited  period  thereafter  by  the  transferor.  McClellan  v.  Chipman,  164 
U.  S.  347,  17  Sup.  Ct.  Rep.  85.  Appointment  of  a  receiver  by  a  Federal  court  does 
not  divest  a  State  court  of  its  previously  acquired  control  of  the  assets  of  a  corpora- 
tion. Mo.  Pac.  R.  Co.  v.  Fitzgerald,  160  U.  S.  556,  16  Sup.  Ct.  Rep.  389 ;  Shields  v. 
Coleman,  157  U.  S.  168,  15  Sup.  Ct.  Rep.  670.  Upon  effect  of  judgment  of  State 
court  upon  United  States  title  to  lands,  see  Stanley  v.  Schwalby,  162  U.  S.  255,  16 
Sup.  Ct.  Rep.  754.  Federal  court  will  not  revise  views  of  State  court  upon  principles 
of  general  law.  Sayward  v.  Denny,  158  U.  S.  180,  15  Sup.  Ct.  Rep.  777.  State 
decisions  control  interpretation  of  wills.  Roberts  v.  Lewis,  153  U.  S.  367,  14  Sup. 
Ct.  Rep.  945.  When  a  Federal  court  of  competent  jurisdiction  has  acquired  posses- 
sion of  property,  and  is  proceeding  to  determine  a  controversy  concerning  it,  a  State 
court  cannot  enjoin  the  plaintiffs  in  the  Federal  court  from  proceeding  in  the  case. 
Moran  v.  Sturges,  154  U.  S.  256,  14  Sup.  Ct.  Rep.  1019,  rev.  136  N.  Y.  169,  32  N.  E. 
623,20  L.  R.  A.  391.  A  State  court  cannot  adjudicate  upon  a  maritime  lien,  nor  can 
any  action  of  such  court  divest  property  of  such  lien  when  it  has  once  attached. 
Moran  v.  Sturges,  above.  State  statutes  of  limitation  are  not  binding  upon  the 
United  States,  but  the  United  States  may  take  advantage  of  them.  Stanley  v. 
Schwalby,  147  U.  S.  608,  13  Sup.  Ct.  Rep.  418.  Although  the  statutes  of  the  State 
regulate  the  administration  and  descent  of  the  assets  of  descendants,  and  exclusive 
jurisdiction  of  such  matters  may  be  conferred  upon  the  State's  probate  courts,  so  far 
as  its  own  citizens  are  concerned,  the  Federal  courts  have  jurisdiction  to  adjudicate 
upon  claims  concerning  sucli  assets  as  between  citizens  of  different  States.  Hayes 
v.  Pratt,  147  U.  S.  557,  13  Sup.  Ct.  Rep.  503.  But  if  the  probate  court  has  secured 
possession  of  the  assets,  the  Federal  court  cannot  deprive  it  of  such  possession. 
Byers  v.  McAuley,  149  U.  S.  608,  13  Sup.  Ct.  Rep.  906 ;  see  the  dissenting  opinion 
of  Mr.  Justice  Shims  in  this  case,  concurred  in  by  Chief  Justice  Fuller.  The  juris- 
diction  of  the  Federal  courts  over  suits  between  citizens  of  different  States  cannot  be 
impaired  by  any  statutory  regulations  of  a  State  concerning  the  manner  in  which 
the  validity  of  demands  against  its  counties  shall  be  established.  Chicot  County  ". 
Sherwood,  148  U.  S.  529,  13  Sup.  Ct.  Rep.  695.  In  absence  of  congrefsional  legis- 
lation Federal  courts  follow  State  statutes  of  limitation.  Bauserman  v.  Blunt,  147 
U.  S.  647,  13  Sup.  Ct.  Rep.  466.  Federal  courts  will  not  entertain  suit  against  a 
receiver  appointed  by  State  court  without  permission  of  such  court.  Porter  v.  Sabin, 
149  U.  S.  473,  13  Sup.  Ct.  Rep.  1008.  Property  in  the  hands  of  a  receiver  of  a  Federal 
court  cannot  be  levied  upon  by  a  State  officer  to  enforce  the  payment  of  taxes.  Ex 
parte  Tyler,  149  U.  S.  164,  13  Sup.  Ct.  Rep.  785.  Assignee  in  bankruptcy  is  bound 
if  he  appears  in  a  State  court -and  answers.  Ludeling  v.  Chaffe,  143  U.  S.301,  12 
Sup.  Ct.  Rep.  439 ;  s.  c.  40  La.  Ann.  645,  4  So.  586.  Federal  courts  are  not  bound 
by  the  rules  of  constructive  notice  and  summons  followed  in  the  State  courts.  Tripp 
v.  Santa  Rosa  St.  R.  Co.,  144  U.  S.  126,  12  Sup.  Ct.  Rep.  655.  A  State  can  neither 
enlarge  nor  restrict  the  jurisdiction  of  the  Federal  courts.  Southern  Pac.  Co.  v. 
Denton,  146  U.  S.  202,  13  Sup.  Ct.  Rep.  44 ;  Parker  v.  Ormsby,  141  U.  S.  81,  11 
Sup.  Ct.  Rep.  912.  Nor  can  it  regulate  the  practice  thereof.  Scott  v.  Neely,  140 
U.  S.  106,  11  Sup.  Ct.  Rep.  712.  Nor  can  a  State  court  readjudicate  matters  deter- 
mined by  a  Federal  court.  Leadville  Coal  Co.  v.  McCreery,  141  U.  S.  475,  12  Sup. 
Ct.  Rep.  28.  Where  an  administrator  appointed  under  the  laws  of  one  State  appears, 


28  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

United  States  the  final  judgment  or  decree  in  any  suit,  rendered 
in  the  highest  court  of  law  or  equity  of  a  State  in  which  a  deci- 
sion could  be  had,  in  which  is  drawn  in  question  the  validity  of 
a  treaty,  or  statute  of,  or  authority  exercised  under  the  United 
States,  and  the  decision  is  against  its  validity ;  (a)  or  where  is 
drawn  in  question  the  validity  of  a  statute  of,  or  an  authority 
exercised  under  any  State,  on  the  ground  of  its  being  repugnant 

without  authority  from  the  court  appointing  him,  and  defends  upon  the  merits  a  suit 
brought  against  him  in  a  Federal  circuit  court  in  another  State,  and  the  decree  goes 
against  him,  and  he  later  appears  and  files  a  bill  of  review  in  that  court,  the  laws  of 
the  second  State  permitting  administrators  of  other  States  to  sue  as  such  in  its  courts, 
the  Federal  court  gets  jurisdiction  of  the  administrator  and  the  decree  in  the  suit  for 
review  is  binding  upon  him  and  must  be  given  full  faith  and  credit  in  other  States. 
Lawrence  v.  Nelson,  143  U.  S.  215,  12  Sup.  Ct.  Rep.  440.  "Judgments  and  decrees 
of  a  circuit  court  of  the  United  States  are  to  be  accorded  in  the  State  courts  the 
same  effect  as  would  be  accorded  to  the  judgments  and  decrees  of  a  State  tribunal  of 
equal  authority."  Pendleton  v.  Russell,  144  U.  S.  640,  12  Sup.  Ct.  Rep.  743.  Federal 
Supreme  Court  will  not  issue  mandamus  to  State  Supreme  Court  to  reinstate  a  dis- 
barred attorney.  Re  Green,  141  U.  S.  325, 11  Sup.  Ct.  Rep.  11.  Federal  practice  not 
subject  to  State  control.  Fishburn  v.  Chicago,  M.  &  St.  P.  R.  Co.,  137  U.  S.  60,  11 
Sup.  Ct.  Rep.  8.  A  State  court  will  not  be  permitted  to  try  a  United  States  marshal, 
deputed  to  protect  one  of  the  Federal  judges  in  the  performance  of  his  duties,  for  an 
alleged  murder  where  the  killing  was  done  by  the  marshal  in  affording  such  protec- 
tion and  was  necessary  thereto.  Cunningham  v.  Neagle,  135  U.  S.  1, 10  Sup.  Ct.  Rep. 
658.  Receivers  appointed  by  Federal  court  are,  by  act  of  Congress,  suable  in  State 
courts.  Gableman  v.  Peoria,  D.  &  E.  R.  Co.,  179  U.  S.  335,  21  Sup.  Ct.  Rep.  171.  Upon 
administration  of  federal  laws  in  State  courts,  see  valuable  note  in  48  L.  R.  A.  33. 
Except  by  permission  of  Congress  a  State  cannot  determine  the  territorial  extent  to 
which  a  judgment  of  a  Federal  court  shall  be  a  lien.  Blair  v.  Ostrander,  109  Iowa, 
204,  80  N.  W.  330,  47  L.  R.  A.  469,  77  Am.  St.  532  ;  upon  liens  of  judgments  in 
Federal  courts,  see  note  to  this  case  in  L.  R.  A.  That  a  State  court  will  set  aside  a 
judgment  obtained  by  fraud  in  a  Federal  court,  see  Wonderly  v.  La  Fayette  Co.,  150 
Mo.  635,  51  S.  W.  745,  45  L.  R.  A.  386,  73  Am.  St.  474.  That  Congress  cannot  com- 
pel State  courts  to  entertain  and  act  upon  applications  for  naturalization,  see  State  v. 
Judges  of  Inf.  Ct.  of  Com.  Pleas,  58  N.  J.  L.  97,  32  All.  743,  30  L.  R.  A.  761.  Liens 
arising  from  federal  decrees  are  not  subject  to  State  recording  laws.  Stewart  v. 
W.  &  L.  E.  R.  Co.,  53  Ohio  St.  151,  41  N.  E.  247,  29  L.  R.  A.  438.3 

(a)  ^When  the  decision  is  in  f  ivor  of  its  validity  there  is  no  ground  for  review. 
Abbott  v.  Nat'l  Bk.  of  Commerce,  175  U.  S.  409,  20  Sup.  Ct.  Rep.  153.  Upon  when 
validity  is  drawn  in  question,  see  Linford  v.  Ellison,  155  U.  S.  503,  15  Sup.  Ct.  Rep. 
179.  Where  officers  of  the  United  States  are  in  possession  of  lands  and  claim  to 
hold  for  the  United  States,  and  are  sued  as  trespassers,  the  case  may  be  reviewed  in 
the  Federal  court.  Stanley  v.  Schwalby,  147  U.  S.  608,  13  Sup.  Ct.  Rep.  418. 

Whether  a  right  given  by  act  of  Congress  to  "legal  representatives"  is  for 
benefit  of  next  of  kin  to  the  exclusion  of  creditors  is  a  federal  question.  Briggs  v. 
Walker,  171  U.  S.  466,  19  Sup.  Ct.  Rep.  1.  So  is  the  effect  of  foreclosure  proceed- 
ings in  a  Federal  court.  Pittsburg  C.  C.  &  St.  L.  Ry.  Co.  v.  Long  Island  L.  &  T.  Co., 
172  U.  S.  493,  19  Sup.  Ct.  Rep.  238.  Where  the  decision  of  a  State  court  may  be 
supported  upon  grounds  which  do  not  involve  a  federal  question,  the  United  States 
Supreme  Court  will  not  review  the  case  even  though  a  federal  question  was  also 
raised  in  the  State  court.  Chappell  Chemical  &  F.  Co.  v.  Sulphur  Mines  Co.,  172 
U.  S.  465,  19  Sup.  Ct.  Rep.  265;  Allen  v.  Southern  Pacific  Ry.  Co.,  173  U.  S.  479,  19 
Sup.  Ct.  Rep.  618;  Harrison  v.  Morton,  171  U.  S.  38, 18  Sup.  Ct.  Rep.  742.  Validity 
of  title  alleged  to  be  derived  through  a  congressional  land  grant  when  questioned 
raises  a  federal  question.  Northern  Pac.  Ry.  Co.  p.  Colburn,  164  U.  S.  383,  17  Sup. 
Ct.  Rep.  98-3 


CH.  II.] 


THE   CONSTITUTION   OF  THE   UNITED   STATES. 


29 


to  the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  in  favor  of  its  validity ;  or  where  any  title,  right, 
privilege,  or  immunity  is  claimed  under  the  Constitution  or  any 
treaty  or  statute  of  or  commission  held  or  authority  exercised 
under  the  United  States,  and  the  decision  is  against  the  title, 
right,  privilege,  or  immunity  specially  set  up  or  claimed  by 
either  party  under  such  Constitution,  treaty,  statute,  commis- 
sion, or  authority.1 

But  to  authorize  the  removal  under  that  act,  it  must  appear  by 
the  record,  either  expressly  or  by  clear  and  necessary  intend- 
ment,  that  some  one  of  the  enumerated  questions  did  arise  in 
the  State  court,  and  was  there  passed  upon,  (a)  It  is  not  suffi- 


i  Acts  1789  and  1867  ;  R.  S.  1878,  title 
13,  ch.  11. 

"  It  is  settled  law,  as  established  by 
well-considered  decisions  of  this  court, 
pronounced  upon  full  argument,  and 
after  mature  deliberation,  notably  in 
Cohens  v.  Virginia,  6  Wheat.  264;  Os- 
born  t'.  Bank  of  United  States,  9  Wheat. 
738;  Mayor  v.  Cooper,  6  Wall.  247; 
Gold  Water  &  Washing  Co.  v.  Keyes, 
96  U.  S.  199;  and  Tennessee  v.  Davis, 
100  U.  S.  257  : 

"That  while  the  eleventh  amendment 
of  the  national  Constitution  excludes  the 
judicial  power  of  the  United  States  from 
suits,  in  law  or  equity,  commenced  or 
prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  such 
power  is  extended  by  the  Constituti6n  to 
suits  commenced  or  prosecuted  by  a  State 
against  an  individual,  in  which  the  latter 
demands  nothing  from  the  former,  but 
only  seeks  the  protection  of  the  Consti- 
tution and  laws  of  the  United  States 
against  the  claim  or  demand  of  the 
State ; 

"  That  a  case  in  law  or  equity  consists 
of  the  right  of  one  party,  as  well  as  of 
the  other,  and  may  properly  be  said  to 
arise  under  the  Constitution,  or  a  law  of 
the  United  States,  whenever  its  correct 
decision  depends  upon  a  construction  of 
either ; 

"  That  cases  arising  under  the  laws  of 
the  United  States  are  such  as  grow  out  of 
the  legislation  of  Congress,  whether  they 
constitute  the  right,  or  privilege,  or  claim, 
or  protection,  or  defence  of  the  party, 


in  whole  or  in  part,  by  whom  they  are 
asserted  ; 

"  That  except  in  the  cases  of  which 
this  court  is  given  by  the  Constitution 
original  jurisdiction,  the  judicial  power 
of  the  United  States  is  to  be  exercised  in 
its  original  or  appellate  form,  or  both,  as 
the  wisdom  of  Congress  may  direct ;  and 
lastly, — 

"  That  it  is  not  sufficient  to  exclude 
the  judicial  power  of  the  United  States 
from  a  particular  case  that  it  involves 
questions  which  do  not  at  all  depend  on 
the  Constitution  or  laws  of  the  United 
States  ;  but  when  a  question  to  which  the 
judicial  power  of  the  Union  is  extended 
by  the  Constitution  forms  an  ingredient 
of  the  original  cause,  it  is  within  the 
power  of  Congress  to  give  the  circuit 
courts  jurisdiction  of  that  cause,  although 
other  questions  of  fact  or  law  may  be  in- 
volved in  it."  Harlan,  J.,  in  Railroad  Co. 
v.  Mississippi,  102  U.  S.  136, 140.  QUpon 
removal  of  causes  to  the  Federal  court,  see 
note  to  36  L.  ed.  U.  S.  346,  and  another  at 
page  528.  The  Federal  Supreme  Court 
may  review  the  decision  of  a  State  court 
as  to  what  property  of  a  bankrupt  passes 
to  his  assignee  in  bankruptcy  ;  also  as  to 
when  property  arising  under  act  of  Con- 
gress begins.  Williams  v.  Heard,  140 
U.  S.  529,  11  Sup.  Ct.  Rep.  885.  For 
other  cases  upon  power  of  review  by  the 
Supreme  Court  of  the  United  States,  see 
Metropolitan  Nat'l  Bk.  v.  Claggett,  141 
U.  S.  520,  12  Sup.  Ct.Rep.60;  Ktheridge 
v.  Sperry,  N.  &  G.,  139  U.  S.  266,  11  Sup. 
Ct  Rep.  565.] 


(a)  FJ"  We  have  repeatedly  decided  that  an  appeal  to  the  jurisdiction  of  the  court 
must  not  be  a  mere  afterthought,  and  that  if  any  right,  privilege,  or  immunity  is 


30 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  II. 


cient  that  it   might  have   arisen  or   been  applicable.1     And  if 


1  Owings  v.  Norwood's  Lessee,  5 
Cranch,  344  ;  Martin  v.  Hunter's  Lessee, 
1  Wheat.  304;  Inglee  v.  Coolidge,  2 
Wheat.  363;  Miller  t;.  Nicholls,  4  Wheat. 
311;  Williams  v.  Norris,  12  Wheat.  117; 
Hickie  v.  Starke,  1  Pet.  94;  Harris  v. 
Dennie,  3  Pet.  292 ;  Fisher's  Lessee  v. 
Cockerell,  6  Pet.  248  ;  New  Orleans 
v.  De  Armas,  9  Pet.  223,  234 ;  Keene  r. 
Clarke,  10  Pt t.  291 ;  Crowell  v.  Randell. 
10  Pet.  368  ;  McKinny  v.  Carroll,  12  Pet. 
66;  Holmes  r.  Jennison,  14  Pet.  540; 
Scott  v.  Jones,  6  How.  343 ;  Smith  v. 
Hunter,  7  How.  738;  Williams  v.  Oliver, 
12  How.  Ill ;  Calcote  v.  Stanton,  18  How. 
243;  Maxwell  v.  Newbold,  18  How.  511; 
Hoyt  v.  Shelden,  1  Black,  518 ;  Farney 
v.  Towle,  1  Black,  350 ;  Day  v.  Gallup,  2 
Wall.  97  ;  Walker  v.  Villavaso,  6  Wall. 
124  ;  The  Victory,  6  Wall.  382 ;  Hamilton 
Co.  v.  Mass.,  6  Wall.  632;  Gibson  v. 
Chouteau,  8  Wall.  314;  Worthy  v.  Com- 
missioners, 9  Wall.  611 ;  Messenger  v. 
Mason,  10  Wall.  507 ;  Insurance  Co.  v. 
Treasurer,  11  Wall.  204 ;  McManus  v. 
O'Sullivan,  91  U.  S.  578 ;  Boiling  v.  Lers- 
ner,  91  U.  S.  594 ;  Adams  Co.  v.  Burling- 
ton, &c.  R.  R.  Co.,  112  U.  S.  123,  5  Sup. 
Ct.  Rep.  77;  Chicago  Life  Jns.  Co.  v. 
Needles,  113  U.  S.  574,  6  Sup  Ct.  Rep. 
681;  Detroit  Ry.  Co.  v.  Guthard,  114 
U.  S.  133,  5  Sup.  Ct.  Rep.  811 ;  Arrow- 
smith  v.  Harmoning,  118  U.  S.  194,  6 
Sup.  Ct.  Rep.  1023;  Germania  Ins.  Co. 


v.  Wisconsin,  119  LT.  S.  473,  7  Sup.  Ct. 
Rep.  360 ;  Lehigh  Water  Co.  v.  Easton, 
121  U.  S.  388,  7  Sup.  Ct.  Rep.  916;  New 
Orleans  Water  Works  v.  Louisiana  Sugar 
Co.,  125  U.  S.  18,  8  Sup.  Ct.  Rep.  741 ; 
fJScudder  v.  Coler,  175  U.  S.  32,  20  Sup. 
Ct.  Rep.  26  ;  Roby  v.  Colehour,  146  U.  S. 
153, 13  Sup.  Ct.  Rep.  47  ;  Brown  v.  Massa- 
chusetts, 144  U.  S.  573,  12  Sup.  Ct.  Rep. 
757  ;  Jesler  v.  Bd.  of  Harbor  Com'rs,  146 
U.  S.  646,  13  Sup.  Ct.  Rep.  190 ;  United 
States  v.  Lynch,  137  U.  S.  280,  11  Sup. 
Ct.  Rep.  114.J  It  is  not  sufficient  that 
the  presiding  judge  of  the  State  court 
certifies  that  a  right  claimed  under  the 
national  authority  was  brought  in  ques- 
tion. Railroad  Co.  v.  Rock,  4  Wall.  177 ; 
Parmelee  v.  Lawrence,  11  Wall.  36 ;  Felix 
v.  Schwarnweber,  125  U.  S.  54,  8  Sup. 
Ct.  Rep.  759 ;  QHenkel  v.  Cincinnati,  177 
U.  S.  170,  20  Sup.  Ct.  Rep.  573.J  If  the 
record  does  not  show  a  federal  question 
raised  or  necessarily  involved,  the  opin- 
ion of  the  court  will  not  be  examined  to 
see  if  one  was  in  fact  decided.  Otis  v. 
Oregon  S.  S.  Co.,  116  U.  S.  648,  6  Sup. 
Ct.  Rep.  523.  But  where  an  opinion  is 
part  of  the  record  by  law,  it  may  be 
examined.  New  Orleans  Water  Works 
v.  Louisiana  Sugar  Co.,  125  U.  S.  18,  8 
Sup.  Ct.  Rep.  741;  Kreiger  v.  Shelby  R.  R. 
Co.,  125  U.  S.  39,  8  Sup.  Ct.  Rep.  752; 
Gross  v.  U.  S.  Mortgage  Co.,  108  U.  S.  477, 
2  Sup.  Ct.  Rep.  940 ;  and  see  Phila.  Fire 


asserted  under  the  Constitution  or  laws  of  the  United  States,  it  must  be  specially  set 
up  and  claimed  before  the  final  adjudication  of  the  case  in  the  court  from  which  the 
appeal  is  sought  to  be  maintained."  Per  Mr.  Justice  Brown  in  Bolln  v.  Nebraska, 
176  U.  S.  83,20  Sup.  Ct.  Rep.  287;  Caldwell  r.  Texas,  137  U.  S.691,  11  Sup.Ct.  Rep. 
224 ;  Eastern  Building  &  L.  Ass'n  v.  Welling,  181  U.  S.  47,  21  Sup.  Ct.  Rep.  531 ; 
Yazoo  &  M.  V.  Ry.  Co.  v.  Adams,  180  U.  S.  1, 21  Sup.  Ct.  Rep.  240 ;  Turner  v.  Rich- 
ardson, 180  U.  S.  87,  21  Sup.  Ct.  Rep.  295 ;  Texas  &  P.  Ry.  Co.  v.  So.  Pac.  Co.,  137 
U.  S.  48,  11  Sup.  Ct.  Rep.  10;  Butler  v.  Gage,  138  U.  S.  52,  11  Sup.  Ct.  Rep.  235. 
And  it  must  be  set  up  by  him  who  would  avail  himself  of  it  in  the  Federal  Supreme 
Court.  He  cannot  avail  himself  of  the  fact  that  somebody  else  raised  the  question 
in  the  State  court,  even  though  it  were  in  the  same  suit.  Sully  v.  American  National 
Bank,  178  U.  S.  289,  20  Sup.  Ct.  Rep.  935;  Missouri  i;.  Andriano,  138  U.  S.  497,  11 
Sup.  Ct.  Rep.  385.  It  is  sufficient,  however,  if  it  be  raised  in  the  highest  State  court 
and  there  passed  upon  on  its  merits.  Sully  v.  American  National  Bank,  supra.  It  is 
sufficient  if  it  be  raised  by  some  one  under  whom  he  claims.  Ludeling  v.  Chaffe, 
143  U.  S.  301,  12  Sup.  Ct.  Rep.  439.  The  dispute  must  be  real  and  substantial.  Re 
Buchanan,  158  U.  S.  31,  15  Sup.  Ct.  Rep.  723.  And  see  in  particular  a  note  upon 
what  is  a  federal  question  in  39  L.  ed.  U.  S.  884.  Also  Powell  v.  Supervisors  of 
Brunswick  Co.,  150  U.  S.  433,  14  Sup.  Ct.  Rep.  166 ;  Hamblin  v.  Western  Land  Co., 
147  U.  S.  531,  13  Sup.  Ct.  Rep.  353.  And  see  also  upon  "Necessity  of  Federal 
Question,"  note  to  last  case  in  37  Law  ed.  U.  S.  267.] 


CH.  II.] 


THE  CONSTITUTION  OF  THE  UNITED  STATES. 


31 


the  decision  of  the  State  court  is  in  favor  of  the  right,  title, 
privilege,  or  exemption  so  claimed,  the  Judiciary  Act  does  not 
authorize  such  removal.1  Neither  does  it  where  the  validity  of 
the  State  law  is  drawn  in  question,  and  the  decision  of  the  State 
court  is  against  its  validity.2 

But  the  same  reasons  which  require  that  the  final  decision 
upon  all  questions  of  national  jurisdiction  should  be  left  to  the 
national  courts  will  also  hold  the  national  courts  bound  to 
respect  the  decisions  of  the  State  courts  upon  all  questions 
arising  under  the  State  constitutions  and  laws,  where  nothing 
is  involved  of  national  authority,  or  of  right  under  the  Consti- 
tution, laws,  or  treaties  of  the  United  States ;  (a)  and  to  accept 


Ass.  i>.New  York,  119  U.  S.  110,  7  Sup.  Ct. 
Rep.  108.  The  record  should  show  that 
the  right  was  claimed  in  the  trial  court. 
Brooks  v.  Missouri,  124  U.  S.  394,  8  Sup. 
Ct.  Rep.  443.  It  is  a  federal  question 
whether  a  State  court  has  given  effect 
to  the  unreversed  decision  of  a  United 
States  Circuit  Court  acting  within  its 
jurisdiction.  Crescent  City,  &c.  Co.  v. 
Butcher's  Union,  &c.  Co.,  120  U.  S.  141, 
7  Sup.  Ct.  Rep.  472.  So,  whether  a 
prisoner  has  been  twice  in  jeopardy ; 
Bohanan  v.  Nebraska,  118  U.  S.  231,  6 
Sup.  Ct.  Rep.  1049 ;  and  whether  one 
in  a  country  with  which  we  have  an  ex- 
tradition treaty  can  be  brought  back  for 
trial  except  under  the  treaty  provisions. 
Ker  v.  Illinois,  119  U.  S.  436,  7  Sup.  Ct. 
Rep.  225.  That  a  State  court  has  held 
valid  a  divorce  in  a  foreign  country  raises 
no  such  question.  Roth  v.  Ehman,  107 
U.  S.  319,  2  Sup.  Ct.  Rep.  312.  [For 
other  examples  of  cases  held  to  involve 
no  federal  question,  see  Crystal  Springs 
Land  &  W.  Co.  v.  Los  Angeles,  177  U.  S. 
169,  20  Sup.  Ct.  Rep.  573;  De  Lamar's 
Gold  Mining  Co.  v.  Nesbitt,  177  U.  S. 
523,  20  Sup.  Ct.  Rep.  715;  McCain  v.  Des 


Moines,  174  U.  S.  168,  19  Sup.  Ct.  Rep. 
644 ;  Remington  Paper  Co.  v.  Watson, 
173  U.  S.  443,  19  Sup.  Ct.  Rep.  456; 
Capital  Nat'l  Bk.  v.  First  Nat'l  Bk.,  172 
U.  S.  426,  19  Sup.  Ct.  Rep.  202.] 

1  Gordon  v.  Caldcleugh,  3  Cranch,  268  ; 
McDonogh  v.  Millaudon,  3  How.     693 ; 
Fulton  v.  McAffee,  16  Pet.  149  ;  Linton  v. 
Stanton,  12  How.  423 ;  Burke  v.  Gaines, 
19  How.  388;  Reddall  v.  Bryan,  24  How. 
420;  Roosevelt  v.  Meyer,  1  Wall.  512; 
Ryan  v.  Thomas,  4  Wall.  603;  p3ower 
r.  Richards,  151  U.  S.  658,  14  Sup.  Ct.  Rep. 
452.] 

2  Commonwealth  Bank  v.  Griffith,  14 
Pet.  56;   Walker  v.  Taylor,  5  How.  64; 
QMcNulty  v.  California,  149  U.  S.  645,  13 
Sup.  Ct.  Rep.  959.]     We  take  no  notice 
here  of  the  statutes  for  the  removal  of 
causes  from   the   State    to    the  Federal 
courts  for  the  purposes  of  original  trial, 
as  they  are  not  important  to  any  discus- 
sion we  shall  have  occasion  to  enter  upon 
in  this  work.     See  Rev.  Stat.  of  U:  S. 
1878,  title  13,  ch.  7  ;  Cooley,  Constitutional 
Principles,  122-128.    Judge   Dillon    has 
published  a  convenient   manual   on  this 
subject. 


(a)  QBut  this  does  not  apply  to  cases  involving  the  question  of  impairment  of  obli- 
gation of  contracts :  McCullough  v.  Virginia,  172  U.  S.  102,  19  Sup.  Ct.  Rep.  134,  and 
many  cases  there  cited :  Shelby  Co.  v.  Union  &  Planter's  Bk.,  161  U.  S.  149,  16  Sup. 
Ct.  Rep.  558;  Folsom  v.  Township  Ninety-six,  159  U.  S.  611,  16  Sup.  Ct.  Rep.  174; 
Mobile  &  O.  Ry.  Co.  v.  Tennessee,  153  U.  S.  486,  14  Sup.  Ct.  Rep.  968 ;  Barnum  v. 
Okolona,  148  U.  S.  393, 13  Sup.  Ct.  Rep.  638 ;  Knox  Co.  v.  Ninth  National  Bank,  147 
U.  S.  91,  13  Sup.  Ct.  Rep.  267 ;  McGahey  v.  Virginia,  135  U.  S.  662,  10  Sup.  Ct.  Rep. 
972. 

It  does  not  apply  to  cases  involving  the  validity  of  alleged  contracts.  Turner 
v.  Com'rs  of  Wilkes  Co.,  173  U.  S.461,  19  Sup.  Ct.  Rep.  464.  And  see  also  the  dis- 
senting opinion  of  Peckham,  J.,  in  McCullough  v.  Virginia,  above.  Also  Bacon  v. 


32  CONSTITUTIONAL  LIMITATIONS.  [CH.  II. 

the  State  decisions  as  correct,  (a)  and  to  follow  them  whenever 

Texas,  163  U.  S.  207,  16  Sup.  Ct.  Rep.  1023.  Upon  revision  by  Federal  courts  of 
the  construction  by  State  courts  of  State  laws,  see  notes  to  7  L.  ed.  U.  S.  679,  and 
12  L.  ed.  U.  S.  169. 

In  the  interpretation  of  negotiable  contracts  the  Supreme  Court  of  the  United 
States  will  follow  the  general  principles  of  commercial  law,  and  will  not  follow  the 
particular  construction  of  any  State  court.  This  is  true,  though  such  contracts  be 
issued  by  municipalities  of  the  State.  Woodruff  v.  Mississippi,  162  U.  S.  291,  16 
Sup.  Ct.  Rep.  820.  So  with  regard  to  the  master's  liability  to  servants  for  damage 
caused  by  negligence  of  fellow-servant.  Baltimore  &  Ohio  Ry.  Co.  v.  Baugh,  149 
U.  S.  368,  13  Sup.  Ct.  Rep.  914;  Gardner  v.  Michigan  C.  Ry.  Co.,  150  U.  S.  349,  14 
Sup.  Ct.  Rep.  140.  And  so  as  to  all  questions  of  general  law.  Clark  v.  Bever,  139 
U.  S.  96,  11  Sup.  Ct.  Rep.  468;  Pleasant  Tp.  v.  -<Etua  Life  Ins.  Co.,  138  U.  S.  67,  11 
Sup.  Ct.  Rep.  215-3 

(a)  QThe  construction  put  upon  its  statutes  by  the  courts  of  a  State  is  usually  bind- 
ing upon  the  Federal  courts.  New  York  Life  Ins  Co.  v.  Cravens,  178  U.  S.  389,  20 
Sup.  Ct.  Rep.  962 ;  Clarke  v.  Clarke,  178  U.  S.  186,  20  Sup.  Ct.  Rep.  873;  Warburton 
v.  White,  176  U.  S.  484,  20  Sup.  Ct.  Rep.  404 ;  Hartford  F.  Ins.  Co.  v.  Chicago  M.  & 
St.  P.  Ry.  Co.,  175  U.  S.  91,  20  Sup.  Ct.  Rep.  33;  Sioux  City  Tr.  &  W.  Co.  v.  Trust 
Co.  of  N.  A.,  173  U.  S.  99,  19  Sup.  Ct.  Rep.  381 ;  First  Nat'l  Bank  i;.  Chehalis  Co., 
166  U.  S.  440,  17  Sup.  Ct.  Rep.  629;  Walker  v.  New  Mexico  &  S.  P.  Ry.  Co.,  165  U. 
S.  593,  17  Sup.  Ct.  Rep.  421 ;  Bamberger  &  Co.  v.  Schoolfield,  160  U.  S.  149,  16  Sup. 
Ct.  Rep.  225 ;  First  Nat'l  Bk.  v.  Ayers,  160  U.  S.  660, 16  Sup.  Ct.  Rep.  412 ;  Bergeman 
v.  Backer,  157  U.  S.  655,  15  Sup.  Ct.  Rep.  727 ;  Baltimore  Tr.  Co.  v.  Baltimore  B.  R. 
Co.,  151  U.  S.  137,  14  Sup.  Ct.  Rep.  294;  Ex  parte  Lockwood,  164  U.  S.  116,  14  Sup. 
Ct.  Rep.  1082;  Morley  v.  L.  S.  &  M.  S.  Ry.  Co.,  146  U.  S.  162,  13  Sup.  Ct.  Rep.  54; 
Hancock  v.  Louisville  &  N.  Ry.  Co.,  145  U.  S.  409,  12  Sup.  Ct.  Rep.  969;  Kaukauna 
W.  P.  Co.  P.  Green  Bay  &  M.  Canal  Co.,  142  U.  S.  254,  12  Sup.  Ct.  Rep.  173 ;  Duncan 
v.  McCall,  139  U.  S.  449, 11  Sup.  Ct.  Rep.  573;  Pullman  Pal.  Car  Co.  U.Pennsylvania, 
141  U.  S.  18,  11  Sup.  Ct.  Rep.  876  ;  Cross  v.  Allen,  141  U.  S.  528,  12  Sup.  Ct.  Rep.  67  ; 
Randolph's  Executor  v.  Quidnick  Co.,  135  U.  S.  457  ;  10  Sup.  Ct.  Rep.  655;  Abraham 
v.  Casey,  179  U.  S.  210,  21  Sup  Ct.  Rep.  88;  Mason  v.  Missouri,  179  U.  S.  328,  21 
Sup.  Ct.  Rep.  125;  Loeb  v.  Columbia  Tp.  Trustees,  179  U.  S.  472,  21  Sup.  Ct.  Rep. 
174. 

Rules  of  real  property  settled  by  course  of  State  decisions  are  followed  by  Fed- 
eral courts.  Lowndes  v.  Town  of  Huntington,  153  U.  S.  1,  14  Sup.  Ct.  Rep.  758; 
Halstead  v.  Buster,  140  U.  S.  273,  11  Sup.  Ct.  Rep.  782. 

And  so  as  to  chattel  mortgages.  Etheridge  v.  Sperry  W.  &  G.,  139  U.  S.  266,  11 
Sup.  Ct.  Rep.  665.  And  assignments  for  benefit  of  creditors.  South  Branch  L.  Co. 
v.  Ott,  142  U.  S.  622,  12  Sup.  Ct.  Rep.  318. 

State  decisions  upon  what  is  correct  practice  in  criminal  cases  are  followed  unless 
due  process  is  denied.  Graham  v.  Weeks,  138  U.  S.  461,  11  Sup.  Ct.  Rep.  363. 
The  latest  settled  adjudications  are  usually  followed.  Wade  v.  Travis  Co.,  174 
U.  S.  499,  19  Sup.  Ct.  Rep.  715 ;  Backus  ».  Fort  St.  Union  Depot  Co.,  169  U.  S.  557, 18 
Sup.  Ct.  Rep.  445;  Nobles  ».  Georgia,  168  U.  S.  398,  18  Sup.  Ct.  Rep.  87;  Barber  i>. 
Pittsburg  Ft.  W.  &  C.  Ry.  Co.,  166  U.  S.  83,  17  Sup.  Ct.  Rep.  488;  Bauserman  v. 
Blunt,  147  U.  S.  647,  13  Sup.  Ct.  Rep.  466  ;  Byers  v.  McAuley,  149  U.  S.  608,  13 
Sup.  Ct.  Rep.  406;  Miller's  Exrs.  v.  Swann,  150  U.  S.  132,  14  Sup.  Ct.  Rep.  52;  New 
York  L.  E.  &  W.  Ry.  Co.  v.  Estill,  147  U.  S.  591,  13  Sup.  Ct.  Rep.  444;  Wood  ». 
Brady,  160  U.  S.  18,  14  Sup.  Ct.  Rep.  6;  May  v.  Tenney,  148  U.  S.  60,  13  Sup.  Ct. 
Rep.  491 ;  Stutsman  Co.  v.  Wallace,  142  U.  S.  293,  12  Sup.  Ct.  Rep.  227 ;  Yazoo  & 
M.  V.  Ry.  Co.  v.  Adams,  181  U.  S.  680,  21  Sup.  Ct.  Rep.  729. 

So  the  construction  put  upon  statutes  by  the  courts  of  the  State  will  usually  be 
followed  by  the  courts  of  other  States.  Kulp  v.  Fleming,  66  Ohio,  321,  62  N.  E.  334, 
87  Am.  St.  611.  See  upon  "rule  of  decision "  in  Federal  courts,  article  in  60  Alb.  L. 
Jour.  297.] 


CH.  II.] 


THE   CONSTITUTION   OF   THE   UNITED   STATES. 


33 


the  same   questions   arise  in   the  national    courts.1     With   the 
power  to  revise  the  decisions  of  the  State  courts  in  the  cases 


1  In  Beauregard  v.  New  Orleans,  18 
How.  497, 502,  Mr.  Justice  Campbell  says : 
"The  constitution  of  this  court  requires 
it  to  follow  the  laws  of  the  several  States 
as  rules  of  decision  wherever  they  apply. 
And  the  habit  of  the  court  has  been  to 
defer  to  the  decisions  of  their  judicial  tri- 
bunals upon  questions  arising  out  of  the 
common  law  of  the  State,  especially  when 
applied  to  the  title  of  lands."  In  Bank 
of  Hamilton  v.  Dudley's  Lessee,  2  Pet.  492, 
524,  it  was  urged  that  the  exclusive  power 
of  State  courts  to  construe  legislative  acts 
did  not  extend  to  the  paramount  law,  so 
as  to  enable  them  to  give  efficacy  to  an 
act  which  was  contrary  to  the  State  con- 
stitution ;  but  Marshall,  Ch.  J.,  said  :  "  We 
cannot  admit  this  distinction.  The  judi- 
cial department  of  every  government  is 
the  rightful  expositor  of  its  laws,  and 
emphatically  of  its  supreme  law."  Again, 
in  Elmendorf  v.  Tailor,  10  Wheat.  152, 
159,  the  same  eminent  judge  says  :  "  The 
judicial  department  of  every  government, 
where  such  department  exists,  is  the  ap- 
propriate organ  for  construing  the  legis- 
lative acts  of  that  government.  Tims  no 
court  in  the  universe  which  proposed  to 
be  governed  by  principle  would,  we  pre- 
sume, undertake  to  say  that  the  courts  of 
Great  Britain  or  France,  or  of  any  other 
nation,  had  misunderstood  their  own  stat- 
utes, and  therefore  erect  itself  into  a 
tribunal  which  should  correct  such  misun- 
derstanding. We  receive  the  construction 
given  by  the  courts  of  the  nation  as  the 
true  sense  of  the  law,  and  feel  ourselves 
no  more  at  liberty  to  depart  from  that 
construction  than  to  depart  from  the 
words  of  the  statute.  On  this  princi- 
ple, the  construction  given  by  this  court 
to  the  Constitution  and  laws  of  the  United 
States  is  received  by  all  as  the  true  con- 
struction ;  and  on  the  same  principle  the 
construction  given  by  the  courts  of  the 
several  States  to  the  legislative  acts  of 
those  States  is  received  as  true,  unless 
they  come  in  conflict  with  the  Consti- 
tution, laws,  or  treaties  of  the  United 
States."  In  Green  v.  Neal's  Lessee,  6  Pet. 
291,  298,  it  is  said  by  McLean,  J. :  "  The 
decision  of  the  highest  judicial  tribunal 
of  a  State  should  be  considered  as  final 
by  this  court,  not  because  the  State  tri- 


bunal in  such  a  case  has  any  power  to 
bind  this  court,  but  because,  in  the  lan- 
guage of  the  court  in  Shelby  v.  Guy, 
11  Wheat.  361,  a  fixed  and  received  con- 
struction by  a  State  in  its  own  courts 
makes  a  part  of  the  statute  law."  And 
see  Jackson  v.  Chew,  12  Wheat.  153, 
162,  per  Thompson,  J. ;  also  the  follow- 
ing cases :  Sims  v.  Irvine,  3  Dall.  425 ; 
McKeen  v.  Delancy,  5  Cranch,  22 ;  Folk's 
Lessee  v.  Wendal,  9  Cranch,  87;  Preston 
v.  Browder,  1  Wheat.  115;  Mutual  As- 
surance Co.  v.  Watts,  1  Wheat.  279; 
Shipp  v.  Miller,  2  Wheat.  316 ;  Thatcher 
v.  Powell,  6  Wheat.  119;  Bell  v.  Morri- 
son, 1  Pet.  351 ;  Waring  v.  Jackson,  1 
Pet.  570  ;  De  Wolf  v.  Rabaud,  1  Pet.  476 ; 
Fullerton  v.  Bank  of  United  States,  1  Pet. 
604;  Gardner  v.  Collins,  2  Pet.  58 ;  Beach 
v.  Viles,  2  Pet.  675 ;  Inglis  v.  Sailor's  Snug 
Harbor,  3  Pet.  99 ;  United  States  v.  Mor- 
rison, 4  Pet.  124;  Henderson  v.  Griffin, 
6  Pet.  151 ;  Hinde  v.  Vattier,  5  Pet.  398; 
Ross  w.  McLung,  6  Pet.  283 ;  Marlatt  v. 
Silk>  11  Pet.  1 ;  Bank  of  United  States  v. 
Daniel,  12  Pet.  32 ;  Clarke  v.  Smith,  13 
Pet.  195;  Ross  v.  Duval,  13  Pet.  45;  Wil- 
cox  v.  Jackson,  13  Pet.  498;  Harpending 
v.  Reformed  Church,  16  Pet.  455 ;  Martin 
v.  Waddell,  16  Pet.  307 ;  Amis  v.  Smith, 
16  Pet.  303 ;  Porterfield  v.  Clark,  2  How. 
76 ;  Lane  v.  Vick,  3  How.  464 ;  Foxcroft 
v.  Mallett,  4  How.  353 ;  Barry  v.  Mercein, 
5  How.  103;  Rowan  v.  Runnells,  5  How. 
134;  Van  Rensselaer  v.  Kearney,  11  How. 
297 ;  Pease  v.  Peck,  18  How.  595 ;  Fisher 
v.  Haldeman,  20  How.  186;  Parker  v. 
Kane,  22  How.  1 ;  Suydam  v.  Williamson, 
24  How.  427 ;  Sumner  v.  Hicks,  2  Black, 
532 ;  Chicago  v.  Robbins,  2  Black,  418 ; 
Miles  v.  Caldwell,  2  Wall.  35;  Williams 
v.  Kirkland,  13  Wall.  306;  Walker  v. 
Harbor  Com'rs,  17  Wall.  648;  Supervi- 
sors v.  United  States,  18  Wall.  71;  Fair- 
field  v.  Gallatin,  100  U.  S.  47 ;  Wade  v. 
Walnut,  105  U.  S.  1 ;  Post  v.  Supervi- 
sors, id.  667;  Taylor  v.  Ypsilanti,  id.  60; 
Equator  Co.  v.  Hall,  106  U.  S.  86,  1  Sup. 
Ct.  Rep.  198 ;  Bendey  v.  Townsend,  109 
U.  S.  665,  3  Sup.  Ct.  Rep.  482 ;  Norton  v. 
Shelby  Co.,  118  U.  S.  425, 6  Sup.  Ct.  Rep. 
1121 ;  Stryker  v.  Goodnow,  123  U.  S.  527, 
8  Sup.  Ct.  Rep.  203 ;  Williams  w.  Conger, 
125  U.  S.  397,  8  Sup.  Ct.  Rep.  933 ;  Bucher 


34 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  II. 


already  pointed  out,  the  due  observance  of  this  rule  will  prevent 
those  collisions  of  judicial  authority  which  would  otherwise  be 


v.  Cheshire  R.  R.  Co.,  id.  555,  8  Sup.  Ct. 
Rep.  974;  German  Sav.  Bank  v.  Franklin 
Co.,  128  U.  S.  526,  9  Sup.  Ct.  Rep.  159; 
Springer  v.  Foster,  2  Story  C.  C.  383; 
Neal  v.  Green,  1  McLean,  18;  Paine  v. 
Wright,  6  McLean.  395 ;  Boyle  v.  Arledge, 
Hemp.  620;  Griffing  v.  Gibb,  McAll.  212; 
Bayerque  v.  Cohen,  Me  All.  113;  Wick  v. 
The  Samuel  Strong,  Newb.  187;  N.  F. 
Screw  Co.  v.  Bliven,  3  Blatch.  240  ;  Bron- 
son  v.  Wallace,  4  Blatch.  465  ;  Van  Boke- 
len  v.  Brooklyn  City  R.  R.  Co.,  5  Blatch. 
379;  United  States  v.  Mann,  1  Gall.  3; 
Society,  &c.  v.  Wheeler,  2  Gall.  105; 
Coates  v.  Muse,  Brock.  529;  Meade  v. 
Beale,  Taney,  339;  Loring  v.  Marsh,  2 
Cliff.  311;  Parker  v.  Phetteplace,  2  Cliff. 
70;  King  v.  Wilson,  1  Dill.  555;  fJNew 
York  Life  Ins.  Co.  v.  Cravens,  178  U.  S. 
389,  20  Sup.  Ct.  Rep.  962.  See  also  note 
to  12  L.  ed.  U.  S.  169,  and  to  5  L.  R.  A. 
508.  Upon  when  Federal  courts  do  not 
follow  State  decisions,  see  note  to  19 
L.  ed.  U.  S.  490.  See  also  Missouri, 
K.  &  T.  Ry.  Co.  v.  McCann,  174  U.  S. 
580,  19  Sup.  Ct.  Rep.  755.]  The  deci- 
sion of  the  State  court,  that  a  State 
statute  has  been  enacted  in  accordance 
with  the  State  constitution,  is  binding 
on  the  Federal  courts.  Railroad  Co.  v. 
Georgia,  98  U.  S.  359;  [[Brown  v.  New 
Jersey,  175  U.  S.  172,  20  Sup.  Ct.  Rep. 
77 ;  Tullis  v.  Lake  Erie  &  W.  Ry.  Co.,  175 
U.  S.  348,  20  Sup.  Ct.  Rep.  136;  Missouri, 
K.  &  T.  Ry.  Co.  v.  McCann,  174  U.  S. 
680,  586,  19  Sup.  Ct.  Rep.  755 ;  M.  &  M. 
Nat'l  Bk.  v.  Pennsylvania,  167  U.  S.  461, 
17  Sup.  Ct.  Rep.  829.]  In  Green  o.  Neal's 
Lessee,  6  Pet.  291,  an  important  question 
was  presented  as  to  the  proper  course  to 
be  pursued  by  the  Supreme  Court  of  the 
United  States,  under  somewhat  embar- 
rassing circumstances.  That  court  had 
been  called  upon  to  put  a  construction 
upon  a  State  statute  of  limitations,  and 
had  done  so.  Afterwards  the  same  ques- 
tion had  been  before  the  Supreme  Court 
of  the  State,  and  in  repeated  cases  had 
been  decided  otherwise.  The  question 
now  was  whether  the  Supreme  Court 
would  follow  its  own  decision,  or  reverse 
that,  in  order  to  put  itself  in  harmony 
with  the  State  decisions.  The  subject  is 
considered  at  length  by  McLean,  J.,  who 


justly  concludes  that  "  adherence  by  the 
Federal  to  the  exposition  of  the  local  law, 
as  given  by  the  courts  of  the  State,  will 
greatly  tend  to  preserve  harmony  in  the 
exercise  of  the  judicial  power  in  the 
State  and  Federal  tribunals.  This  rule  is 
not  only  recommended  by  strong  con- 
siderations of  propriety,  growing  out  of 
our  system  of  jurisprudence,  but  it  is 
sustained  by  principle  and  authority." 
The  court,  accordingly,  reversed  its  rul- 
ings to  make  them  conform  to  those  of 
the  State  court.  See  also  Suydam  v. 
Williamson,  24  How.  427 ;  Leffingwell  v. 
Warren,  2  Black,  599;  Blossburg,  &c. 
R.  R.  Co.  v.  Tioga  R.  R.  Co.,  5  Blatch. 
387 ;  Smith  v.  Shriver,  3  Wall.  Jr.  219. 
It  is,  of  course,  immaterial  that  the  court 
may  still  be  of  opinion  that  the  State 
court  has  erred,  or  that  the  decisions 
elsewhere  are  different.  Bell  v.  Morrison, 
1  Pet.  351.  But  where  the  Supreme 
Court  had  held  that  certain  contracts  for 
the  price  of  slaves  were  not  made  void  by 
the  State  constitution,  and  afterwards  the 
State  court  held  otherwise,  the  Supreme 
Court,  regarding  this  decision  wrong,  de- 
clined to  reverse  their  own  ruling.  Rowan 
v.  Runnels,  5  How.  134.  Compare  this 
with  Nesmith  v.  Sheldon,  7  How.  812,  in 
which  the  court  followed,  without  exam- 
ination or  question,  the  State  decision 
that  a  State  general  banking  law  was  in 
violation  of  the  constitution  of  the  State. 
The  United  States  Circuit  Court  had  held 
otherwise  previous  to  the  State  decision. 
Falconer  v.  Campbell,  2  McLean,  195. 
Under  like  circumstances  the  State  Su- 
preme Court's  ruling  on  a  statute  of 
limitations  was  followed,  overruling  the 
Federal  circuit  decision  which  followed 
that  of  a  lower  State  court.  Moores  v. 
Nat.  Bank,  104  U.  S.  625.  But  the  State 
court's  construction  of  its  constitution 
after  the  controversy  arose,  and  in  a  suit 
between  different  parties  as  to  the  same 
subject-matter,  is  not  binding  on  the  Fed- 
eral court.  Carroll  Co.  v.  Smith,  111 
U.  S.  656,  4  Sup.  Ct.  Rep.  539 ;  Enfield 
v  Jordan,  119  U.  S.  680,  7  Sup.  Ct.  Rep. 
358.  So,  where  after  a  ruling  in  the 
United  States  Circuit  Court  the  State 
Supreme  Court  for  the  first  time  decides 
against  such  ruling,  its  decision  will  not 


en.  IL] 


THE   CONSTITUTION   OF  THE  UNITED   STATES. 


35 


inevitable,  and  which,  besides  being  unseemly,  would  be  dan- 
gerous to  the  peace,  harmony,  and  stability  of  the  Union. 

Besides  conferring  specified  powers  upon  the  national  govern- 
ment, the  Constitution  contains  also  certain  restrictions  upon 
the  action  of  the  States,  a  portion  of  them  designed  to  prevent 
encroachments  upon  the  national  authority,  (#)  and  another 
portion  to  protect  individual  rights  against  possible  abuse  of 
State  power.  Of  the  first  class  are  the  following:  No  State 
shall  enter  into  any  treaty,  alliance,  or  confederation,  grant 
letters  of  marque  or  reprisal,  coin  money,  emit  bills  of  credit,1 


be  followed  of  necessity  in  the  Federal 
Supreme  Court.  Burgess  v.  Seligman, 
107  U.  S.  20,  2  Sup.  Ct.  Rep.  10.  See 
Gibson  v.  Lyon,  115  U.  S.  439,  6  Sup.  Ct. 
Rep.  129. 

This  doctrine  does  not  apply  to  ques- 
tions not  at  all  dependent  upon  local 
statutes  or  usages ;  as,  for  instance,  to 
contracts  and  other  instruments  of  a  con- 
mercial  and  general  nature,  like  bills  of 
exchange:  Swift  p.  Tyson,  16  Pet.  1; 
Gates  v.  National  Bank,  100  U.  S.  239 ; 
Railroad  Co.  v.  National  Bank,  102  U.  S. 
14 ;  and  insurance  contracts.  Robinson 
v.  Commonwealth  Ins.  Co.,  3  Sum.  220. 
And  see  Reimsdyke  v.  Kane,  1  Gall. 
376;  Austen  v.  Miller,  5  McLean,  153; 
Gloucester  Ins.  Co.  v.  Younger,  2  Curt. 
C.  C.  322 ;  Bragg  v.  Meyer,  McAll.  408. 
Whether  a  lunatic's  contract  is  void  or 
voidable  is  a  question  of  general  juris- 
prudence. Edwards  v.  Davenport,  20 
Fed.  Rep.  756.  And  of  course  cases  pre- 
senting questions  of  conflict  with  the  Con- 
stitution of  the  United  States  cannot  be 
within  the  doctrine.  State  Bank  v. 
Knoop,  16  How.  369;  Jefferson  Branch 
Bank  v.  Skelley,  1  Black,  436.  The  Fed- 
eral court  must  decide  for  itself  whether 
there  exists  a  contract  within  the  consti- 
tutional protection.  Louisville  &  N.  R. 
R.  Co.  v.  Palmes,  109  U.  S.  244,  3  Sup. 
Ct.  Rep.  193;  Louisville  Gas  Co.  v.  Citi- 
zens' Gas  Co.,  115  U.  S.  683,  6  Sup.  Ct. 
Rep.  265.  So  in  determining  the  validity 
of  municipal  ordinances.  Yick  Wo  v. 
Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  Rep. 
1064.  And  where  a  contract  had  been 
made  under  a  settled  construction  of  the 


State  constitution  by  its  highest  court, 
the  Supreme  Court  sustained  it,  not- 
withstanding the  State  court  had  since 
overruled  its  former  decision.  Gelpcke 
v.  Dubuque,  1  Wall.  175.  See  Olcott  v. 
Supervisors,  16  Wall.  67 ;  Douglass  v. 
Pike  County,  101  U.  S.  677. 

1  To  constitute  a  bill  of  credit  within 
the  meaning  of  the  Constitution,  it  must 
be  issued  by  a  State,  involve  the  faith  of 
the  State,  and  be  designed  to  circulate 
as  money  on  the  credit  of  the  State,  in 
the  ordinary  uses  of  business.  Briscoe  v. 
Bank  of  Kentucky,  1 1  Pet.  257 ;  Wood- 
ruff v.  Trapnall,  10  How.  190.  Treasury 
warrants  designed  so  to  circulate  are  bills 
of  credit.  Braggs  v.  Tuff  ts,  49  Ark.  554, 
6  S.  W.  158.  [But  if  they  are  to  be  re- 
tired, as  soon  as  presented  for  payment 
at  the  State  treasury,  and  paid,  they  are 
not  bills  of  credit,  even  though  the  credi- 
tor to  whom  they  are  issued  may  demand 
at  the  time  of  receiving  them  that  they 
be  issued  in  denominations  of  one  dollar 
each  to  the  extent  of  the  debt,  the  re- 
mainder being  issued  in  denominations  of 
not  less  than  five  dollars,  and  even  though 
they  may  pass  from  hand  to  hand  and  are 
receivable  from  any  person  in  payment 
of  taxes.  Houston  &  T.  C.  R.  Co.  v. 
Texas,  177  U.  S.  66,  20  Sup.  Ct.  Rep.  545, 
rev.  41  S.  W.  157.]  The  facts  that  a 
State  owns  the  entire  capital  stock  of  a 
bank,  elects  the  directors,  makes  its  bills 
receivable  for  the  public  dues,  and  pledges 
its  faith  for  their  redemption,  do  not 
make  the  bills  of  such  bank  "  bills  of 
credit"  in  the  constitutional  sense.  Dar- 
rington  v.  State  Bank  of  Alabama,  13 


(a)  [^Regulations  of  the  U.  S.  Treasury  Department  which  prohibit  an  internal 
revenue  collector  from  producing  records  of  his  office  or  copies  thereof  in  any  State 
court  are  valid,  and  no  State  court  has  any  authority  to  punish  him  for  refusing  to 
produce  such  records  or  copies  before  it.  Boske  v.  Comingore,  177  U.  S.  459,  20 
Sup.  Ct.  Rep.  701-3 


36  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

or  make  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts.  No  State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  upon  imports  or  exports,  except  what  may 
be  absolutely  necessary  for  executing  its  inspection  laws;  and 
the  net  produce  of  all  duties  and  imposts  laid  by  any  State  on 
imports  or  exports  shall  be  for  the  use  of  the  treasury  of  the 
United  States,  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  Congress.  No  State  shall,  without  the  consent 
of  Congress,  lay  any  duty  of  tonnage,  keep  troops  or  ships  of 
war  in  time  of  peace,  enter  into  any  agreement  or  compact  (a) 
with  another  State  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay.  Of  the  second  class  are  the  following:  No  State 
shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impair- 
ing the  obligation  of  contracts,1^)  or  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law,  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws,2  nor  base  discriminations  in  suffrage  on  race,  color,  or 
previous  condition  of  servitude.3 

Other  provisions  have  for  their  object  to  prevent  discrimi- 
nations by  the  several  States  against  the  citizens  and  pub- 
lic authority  and  proceedings  of  other  States.  Of  this  class 
are  the  provisions  that  the  citizens  of  each  State  shall  be  en- 
How.  12.  See,  further,  Craig  v.  Missouri,  l  Const,  of  U.  S.  art.  1,  §  10;  Story  on 
4  Pet.  410  ;  Byrne  v.  Missouri,  8  Pet.  40;  Const,  c.  33,  34. 

Curran  v.  Arkansas,  15  How.  304;  Moreau         2  Const,  of  U.  S.    14th  Amendment; 
v.  Detchamendy,  41  Mo.  431;  Bailey  v.     Story  on  Const.  (4th  ed.)  c.  47. 
Milner,  35  Ga.  330 ;  City  National  Bank         3  Const,  of  U.  S.    15th  Amendment ; 
v.  Mahan,  21  La.  Ann.  751.  Story  on  Const.  (4th  ed.)  c.  48. 

(a)  [[Agreement  between  two  States  to  appoint  commissioners  to  trace  and  mark 
their  common  boundary  line  is  not  prohibited.    Virginia  v.  Tennessee,  148  U.  S.  603, 
13  Sup.  Ct.  Rep.  728.     Upon  judicial  settlement  of  State  boundaries,  see  Nebraska  v. 
Iowa,  145  U.  S.  519,  12  Sup.  Ct.  Rep.  976,  and  note  to  36  L.  ed.  U.  S.  798.] 

(b)  [[Whether  a  State  statute  impairs  the  obligation  of  a  contract  is  a  federal 
question.     Pierce  v.  Somerset  Ry.,  171  U.  S.  641, 19  Sup.  Ct.  Rep.  64.     But  this  provi- 
sion of  the  Constitution  does  not  extend  to  the  case  where  a  State  court  overrules  its 
prior  decisions,  even  though  they  have  become  rules  of  property  and  contracts  have 
been  entered  into  whose  obligation  is  seriously  impaired  by  such  overruling.    Bacon 
v.  Texas,  163  U.  S.  207,  16  Sup.  Ct.  Rep.  1023;  and  see  also  Turner  v.  Com'rs  of 
Wilkes  Co.,  173  U.  S.  461,  19  Sup.  Ct.  Rep.  464,  and  dissenting  opinion  of  Peckham, 
J.,  in  McCullough  v.  Virginia,  172  U.  S.  102,  19  Sup.  Ct.  Rep.  134.     That  impairing 
remedy  impairs  the  obligation  of  a  contract,  see  note  to  26  L.  ed.  U.  S.  132.     This 
provision  does  not  cover  the  case  of  an  alleged  impairment  of  a  contract  by  State 
action  other  than  legislative.     Hanford  v.  Davies,  163  U.  S.  273,  16  Sup.  Ct.  Rep. 
1051 ;  Turner  v.  Com'rs  of  Wilkes  Co.,  173  U.  S.  461,  19  Sup.  Ct.  Rep.  464;  Cen- 
tral Land  Co.  v.  Laidley,  159  U.  S.  103,  16  Sup.  Ct.  Rep.  80;  Wood  v.  Brady,  150 
U.  S.  18, 14  Sup.  Ct.  Rep.  6.    See  also  Ford  v.  Delta  &  Pine  Land  Co.,  164  U.  S.  662, 
17  Sup.  Ct.  Rep.  230/] 


CH.  II.] 


THE   CONSTITUTION   OF   THE   UNITED   STATES. 


37 


titled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States;1  that  fugitives  from  justice  shall  be  delivered 


1  Const,  of  U.  S.  art.  4.  "  What  are 
the  privileges  and  immunities  of  citizens 
in  the  several  States  ?  We  feel  no  hesi- 
tation in  confining  these  expressions  to 
those  privileges  and  immunities  which 
are  in  their  nature  fundamental ;  which 
belong  of  right  to  the  citizens  of  all  free 
governments,  and  which  have  at  all  times 
been  enjoyed  by  the  citizens  of  the  sev- 
eral States  which  compose  this  Union, 
from  the  time  of  their  becoming  free.,  in- 

••'dependent,  and  sovereign.  What  those 
-  fundamental  principles  are,  it  would  per- 
haps be  more  tedious  than  difficult  to 

'•enumerate.  They  may,  however,  be  all 
comprehended  under  the  following  gen- 
eral heads  :  Protection  by  the  government, 
the  enjoyment  of  life  and  liberty,  with 
the  right  to  acquire  and  possess  property 
of  every  kind,  and  to  pursue  and  obtain 
happiness  and  safety,  subject  nevertheless 
to  such  restraints  as  the  government  may 
justly  prescribe  for  the  general  good  of 
the  whole.  The  right  of  a  citizen  of  one 
State  to  pass  through  or  to  reside  in  any 
other  State,  for  purposes  of  trade,  agri- 
culture, professional  pursuits,  or  other- 
wise; to  claim  the  benefit  of  the  writ  of 
habeas  corpus;  to  institute  and  maintain 
actions  of  every  kind  in  the  courts  of  the 
State  ;  to  take,  hold,  and  dispose  of  prop- 
erty, either  real  or  personal ;  and  an  ex- 
emption from  higher  taxes  or  impositions 
than  are  paid  by  the  citizens  of  the  other 
State,  —  may  be  mentioned  as  some  of 
the  particular  privileges  and  immunities 

'of  citizens,  which  are  clearly  embraced 
by  the  general  description  of  privileges 
deemed  to  be  fundamental ;  to  which  may 
be  added  the  elective  franchise  as  regu- 
lated and  established  by  the  laws  or  con- 
stitution of  the  State  in  which  it  is  to 
be  exercised.  These,  and  many  others 
which  might  be  mentioned,  are,  strictly 
speaking,  privileges  and  immunities ;  and 
the  enjoyment  of  them  by  the  citizens  of 
each  State  in  every  other  State  was 
manifestly  calculated  (to  use  the  expres- 
sions of  the  preamble  of  the  corresponding 
provision  in  the  old  Articles  of  Confed- 
eration) 'the  better  to  secure  and  per- 
petuate mutual  friendship  and  intercourse 
among  the  people  of  the  different  States  of 
the  Union.'  "  Washington,  J.,  in  Corfield  v. 
Coryell,  4  Wash.  C.  C.  380.  The  Supreme 


Court  will  not  describe  and  define  those 
privileges  and  immunities  in  a  general 
classification ;  preferring  to  decide  each 
case  as  it  may  come  up.  Conner  v.  Elliott, 
18  How.  591 ;  Ward  r.  Maryland,  12  Wall. 
418 ;  McCready  v.  Virginia,  94  U.  S.  391. 
The  question  in  this  last  case  was  whether 
the  State  of  Virginia  could  prohibit  citi- 
zens of  other  States  from  planting  oysters 
in  Ware  Hiver,  a  stream  in  that  State 
where  the  tide  ebbs  and  flows,  and  the 
right  be  granted  by  the  State  to  its  own 
citizens  exclusively.  \Vaite,  Ch.  J.,  in 
answering  the  question  in  the  affirmative, 
said :  "  The  right  thus  granted  is  not  a 
privilege  or  immunity  of  general,  but  of 
special  citizenship.  It  does  not  belong 
of  right  to  the  citizens  of  all  free  govern- 
ments, but  only  to  the  citizens  of  Virginia, 
on  account  of  the  peculiar  circumstances 
in  which  they  are  placed  ;  they,  and  they 
alone,  owned  the  property  to  be  sold  or 
used  ;  and  they  alone  had  the  power  to 
dispose  of  it  as  they  saw  fit.  They  owned 
it,  not  by  virtue  of  citizenship  merely, 
but  of  citizenship  and  domicile  united ; 
that  is  to  say,  by  virtue  of  a  citizenship 
confined  to  that  particular  locality."  See 
also  Paul  v.  Hazelton,  37  N.  J.  100; 
[Com.  v.  Hilton,  174  Mass.  29,  54  N.  E. 
3b'2,  45  L.  R.  A.  475.]  For  other  discus- 
sions upon  this  subject,  see  Murray  v. 
McCarty,  2  Munf.  393 ;  Lemmon  v.  Peo- 
ple, 26  Barb.  270,  and  20  N.  Y.  562; 
Campbell  v.  Morris,  3  Har.  &  M'H.  554  ; 
Amy  v.  Smith,  1  Lit.  326;  Crandall  v. 
State,  10  Conn.  340;  Butler  v.  Farns- 
worth,  4  Wash.  C.  C.  101 ;  Common- 
wealth v.  Towles,  5  Leigh,  743 ;  Haney 
v.  Marshall,  9  Md.  194 ;  Slaughter  v.  Com- 
monwealth, 13  Gratt.  767 ;  State  v.  Med- 
bury,  3  R.  I.  138;  People  v.  Imlay,  20 
Barb.  68;  People  v.  Coleman,  4  Cal.  46; 
People  v.  Thurber,  13  111.  544;  Phoenix 
Insurance  Co.  v.  Commonwealth,  5  Bush, 
68 ;  Ducat  v.  Chicago,  48  111.  172  ;  Fire 
Department  v.  Noble,  3  E.  D.  Smith, 
441;  Same  v.  Wright,  3  E.  D.  Smith, 
453 ;  Robinson  v.  Oceanic  S.  N.  Co.,  112 
N.  Y.  315,  19  N.  E.  625 ;  Bliss's  Petition, 
63  N.  H.  135  ;  State  v.  Lancaster,  id.  267  ; 
People  f.  Phippin,  70  Mich.  6,  37  N.  W. 
Rep.  88;  State  v.  Oilman,  33  W.  Va.  146, 
10  S.  E.  Rep.  283;  Fire  Dep't  v.  Hel- 
fenstein,  16  Wis.  136 ;  Sears  v.  Commis- 


38 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  II. 


up,1  and  that  full  faith  and  credit  shall  be  given  in  each  State 


sioners  of  Warren  Co.,  36  Ind.  267; 
Jeffersonville,  &c.  R.  R.  Co.  v.  Hendricks, 
41  Ind.  48;  Cincinnati  Health  Associa- 
tion v.  Rosenthal,  55  111.  85 ;  State  v.  Fos- 
dick,  21  La.  Ann.  434 ;  Slaughter  House 
Cases,  16  Wall.  36;  Brad  well  v.  State,  16 
Wall.  130;  Bartmeyer  v.  Iowa,  18  Wall. 
129;  United  States  v.  Cruikshank,  92 
U.  S.  542 ;  Kimmish  v.  Ball,  129  U.  S. 
217,  9  Sup.  Ct.  Rep.  277;  [Maxwell  v. 
Dow,  176  U.  S.  581,  558-593,  20  Sup.  Ct. 
Rep.  448,  494.  Upon  privileges  of  citi- 
zens of  States,  see  note  to  1  L.  R.  A.  56 ; 
political  rights  of,  note  to  8  L.  R.  A.  337. 
This  clause  does  not  give  a  citizen  the 
right  to  enjoy  within  his  own  State  the 
privileges  which  citizens  of  other  States 
enjoy  under  the  laws  of  those  States. 
McKane  v.  Durston,  153  U.  S.  084,  14 
Sup.  Ct.  Rep.  913.  Nor  to  carry  with 
him,  when  he  goes  into  other  States,  the 
privileges  which  he  enjoys  in  his  home 
State.  Detroit  v.  Osborne,  135  U.  S.  492, 
30  Sup.  Ct.  Rep.  1012.  Exemptions  from 
taxation  must  be  granted  to  non-residents 
upon  same  terms  as  to  residents.  Sprague 
v.  Fletcher,  69  Vt.  69,  37  Atl.  239,  37 
L.  R.  A.  840.  Citizen  of  sister  State 
may  sue  defendant  resident  of  his  home 
State  in  any  State  where  he  can  get  ser- 
vice upon  him,  even  though  cause  of 
action  arose  in  home  State,  provided  it 
be  transitory.  Eingartner  v.  Illinois  Steel 
Company,  94  Wis.  70,  68  N.  W.  664,  34 
L.  R.  A.  503;  Cofrode  v.  Gartner,  79 
Mich.  332,  44  N.  W.  623,  7  L.  R.  A.  511. 
Insurance  laws  cannot  place  greater  re- 
strictions upon  citizens  of  other  States 
than  upon  those  of  home  State.  State 
v.  Board  of  Ins.  Com'rs,  37  Fla.  564,  20 
So.  772,  33  L.  R.  A.  288.  Agents  of  non- 
resident insurers  may  be  required  to  se- 
cure a  certificate  of  authority  from  the 
insurance  commissioner  before  insuring 
property  within  the  State.  People  v. 
Gay,  107  Mich.  422,  65  N.  W.  292,  30 
L.  R.  A.  464.  Citizens  of  other  States 
cannot  be  denied  right  to  become  trustees 
by  appointment  through  deeds,  mort- 
gages, &c.  Roby  v.  Smith,  131  Ind.  342, 
30  N.  E.  1093,  15  L.  R.  A.  792.  Dower 
interests  may  be  restricted  to  widows  of 
residents.  Buffington  v.  Grosvenor,  46 
Kan.  730,  27  Pac.  137,  13  L.  R.  A.  282 ; 
Bennett  v.  Harms,  61  Wis.  251,  8  N.  W. 
222.  Privilege  of  selling  liquors  may  be 


restricted  to  male  inhabitants  of  State. 
Welsh  v.  State,  126  Ind.  71,  25  N.  E.  883, 
9  L.  R.  A.  664.  Discrimination  in  inher- 
itance tax  law  between  nephews  and 
nieces  resident  within  the  State  and  those 
resident  without  is  void.  Re  Mahouey's 
Estate,  133  Cal.  180,  65  Pac.  389.]  The 
constitutional  provision  does  not  apply 
to  corporations.  Warren  Manuf.  Co.  v. 
JEtna.  Ins.  Co.,  2  Paine,  501;  Paul  v. 
Virginia,  8  Wall.  168;  Pembina  Mining 
Co.  v.  Pennsylvania,  125  U.  S.  181,  8  Sup. 
Ct.  Rep.  737;  Woodward  v.  Com.,  7  S. 
W.  Rep.  613  (Ky.);  Phenix  Ins.  Co.  v. 
Burdett,  112  Ind.  204,  13  N.  E.  705; 
[Blake  v.  McClung,  176  U.  S.  59,  20  Sup. 
Ct.  Rep.  307  ;  s.'c.  172  U.  S.  239,  19  Sup. 
Ct.  Rep.  165;  Orient  Ins.  Co.  v.  Daggs, 
172  U.  S.  557,  19  Sup.  Ct.  Rep.  281.] 
A  discrimination  between  local  freight  on 
railroads  and  that  which  is  extra-territo- 
rial is  not  personal,  and  therefore  not  for- 
bidden by  this  clause  of  the  Constitution. 
Shipper  v.  Pennsylvania  R.  R.  Co.,  47 
Penn.  St.  338.  This  clause  does  not  for- 
bid requiring  security  for  costs  from  non- 
resident plaintiffs.  Cummings  v.  Wingo, 
30  S.  C.  611,  10  S.  E.  Rep.  107.  See,  for 
taxes  which  are  forbidden  by  it,  post,  688, 
note.  [A  State  cannot  give  priority  to 
creditors  residing  within  its  boundaries 
over  those  of  the  same  class  residing 
without.  Blake  v.  McClung,  176  U.  S. 
59,  20  Sup.  Ct.  Rep.  307  ;  s.  c.  172  U.  S. 
239, 19  Sup.  Ct.  Rep.  165;  Sully  v.  Amer- 
ican Nat'l  Bk.,  178  U.  S.  289,  20  Sup.  Ct. 
Rep.  935.  A  conveyance,  which  the 
courts  of  the  State  wherein  it  was  made, 
hold  void  as  against  the  citizens  of  that 
State,  the  Federal  courts  will  hold  void 
as  against  the  citizens  of  other  States. 
Smith  M.  P.  Co.  v.  McGroarty,  136  U.  S. 
237,  10  Sup.  Ct.  Rep.  1017.  The  mere 
fact  that  a  partnership  was  organized 
under  the  laws  of  another  State  is  not 
sufficient  to  justify  the  imposition  of 
conditions  upon  its  doing  business  within 
the  State  not  required  of  local  partner- 
ships. State  v.  Cadigan,  73  Vt.  245,  50 
Atl.  1079,  57  L.  R.  A.  666,  87  Am.  St. 
714.  For  an  instructive  discussion  of  the 
doctrine  of  the  "  Privileges  and  Immuni- 
ties of  Citizens  in  the  Several  States,"  see 
article  by  Win.  J.  Meyers  in  1  Mich. 
Law  Rev.  286,  364.] 

1  Extradition  as  between  the  States. — 


CH.  II.] 


THE    CONSTITUTION    OF   THE   UNITED   STATES. 


39 


to  the  public  acts,  (a)  records,  and  judicial  proceedings  of  every 


The  return  by  one  State  of  fugitives  from 
justice  which  have  fled  to  it  from  another 
State  is  only  made  a  matter  of  rightful 
demand  by  the  provisions  of  the  Federal 
Constitution.  In  the  absence  of  such 
provisions,  it  might  be  provided  for  by 
State  law ;  but  the  Constitution  makes 
that  obligatory  which  otherwise  would 
rest  in  the  imperfect  and  uncertain  re- 
quirements of  interstate  comity.  The 
subject  has  received  much  attention  from 
the  courts  when  having  occasion  to  con- 
sider the  nature  and  extent  of  the  consti- 
tutional obligation.  It  lias  also  been  the 
subject  of  many  executive  papers  ;  and 
several  controversies  between  the  execu- 
tives of  New  York  and  those  of  more 
southern  States,  are  referred  to  in  the  re- 
cent Life  of  William  H.  Seward,  by  his 
son.  QUpon  extradition  between  States, 
see  note  to  36  L.  ed.  U.  S.  934  ;  upon  ex- 
tradition interstate  and  international,  see 
note  to  41  L.  ed.  U.  S.  1064.  See  also 
Whitten  v.  Tomlinson,  160  U.  S.  231,  16 
Sup.  Ct.  Rep.  297,  and  note  to  40  L.  ed. 
U.  S.  406.  The  sufficiency  of  the  pro- 
ceedings upon  which  a  governor  bases 
Ids  issue  of  a  warrant  for  the  arrest  of 
an  alleged  fugitive  may  be  inquired  into 
on  habeas  corpus.  Ex  parte  Tod,  12  S.  D. 
886,  81  N.  W.  637,  47  L.  R.  A.  566.  A 
governor  may  revoke  his  warrant  at  any 
time  before  the  alleged  fugitive  has  been 
removed  from  the  State.  State  v.  Toole, 
69  Minn.  104,  72  N.  W.  53, 38  L.  R.  A.  224. 
An  escaped  prisoner  is  a  fugitive.  Drink- 
all  v.  Spiegel,  68  Conn.  441,  36  Atl.  830,  36 
L.  R.  A.  486.]  The  following  are  among 
the  judicial  decisions:  The  offence  for 
which  extradition  may  be  ordered  need 
not  have  been  an  offence  either  at  the 
common  law  or  at  the  time  the  Constitu- 
tion was  adopted ;  it  is  sufficient  that  it 
was  so  at  the  time  the  act  was  committed, 
and  when  demand  is  made.  Matter  of 
Clark,  9  Wend.  212 ;  People  v.  Donohue, 
84  N.  Y.  438;  Johnston  v.  Riley,  13  Ga. 
97  ;  Matter  of  Fetter,  23  N.  J.  311 ;  Mat- 


ter of  Voorhees,  32  N.  J.  141 ;  Morton  v. 
Skinner,  48  Ind.  123;  Matter  of  Hughes, 
Pliill.  (N.  C.)  57;  Kentucky  v.  Dennison, 
24  How.  66;  Ex  parte  Reggel,  114  U.  S. 
642,  5  Sup.  Ct.  Rep.  748;  In  re  Hooper, 
52  Wis.  699,  58  N.  W.  741.  The  offence 
must  have  been  actually  committed 
within  the  State  making  the  demand, 
and  the  accused  must  have  fled  there- 
from. Ex  parte  Smith,  3  McLean,  121 ; 
Jones  v.  Leonard,  50  Iowa,  106,  32  Am. 
Rep.  116;  Hartman  v.  Aveline,  63  Ind. 
344;  Wilcox  v.  Nolze,  34  Ohio  St.  520. 
To  be  a  fugitive  it  is  not  necessary  that 
one  should  have  left  the  State  after  in- 
dictment found,  or  to  avoid  prosecution  ; 
but  simply  that,  having  committed  a  crime 
within  it,  he  is  when  sought  found  in 
another  State.  Roberts  v.  Reilly,  116 
U.  S.  80,  6  Sup.  Ct.  Rep.  291 ;  s'tate  v. 
Richter,  37  Minn.  436,  35  N.  W.  9.  [A 
person  standing  in  one  State  and  shoot- 
ing across  the  boundary  line  and  injuring 
one  in  another  State  is  not  a  fugitive 
from  justice  in  the  first  State.  State  v. 
Hall,  115  N.  C.  811,  20  S.  E.  729,  44  Am. 
St.  501-3  The  accused  may  be  arrested 
to  await  demand.  State  v.  Buzine,  4 
Harr.  572;  Ex  parte  Cubreth,  49  Cal. 
436;  Ex  parte  Rosenblat,  51  Cal.  285. 
See  Tullis  v.  Fleming,  69  Ind.  15.  But 
one  cannot  lawfully  be  arrested  on  a 
telegram  from  officers  in  another  State 
and  without  warrant.  Malcolrason  v. 
Scott,  56  Mich.  459,  23  N.  W.  166.  Nor 
can  he  be  surrendered  before  formal 
demand  is  made,  and  parties  who  seize 
and  deliver  him  up  without  demand  will 
be  liable  for  doing  so.  Botts  v.  Williams, 
17  B.  Monr.  677.  Still  if  he  is  returned 
without  proper  papers  to  the  State  from 
whence  he  fled,  this  will  be  no  sufficient 
ground  for  his  discharge  from  custody. 
Dow's  Case,  18  Penn.  St.  37.  Even 
forceable  and  unlawful  abduction  of  a 
citizen  gives  a  State  no  right  to  demand 
his  release.  Mahon  v.  Justice,  127  U.  S. 
700,  8  Sup.  Ct.  Rep.  1204 ;  fJCook  v.  Hart, 


(a)  fJA  mistake  in  understanding  the  true  meaning  of  the  statute  of  a  sister  State 
as  interpreted  by  the  courts  thereof,  is  not  a  refusal  to  give  full  faith  and  credit  to  such 
statute,  and  does  not  give  jurisdiction  to  the  Supreme  Court  of  the  United  States  on 
writ  of  error.  Banholzer  v.  N.  Y.  Life  Ins.  Co  ,  178  U.  S.  402,  20  Sup.  Ct.  Rep.  972  ; 
Glenn  v.  Garth,  147  U.  S.  360,  13  Sup.  Ct.  Rep.  350.  And  such  statute  is  a  matter  of 
fact  and  must  be  proved  as  such.  Lloyd  v.  Matthews,  155  U.  S.  222,  15  Sup.  Ct. 
Rep.  70.] 


40  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

other   State.1  (a)     Many  cases  have   been  decided  under  these 


146  U.  S.  183,  13  Sup.  Ct.  Rep.  40.]  The 
question  whether  after  such  abduction  in 
another  country  a  State  court  will  try  a 
person,  is  not  a  federal  question.  Ker  v. 
Illinois,  119  U.  S.  436,  7  Sup.  Ct.  Rep. 
225.  The  charge  must  be  made  before  a 
magistrate  of  the  State  where  the  offence 
was  committed.  Smith  v.  State,  21  Neb. 
552,  32  N.  W.  594.  The  demand  is  to 
be  made  by  the  executive  of  the  State,  by 
which  is  meant  the  governor:  Common- 
wealth v.  Hall,  9  Gray,  262 ;  and  it  is  the 
duty  of  the  executive  of  the  State  to 
which  the  offender  has  fled  to  comply  : 
Johnston  v.  Riley,  13  Ga.  97 ;  Ex  parte 
Swearingen,  13  S.  C.  74  ;  People  v.  Pink- 
erton,  77  N.  Y.  245;  Work  v.  Corrington, 
34  Ohio  St.  64,  32  Am.  Rep.  345;  but 
if  he  refuses  to  do  so,  the  courts  have 
no  power  to  compel  him  :  Kentucky  v. 
Dennison,  24  How.  66;  Matter  of  Man- 
chester, 5  Cal.  237.  It  is  his  duty  to  de- 
termine in  some  legal  way  whether  the 
person  is  a  fugitive  from  justice;  the 
mere  requisition  is  not  enough ;  but  his 
determination  is  prima  facie  sufficient. 
Ex  parte  Ueggel,  114  U.  S.  642,  5  Sup. 
Ct.  Rep.  1148;  Roberts  v.  Reilly,  116 
U.  S.  80,  6  Sup.  Ct.  Rep.  291.  See  In  re 
Jackson,  2  Flipp,  183.  There  must  be  a 
showing  of  sufficient  cause  for  the  arrest 
before  the  requisition  can  issue;  but  after 
it  is  issued  and  complied  with,  it  is  com- 
petent for  the  courts  of  either  State  on 
habeas  corpus  to  look  into  the  papers,  and 


if  they  show  no  sufficient  legal  cause,  to 
order  the  prisoner's  discharge.  Ex  parte 
Smith,  3  McLean,  121;  Matter  of  Clark, 
9  Wend.  212;  Matter  of  Manchester, 
5  Cal.  237  ;  Matter  of  Hey  ward,  1  Sandf . 
701 ;  Ex  parte  White,  49  Cal.  434  ;  State 
v  Hufford,  28  Iowa,  391 ;  People  v.  Brady, 
56  N.  Y.  182;  Kingsbury's  Case,  106 
Mass.  223  ;  Ex  parte  McKean,  3  Hughes, 
"23;  Jones  v.  Leonard,  50  Iowa,  106,  32 
Am.  Rep.  116;  Ex  parte  Powell,  20  Fla. 
806;  State  v.  Richardson,  34  Minn.  115, 
24  N.  W.  354 ;  In  re  Mohr,  73  Ala.  503. 
As  to  the  showing  required,  see  State  v. 
Swope,  72  Mo.  399;  Ex  parte  Sheldon,  34 
Ohio  St.  319 ;  Ham  v.  State,  4  Tex.  App. 
645.  QA  novel  question  was  raised  in 
In  re  Maney,  20  Wash.  509,  55  Pac.  930, 
72  Am.  St.  130.  A  sheriff  while  conduct- 
ing a  prisoner  from  one  part  of  Idaho  to 
another  part  of  the  same  State,  passed 
through  a  portion  of  the  State  of  Wash- 
ington His  prisoner  in  this  latter  State 
invoked  the  aid  of  the  writ  of  habeas  cor- 
pus on  the  theory  that  he  was  unlaw- 
fully detained.  Writ  denied.]  If  one  is 
brought  under  extradition  proceedings 
into  the  State  where  the  crime  was  com- 
mitted, he  will  not  be  discharged  by  it 
for  defects  in  proceedings,  except  on  ap- 
plication of  officers  of  the  State  from 
which  he  has  been  taken.  Ex  parte 
Barker,  87  Ala.  4,  6  So.  7.  The  Federal 
courts  have  no  power  to  compel  the  State 
authorities  to  fulfil  their  duties  under 


1  Const,  of  U.  S.  art.  4.     This  covers 
territorial    judgments.      Suesenbach    v. 


Wagner,  41  Minn.  108,  42  N.  W.  Rep.  925. 
This  clause  of  the  Constitution  has  been 


(a)  FJDpon  conclusiveness  and  effect  of  judgments  as  between  Federal  and  State 
courts,  see  notes  to  21  C.  C.  A. 478  and  5  L.  R.  A.  508.  A  Federal  court  has  jurisdic- 
tion of  a  suit  to  set  aside  a  judgment  of  a  State  court  relating  to  title  to  land  in  that 
State,  when  such  judgment  was  obtained  by  fraud  or  without  jurisdiction.  Howard 
v.  De  Cordova,  177  U.  S.  609,  20  Sup.  Ct.  Rep.  517 ;  Cooper  v.  Newell,  173  U.  S.  555, 
19  Sup.  Ct.  Rep.  506.  See  also  Bryar  v.  Campbell,  177  U.  S.  649,  20  Sup.  Ct.  Rep. 
794.  In  a  suit  to  quiet  title  to  land  outside  the  State,  service  of  process  outside  the 
State  upon  a  non-resident  of  the  State  gives  no  jurisdiction  of  him.  Dull  v.  Black- 
man,  169  U.  S.  243,  18  Sup  Ct.  Rep.  333. 

Upon  the  question  of  fraud  as  a  defence  to  a  judgment  of  another  State,  see  note 
to  18  L.  ed.  U.  S.  475.  An  order  of  a  court  of  a  sister  State  is  subject  to  the  statute 
of  limitations  of  the  State  in  which  it  is  sought  to  be  enforced.  Great  W.  Tel.  Co. 
r.  Purdy,  162  U.  S.  329,  16  Sup.  Ct.  Rep.  810,  aff.  83  Iowa,  430,  50  N.  W.  45.  A 
Federal  court  ma}'  irfquire  into  the  jurisdiction  of  a  State  court  of  another  State  to 
rentier  a  decree  sued  upon  in  the  Federal  court.  Hekking  v.  Pfaff,  91  Fed.  60,  43 
L.  R.  A.  618.] 


CH.  II.] 


THE   CONSTITUTION   OF   THE   UNITED   STATES. 


41 


several  provisions,  the  most  important  of  which  are  collected 
in   the  marginal  notes. 


this  clause  of  the  Constitution.  Ken- 
tucky v.  Dennison,  24  How.  66.  The 
executive  may  revoke  his  warrant,  if  sat- 
isfied it  ought  not  to  have  issued.  Work 
v.  Corrington,  34  Ohio  St.  64,  32  Am. 
Rep.  345.  QWhen  once  within  the  cus- 
tody of  the  demanding  State,  he  may  be 
tried  for  any  crime  there  charged  against 
him.  Lascelles  v.  Georgia,  148  U.  S.  537, 
13  Sup.  Ct.  Rep.  687 ;  State  v.  McNaspy, 
58  Kan.  691,  817,  38  L.  R.  A.  766,  50  Pac. 
895;  Re  Little,  —  Mich.  — ,  89  N.  W.  38, 
57  L.  R.  A.  295.  (Feb.  1902.)  And  may 
be  sued  in  civil  suit.  Reid  v.  Ham,  54 
Minn.  305,  56  N.  W.  35,  21  L.  R.  A. 
232,  40  Am.  St.  333.  Actual  presence 
in  demanding  State  is  necessary  to  con- 
stitute flight.  Constructive  presence,  as 
by  firing  bullet  into  it  from  another  State, 
is  insufficient.  State  v.  Hall,  115  N.  C. 
811,  20  S.  E.  729,  28  L.  It.  A.  289,  and 
note,  44  Am.  St.  501.  For  other  cases 
on  interstate  extradition,  see  Re  Sultan, 
115  N.  C.  57,  20  S.  E.  375,  28  L.  R.  A. 
294,  44  Am.  St.  433 ;  Ex  parte  Hart,  63 
Fed.  Rep.  249,  28  L.  R.  A.  801,  and 
note.] 

Extradition  to  foreign  countries  is  purely 
a  national  power,  to  be  exercised  under 
treaties.  Holmes  r.  Jennison,  14  Pet.  540; 
Ex  parte  Holmes,  12  Vt.  631 ;  People  v. 
Curtis,  50  N.  Y.  321.  FJUpon  interstate 
and  international  extradition,  see  note  to 
41  L.  ed.  U.  S.  1046.  See  also  Whitten 
v.  Tomlinson,  160  U.  S.  231,  16  Sup.  Ct. 
Rep  297,  and  note  to  40  L.  ed.  U.  S.  406. 
In  Neeley  v.  Henkle,  180  U.  S.  109,  126, 
21  Sup.  Ct.  Rep.  308,  the  question  of  the 
validity  of  an  act  providing  for  extradi- 


tion to  foreign  countries  or  to  countries 
occupied  by  the  United  States  was  before 
the  court  and  the  act  sustained  as  appli- 
cable to  Cuba  before  that  island  was 
turned  over  to  the  home  government 
after  the  Spanish  war.]  In  the  absence 
of  a  treaty  there  is  no  obligation  to  de- 
liver a  fugitive:  U.  S.  v.  llauscher,  119 
U.  S.  407,  7  Sup.  Ct.  Rep.  234 ;  but  by 
virtue  of  such  a  treaty  an  American 
criminal  resident  in  a  foreign  country 
gets  no  right  of  asylum  there  so  that  he 
may  not  be  removed  therefrom  by  a 
State  except  under  the  provisions  of  the 
treaty.  Ker  v.  Illinois,  119  U.  S.  436,  7 
Sup.  Ct.  Rep.  225.  Foreign  governments 
must  make  the  application,  not  individ- 
uals. In  re  Ferrelle,  28  Fed.  Rep.  878. 
That  where  a  person  is  extradicted  from 
another  country  or  another  State  on  one 
charge,  he  should  be  discharged  if  not 
held  upon  that,  see  Commonwealth  v. 
Hawes,  13  Bush,  697 ;  In  re  Cannon,  47 
Mich.  481,  11  N.  W.  280;  State  v.  Van- 
derpool,  39  Ohio  St.  272;  Blandford  v. 
State,  10  Tex.  App.  627;  State  v.  Hall, 
40  Kan.  338,  19  Pac.  918;  U.  S.  v. 
Rauscher,  119  U.  S.  407,  7  Sup.  Ct.  Rep. 
234.  Contra,  State  v.  Stewart,  60  Wis.  587, 
19  N.  W.  429.  See  also,  Hackney  v.  Welsh, 
107  Ind.  263,  8  N.  E.  141 ;  In  re  Miller,  23 
Fed.  Rep.  32 ;  Ex  parte  Brown,  28  Fed. 
Rep.  653.  QBut  when  he  is  surrendered 
as  a  matter  of  comity  and  not  under 
treaty  stipulations,  and  the  indictment  is 
set  aside  as  being  defective,  he  is  liable 
to  arrest  upon  a  subsequent  complaint 
for  same  offence.  Re  Foss,  102  Cal.  347, 
36  Pac.  669,  25  L.  R.  A.  593,  and  note.] 


the  subject  of  a  good  deal  of  discussion  in 
the  courts.  [[See  notes  to  3  L.  ed.  U.  S. 
411,  12  L.  R.  A.  574,  7  L.  R.  A.  578,  4 
L.  R.  A.  131,  1  L.  R.  A.  79.  See  also 
Reynolds  v.  Stockton,  140  U.  S.  254,  11 
Sup.  Ct.  Rep.  773 ;  Cole  v.  Cunningham, 
133  U.  S.  107,  10  Sup.  Ct.  Rep.  269,  aff. 
142  Mass.  47,  6  N.  E.  782.  See  note  on 
this  case,  4  Har.  L.  Rev.  93.]  It  is  well 
settled  that  if  the  record  of  a  judgment 
shows  that  it  was  rendered  without  ser- 
vice of  process  or  appearance  of  the 
defendant,  or  if  that  fact  can  be  shown 
without  contradicting  the  recitals  of  the 


record,  it  will  be  treated  as  void  in  any 
other  State,  notwithstanding  this  consti- 
tutional provision.  Kibbe  v.  Kibbe,  Kirby, 
119;  Aldrich  v.  Kinney,  4  Conn.  380; 
Middlebrooks  v.  Ins.  Co.,  14  Conn.  301 ; 
Wood  v.  Watkinson,  17  Conn.  500;  Bart- 
lett  v.  Knight,  1  Mass.  401  ;  Bissell  v. 
Bripgs,  9  Mass.  46'2 ;  Hall  v.  Williams, 
6  Pick.  232;  Woodworth  v.  Tremere, 
6  Pick.  354;  Gleason  v.  Dodd,  4  Met. 
333;  Commonwealth  v.  Blood,  97  Mass. 
538;  Edson  v.  Edson,  108  Mass.  590;  11 
Am.  Rep.  393;  Kilburn  r.  Woodworth, 
6  Johns.  37 ;  Robinson  v.  Ward's  Execu- 


42 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  II. 


The   last  provisions  that  we  shall  here   notice  are  that   the 


tors,  8  Johns.  86;   Fenton  v.  Garlick,  8 
Johns.  194  ;  Pawling  v.  Bird's  Executors, 
13  Johns.    192;    Holbrook    v.   Murray,   5 
Wend.  161 ;  Bradshaw  v.  Heath,  13  Wend. 
407 ;  Noyes  v.  Butler,  6  Barb.  613 ;  Hoff- 
man v.  Hoffman,  46  N.  Y.  30  ;  7  Am.  Rep. 
299;   Thurber  v.  Blackbourne,  1   N.    H. 
242 ;  Whittier  v.  Wendell,  7  N.   H.  257 ; 
Kangely  v.  Webster,  11  N.  H.299;  Adams 
v.  Adams,  51  N.  H.  388;   12  Am.  Rep. 
134 ;  Wilson  v.  Jackson,  10  Mo.  334.     See 
McLaurine  v.  Monroe,  30  Mo.  462  ;  Bime- 
ler   v.   Dawson,   5   111.   536 ;    Warren    v. 
McCarthy,  25  III.  95;  Curtiss  v.  Gibbs, 
1  Pa.  406 ;  Rogers  v.  Coleman,  Hard.  416 ; 
Armstrong  r.  Harshaw,  1  Dev.  187 ;  Nor- 
wood v.  Cobb,  24  Texas,   551 ;  Rape  v. 
Heaton,  9  Wis.  328 ;  McCauley  v.  Har- 
groves,   48   Ga.  50;   15   Am.   Rep.  660; 
People  v.  Dawell,  25  Mich.  247,  12  Am. 
Rep.  260;   Hood  v.  State,  56  Ind.  263; 
Lincoln  v.  Tower,  2  McLean,  473 ;  West- 
ervelt  v.  Lewis,  2  McLean,  511 ;  Railroad 
Co.  ».  Trimble,  10  Wall.  367  ;  Board  of 
Public   Works  v.  Columbia  College,  17 
Wall.  521 ;  St.  Clair  v.  Cox,  106  U.  S.  350, 
1  Sup.  Ct.  Rep.  350;  Van  Fossen  v.  State, 
37  Ohio  St.  317 ;  Cross  v.  Armstrong,  44 
Ohio  St.  613.     See  Drake  v.  Granger,  22 
Fla.  348 ;  ([Reynolds  v.  Stockton,  140  U.  S. 
254,  1 1  Sup.  Ct.  Rep.  773 ;  Guaranty  Tr. 
&  S.  Dep.  Co.  v.  Green  Cove  Spr.  &  M. 
R.  Co.,  139  U.  S.  137,  11  Sup.  Ct.  Rep. 
92 ;  Grover  &  B.  S.  M.  Co.  v.  Radcliffe, 
137  U.  S.  287,  11  Sup.  Ct.  Rep.  92;  Sim- 
mons v.  Saul,  138  U.  S.  439,  11  Sup.  Ct. 
Rep.  369;    Wabash  R.  Co.  v.  Tourville, 
179  U.  S.  322,  21  Sup.  Ct.  Rep.  113,  aff. 
148   Mo.   614,   60   S.   W.  300;   Ward   v. 
Boyce,  152  N.  Y.  191,  46  N.  E.  180,  36 
L.  R.  A.  549  ;  Crumlish's  Adm'r  v.  Central 
Imp.  Co.,  38  W.  Va.  390,  18  S.  E.  456,  23 
L.  R.  A.  120.    A  judgment  against  a  non- 
resident entered  on  a  note  under  a  power 
in  the  note,  to  confess  judgment  if  valid 
in  the  State  where  rendered  is  entitled  to 
full    faith    and   credit   in    other    States. 
Crim  v.  Crim,  162  Mo.  544,  63  S.  W.  489, 
64  L.  R.  A.  502.]     But  whether  it  would 
be  competent  to  show,  in    opposition   to 
the  recitals  of  the  record,  that  a  judgment 
of  another  State  was   rendered   without 
jurisdiction  having  been  obtained  of  the 
person  of  the  defendant,  the  authorities 
are   not   agreed.     Many   cases  hold  not. 
Field  v.  Gibbs,  1  Pet.  C.  C.  155 ;  Green 


v.  Sarmiento,  1  Pet.  C.  C.  74 ;  Lincoln  v. 
Tower,  2   McLean,   473 ;    Westervelt   v. 
Lewis,  2  McLean,  511;  Roberts  v.  Cald- 
well,  5  Dana,  512;  Hensley    v.  Force,  7 
Eng.  756;  Pearce  v.  Olney,  20  Conn.  544; 
Hoxie  v.  Wright,  2  Vt.  263 ;  Newcomb  v. 
Peck,  17  Vt.  302;  Willcox  v.  Kassick,  2 
Mich.  165 ;  Bimeler  v.  Dawson,  5  111.  536 ; 
Welch   v.  Sykes,   8  111.  197;   Wetherell 
v.    Stillman,   65  Pa.   St.    105;    Lance   v. 
Dugan,  13  Atl.  Rep.  942  (Pa.) ;  Lockhart 
v.  Locke,  42  Ark.  17;  Caughran  v.  Gil- 
man,  72  Iowa,  570,  34  N.  W.  423.    Other 
cases  admit  such  evidence.     Starbuck  v. 
Murray,   5    Wend.    148,    21    Am.    Dec. 
172;  Holbrook  v.  Murray,  5  Wend   161; 
Shumway  v.  Stillman,  6  Wend.  447  ;  Bor- 
den  v.  Fitch,    15  Johns.   121  ;    Bartlet  v. 
Knight,    1   Mass.   401,   2   Am.   Dec.    36; 
Hall   v.  Williams,  6  Pick.  232;  Aldrich 
v.    Kinney,  4   Conn.   380;    Bradshaw   v. 
Heath,  13  Wend.  407 ;  Hoffman  v.  Hoff- 
man, 46  N.  Y.  30  ;  Gleason  v.    Dodd,   4 
Met.  333  ;  Kane  v   Cook,  8  Cal.  449 ;  Nor- 
wood v.  Cobb,  24  Texas,  551  ;  Russell  r. 
Perry,  14  N.  H.  152;  Rape  v.  Heaton,  9 
Wis.  328 ;  Carleton  v.  Bickford,  13  Gray, 
591;   McKay  v.   Gordon,   34  N.  J.   286; 
Thompson  v.   Whitman,   18   Wall.   457; 
Stewart  v.  Stewart,  27  W.  Va.  167;  Chunn 
u.   Gray,   51   Texas,   112.     In   People  17. 
Dawell,  25  Mich.  247,  on  an  indictment 
for   bigamy,  in  which  the  defendant  re- 
lied on  a  foreign   divorce  from  his  first 
wife,  it  was  held  competent  to  show,  in 
opposition  to  the  recitals  of  the  record, 
that  the  parties  never  resided  in  the  for- 
eign State,  and  that  the  proceedings  were 
a  fraud.     To  the  same  effect  are  Hood 
v.  State,  56  Ind.  263,  26   Am.  Rep.  23; 
Penny  wit  v.  Foote,  27  Ohio  St.  600 ;  Peo- 
ple v.  Baker,  76  N.  Y.  78,  32  Am.  Rep. 
274;    O'Dea  v.  O'Dea,  101  N.  Y.  23,  4 
N.  E.  110;  Reed  v.  Reed,  52  Mich.  117, 
17  N.  W.  720;  Smith  v.  Smith,  19  Neb. 
706,  28  N.  W.  296.     [["Judgments  recov- 
ered   in   one  State  in  the   Union,  when 
proved  in  the  courts  of  another,  .  .  .  (are 
not)  re-examinable  upon  the  merits,  nor 
impeachable  for  fraud  in  obtaining  them, 
if  rendered  by  a  court  having  jurisdiction 
of  the   cause  and   of  the  parties."     Per 
Mr.  Justice  Gray  in  Hanley  v.  Donoghue, 
116  U.  S.  1,6  Sup  Ct.  Rep.  242;  Buck- 
ner  v.  Finley,  2  Pet.  592;    M'Elmoyle  v. 
Cohen,  13  Pet.  312;  D'Arcy  v.  Ketchum, 


CH.  II.] 


THE   CONSTITUTION   OF   THE   UNITED   STATES. 


43 


United  States  shall  guarantee  to  every  State  a  republican  form 


11  How.  165;  Christmas  v.  Russell,  6 
Wall.  290;  and  Thompson  v.  Whitman, 
18  Wall.  457.  See  also  Maxwell  v. 
Stewart,  22  Wall.  77 ;  Broderick's  Will, 
21  Wall.  603;  Ellis  v.  Davis,  109  U.  S. 
485,  3  Sup.  Ct.  Hep.  327  ;  and  Simmons 
».  Saul,  138  U.  S.  439,  11  Sup.  Ct.  Rep. 
369.]  And  see  further,  as  to  divorce 
cases,  post,  p.  678  el  seq.  Mr.  Freeman 
discusses  this  general  subject  in  his  treat- 
ise on  Judgments,  c.  26.  The  same  de- 
fences may  be  made  to  a  judgment,  when 
sued  in  another  State,  which  could  have 
been  made  to  it  in  the  State  where  ren- 
dered :  Hampton  v.  McConnel,  3  Wheat. 
234;  Mills  v.  Duryea,  7  Cranch,  481; 
Steele  v.  Smith,  7  W.  &  S.  447;  Bank  of 
the  State  v.  Dalton,  9  How.  522 ;  Scott  v. 
Coleman,  5  Litt.  349,  16  Am.  Dec.  71 ; 
but  no  others  :  Green  v.  Van  Buskirk, 
7  Wall.  139;  Christmas  v.  Russell,  6 
Wall.  290;  Cheever  v.  Wilson,  9  Wall. 
108 ;  Wernwag  v.  Pawling,  5  Gill  &  J. 
600,  25  Am.  Dec.  317;  Fletcher  v. 
Ferrel,  9  Dana,  372,  35  Am.  Dec.  143; 
People  v.  Dawell,  25  Mich.  247,  12  Am. 
Hep.  260;  Dodge  v.  Coffin,  15  Kan.  277  ; 
[^Hancock  National  Bank  v.  Farnum, 
176  U.  S.  640,  20  Sup.  Ct.  Rep.  506, 
rev.  20  R.  I.  466,  40  Atl.  341  ;  Thomp- 
son v.  Taylor,  65  N.  J.  L.  107,  46  Atl. 
667,  54  L.  R.  A.  585.  Courts  of  one 
State  will  not  enforce  the  judgments  of 
a  sister  State,  so  a  bill  will  not  lie  to  en- 
force specific  performance  of  a  decree  for 
alimony  rendered  in  a  court  of  a  sister 
State.  Bullock  v.  Bullock,  61  N.  J.  Eq. 
444,  27  Atl.  435,  52  N.  J.  Eq.  561,  30  Atl. 
676,  46  Am.  St.  528.]  A  foreign  decree 
not  appropriate  to  any  part  of  the  issue 
raised  by  the  record  is  not  conclusive  col- 
laterally. Reynolds  v.  Stockton,  43  N.  J. 
Eq.  211. 

This  provision  of  the  Constitution  of 
the  United  States  does  not  require  that 
disabilities  imposed  upon  a  person  con- 
victed of  crime  in  one  State  should  follow 
him  and  be  enforced  in  other  States.  Sims 
v.  Sims,  75  N.  Y.  466,  approving  Common- 
wealth v.  Green,  17  Mass.  515,  and  disap- 
proving Chase  v.  Blodgett,  10  N.  H.  22, 
and  State  i>.  Chandler,  3  Hawks,  393. 

The  courts  of  the  United  States  cannot 
enforce  the  penal  laws  of  a  State,  and 
where  an  action  was  brought  in  such 
court  by  a  State  upon  a  judgment  recov- 


ered in  its  own  courts,  the  Federal  court 
looked  back  of  the  judgment  to  the  orig- 
inal demand,  and  refused  to  enforce  the 
judgment.  Wisconsin  v.  Pelican  Ins.  Co., 
127  U.  S.  265,  8  Sup.  Ct.  Rep.  1370.  FJBut 
in  order  that  the  law  may  be  penal  it 
must  inflict  the  penalty  as  punishment 
for  some  offence  against  the  State.  It 
is  not  within  the  rule  if  the  penalty  is 
mere  liquidated  damages  for  a  private 
wrong,  still  less  if  it  is  damages  ascer- 
tained from  the  contract  relations  be- 
tween the  parties.  Huntington  v.  Attrill, 
146  U.  S.  657,  13  Sup.  Ct.  Rep.  224,  rev. 
70  Md.  191,  16  Atl.  651,  2  L.  R.  A.  779, 
14  Am.  St.  344.  See  also  upon  "full 
faith  and  credit,"  note  to  this  case  in 
36  L.  ed.  U.  S.  1123. 

Where  a  discontinuance  of  the  suit  is 
entered  by  consent  of  the  parties,  the  en- 
try reciting  that  it  is  upon  a  settlement 
of  the  suit,  it  may  be  shown  in  an  action 
in  another  State  upon  the  original  cause 
that  the  settlement  was  by  an  executory 
agreement  which  has  not  been  fulfilled. 
Jacobs  v.  Marks,  182  U.  S.  583,  21  Sup. 
Ct.  Rep.  865,  aff.  183  111.  533,  56  N.  E. 
154.  Execution  cannot  issue  in  one 
State  upon  a  judgment  rendered  in  an- 
other. The  foreign  judgment  must  first 
be  reduced  to  a  domestic  judgment. 
Bennett  v.  Bennett,  —  N.  J.  App.  — ,  49 
Atl.  501  (June  25,  1901). 

The  situs  of  a  debt  is  with  the  debtor, 
so  far  at  least  as  attachment  and  gar- 
nishment are  concerned,  and  a  judgment 
against  a  garnishee  is  not  invalidated  by 
the  fact  that  his  creditor,  the  principal 
defendant,  resides  outside  the  State  and 
has  been  served  only  constructively  by 
publication.  If  otherwise  sufficient,  the 
judgment  must  be  given  "full  faith  and 
credit  "  in  every  State.  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Sturm,  174  U.  S.  710, 19  Sup. 
Ct.  Rep.  797,  followed  in  King  v.  Cross, 
175  U.  S.  396,  20  Sup.  Ct.  Rep.  139, 
aff.  19  R.  I.  220,  33  Atl.  147.  The  judg- 
ment of  the  court  of  one  State  that  a 
certain  will  works  an  equitable  conver- 
sion into  personalty  of  realty  situated  in 
another  State  is  not  binding  upon  the 
courts  of  that  other  State.  Clarke  v. 
Clarke,  178  U.  S.  186,  20  Sup.  Ct.  Rep. 
873,  aff.  70  Conn.  195,  483,  39  Atl.  155, 
40  Atl.  111.  Upon  effect  of  probate 
of  will  in  another  State,  see  Martin  v. 


44  CONSTITUTIONAL   LIMITATIONS.  [CH.  II. 

of   government,1  and   that   no   State   shall   grant   any   title    of 


Stovell,  103  Tenn.  1,  52  S.  W.  296,  48 
L.  R.  A.  130,  and  note ;  upon  equitable 
conversion  of  real  property  into  person- 
alt}-,  see  Cottman  v.  Grace,  112  N.  Y. 
299,  19  N.  E.  839,3  L.  R.  A.  145,  and 
note ;  also  Bullard  v.  Chandler,  149  Mass. 
632,21  N.  E.  951,5  L.  R.  A.  104,  and  note. 
An  ex  parte  adjudication  upon  the  domi- 
cil  of  decedent,  made  in  grant  of  letters 
of  administration,  has  no  probative  force 
outside  the  State.  Overby  v.  Gordon,  177 
U.  S.  214,  20  Sup.  Ct.  Rep.  603.  A  guar- 
dian appointed  in  one  State  cannot  exer- 
cise any  authority  in  another  except  so 
far  as  permitted  by  the  laws  of  that 
other.  He  cannot  even  sue  in  a  Federal 
court  held  in  that  other.  Morgan  v. 
Potter,  157  U.  S.  195,  15  Sup.  Ct.  Rep. 
690.  A  voluntary  assignment  of  his 
property  made  by  an  insolvent  debtor 
for  the  payment  of  his  debts  and  valid 
by  the  law  of  his  residence  covers  his 
property  in  another  State  in  which  none 
of  his  creditors  reside,  provided  the  as- 
signee takes  possession  beiore  the  levy  of 
judicial  process,  even  though  the  assign- 
ment contains  provisions  for  the  prefer- 
ment of  creditors  which  are  prohibited 
by  the  law  of  the  State  where  such  prop- 
erty is  situated.  Burnett  v.  Kinney,  147 
U.  S.  476,  13  Sup.  Ct.  Rep.  403.  But 
where  the  insolvency  proceedings  are  in- 
voluntary and  the  assignee  has  not  yet 
reduced  the  goods  in  the  sister  State  to 
possession,  the  title  does  not  pass  to  him. 
Reynolds  v.  Adden,  136  U.  S.  348,  10 
Sup.  Ct.  Rep.  843.  A  decree  of  a  State 
court  having  jurisdiction  of  the  parties 
that  a  conveyance  of  land  outside  the 
State  was  in  fraud  of  the  rignts  of  the 
plaintiff,  but  not  directing  defendant 
to  reconvey,  is  of  no  force  outside  the 
State  in  which  the  decree  is  rendered. 
But  a  decree  that  defendant  is  indebted 
to  plaintiff  and  shall  pay  certain  sums  of 
money  is  binding  upon  the  courts  of 
other  States.  Carpenter  v.  Strange,  141 
U.  S.  87,  11  Sup.  Ct.  Rep.  960.  An  ap- 
pointment of  an  administrator  has  no 
extra-territorial  force,  and  a  judgment  in 
one  State  against  the  administrator  of 
the  estate  of  X.  is  a  personal  judgment, 
and  therefore  cannot  be  pleaded  by  the 
same  plaintiff  against  the  administrator 


of  the  estate  of  X.  in  another  State,  be- 
cause the  defendants  are  neither  the  same 
person,  nor  are  they  in  privity,  and  the 
matter  is  not  therefore  res  judicata  with 
respect  to  the  defendant  in  the  second 
action.  Johnson  v.  Powers,  137  U.  S. 
156,  11  Sup.  Ct.  Rep.  525.  A  judgment 
cannot  receive  credit  if  it  is  not  respon- 
sive to  the  issue  presented  by  the  plead- 
ings. Reynolds  v.  Stockton,  140  U.  S. 
254,  11  Sup.  Ct.  Rep.  773.  And  the 
jurisdiction  of  the  court  is  always  open  to 
inquiry.  Guaranty  Tr.  &  S.  Dep.  Co.  v. 
Green  Cove  Springs  &  M.  R.  Co.,  139 
U.  S.  137.  11  Sup.  Ct.  Rep.  512;  Streit- 
wolf  v.  Streitwolf,  181  U.  S.  179,  21  Sup. 
Ct.  Rep.  553,  aff.  58  N.  J.  Eq.  563,  41  All. 
876,  43  Atl.  683,  78  Am.  St.  630;  Bell 
v.  Bell,  181  U.  S.  175,  21  Sup.  Ct.  Rep. 
551,  aff.  157  N.  Y.  719,  53  N.  E.  1123. 
For  validity  of  a  consent  decree,  see 
Texas  &  P.  Ry.  Co.  v.  Southern  P.  Co., 
137  U.  S.  48,  11  Sup.  Ct.  Rep.  10.  But 
where  the  plaintiff  is  duly  domiciled  in 
the  State  in  which  he  sues  for  divorce, 
and  such  State  is  the  duly  established 
matrimonial  domicil  of  the  parties,  if  the 
defendant  is  without  the  State,  reason- 
able constructive  service  of  notice  if 
authorized  by  the  laws  of  the  State  will 
give  the  court  such  jurisdiction  that  its 
decree  of  divorce  will  be  valid  through- 
out the  United  States.  Atherton  v. 
Atherton,  181  U.  S.  155,  21  Sup.  Ct.  Rep. 
544,  rev.  155  N.  Y.  129,  49  N.  E.  933,  40 
L.  R.  A.  291,  63  Am.  St.  650.  A  decree 
of  divorce  granting  alimony,  the  decree 
having  been  rendered  by  a  court  having 
jurisdiction,  must  be  given  full  faith  and 
credit  in  a  sister  State  so  far  as  the  di- 
vorce and  the  alimony  due  at  the  date  of 
the  decree  are  concerned,  but  is  of  no 
force  outside  the  State  in  which  it  is 
granted  so  far  as  it  relates  to  alimony 
subsequently  to  become  due.  Lynde  v. 
Lynde,  162  N.  Y.  405,  56  N.  E.  979,  48 
L.  R.  A.  679,  76  Am.  St.  332,  affd.  in 
181  U.  S.  183,  21  Sup.  Ct.  Rep.  555.  fee 
also  in  this  connection,  Laing  v.  Rigney, 
160  U.  S.  531,  16  Sup.  Ct.  Rep.  366 ;  Ar- 
rington  v.  Arrington,  127  N.  C.  190,  37 
S.  E.  212,  52  L.  R.  A.  201,  80  Am.  St. 
791 ;  Trowbridge  v.  Spinning,  23  Wash. 
48, 62  Pac.  125,  64  L.  R.  A.  204,  83  Am. 


1  Const,  of  U.  S.  art.  4,  §  4. 


CH.  II.]  THE    CONSTITUTION    OF   THE   UNITED   STATES.  45 

nobility.1  The  purpose  of  these  is  to  protect  a  Union  founded 
on  republican  principles,  and  composed  entirely  of  republican 
members,  against  aristocratic  and  monarchical  innovations.2 

So  far  as  a  particular  consideration  of'the  foregoing  provisions 
falls  within  the  plan  of  our  present  work,  it  will  be  more  con- 
venient to  treat  of  them  in  another  place,  especially  as  all  of 
them  which  have  for  their  object  the  protection  of  person  or 
property  are  usually  repeated  in  the  bills  of  rights  contained  in 
the  State  constitutions,  and  will  require  some  notice  at  our 
hands  as  a  part  of  State  constitutional  law. 

Where  powers  are  conferred  upon  the  general  government, 
the  exercise  of  the  same  powers  by  the  States  is  impliedly 
prohibited,  wherever  the  intent  of  the  grant  to  the  national 
government  would  be  defeated  by  such  exercise.  On  this 
ground  it  is  held  that  the  States  cannot  tax  the  agencies  or 
loans  of  the  general  government;  since  the  power  to  tax,  if 
possessed  by  the  States  in  regard  to  these  objects,  might  be  so 
exercised  as  altogether  to  destroy  such  agencies,  and  impair  or 
even  destroy  the  national  credit.3  And  where  by  the  national 
Constitution  jurisdiction  is  given  to  the  national  courts  with  a 
view  to  the  more  efficient  and  harmonious  working  of  the  system 
organized  under  it,  it  is  competent  for  Congress  in  its  wisdom 
to  make  that  jurisdiction  exclusive  of  the  State  courts.4  On 
some  other  subjects  State  laws  may  be  valid  until  the  power  of 
Congress  is  exercised,  when  they  become  superseded,  either 
wholly,  or  so  far  as  they  are  found  inconsistent.  The  States 
may  legislate  on  the  subject  of  bankruptcy  if  there  be  no 
national  bankrupt  law.5  State  laws  for  organizing  and  disci- 

St.  806.    Judgment  by  confession  entered  not  fall   within  our  province  to  discuss 

by  an  attorney  acting   upon  a   warrant  these  provisions.     They  have  been  much 

contained  in  a  promissory  note  made  in  discussed  in  Congress  within  a  few  years, 

the  State  and  conformably  to   its   laws  but  in   a   party   rather  than  a  judicial, 

must  be  granted  full  faith  and  credit  in  spirit.      See   Story   on   Const.    (4th   ed.) 

sister   State.      Van   Norman  v.  Gordon,  c.  41 ;  Luther  v.  Borden,  7  How.  1 ;  Texas 

172  Mass.  576,  53  N.  E.  267,  44  L.  R.  A.  v.  White,  7  Wall.  700 ;  Cooley,  Constitu- 

840,  70  Am.  St.  304 ;  Crim  v.  Crim,  162  tional  Principles,  ch.  xi. 
Mo.  544,  63  S.  W.  489,  54  L.  R.  A.  602,          »  McCulloch   v.   Maryland,  4  Wheat. 

85  Am.  St.  521.    Judgment  in  rem  upon  316,427;  Weston  v.  Charleston,  2  Pet.  449. 

lands  in  another  State  is  not  binding  in  See  cases  collected,  post,  pp.  681-683. 
State   where   such    lands    are    situated.          *  Martin  v.  Hunter's  Lessee,  1  Wheat. 

Smithy.  Smith,  174  111.  52,  60  N.  E.  1083,  304;  The  Moses  Taylor  v.  Hammons,  4 

43  L.  R.  A.  403 ;  Bullock  v.  Bullock,  52  Wall.   411 ;   The   Ad  Hine  v.  Trevor,  4 

N.  J.  Eq.  561,  30  Atl.  676,  46  Am.   St.  Wall.  555.     And  see  note  to  these  cases 

628.     Upon  this  provision,  see  also  Van  in  the  Western  Jurist,  Vol.  I.  p.  241. 
Matre  v.  Sankey,  148  111.  536,  36  N.  E.          8  Sturges  t>.    Crowninshield,  4  Wheat. 

628,  23  L.  R.  A.  665.]  122 ;  McMillan  v.  McNeill,  4  Wheat.  209. 

1  Const,  of  U.  S.  art.  1,  §  10.  And  see  post,  pp.  416,  417. 

2  Federalist,  Nos.  43  and  44.     It  does 


46  CONSTITUTIONAL    LIMITATIONS.  [CH.  II. 

plining  the  militia  are  valid,  except  as  they  may  conflict  with 
national  legislation;1  and  the  States  may  constitutionally  pro- 
vide for  punishing  the  counterfeiting  of  coin2  and  the  passing 
of  counterfeit  money,3  since  these  acts  are  offences  against  the 
State,  notwithstanding  they  may  be  offences  against  the  nation 
also. 

The  tenth  amendment  to  the  Constitution  provides  that  the 
powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people.  And  it  is  to  be  observed  of  this 
instrument,  that  being  framed  for  the  establishment  of  a  national 
government,  it  is  a  settled  rule  of  construction  that  the  limita- 
tions it  imposes  upon  the  powers  of  government  are  in  all  cases 
to  be  understood  as  limitations  upon  the  government  of  the 
Union  only,  except  where  the  States  are  expressly  mentioned.4 
As  illustrations,  the  sixth  and  seventh  amendments  to  the 
Constitution  may  be  mentioned.  These  constitute  a  guaranty 
of  the  right  of  trial  by  jury ;  but,  as  they  do  not  mention  the 
States,  they  are  not  to  be  understood  as  restricting  their  powers; 
and  the  States  may,  if  they  choose,  provide  for  the  trial  of  all 
offences  against  the  States,  as  well  as  for  the  trial  of  civil  cases 
in  the  State  courts,  without  the  intervention  of  a  jury,  or  by 
some  different  jury  from  that  known  to  the  common  law.6 

1  Houston  v.  Moore,  5  Wheat.  1.  51.  State,  19  Ohio  St.  184;  State  v.  Shutnpert, 

2  Harlan   v.  People,  1  Doug.  (Mich.)  1  S.  C.  85;  Common  wealth  v.  Hitchings, 
207.  5  Gray,   482;   Bigelow   v.   Bipelow,  120 

3  Fox   v.   Ohio,  5   How.  410;  United  Mass.  320;   Boyd  v.  Ellis,  11   Iowa,  97; 
States  v.  Marigold,  9  How.  560.     And  see  Campbell  v.  State,  11   Ga.  353;  State  v. 
Hendrick's  Case,  5  Leigh,  707 ;  Jett   v.  Carro,  26    La.    Ann.    377 ;    Purvear   v. 
Commonwealth,    18   Grat.  933;   State  v.  Commonwealth,  5  Wall.  475;  Twitchell 
Rankin,  4  Cold.  145;  Moore  v.  People,  v.  Commonwealth,  7  Wall.  321.     QSecond 
14  How.  13.  and  fourth  amendments  do  not  operate 

*  Ban-on  v.  Baltimore,  7  Pet.  243 ;  Liv-  on  States.     Miller  v.   Texas,   153   U.   S. 

ingston's  Lessee  v.  Moore,  7  Pet.  469 ;  Fox  535, 14  Sup.  Ct.  Rep.  874.     Nor  does  fifth. 

v.  Ohio,  6  How.  410;  Smith  v.  Maryland,  Thorington  v.  City  Council  of  Montgom- 

18  How.  71 ;  Kelly  v.  Pittsburgh,  104  U.  ery,  147  U.  S.  490,  13  Sup.  Ct.  Rep.  394; 

S.  78;  Presser  v.  Illinois,  116  U.  S.  252,  6  Brown  v.  New  Jersey,  175  U.  S.  172, 174, 

Sup.  Ct.  Rep.  580;  Spies  v.  Illinois,  123  20  Sup.  Ct.  Rep.  77,  22  Sup.  Ct.  Rep.  120; 

U.   S.  131,  8  Sup.  Ct.  Rep.  21 ;   Buona-  Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S. 

parte  v.  Camden  &  Amboy  R.  R.  Co.,  238,  245.     Nor  the  eighth.     O'Neil  v.  Ver- 

Baldw.  220 ;  James  v.  Commonwealth,  12  mont,  144  U.  S.  323,  12  Sup.  Ct.  Rep.  693. 

S.  &  R.  220 ;  Barker  v.  People,  3  Cow.  Nor  do  the   fifth  and  sixth.     Davis   v. 

686;  Colt  v.  Eves,  12  Conn.  243;  Jane  v.  Texas,  139  U.  S.  651,  11  Sup.  Ct.  Rep. 

Commonwealth,  3  Met.  (Ky.)  18;  Lincoln  675.     See  also  McElvaine  v.  Brush,  142 

».  Smith,  27  Vt.  328  ;  Matter  of  Smith,  U.  S   255,  12  Sup.  Ct.  Rep.  156.] 
10  Wend.  449;  State  v.  Barnett,  3  Kan.          6  Twitchell     v.     Commonwealth,     7 

260;  Reed  v.  Rice,  2  J.  J.  Marsh.  45,  19  Wall.  321  ;  Justices  v.  Murray,  9  Wall. 

Am.  Dec.   122 ;  North   Mo.  R.  R.  Co.  v.  274  ;  Edwards  v.  Elliott,  21  Wall.  532 ; 

Maguire,  49  Mo.  490:   Lake  Erie,  &c.  R.  Walker  v.  Sauvinet,  92  U.   S.  90;  Munn 

R.  Co  v.  Heath,  9  Ind.  558 ;  Prescott  r.  v.  Illinois,  94  U.  S.  113 ;  Huston  v.  Wads- 


CH.  II.] 


THE    CONSTITUTION    OF   THE    UNITED   STATES. 


47 


With  other  rules  for  the  construction  of  the  national  Consti- 
tution we  shall  have  little  occasion  to  deal.  They  have  been 
the  subject  of  elaborate  treatises,  judicial  opinions,  and  legis- 
lative debates,  which  are  familiar  alike  to  the  legal  profession 
and  to  the  public  at  large.  So  far  as  that  instrument  apportions 
powers  to  the  national  judiciary,  it  must  be  understood,  for  the 
most  part,  as  simply  authorizing  Congress  to  pass  the  necessary 
legislation  for  the  exercise  of  those  powers  by  the  Federal  courts, 
and  not  as  directly,  of  its  own  force,  vesting  them  with  that 
authority.  The  Constitution  does  not,  of  its  own  force,  give 
to  national  courts  jurisdiction  of  the  several  cases  which  it 
enumerates,  but  an  act  of  Congress  is  essential,  first,  to  create 
courts,  and  afterwards  to  apportion  the  jurisdiction  among 
them.  The  exceptions  are  of  those  few  cases  of  which  the 
Constitution  confers  jurisdiction  upon  the  Supreme  Court  by 
name.  And  although  the  courts  of  the  United  States  administer 
the  common  law  in  many  cases,1  they  can  recognize  as  offences 
against  the  nation  only  those  acts  which  are  made  criminal, 
and  their  punishment  provided  for,  by  acts  of  Congress.2  It  is 


worth,  5  Col.  213.  See  Butler  v.  State, 
97  Ind.  378;  People  v.  Williams,  35  Hun, 
516.  A  State  may  give  a  court  of  equity 
jurisdiction  of  a  suit  to  establish  an 
equitable  interest  in  land.  Church  v. 
Kelsey.  121  U.  S.  282,  7  Sup.  Ct.  Rep. 
897.  The  seventh  amendment  has  no  ap- 
plication to  demands  against  the  govern- 
ment, or  to  counter-claims.  McElrath  v. 
United  States,  102  U.  S.  426.  [A  jury 
of  eight  may  be  provided  for  criminal 
cases  not  capital.  Maxwell  v.  Dow,  176 
U.  S.  581,  20  Sup.  Ct.  Rep.  448, 494.  See 
also  State  v.  Bates,  14  Utah,  293,  47  Pac. 
78,  43  L.  R.  A.  33,  and  note.  The  federal 
jury  is  the  common-law  jury  of  twelve 
men.  It  does  not  include  statutory  juries 
before  justices  of  the  peace,  and  facts  ex- 
amined before  such  statutory  juries  may 
be  re-examined  otherwise  than  according 
to  the  course  of  the  common  law.  Capi- 
tal Traction  Co.  v.  Hot,  174  U.  S.  1,  19 
Sup.  Ct.  Rep.  580.  The  fifth  amendment 
does  not  apply  to  trials  in  tlie  consular 
courts  of  the  U.  S.  held  in  non-Christian 
countries.  Ross  v.  Mclntyre,  140  U.  S. 
453,  11  Sup.  Ct.  Rep.  897.] 

1  Townsend   v.  Todd,   91    U.  S.  452 ; 
Elmwood  v.  Marcy,  92  U.  S.  289  ;  Rail- 
road Co.  v.  Georgia,  98  U.  S.  359. 

2  Demurrer  to  an  indictment  for  a  libel 
upon  the  President  and   Congress.     By 


the  court :  "  The  only  question  which 
this  case  presents  is  whether  the  circuit 
courts  can  exercise  a  common-law  juris- 
diction in  criminal  cases.  .  .  .  The 
general  acquiescence  of  legal  men  shows 
the  prevalence  of  opinion  in  favor  of  the 
negative  of  the  proposition.  The  course 
of  reasoning  which  leads  to  this  conclu- 
sion is  simple,  obvious,  and  admits  of  but 
little  illustration.  The  powers  of  the 
general  government  are  made  up  of  con- 
cessions from  the  several  States  :  what- 
ever is  not  expressly  given  to  former,  the 
latter  expressly  reserve.  The  judicial 
power  of  the  United  States  is  a  constitu- 
tional part  of  these  concessions :  that 
power  is  to  be  exercised  by  courts  organ- 
ized for  the  purpose,  and  brought  into  ex- 
istence by  an  effort  of  the  legislative 
power  of  the  Union.  Of  all  the  courts 
which  the  United  States  may,  under  their 
general  powers,  constitute,  one  only,  the 
Supreme  Court,  possesses  jurisdiction  de- 
rived immediately  from  the  Constitution, 
and  of  which  the  legislative  power  cannot 
deprive  it.  All  other  courts  created  by 
the  general  government  possess  no  juris- 
diction but  what  is  given  them  by  the 
power  that  created  them,  and  can  be 
vested  with  none  but  what  the  power 
ceded  to  the  general  government  will 
authorize  it  to  confer.  It  is  not  necessary 


48 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  II. 

otherwise  in  the  States ;  for  the  State  courts  take  notice  of,  and 
punish  as  crimes,  those  acts  which  were  crimes  at  the  common 
law,  except  in  a  few  States  where  it  is  otherwise  expressly  pro- 
vided by  statute  or  Constitution. 


to  inquire  whether  the  general  govern- 
ment, in  any  and  what  extent,  possesses 
the  power  of  conferring  on  its  courts  a 
jurisdiction  in  cases  similar  to  the  pres- 
ent;  it  is  enough  that  such  jurisdiction 
has  not  been  conferred  by  any  legis- 
lative act,  if  it  does  not  result  to  those 
courts  as  a  consequence  of  their  crea- 
tion." United  States  v.  Hudson,  7 
Cranch,  32.  See  United  States  v.  Cool- 
idge,  1  Wheat.  415.  "  It  is  clear  there 
can  be  no  common  law  of  the  United 
States.  The  Federal  government  is  com- 
posed of  twenty-four  sovereign  and  inde- 
pendent States,  each  of  which  may  have 
its  local  usages,  customs,  and  common 
law.  There  is  no  principle  which  per- 
rades  the  Union,  and  has  the  authority 
of  law,  that  is  not  embodied  in  the  Con- 
stitution or  laws  of  the  Union.  The 
common  law  could  be  made  a  part  of  our 
federal  system  only  by  legislative  adop- 
tion." Per  McLean,  J.,  Wheaton  v. 
Peters,  8  Pet.  691.  See  also  Kendall 
t>.  United  States,  12  Pet.  524 ;  Lorman  v. 
Clarke,  2  McLean,  568 ;  United  States 


v.  Lancaster,  2  McLean,  431 ;  United 
States  v.  New  Bedford  Bridge,  1  Wood. 
&  M.  403  ;  United  States  v.  Wilson,  3 
Blatch.  435 ;  United  States  v.  Barney,  5 
Blatch.  294.  £Upon  this  ground  it  was 
held  in  Gatton  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  95  Iowa,  112,  63  N.  W.589,  28  L.  R! 
A.  556,  that  in  the  absence  of  congres- 
sional action,  common  carriers  engaged 
in  interstate  commerce  were  not  limited 
to  reasonable  charges.  See  also  Fore- 
paugh  v.  Delaware,  L.  &  W.  R.  Co.,  128 
Pa.  217,  18  Atl.  503,  5  L.  R.  A.  508,  and 
note,  15  Am.  St.  672.  These  cases  how- 
ever are  overruled  in  W.  U.  Tel.  Co.  v. 
Call  Pub.  Co.,  181  U.  S.  92,  21  Sup. 
Ct.  Rep.  561,  aff.  58  Neb.  192,  78  N.  W. 
619,  holding  that  in  the  absence  of  con- 
gressional action,  interstate  telegraph 
companies  are  subject  to  the  common- 
law  rule  of  reasonable  charges,  and  no 
unreasonable  discrimination  between  pa- 
trons.] As  to  the  adoption  of  the  com- 
mon law  by  the  States,  see  Van  Ness  v. 
Pacard,  2  Pet.  137, 144,  per  Story,  J. ;  and 
post,  p.  51,  and  cases  cited  in  notes. 


CH.  III.]       FORMATION   AND   AMENDMENT   OF   CONSTITUTIONS.  49 


CHAPTER  III. 

THE   FORMATION   AND   AMENDMENT    OF   STATE   CONSTITUTIONS. 

THE  Constitution  of  the  United  States  assumes  the  existence 
of  thirteen  distinct  State  governments,  over  whose  people  its 
authority  was  to  be  extended  if  ratified  by  conventions  chosen 
for  the  purpose.  Each  of  these  States  was  then  exercising  the 
powers  of  government  under  some  form  of  written  constitution, 
and  that  instrument  would  remain  unaffected  by  the  adoption  of 
the  national  Constitution,  except  in  those  particulars  in  which 
the  two  would  come  in  conflict ;  and  as  to  those,  the  latter  would 
modify  and  control  the  former.1  But  besides  this  fundamental 
law,  every  State  had  also  a  body  of  laws,  prescribing  the  rights, 
duties,  and  obligations  of  persons  within  its  jurisdiction,  and 
establishing  those  minute  rules  for  the  various  relations  of  life 
which  cannot  be  properly  incorporated  in  a  constitution,  but  must 
be  left  to  the  regulation  of  the  ordinary  law-making  power. 

By  far  the  larger  and  more  valuable  portion  of  that  body  of 
laws  consisted  of  the  common  law  of  England,  which  had  been 
transplanted  in  the  American  wilderness,  and  which  the  colo- 
nists, now  become  an  independent  nation,  had  found  a  shelter 
of  protection  during  all  the  long  contest  with  the  mother  country  > 
brought  at  last  to  so  fortunate  a  conclusion. 

The  common  law  of  England  consisted  of  those  maxims  of 
freedom,  order,  enterprise,  and  thrift  which  had  prevailed  in  the 
conduct  of  public  affairs,  the  management  of  private  business,  the 
regulation  of  the  domestic  institutions,  and  the  acquisition,  con- 
trol, and  transfer  of  property  from  time  immemorial.  It  was  the 
outgrowth  of  the  habits  of  thought  and  action  of  the  people,  and 
was  modified  gradually  and  insensibly  from  time  to  time  as  those 
habits  became  modified,  and  as  civilization  advanced,  and  new  in- 
ventions introduced  new  wants  and  conveniences,  and  new  modes 
of  business.  Springing  from  the  very  nature  of  the  people  them- 
selves, and  developed  in  their  own  experience,  it  was  obviously 
the  body  of  laws  best  adapted  to  their  needs,  and  as  they  took 
with  them  their  nature,  so  also  they  would  take  with  them  these 

1  Livingston  v.  Van   Ingen,  9  Johns.     Dargan,  45  Ala.  310;  Neal  v.  Delaware, 
607 ;  State  v.  Cape  Girarcleau,  &c.  R.  R.     103  U.  S.  370. 

Co.,  48  Mo.  468 ;  Mayor,  &c.  of  Mobile  v. 

4 


50  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

laws  whenever  they  should  transfer  their  domicile  from  one  coun- 
try to  another. 

To  eulogize  the  common  law  is  no  part  of  our  present  purpose. 
Many  of  its  features  were  exceedingly  harsh  and  repulsive,  and 
gave  unmistakable  proofs  that  they  had  their  origin  in  times  of 
profound  ignorance,  superstition,  and  barbarism.  The  feudal 
system,  which  was  essentially  a  system  of  violence,  disorder,  and 
rapine,1  gave  birth  to  many  of  the  maxims  of  the  common  law ; 
aud  some  of  these,  long  after  that  system  has  passed  away,  may 
still  be  traced  in  our  law,  especially  in  the  rules  which  govern  the 
acquisition,  control,  and  enjoyment  of  real  estate.  The  criminal 
code  was  also  marked  by  cruel  and  absurd  features,  some  of 
which  have  clung  to  it  with  wonderful  tenacity,  even  after  the 
most  stupid  could  perceive  their  inconsistency  with  justice  and 
civilization.  But,  on  the  whole,  the  system  was  the  best  founda- 
tion on  which  to  erect  an  enduring  structure  of  civil  liberty  which 
the  world  has  ever  known.  It  was  the  peculiar  excellence  of  the 
common  law  of  England  that  it  recognized  the  worth,  and  sought 
especially  to  protect  the  rights  and  privileges,  of  the  individual 
man.  Its  maxims  were  those  of  a  sturdy  and  independent  race, 
accustomed  in  an  unusual  degree  to  freedom  of  thought  and  ac- 
tion, and  to  a  share  in  the  administration  of  public  affairs  ;  and 
arbitrary  power  and  uncontrolled  authority  were  not  recognized 
in  its  principles.  Awe  surrounded  and  majesty  clothed  the  king, 
but  the  humblest  subject  might  shut  the  door  of  his  cottage 
against  him,  and  defend  from  intrusion  that  privacy  which  was 
as  sacred  as  the  kingly  prerogatives.2  The  system  was  the  oppo- 
site of  servile ;  its  features  implied  boldness  and  independent 
self-reliance  on  the  part  of  the  people  ;  and  if  the  criminal  code 
was  harsh,  it  at  least  escaped  the  inquisitorial  features  which 
were  apparent  in  criminal  procedure  of  other  civilized  countries, 
and  which  have  ever  been  fruitful  of  injustice,  oppression,  and 
terror. 

For  several  hundred  years,  however,  changes  had  from  time  to 
time  been  made  in  the  common  law  by  means  of  statutes.  Origi- 
nally the  purpose  of  general  statutes  was  mainly  to  declare  and 
reaffirm  such  common-law  principles  as,  by  reason  of  usurpations 
and  abuses,  had  come  to  be  of  doubtful  force,  and  which,  there- 
fore, needed  to  be  authoritatively  announced,  that  king  and  sub- 

1  "  A  feudal  kingdom  was  a  confed-  was  either  a  cipher  or  a  tyrant,  and  a 

eracy  of  a  numerous  body,  who  lived  in  great  portion  of  the  people  were  reduced 

a  state  of  war  against  each  other,  and  of  to  personal   slavery."     Mackintosh,  His- 

rapine  towards  all  mankind  ;  in  which  the  tory  of  England,  c.  3. 
king,  according  to  his  ability  and  vigor,          2  See  post,  p.  425,  426. 


CH.  III.]       FOUMATION   AND    AMENDMENT   OF   CONSTITUTIONS. 


51 


ject  alike  might  understand  and  observe  them.  Such  was  the 
purpose  of  the  first  great  statute,  promulgated  at  a  time  when 
the  legislative  power  was  exercised  by  the  king  alone,  and  which 
is  still  known  as  the  Magna  Charta  of  King  John.1  Such  also 
was  the  purpose  of  the  several  confirmations  of  that  charter,  as 
well  as  of  the  Petition  of  Right,2  and  the  Bill  of  Rights,3  each 
of  which  became  necessary  by  reason  of  usurpations.  But  further 
statutes  also  became  needful  because  old  customs  and  modes  of 
business  were  unsuited  to  new  conditions  of  things  when  property 
had  become  more  valuable,  wealth  greater,  commerce  more  ex- 
tended, and  when  all  these  changes  had  brought  with  them  new 
desires  and  necessities,  and  also  new  dangers  against  which 
society  as  well  as  the  individual  subject  needed  protection.  For 
this  reason  the  Statute  of  Wills  4  and  the  Statute  of  Frauds  and 
Perjuries5  became  important;  and  the  Habeas  Corpus  Act6  was 
also  found  necessary,  not  so  much  to  change  the  law,7  as  to  se- 
cure existing  principles  of  the  common  law  against  being  habit- 
ually set  aside  and  violated  by  those  in  power. 

From  the  first  the  colonists  in  America  claimed  the  benefit  and 
protection  of  the  common  law.  In  some  particulars,  however,  the 
common  law  as  then  existing  in  England  was  not  suited  to  their 
condition  and  circumstances  in  the  new  country,  and  those  partic- 
ulars they  omitted  as  it  was  put  in  practice  by  them.8  They  also 


1  It  is  justly  observed  by  Sidney  that 
"  Magna  Charta  was  not  made  to  restrain 
the  absolute  authority,  for  no  such  thing 
was  in  being  or  pretended   (the  folly  of 
such   visions   seeming   to  have  been   re- 
served to  complete  the  misfortunes  and 
ignominy  of  our  age),  but  it  was  to  assert 
the  native  and  original   liberties  of  our 
nation  by  the  confession  of  the  king  then 
being,  that  neither  he  nor  his  successors 
should  any  way  encroach  upon   them." 
Sidney  on  Government,  c.  3,  sec.  27. 

2  1  Charles  I.  c.  1. 

3  1  William  and  Mary,  sess.  2,  c.  2. 

*  32    Henry  VIII.  c.  7,  and  34  &  35 
Henry  VIII.  c.  5. 

6  29  Charles  II.  c.  3. 

6  31  Charles  II.  c.  2. 

7  "  I  dare  not  advise  to  cast  the  laws 
into  a  new  mould.     The  work  which  I 
propound   tendeth    to    the   pruning   and 
grafting  of  the  law,  and  not  the  plowing 
up  and  planting  it  again,  for  such  a  re- 
move I  should  hold  for  a  perilous  innova- 
tion."    Bacon's  Works,  Vol.  II.  p.  231, 
Phil.  ed.  1852. 


8  "  The  common  law  of  England  is  not 
to  be  taken,  in  all  respects,  to  be  that  of 
America.  Our  ancestors  brought  with 
them  its  general  principles,  and  claimed 
it  as  their  birthright;  but  they  brought 
with  them  and  adopted  only  that  portion 
which  was  applicable  to  their  condition." 
Story,  J.,  in  Van  Ness  v.  Pacard,  2  Pet. 
137.  "  The  settlers  of  colonies  in  Amer- 
ica did  not  carry  with  them  the  laws  of 
the  land  as  being  bound  by  them  wher- 
ever they  should  settle.  They  left  the 
realm  to  avoid  the  inconveniences  and 
hardships  they  were  under,  where  some 
of  these  laws  were  in  force  ;  particularly 
ecclesiastical  laws,  those  for  payment  of 
tithes,  and  others.  Had  it  been  under- 
stood that  they  were  to  carry  these  laws 
with  them,  they  had  better  have  stayed 
at  home  among  their  friends,  unexposed 
to  the  risks  and  toils  of  a  new  settlement. 
They  carried  witli  them  a  right  to  such 
parts  of  laws  of  the  land  as  they  should 
judge  advantageous  or  useful  to  them  ;  a 
right  to  be  free  from  those  they  thought 
hurtful,  and  a  right  to  make  such  othen 


52 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  III. 


claimed  the  benefit  of  such  statutes  as  from  time  to  time  had 
been  enacted  in  modification  of  this  body  of  rules.1  And  when 
the  difficulties  with  the  home  government  sprung  up,  it  was  a 
source  of  immense  moral  power  to  the  colonists  that  they  were 
able  to  show  that  the  rights  they  claimed  were  conferred  by  the 
common  law,  and  that  the  king-  and  Parliament  were  seeking  to 
deprive  them  of  the  common  birthright  of  Englishmen.  Did  Par- 
liament attempt  to  levy  taxes  in  America,  the  people  demanded 
the  benefit  of  that  maxim  with  which  for  many  generations  every 
intelligent  subject  had  been  familiar,  that  those  must  vote  the  tax 


as  they  should  think  necessary,  not  in- 
fringing the  general  rights  of  English- 
men ;  and  such  new  laws  they  were  to 
form  as  agreeable  as  might  be  to  the  laws 
of  England."  Franklin,  Works  by  Sparks, 
Vol.  IV.  p.  271.  See  also  Chisholm  v. 
Georgia,  2  Dall.  419;  Patterson  v.  Winn, 
5  Pet,  233;  Wheaton  v.  Peters,  8  Pet.  591 ; 
Pollard  v.  Hagan,  3  How.  212  ;  Common- 
wealth ?;.  Leach,  1  Mass.  59 ;  Common- 
wealth v.  Knowhon,  2  Mass.  530;  Com- 
monwealth v.  Hunt,  4  Met.  Ill  ;  Pearce 
v.  Atwood,  13  Mass.  324 ;  Sackett  v. 
Sackett,  8  Pick.  309;  Marks  v.  Morris, 

4  Hen.  &  M  463 ;  Mayo  t;.  Wilson,  1  N.  H. 
53;  Houghton  v.  Page,  2  N.  H.  42;  State 
v.  Rollins,  8  N.  H.  550  ;  State  v.  Buchanan, 

5  H.  &  J.  356;  Sibley  v.  Williams,  3  G.  & 
J.  62  ;  State  v.  Cummings,  33  Conn.  260; 
Martin  v.  Bigelow,  2  Aiken,  187;  Linds- 
ley  v.  Coats,  1  Ohio,  243 ;  Bloom  v.  Rich- 
ards, 2  Ohio  St.  287 ;   Lyle  v.  Richards,  9 
S.  &  R.  322  ;   State  v.  Campbell,  T.  U.  P. 
Charlt.  166 ;  Craft  v.  State  Bank,  7  Ind. 
219;  Dawson  v.  Coffman,  28  Ind.  220; 
Bogardus  v.  Trinity  Church,  4  Sandf.  Ch. 
633;  Morgan  v.  King,  30  Barb.  9;  Lan- 
sing w.  Stone,  37  Barb.  15;    Simpson  v. 
State,  5  Yerg.  356;  Crouch  v.  Hall,  15  III. 
263;  Brown  v.  Pratt,  3  Jones  (N.  C.)  Eq. 
202  ;  Stout  v.  Keyes,  2  Doug.  (Mich.)  184; 
Lorman  v.  Benson,  8  Mich.  18 ;  Pierson 
v.  State,  12  Cal.  149;  Norris  v.  Harris,  15 
Cal.  226 ;   Powell  ».  Sims,  5  W.  Va.  1 ; 
Colley  v.  Merrill,  6  Me.  55 ;   State  v.  Ca- 
wood,  2  Stew.  360  ;  Carter  v.  Balfour,  19 
Ala.  814;    Barlow  v.  Lambert,  28  Ala. 
704 ;    Goodwin  v.   Thompson,   2   Greene 
(Iowa),  329;  Wagner  v.  Bissell,  3  Iowa, 
396 ;  Noonan  v.  Stale,  9  Miss.  562 ;  Pow- 
ell v.  Brandon,  24  Miss.  343 ;   Coburn  v. 
Harvey,  18  Wis.  147  ;  Reaume  v.  Cham- 
bers, 22  Mo.  36 ;  Hamilton  v.  Kneeland,  1 


Nev.  10;  People  v.  Green,  1  Utah,  11; 
Thomas  v.  Railroad  Co.,  1  Utah,  232; 
Reno  Smelting  Works  v.  Stevenson,  21 
Pac.  Rep.  317  (Nev.).  The  courts  of  one 
State  will  presume  the  common  law  of 
a  sister  State  to  be  the  same  as  their 
own,  in  the  absence  of  evidence  to  the 
contrary.  Dunn  v.  Adams,  1  Ala.  527, 
s.  c.  35  Am.  Dec.  42 :  Abell  v  Douglass, 

4  Denio,  305 ;  Kermott  v.  Ayer,  11  Mich. 
181;  Schurman •  v.  Marley,  29  Ind.  458; 
Buckles  v.  Ellers,  72  Ind.  220;   Tinkler 
v.  Cox,  68  111.  119;  Flagg  v.  Baldwin,  38 
N.  J.  Eq.  219;  Eureka  Springs  Ry.  Co.  v. 
Timmons,  11  S.  W.  Rep.690  (Ark.).    So  of 
the  law  of  a  foreign  country.     Carpenter 
v.  Grand  Trunk  Ry.  Co.,  72  Me.  388.     So, 
that  statutory  modifications  of  the  com- 
mon   law   are    the   same.      Shattuck  v. 
Chandler,  20  Pac.  Rep.  225  (Kan.) ;  Bu- 
chanan v.  Hubbard,  21  N.  E.  538  (Ind.). 
But  see  Atchison,  &c.  R.  R.  Co.  v.  Betts, 
15  Pac.  Rep.  821  (Kan.). 

1  The  acts  of  Parliament  passed  after 
the  settlement  of  a  colony  were  not  in 
force  therein,  unless  made  so  by  express 
words,  or  by  adoption.  Commonwealth 
v.  Lodge,  2  Grat.  579;  Pemble  v.  Clifford, 
2  McCord,  31.  See  Swift  v.  Tousey,  5 
Ind.  196;  Baker  v.  Mattocks,  Quincy,  72; 
Fechheimer  i;.  Washington,  77  Ind.  366 ; 
Ray  v.  Sweeney,  14  Bush,  1 ;  Lavalle  v. 
Strobel,  89  111.  370 ;  Cathcart  v.  Robinson, 

5  Pet.  264.      Those  amendatory  of   the 
common  law,  if  suited  to  the  condition  of 
things  in  America,  were  generally  adopted 
by  tacit  consent.     For  the  differing  views 
taken  by  English  and  American  states- 
men upon  the  general  questions  here  dis- 
cussed, see  the  observations  by  Governor 
Pownall,  and  the  comments  of  Franklin 
thereon,  4  Works  of  Franklin,  by  Sparks, 
271. 


CII.  III.]       FORMATION    AND    AMENDMENT   OF   CONSTITUTIONS.  53 

who  are  to  pay  it.1  Did  Parliament  order  offenders  against  the 
laws  in  America  to  be  sent  to  England  for  trial,  every  American 
was  roused  to  indignation,  and  protested  against  the  trampling 
under  foot  of  that  time-honored  principle,  that  trials  for  crime 
must  be  by  a  jury  of  the  vicinage.  Contending  thus  behind  the 
bulwarks  of  the  common  law,  Englishmen  would  appreciate  and 
sympathize  with  their  position,  and  Americans  would  feel  doubly 
strong  in  a  cause  that  not  only  was  right,  but  the  justice  of  which 
must  be  confirmed  by  an  appeal  to  the  consciousness  of  their 
enemies  themselves. 

The  evidence  of  the  common  law  consisted  in  part  of  the  declar- 
atory statutes  we  have  mentioned,2  in  part  of  the  commentaries 
of  such  men  learned  in  the  law  as  had  been  accepted  as  authority, 
but  mainly  in  the  decisions  of  the  courts  applying  the  law  to  ac- 
tual controversies.  While  colonization  continued,  —  that  is  to 
say,  until  the  war  of  the  Revolution  actually  commenced,  —  these 
decisions  were  authority  in  the  colonies,  and  the  changes  made  in 
the  common  law  up  to  the  same  period  were  operative  in  America 
also  if  suited  to  the  condition  of  things  here.  The  opening  of  the 
war  of  the  Revolution  is  the  point  of  time  at  which  the  continuous 
stream  of  the  common  law  became  divided,  and  that  portion 
which  had  been  adopted  in  America  flowed  on  by  itself,  no  longer 
subject  to  changes  from  across  the  ocean,  but  liable  still  to  be 
gradually  modified  through  changes  in  the  modes  of  thought 
and  of  business  among  the  people,  as  well  as  through  statutory 
enactments. 

The  colonists  also  had  legislatures  of  their  own,  by  which  laws 
had  been  passed  which  were  in  force  at  the  time  of  the  separa- 
tion, and  which  remained  unaffected  thereby.  When,  therefore, 
they  emerged  from  the  colonial  condition  into  that  of  indepen- 
dence, the  laws  which  governed  them  consisted,  first,  of  the  com- 

1  "  The  blessing  of  Judah  and  Issachar  courage.     So  that  you  may  conclude  that 

will  never  meet ;  that  the  same  people  or  no  people  overcharged  with  tribute  is  fit 

nation  should  be  both  the  lion's  whelp  for  empire."    Lord  Bacon  on  the  True 

and   the   ass   between   burdens ;   neither  Greatness  of  Kingdoms, 

will  it  be  that  a  people  overlaid  with  taxes  2  Those     statutes     upon    the    points 

should  ever  become  valiant  and  martial,  which  are  covered  by  them  are  the  best 

It  is  true   that  taxes  levied  by  consent  evidence  possible.     They  are  the  living 

of  the  State  do  abate  men's  courage  less,  charters  of  English  liberty,  to  the  present 

as  it  hath  been  seen  notably  in  the  exer-  day  ;  and  as  the  forerunners  of  the  Amer- 

cise  of  the  Low  Countries,  and  in  some  ican   constitutions  and   the  source  from 

degree  in  the  subsidies  of   England,  for  which  have   been  derived  many  of  the 

you  must  note  that  we  speak  now  of  the  most  important  articles  in  their  bills  of 

heart  and  not  of  the  purse  ;  so  that  al-  rights,  they  are  constantly  appealed  to 

though  the  same  tribute  or  tax  laid  by  when  personal  liberty  or  private  rights 

consent  or  by  imposing  be  all  one  to  the  are  placed  in  apparent  antagonism  to  the 

purse,  yet    it  works  diversely  upon  the  claims  of  government. 


54 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  III. 


mon  law  of  England,  so  far  as  they  had  tacitly  adopted  it  as 
suited  to  their  condition ;  second,  of  the  statutes  of  England,  or 
of  Great  Britain,  amendatory  of  the  common  law,  which  they 
had  in  like  manner  adopted;  and,  third,  of  the  colonial  statutes.1 
The  first  and  second  constituted  the  American  common  law,  and 
by  this  in  great  part  are  rights  adjudged  and  wrongs  redressed 
in  the  American  States  to  this  day.2 


1  The  like  condition  of  things  is  found 
to  exist  in   the   new  States  formed  and 
admitted  to  the  Union  since  the  Constitu- 
tion was  adopted.     Congress  creates  ter- 
ritorial governments  of  different  grades, 
but    generally    witli   plenary    legislative 
power  either  in  the  governor  and  judges, 
a  territorial  council,  or  a  territorial  legis- 
lature  chosen   by  the   people ;   and   the 
authority  of  this  body  extends  to  all  right- 
ful subjects  of  legislation,  subject,  how- 
ever, to  the  disapproval  of  Congress.  Vin- 
cennes  University  v.  Indiana.  14  How.  268 ; 
Miners'  Bank  v.  Iowa,  12  How.  1.     Thus 
the   Territory  of   Oregon  had  power  to 
grant  a  legislative  divorce.     Maynard  v. 
Hill,  125  U.  S.  190,  8  Sup.  Ct.  Rep.  723. 
A  territorial  legislature  may  empower  a 
probate  court  to  grant  a  divorce.     Whit- 
more  v.  Harden,  3  Utah,  121,  1  Pac.  465. 
The  legislation,  of  course,  must  not  be  in 
conflict  with  the  law  of  Congress  confer- 
ring the  power  to  legislate,  but  a  variance 
from  it  may  be  supposed   approved  by 
that  body,  if  suffered  to  remain  without 
disapproval   for  a  series  of  years  after 
being  duly   reported   to   it.     Clinton   v. 
Englebrect,  13  Wall.  434,  446.     See  Wil- 
liams v.  Bank  of  Michigan,  7  Wend.  539 ; 
Swan  v.  Williams,  2  Mich.  427 ;  Stout  v. 
Hyatt,  13  Kan.  232 ;  Himman  v.  Warren, 
6  Oreg.  408.     As  to  the  complete  control 
of    Congress   over  the   Territories,    see 
United  States  «;.  Reynolds,  98  U.  S.  145 } 
National  Bank  v.  Yankton,  101  U.  S.  129. 
It    may   exclude   polygamists  from   the 
right  to  vote.     FJIt  may  declare  void  the 
charter  of  a  church  granted  by  the  legis- 
lature of  the  Territory.     Church  of  Jesus 
Christ  of  Latter  Day  Saints  v.  United 
States,  136  U.  S.  1, 10  Sup.  Ct.  Rep.  792;] 
Murphy  v.  Ramsey,  114  U.  S.  15,  5  Sup. 
Ct.  Rep.  747.     In  Treadway  v.  Schnauber, 
1  Dak.  236,  it  was  decided  that  without 
express  authority  a  territorial  legislature 
could  not  vote  aid  to  a  railroad  company. 

2  A  few  of  the  States,  to   get  rid  of 
confusion  in  the  law,  deemed  it  desirable 


to  repeal  the  acts  of  Parliament,  and  to 
re-enact  such  portions  of  them  as  were  re- 
garded important  here.  See  the  Michi- 
gan repealing  statute,  copied  from  that  of 
Virginia,  in  Code  of  1820,  p.  459.  Others 
named  a  date  or  event,  and  provided  by 
law  that  English  statutes  passed  subse- 
quently should  not  be  of  force  within 
their  limits.  In  some  of  the  new  States 
there  were  also  other  laws  in  force  than 
those  to  which  we  have  above  alluded, 
as  for  example,  the  ordinance  of  1787,  in 
the  Northwest  Territory.  There  has  been 
much  discussion  of  the  question  whether 
that  ordinance  was  superseded  in  each 
of  the  States  formed  out  of  that  Terri- 
tory by  the  adoption  of  a  State  constitu- 
tion, and  admission  to  the  Union.  In 
Hogg  v.  The  Zanesville  Canal  Manufac- 
turing Co.,  5  Ohio,  410,  it  was  held  that 
the  provision  of  the  ordinance  that  the 
navigable  waters  of  the  Territory  and 
the  carrying-places  between  should  be 
common  highways,  and  forever  free,  was 
permanent  in  its  obligation,  and  could  not 
be  altered  without  the  consent  both  of  the 
people  of  the  State  and  of  the  United 
States,  given  through  their  representa- 
tives. "It  is  an  article  of  compact;  and 
until  we  assume  the  principle  that  the 
sovereign  power  of  a  State  is  not  bound 
by  compact,  this  clause  must  be  consid- 
ered obligatory."  Justice  McLean  and 
Judge  Leavitt,  in  Spooner  v.  McConnell, 
1  McLean,  337,  examine  this  subject  at 
considerable  length,  and  both  arrive  at 
the  same  conclusion  with  the  Ohio  court. 
The  like  opinion  was  subsequently  ex- 
pressed in  Palmer  v.  Commissioners  of 
Cuyahoga  Co.,  3  McLean,  226,  and  in 
Jolly  v.  Terre  Haute  Drawbridge  Co.,  6 
McLean,  237.  See  also  United  States  v. 
New  Bedford  Bridge,  1  Wood.  &  M.  401  ; 
Strader  v.  Graham,  10  How.  82 ;  Doe  v. 
Douglass,  8  Blackf.  12 ;  Connecticut  Mu- 
tual Life  Ins.  Co.  v.  Cross,  18  Wis.  109 ; 
Milwaukee  Gaslight  Co.  v.  Schooner 
Gamecock,  23  Wis.  144 ;  Wisconsin  River 


CH.  III.]       FORMATION   AND   AMENDMENT    OF   CONSTITUTIONS. 


55 


Every  colony  had  also  its  charter,  emanating  from  the  Crown, 
and  constituting  its  colonial  constitution.  All  but  two  of  these 
were  swept  away  by  the  whirlwind  of  revolution,  and  others  sub- 
stituted which  had  been  framed  by  the  people  themselves,  through 
the  agency  of  conventions  which  they  had  chosen.  The  excep- 
tions were  those  of  Connecticut  and  Rhode  Island,  each  of  which 
States  had  continued  its  government  under  the  colonial  charter, 
finding  it  sufficient  and  satisfactory  for  the  time  being,  and 
accepting  it  as  the  constitution  for  the  State.1 


Improvement  Co.  v.  Lyons,  30  Wis.  61 ; 
Attorney-General  v.  Eau  Claire,  37  Wis. 
400;  Keokuk  v.  Packet  Co.,  45  Iowa,  196. 
Compare  Woodburn  v.  Kilbourn  Manuf. 
Co.,  1  Abb.  U.  S.  158 ;  8.  c.  1  Biss.  546. 
But  in  Escanaba  Co.  v.  Chicago,  107  U.  S. 
678,  2  Sup.  Ct.  Rep.  185,  it  was  decided 
that  limitations  on  legislative  power  im- 
posed by  the  ordinance  ceased  to  have 
effect  within  a  State  upon  its  admission 
to  the  Union,  except  as  the  State  had 
voluntarily  adopted  them.  See  Sands  v. 
Manistee  River  Imp.  Co.,  123  U.  S.  288,  8 
Sup.  Ct.  Rep.  113;  Higgins  v.  Farmers' 
Ins.  Co.,  60  Iowa,  50,  14  N.  W.  118,  and 
also  the  early  cases  of  La  Plaisance  Bay 
Harbor  Co.  v.  Monroe,  Walk.  Ch.  155, 
and  Depew  v.  Trustees,  5  Ind.  8 ;  and 
with  reference  to  the  enabling  acts  of 
Oregon,  Louisiana,  and  California,  in 
Willamette  Iron  Bridge  Co.  v.  Hatch,  125 
U.  S.  1,  8  Sup.  Ct.  Rep.  811 ;  Hamilton  v. 
Vicksburg,  &c.  R.  R.  Co.,  119  U.  S.  280, 
7  Sup.  Ct.  Rep.  206;  Cardwell  v.  Ameri- 
can Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct. 
Rep.  423;  People  v.  Potrero,  &c.  R.  R. 
Co.,  67  Cal.  166,  7  Pac.  445.  And  the 
provision  that  the  rivers  shall  be  forever 
free  refers  not  to  phylical  obstructions, 
but  to  the  imposition  of  duties  for  the 
use  of  the  navigation,  and  any  discrimi- 
nation against  citizens  of  other  States. 
Escanaba  Co.  v.  Chicago,  supra : ;  Huse  v. 
Glover,  119  U.  S.  543,  and  cases  last  cited. 
But  a  State  may  charge  tolls  for  the  use 
of  improvements  it  has  made  in  its  navi- 
gable rivers.  Huse  v.  Glover;  Sands  v. 
Manistee  River  Imp.  Co.,  supra ;  Palmer 
v.  Com'rs,  3  McLean,  226;  Spooner  v. 
McConnell,  1  McLean,  337.  See  also, 
post,  863,  864. 

In  some  of  the  States  formed  out  of  the 
territory  acquired  by  the  United  States 
from  foreign  powers,  traces  will  be  found 
of  the  laws  existing  before  the  change  of 


government.  Louisiana  has  a  code  pecu- 
liar to  itself,  based  upon  the  civil  law. 
Much  of  Mexican  law,  and  especially  as 
regards  lands  and  land  titles,  is  retained 
in  the  systems  of  Texas  and  California. 
In  Michigan,  when  the  acts  of  Parlia- 
ment were  repealed,  it  was  also  deemed 
important  to  repeal  all  laws  derived  from 
France,  through  the  connection  with  the 
Canadian  provinces,  includingtheCWume 
de  Paris, or  ancient  French  common  law. 
In  the  mining  States  and  Territories  a 
peculiar  species  of  common  law,  relating 
to  mining  rights  and  titles,  has  sprung  up, 
having  its  origin  among  the  miners,  but 
recognized  and  enforced  by  the  courts. 
Regarding  the  canon  and  ecclesiastical 
law,  and  their  force  in  this  country,  see 
Crump  c.  Morgan,  3  Ired.  Eq.  91 ;  Le  Bar- 
ron  v.  Le  Barron,  35  Vt.  365.  That  con- 
stitutions are  supposed  to  be  framed  in 
reference  to  existing  institutions,  see  Pope 
v.  Phifer,  3  Heisk.  686.  A  change  in  a 
constitution  cannot  retroact  upon  legis- 
lation so  as  to  enlarge  its  scope.  Dewar 
v.  People,  40  Mich.  401.  See  Dullam  v. 
Willson,  53  Mich.  392,  19  N.  W.  112. 

1  It  is  worthy  of  note  that  the  first 
well-authenticated  case  in  which  a  legis- 
lative act  was  held  void  for  incompati- 
bility with  the  constitution  of  the  State, 
was  decided  under  one  of  these  charters. 
It  was  that  of  Trevett  v.  Weeden,  decided 
in  Rhode  Island  in  1786.  See  Arnold's 
History  of  Rhode  Island,  Vol.  II.  c.  24. 
Mr.  Brinton  Coxe,  in  his  book  on  Judicial 
Power  and  Constitutional  Legislation, 
makes  much  use  of  this  case,  and  refers 
to  others  decided  near  the  same  time. 
Mr.  Gouveneur  Morris,  in  an  address  to 
the  Pennsylvania  Assembly  in  1785, 
speaks  of  a  law  passed  in  New  Jersey 
having  been  declared  unconstitutional 
and  void,  and  is  supposed  to  have  referred 
to  the  unreported  case  of  Holmes  v. 


56  CONSTITUTIONAL  LIMITATIONS.  [CH.  III. 

New  States  have  since,  from  time  to  time,  formed  constitutions, 
either  regularly  in  pursuance  of  enabling  acts  passed  by  Congress, 
or  irregularly  by  the  spontaneous  action  of  the  people,  or  under 
the  direction  of  the  legislative  or  executive  authority  of  the  Terri- 
tory to  which  the  State  succeeded.  Where  irregularities  existed, 
they  must  be  regarded  as  having  been  cured  by  the  subsequent 
admission  of  the  State  into  the  Union  by  Congress;  and  there 
were  not  wanting  in  the  case  of  some  States  plausible  reasons  for 
insisting  that  such  admission  had  become  a  matter  of  right,  and 
that  the  necessity  for  an  enabling  act  by  Congress  was  dispensed 
with  by  the  previous  stipulations  of  the  national  government  in 
acquiring  the  territory  from  which  such  States  were  formed.1 
Some  of  these  constitutions  pointed  out  the  mode  for  their  own 
modification;  others  were  silent  on  that  subject;  but  it  has  been 
assumed  that  in  such  cases  the  power  to  originate  proceedings  for 
that  purpose  rested  with  the  legislature  of  the  State,  as  the  de- 
partment most  nearly  representing  its  general  sovereignty;  and 
this  is  doubtless  the  correct  view  to  take  of  this  subject.2 

The  theory  of  our  political  system  is  that  the  ultimate  sover- 
eignty is  in  the  people,  from  whom  springs  all  legitimate  author- 
ity.3 The  people  of  the  Union  created  a  national  constitution,  and 
conferred  upon  it-powers  of  sovereignty  over  certain  subjects,  and 
the  people  of  each  State  created  a  State  government,  to  exercise 
the  remaining  powers  of  sovereignty  so  far  as  they  were  disposed 
to  allow  them  to  be  exercised  at  all.  By  the  constitution  which 
they  establish,  they  not  only  tie  up  the  hands  of  their  official 
agencies,  but  their  own  hands  as  well ;  and  neither  the  officers  of 
the  State,  nor  the  whole  people  as  an  aggregate  body,  are  at  lib- 
erty to  take  action  in  opposition  to  this  fundamental  law.  But  in 

Wallow,  which  Mr.  Coxe  thought  must  Bank,  20  Ohio,  283.     The  debates  in  the 

have  been  decided  in  1786  or  1787,  but  Senate  of  the  United  States  on  the  admis- 

which  President  Scott  of  Rutger's  College,  sion  of  Michigan  to  the  Union  go  fully 

who  has  examined  the  original  files  and  into  this  question.     See  Benton's  Abridg- 

records,  informs  us  was  decided  in  1780.  ment    of    Congressional    Debates,    Vol. 

The  next  reported  case  in  which  a  like  XIII.   pp.   69-72.     And  as  to  the  right 

result  was  reached  was  Bayard  v.  Single-  of  the  people  of  a  Territory  to  originate 

ton,  to  be  found  in  Martin,  N.  C.  Rep.  measures  looking  to  an  application   for 

p.  48.  admission  to  the  Union,  see  Opinions  of 

1  This  was  the  claim  made  on  behalf  Attorneys-General,  Vol.  II.  p.  726. 
of  Michigan ;   it  being  insisted  that  the          2  gee  Jameson  on  Constitutional  Con- 
citizens,  under  the  provisions  of  the  ordi-  ventions,  c.  8. 

nance  of  1787,  whenever  the  Territory  ac-         8    McLean,  J.,  in  Spooner  v.  McCon- 

quired  the  requisite  population,  had  an  nell,  1  McLean,  347;    Waite,  Ch.  J.,  in 

absolute  right  to  form  a  constitution  and  Minor  v.  Happersett,  21   Wall.  162,  172 ; 

be  admitted  to  the  Union  under  it.     See  Campbell's  Case,  2    Bland   Ch.   209,    20 

Scott  «'.  Detroit  Young  Men's   Society's  Am.  Dec.  360;  Reynolds  v.  Baker,  6  Cold. 

Lessee,  1  Doug.  (Mich.)  119,  and  the  con-  221 ;  Potter's  Dwarris  on  Stat.  c.  1. 
t-ary    opinion    in   Myers   v.   Manhattan 


CH.  III.]       FORMATION    AND    AMENDMENT   OF   CONSTITUTIONS.  57 

every  State,  although  all  persons  are  under  the  protection  of  the 
government,  and  obliged  to  conform  their  action  to  its  laws,  there 
are  always  some  who  are  altogether  excluded  from  participation 
in  the  government,  and  are  compelled  to  submit  to  be  ruled  by 
an  authority  in  the  creation  of  which  they  have  no  choice.  The 
political  maxim,  that  government  rests  upon  the  consent  of  the 
governed,  appears,  therefore,  to  be  practically  subject  to  many 
exceptions;  and  when  we  say  the  sovereignty  of  the  State  is 
vested  in  the  people,  the  question  very  naturally  presents  itself, 
What  are  we  to  understand  by  The  People  as  used  in  this 
connection? 

What  should  be  the  correct  rule  upon  this  subject,  it  does  not 
fall  within  our  province  to  consider.  Upon  this  men  will  theorize ; 
but  the  practical  question  precedes  the  formation  of  the  Constitu- 
tion and  is  addressed  to  the  people  themselves.  As  a  practical 
fact  the  sovereignty  is  vested  in  those  persons  who  are  permitted 
by  the  constitution  of  the  State  to  exercise  the  elective  franchise.1 
Such  persons  may  have  been  designated  by  description  in  the  en- 
abling act  of  Congress  permitting  the  formation  of  the  constitu- 
tion, if  any  such  there  were,  or  the  convention  which  framed  the 
constitution  may  have  determined  the  qualifications  of  electors 
without  external  dictation.  In  either  case,  however,  it  was  essen- 
tial to  subsequent  good  order  and  contentment  with  the  govern- 
ment, that  those  classes  in  general  should  be  admitted  to  a  voice 
in  its  administration,  whose  exclusion  on  the  ground  of  want  of 
capacity  or  of  moral  fitness  could  not  reasonably  and  to  the 
general  satisfaction  be  defended. 

Certain  classes  have  been  almost  universally  excluded,  — the 
slave,  because  he  is  assumed  to  be  wanting  alike  in  the  intelli- 
gence and  the  freedom  of  will  essential  to  the  proper  exercise  of 
the  right;  the  woman,  from  mixed  motives,  but  mainly,  perhaps, 
because,  in  the  natural  relation  of  marriage,  she  was  supposed  to 
be  under  the  influence  of  her  husband,  and,  where  the  common 
law  prevailed,  actually  was  in  a  condition  of  dependence  upon 
and  subjection  to  him;2  the  infant,  for  reasons  similar  to  those 
which  exclude  the  slave;  the  idiot,  the  lunatic,  and  the  felon,  on 
obvious  grounds ;  and  sometimes  other  classes  for  whose  exclusion 
it  is  difficult  to  assign  reasons  so  generally  satisfactory. 

The  theory  in  these  cases  we  take  to  be  that  classes  are  ex- 
cluded because  they  lack  either  the  intelligence,  the  virtue,  or  the 

1  "The  people,  for  political  purposes,         2  Some  reference  is  made  to  the  rea- 

must  he  considered  as  synonymous  with  sons  for  the  exclusion  in  the  opinions  in 

qualified   voters."    Blair  v.  Ridgely,  41  Bradwell    v.    State,  16   Wall.   130,    and 

Mo.  63.  Minor  v.  Happersett,  21  Wall.  162. 


58  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

liberty  of  action  essential  to  the  proper  exercise  of  the  elective 
franchise.  But  the  rule  by  which  the  presence  or  absence  of 
these  qualifications  is  to  be  determined,  it  is  not  easy  to  establish 
on  grounds  the  reason  and  propriety  of  which  shall  be  accepted  by 
all.  It  must  be  one  that  is  definite  and  easy  of  application,  and 
it  must  be  made  permanent,  or  an  accidental  majority  may  at  any 
time  change  it,  so  as  to  usurp  all  power  to  themselves.  But  to 
be  definite  and  easy  of  application,  it  must  also  be  arbitrary.  The 
infant  of  tender  years  is  wanting  in  competency,  but  he  is  daily 
acquiring  it,  and  a  period  is  fixed  at  which  he  shall  conclusively 
be  presumed  to  possess  what  is  requisite.  The  alien  may  know 
nothing  of  our  political  system  and  laws,  and  he  is  excluded  until 
he  has  been  domiciled  in  the  country  for  a  period  judged  to  be 
sufficiently  long  to  make  him  familiar  with  its  institutions;  races 
are  sometimes  excluded  arbitrarily ;  and  at  times  in  some  of  the 
States  the  possession  of  a  certain  amount  of  property,  or  the  ca- 
pacity to  read,  seems  to  have  been  regarded  as  essential  to  satis- 
factory proof  of  sufficient  freedom  of  action  and  intelligence.1 

Whatever  rule  is  once  established  must  remain  fixed  until 
those  who  by  means  of  it  have  the  power  of  the  State  put  into 
their  hands  see  fit  to  invite  others  to  participate  with  them  in  its 
exercise.  Any  attempt  of  the  excluded  classes  to  assert  their 
right  to  a  share  in  the  government,  otherwise  than  by  operating 
upon  the  public  opinion  of  those  who  possess  the  right  of  suffrage, 
would  be  regarded  as  an  attempt  at  revolution,  to  be  put  down 
by  the  strong  arm  of  the  government  of  the  State,  assisted,  if 
need  be,  by  the  military  power  of  the  Union.2 

In  regard  to  the  formation  and  amendment  of  State  constitu- 
tions, the  following  appear  to  be  settled  principles  of  American 
constitutional  law :  — 

I.  The  people  of  the  several  Territories  may  form  for  them- 
selves State  constitutions  whenever  enabling  acts  for  that  purpose 
are  passed  by  Congress,  but  only  in  the  manner  allowed  by  such 
enabling  acts,  and  through  the  action  of  such  persons  as  the  en- 

1  State  v.  Woodruff,  2  Day,  604 ;  Cat-  utes,  referring  to  the  people  of  a  muni- 

lin  v.   Smith,  2  S.   &  R.   267 ;   Opinions  cipality   the   question   of  voting  aid    to 

of  Judges,    18  Pick.  675.     See  Mr.  Ban-  internal     improvements,    have    confined 

croft's  synopsis  of  the  first  constitutions  the  right  of  voting  on  the   question   to 

of  the  original  States,  in  his  History  of  taxpayers. 

the    American    Revolution,  c.   6.      For          2  The  case  of  Rhode  Island  and  the 

some  local  elections  it  is  quite  common  "Dorr  Rebellion,"  so  popularly  known, 

still  to  require  property   qualification  or  will  be  fresh  in  the  minds  of  all.     For 

the  payment  of  taxes  in  the  voter;  but  a  discussion   of    some   of  the  legal    as- 

statutes  of  this  description  are  generally  pects  of  the  case,  see  Luther  r.  Borden, 

construed    liberally.      See    Crawford    v.  7  How.  1. 
Wilson,  4  Barb.  604.    Many  special  stat- 


CH.  III.]      FORMATION   AND   AMENDMENT  OF   CONSTITUTIONS.  59 

abling  acts  shall  clothe  with  the  elective  franchise  to  that  end. 
If  the  people  of  a  Territory  shall,  of  their  own  motion,  without 
such  enabling  act,  meet  in  convention,  frame  and  adopt  a  consti- 
tution, and  demand  admission  to  the  Union  under  it,  such  action 
does  not  entitle  them,  as  matter  of  right,  to  be  recognized  as  a 
State;  but  the  power  that  can  admit  can  also  refuse,  and  the 
territorial  status  must  be  continued  until  Congress  shall  be  satis- 
fied to  suffer  the  Territory  to  become  a  State.  There  are  always 
in  these  cases  questions  of  policy  as  well  as  of  constitutional  law 
to  be  determined  by  the  Congress  before  admission  becomes  a 
matter  of  right,  —  whether  the  constitution  formed  is  republican; 
whether  suitable  and  proper  State  boundaries  have  been  fixed 
upon;  whether  the  population  is  sufficient;  whether  the  proper 
qualifications  for  the  exercise  of  the  elective  franchise  have  been 
agreed  to;  whether  any  inveterate  evil  exists  in  the  Territory 
which  is  now  subject  to  control,  but  which  might  be  perpetuated 
under  a  State  government,  — these  and  the  like  questions,  in 
which  the  whole  country  is  interested,  cannot  be  finally  solved 
by  the  people  of  the  Territory  for  themselves,  but  the  final  deci- 
sion must  rest  with  Congress,  and  the  .judgment  must  be  favorable 
before  admission  can  be  claimed  or  expected.1 

II.  In  the  original  States,  and  all  others  subsequently  admitted 
to  the  Union,  the  power  to  amend  or  revise  their  constitutions 
resides  in  the  great  body  of  the  people  as  an  organized  body  poli- 
tic, who,  being  vested  with  ultimate  sovereignty,  and  the  source 
of  all  State  authority,  have  power  to  control  and  alter  at  will  the 
law  which  they  have  made.     But  the  people,  in  the  legal  sense, 
must  be  understood  to  be  those  who,  by  the  existing  constitution, 
are  clothed  with  political  rights,  and  who,  while  that  instrument 
remains,  will  be  the  sole  organs  through  which  the  will  of  the 
body  politic  can  be  expressed.2 

III.  But  the  will  of  the  people  to  this  end  can  only  be  ex- 
pressed in  the  legitimate  modes  by  which  such  a  body  politic 
can  act,  and  which  must  either  be  prescribed  by  the  constitution 
whose  revision  or  amendment  is  sought,  or  by  an  act  of  the  legis- 
lative department  of  the  State,  which  alone  would  be  author- 

1  When  a  constitution  has  been  such  changes  and  additions,  and  it  is  ad- 
adopted  by  the  people  of  a  Territory,  mitted,  the  changes  become  a  part  of  the 
preparatory  to  admission  as  a  State,  and  constitution,  and  binding  as  such,  al- 
Congress  prescribes  certain  changes  and  though  not  submitted  to  the  people  for 
additions  to  be  adopted  by  the  legisla-  approval.  Brittle  v.  People,  2  Neb.  198 ; 
ture  as  part  of  the  constitution,  and  de-  Secombe  v.  Kittelson,  29  Minn.  665,  12 
clares  such  changes  and  additions  to  be  N.  W.  619. 

fundamental  conditions  of  admission  of         2  Luther  v.  Borden,  7  How.  1  j  Wells 

the   State,   and  the  legislature  accepts  v.  Bain,  75  Penn.  St.  39. 


60 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  III. 


ized  to  speak  for  the  people  upon  this  subject,  and  to  point  out  a 
mode  for  the  expression  of  their  will  in  the  absence  of  any  pro- 
vision for  amendment  or  revision  contained  in  the  constitution 
itself.1 


1  Opinions  of  Judges,  6  Gush.  673.  The 
first  constitution  of  New  York  contained 
no  provision  for  its  own  amendment,  and 
Mr.  Hammond,  in  his  Political  History  of 
New  York,  Vol.  I.  c.  26,  gives  a  very 
interesting  account  of  the  controversy 
before  the  legislature  and  in  the  council 
of  revision  as  to  the  power  of  the  legisla- 
ture to  call  a  convention  for  revision,  and 
as  to  the  mode  of  submitting  its  work  to 
the  people.  In  Collier  v.  Frierson,  24 
Ala.  100,  it  appeared  that  the  legislature 
had  proposed  eight  different  amendments 
to  be  submitted  to  the  people  at  the  same 
time;  the  people  had  approved  them, 
and  all  the  requisite  proceedings  to 
make  them  a  part  of  the  constitution  had 
been  had,  except  that  in  the  subsequent 
legislature  the  resolution  for  their  ratifi- 
cation had,  by  mistake,  omitted  to  recite 
one  of  them.  On  the  question  whether 
this  one  had  been  adopted,  we  quote  from 
the  opinion  of  the  court :  "  The  constitu- 
tion can  be  amended  in  but  two  ways : 
either  by  the  people  who  originally 
framed  it,  or  in  the  mode  prescribed  by 
the  instrument  itself.  .  .  .  We  entertain 
no  doubt  that  to  change  the  constitution 
in  any  other  mode  than  by  a  convention, 
every  requisition  which  is  demanded  by 
the  instrument  itself  must  be  observed, 
and  the  omission  of  any  one  is  fatal  to 
the  amendment.  We  scarcely  deem  any 
argument  necessary  to  enforce  this  prop- 
osition. The  constitution  is  the  supreme 
and  paramount  law.  The  mode  by  which 
amendments  are  to  be  made  under  it  is 
clearly  defined.  It  has  been  said  that 
certain  acts  are  to  be  done,  certain  req- 
uisitions are  to  be  observed,  before  a 
change  can  be  effected.  But  to  what 
purpose  are  those  acts  required  or  those 
requisitions  enjoined,  if  the  legislature  or 
any  department  of  the  government  can 
dispense  with  them  ?  To  do  so  would  be 
to  violate  the  instrument  which  they  are 
Bworn  to  support,  and  every  principle  of 
public  law  and  sound  constitutional  pol- 
icy requires  the  courts  to  pronounce 
against  any  amendment  which  is  not 
shown  to  have  been  made  in  accordance 
with  the  rules  prescribed  by  the  funda- 


mental law."  See  also  State  v.  McBride, 
4  Mo.  803;  State  v.  Tufly,  19  Nev.  391, 
12  Pac.  835;  In  re  Const.  Convention,  14 
R.  I.  649;  Koehler  v.  Hill,  00  Iowa,  543, 
14  N.  W.  738,  15  N.  W.  609.  In  the  last 
case  it  is  held  that  where  a  proposed 
amendment  must  be  entered  at  length  upon 
the  journal,  neither  the  enrolled  resolu- 
tion embodying  it  nor  parol  evidence  can 
be  received  to  contradict  the  journal ; 
nor  are  the  courts  debarred  from  as- 
certaining the  truth  by  the  fact  that  a 
second  general  assembly  passed  the 
amendment  as  enrolled.  But  if  the 
proposition  is  recorded  in  the  Senate 
journal  and  amended  in  the  House  and 
the  amendment  is  then  recorded  in  the 
Senate,  it  is  not  a  valid  objection  that 
the  whole  proposition  is  not  recorded  in 
one  place  in  the  Senate  journal.  In  re 
Senate  File,  25  Neb.  864,  41  N.  W.  Rep. 
981.  It  is  enough  if  the  journal  entry  is 
by  reference  to  the  title.  Thomason  v. 
Ruggles,  69  Cal.  465,  11  Pac.  20.  Where 
the  constitution  provided  that  amend- 
ments should  be  proposed  by  one  general 
assembly,  and  approved  and  submitted  to 
popular  vote  by  a  second,  and  seventeen 
amendments  were  thus  approved  together, 
and  the  second  general  assembly  passed 
upon  and  submitted  eight  by  one  bill  and 
nine  by  another,  the  submission  was  held 
sufficient  and  valid.  Trustees  of  Univer- 
sity v  Mclver,  72  N.  C.  76.  Several 
propositions  which  in  effect  are  but  one 
amendment  may  be  submitted  to  the  peo- 
ple as  one  amendment.  State  v.  Timme, 
54  Wis.  318,  11  N.  W.  785.  A  high  license 
amendment  and  a  prohibitory  amendment 
may  be  submitted  at  one  time.  In  re 
Senate  File,  supra.  An  amendment  be- 
comes effective  when  the  votes  are  can- 
vassed. The  Governor  need  not  make  a 
proclamation.  Sewall  v.  State,  15  Tex. 
App  56;  Wilson  v.  State,  id.  150.  £A 
proposed  amendment  which  has  duly 
passed  the  legislature  does  not  in  Penn- 
sylvania require  to  be  passed  upon  by  the 
Governor  before  it  can  be  submitted  to 
the  people.  Com.  v.  Griest,  196  Pa.  396, 
46  Atl.  505, 50  L.  R,  A.  668 ;  State  r.  Dahl, 
6  N.  D.  81,  68  N.  W.  418,  84  L.  R.  A.  97. 


CH.  III.]       FORMATION    AND   AMENDMENT   OF   CONSTITUTIONS. 


61 


IV.  In  accordance  with  universal  practice,  and  from  the  very 
necessity  of  the  case,  amendments  to  an  existing  constitution,  or 
entire  revisions  of  it,  must  be  prepared  and  matured  by  some 
body  of  representatives  chosen  for  the  purpose.  It  is  obviously 
impossible  for  the  whole  people  to  meet,  prepare,  and  discuss  the 
proposed  alterations,  and  there  seems  to  be  no  feasible  mode  by 
which  an  expression  of  their  will  can  be  obtained,  except  by  ask- 
ing it  upon  the  single  point  of  assent  or  disapproval.  But  no 
body  of  representatives,  unless  specially  clothed  with  power  for 
that  purpose  by  the  people  when  choosing  them,  can  rightfully 
take  definitive  action  upon  amendments  or  revisions;  they  must 
submit  the  result  of  their  deliberations  to  the  people  —  who  alone  I 
are  competent  to  exercise  the  powers  of  sovereignty  in  framing  / 
the  fundamental  law  —  for  ratification  or  rejection.  The  consti-  f 
tutional  convention  is  the  representative  of  sovereignty  only  in  a 
very  qualified  sense,  and  for  the  specific  purpose,  and  with  the 
restricted  authority  to  put  in  proper  form  the  questions  of  amend- 
ment upon  which  the  people  are  to  pass;  but  the  changes  in  the 
fundamental  law  of  the  State  must  be  enacted  by  the  people 
themselves.1 


\ 


Whether  or  not  a  proposed  amendment 
has  been  duly  adopted  is  a  question  for  the 
courts,  and  where  the  Governor  lias  under 
statute  appointed  a  commission  to  deter- 
mine the  result  of  the  popular  vote  upon 
the  proposed  amendment,  the  proceedings 
of  such  commission  may  be  reviewed  by 
certiorari,  notwithstanding  the  Governor's 
proclamation  that  the  amendment  has 
been  duly  adopted.  State  v.  Wurts,  63 
N.  J.  L.  289,  43  All.  744,  45  L.  R.  A.  251. 
In  voting  on  a  constitutional  amendment 
voters  exercise  a  legislative  function  and 
courts  cannot  enjoin  the  Secretary  of 
State  from  publishing  notice  of  the  elec- 
tion even  though  the  amendment,  if 
adopted,  may  be  invalid.  People  v. 
Mills,  —  Col.  — ,  70  Pac.  322  (June  30, 
1902 ).~] 

1  See,  upon  this  subject,  Jameson  on 
the  Constitutional  Convention,  §§  41 5-418, 
and  479-520.  This  work  is  so  complete 
and  satisfactory  in  its  treatment  of  the 
general  subject  as  to  leave  little  to  be 
said  by  one  who  shall  afterwards  attempt 
to  cover  the  same  ground.  Where  a 
convention  to  frame  amendments  to  the 
constitution  is  sitting  under  a  legislative 
act  from  which  all  its  authority  is  de- 
rived, the  submission  of  its  labors  to  a 


vote  of  the  people  in  a  manner  different 
from  that  prescribed  by  the  act  is  nuga- 
tory. Wells  v.  Bain,  75  Penn.  St.  39. 
Such  a  convention  has  no  inherent  rights  ; 
it  has  delegated  powers  only,  and  must 
keep  within  them.  Woods's  Appeal,  75 
Penn.  St.  59.  Compare  Loomis  v.  Jack- 
son, 6  W.  Va.  613,  708.  The  Supreme 
Court  of  Missouri  has  expressed  the 
opinion  that  it  was  competent. for  a  con- 
vention to  put  a  new  constitution  in 
force  without  submitting  it  to  the  people. 
State  v.  Neal,  42  Mo.  119.  But  this  was 
obiter.  £But  if,  after  being  accepted  by 
the  people,  the  convention  modifies  it  and 
promulgates  it  as  modified,  and  the  con- 
stitution as  promulgated  is  recognized  as 
valid  by  the  executive  and  legislative 
branches  of  the  government,  the  modifi- 
cations must  be  deemed  valid.  Miller  v. 
Johnson,  92  Ky.  589,  18  S.  W.  522,  15  L. 
R.  A.  524.]  Where  proposed  amendments 
are  required  to  be  submitted  to  the  people, 
and  approved  by  a  majority  vote,  it  is  a 
mooted  question  whether  a  majority  of 
those  voting  thereon  is  sufficient,  when  it 
appears  that  they  do  not  constitute  a 
majority  of  all  who  voted  at  the  same 
election.  See  State  v.  Swift,  69  Ind.  505; 
and  cases  cited, post,  892-894.  [That  pub- 


62  CONSTITUTIONAL  LIMITATIONS.  [CH.  III. 

V.  The  power  of  the  people  to  amend  or  revise  their  constitu- 
tions is  limited  by  the  Constitution  of  the  United  States  in  the 
following  particulars :  — 

1.  It  must  not  abolish  the  republican  form  of  government, 
since  such  act  would  be  revolutionary  in  its  character,  and  would 
call  for  and  demand  direct  intervention  on  the  part  of  the  gov- 
ernment of  the  United  States.1 

2.  It  must  not  provide  for  titles  of  nobility,  or  assume  to  vio- 
late the  obligation  of  any  contract,  or  attaint  persons  of  crime, 
or  provide  ex  post  facto  for  the  punishment  of  acts  by  the  courts 
which   were   innocent   when   committed,  or   contain   any  other 
provision   which  would,   in   effect,   amount   to   the   exercise  of 
any  power  expressly  or  impliedly  prohibited  to  the  States  by  the 
Constitution  of  the  Union.     For  while  such  provisions  would  not 
call  for  the  direct  and  forcible  intervention  of  the  government 
of  the  Union,  it  would  be  the  duty  of  the  courts,  both  State  and 
national,  to  refuse  to  enforce  them,  and  to  declare  them  altogether 
void,   as  much  when   enacted  by  the  people  in  their  primary 
capacity  as  makers   of  the   fundamental  law,  as  when  enacted 
in  the  form  of  statutes,  through  the  delegated  power  of  their 
legislatures.2 

VI.  Subject  to  the  foregoing  principles  and  limitations,  each 
State  must  judge  for  itself  what  provisions  shall  be  inserted  in  its 
constitution;  how  the  powers  of  government  shall  be  apportioned 
in  order  to  their  proper  exercise  ;  what  protection  shall  be  thrown 
around  the  person  or  property  of  the  citizen;  and  to  what  extent 
private  rights  shall  be  required  to  yield  to  the  general  good.3 

lication  of  proposed  amendments  with  the  Co.  v  Louisiana  Light  Co.,  115  U.  S.  650, 

statutes  adopted  at  same  session  of  legis-  6  Sup.   Ct.  Rep.  252  ;    Fisk  v.  Jefferson 

lature  as  that  in  which  the  amendments  Police  Jury,  116    U.   S.   131,  6   Sup.  Ct. 

were  proposed  is  a  sufficient  publication  Rep.  329 ;  fJBier  v.  McGehee,  148  U.  S. 

if  made  a   sufficiently  long  time  before  137, 13  Sup.  Ct.  Rep.  580.]    The  fact  that 

election,  see  State  v.  Grey,  21  Nev.  378,  the  constitution  containing  the  obnoxious 

32  Pac.  190,  19  L.  R.  A.  134.]  provision  was  submitted  to  Congress,  and 

1  Const,  of  U.  S.  art.  4,  §  4 ;  Federal-  the  State  admitted  to  full  rights  in  the 
ist,  No.  43.  Union  under  it,  cannot  make  such  provi- 

2  Cummings  v.  Missouri,  4  Wall   277  ;  sion  valid.     Gunn  v.  Barry,  15  Wall.  610. 
Jefferson  Branch  Bank  v.  Skelly,  1  Black,  8  Matter  of  the  Reciprocity  Bank,  22 
436;    State  v.  Keith,  63  N.  C.   140;  Jac-  N.  Y.  9 ;  McMullen  w.  Hodge,  6  Texas, 
oway   v.  Denton,   25  Ark.    525;   Union  34;  Penn  v.  Tollison,  26  Ark.  545;  Mat- 
Bank  v.  State,  9  Yerg.  490;  Girdner  v.  ter  of  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y. 
Stephens,  1  Heisk.  280  ;  Lawson  v.  Jef-  9.     In  the  case  last  cited,  Denio,  J.,  says  : 
fries,    47    Miss.    686,    12  Am.    Rep.   342  "The  [constitutional]  convention  was  not 
Penn   v.  Tollison,   26   Ark.  545;    Dodge  obliged,  like  the  legislative  bodies,  to  look 
v.  Woolsey,  18  How.  331 ;  Pacific  R.  R.  carefully  to    the   preservation    of  vested 
Co.  v.  Maguire,  20  Wall.  36;    Railroad  rights.     It  was  competent  to  deal,  subject 
Co.  v.  McClure,  10  Wall.  511 ;  White  v.  to  ratification  by  the  people  and  to  the 
Hart,  13  Wall.  646;    New  Orleans   Gas  Constitution  of  the  Federal  government, 


CH.  III.]      FORMATION   AND   AMENDMENT  OF  CONSTITUTIONS. 


63 


And  the  courts  of  the  State,  still  more  the  courts  of  the  Union, 
would  be  precluded  from  inquiring  into  the  justice  of  their  action, 
or  questioning  its  validity,  because  of  any  supposed  conflict  with 
fundamental  rules  of  right  or  of  government,  unless  they  should 
be  able  to  show  collision  at  some  point  between  the  instrument 
thus  formed  and  that  paramount  law  which  constitutes,  in  regard 
to  the  subjects  it  covers,  the  fundamental  rule  of  action  through- 
out the  whole  United  States.1 

How  far  the  constitution  of  a  State  shall  descend  into  the  par- 
ticulars of  government,  is  a  question  of  policy  addressed  to  the 


with  all  private  and  social  rights,  and 
with  all  the  existing  laws  and  institutions 
of  the  State.  If  the  convention  had  so 
willed,  and  the  people  had  concurred,  all 
former  charters  and  grants  might  have 
been  annihilated.  When,  therefore,  we 
are  seeking  for  the  true  construction  of  a 
constitutional  provision,  we  are  constantly 
to  bear  in  mind  that  its  authors  were  not 
executing  a  delegated  authority,  limited 
by  other  constitutional  restraints,  but  are 
to  look  upon  them  as  the  founders  of  a 
State,  intent  only  upon  establishing  such 
principles  as  seemed  best  calculated  to 
produce  good  government  and  promote 
the  public  happiness,  at  the  expense  of 
any  and  all  existing  institutions  which 
might  stand  in  their  way." 

1  All  the  State  constitutions  now  con- 
tain within  themselves  provisions  for 
their  amendment.  Some  require  the 
question  of  calling  a  convention  to  re- 
vise the  constitution  to  be  submitted 
to  the  people  at  stated  periods ;  others 
leave  it  to  the  legislature  to  call  a  con- 
vention, or  to  submit  to  the  people  the 
question  of  calling  one ;  while  the  major 
part  allow  the  legislature  to  mature  spe- 
cific amendments  to  be  submitted  to  the 
people  separately,  and  these  become  a 
part  of  the  constitution  if  adopted  by  the 
requisite  vote. 

When  the  late  rebellion  had  been  put 
down  by  the  military  forces  of  the  United 
States,  and  the  State  governments  which 
constituted  a  part  of  the  disloyal  system 
had  been  displaced,  serious  questions 
were  raised  as  to  the  proper  steps  to  be 
taken  in  order  to  restore  the  States  to 
their  harmonious  relations  to  the  Union. 
These  questions,  and  the  controversy 
over  them,  constituted  an  important  part 
of  the  history  of  our  country  during  the 


administration  of  President  Johnson;  but 
as  it  is  the  hope  and  trust  of  our  people 
that  the  occasion  for  discussing  such 
questions  will  never  arise  again,  we  do 
not  occupy  space  with  them  in  this  work. 
It  suffices  for  the  present  to  say,  that 
Congress  claimed,  insisted  upon,  and  en- 
forced the  right  to  prescribe  the  steps  to 
be  taken  and  the  conditions  to  be  ob- 
served in  order  to  restore  these  States  to 
their  former  positions  in  the  Union,  and 
the  right  also  to  determine  when  the  pre- 
scribed conditions  had  been  complied 
with,  so  as  to  entitle  them  to  representa- 
tion in  Congress.  There  is  some  discus- 
sion of  the  general  subject  in  Texas  v. 
White,  7  Wall.  700.  And  see  Gunn  v. 
Barry,  15  Wall.  610. 

When  a  constitution  has  been  re- 
garded by  the  people  of  a  State  as  valid, 
and  it  has  never  been  adjudged  illegal 
by  the  courts,  a  Federal  circuit  court  will 
not  question  its  legal  adoption.  Smith  v. 
Good,  34  Fed.  Rep.  204. 

It  has  been  decided  in  some  cases  that 
a  constitution  is  to  have  effect  from  the 
time  of  its  adoption  by  the  people,  and 
not  from  the  time  of  the  admission  of  the 
State  into  the  Union  by  Congress.  Scott 
v.  Young  Men's  Society's  Lessee,  1  Doug. 
(Mich.)  119;  Campbell  u.  Fields, 35  Texas, 
751.  The  Texas  reconstruction  consti- 
tution became  operative  before  the  State 
was  admitted  to  representation  in  Con- 
gress. Peak  v.  Swindle,  68  Texas,  242, 
4  S.  W.  478.  An  amendment  to  the 
Minnesota  original  constitution  adopted 
before  formal  admission  of  the  State  is 
valid.  Any  irregularity  is  healed  by  the 
admission,  and  the  subsequent  recogni- 
tion of  the  validity  of  the  amendment 
by  the  State.  Secombe  v.  Kittelson,  29 
M1nn.  555,  12  N.  W.  519. 


64  CONSTITUTIONAL   LIMITATIONS.  [Gil.  III. 

convention  which  forms  it.  Certain  things  are  to  be  looked  for 
in  all  these  instruments ;  though  even  as  to  these  there  is  great 
variety,  not  only  of  substance,  but  also  in  the  minuteness  of 
their  provisions  to  meet  particular  cases. 

I.  We  are  to  expect  a  general  framework  of  government  to  be 
designed,  under  which  the  sovereignty  of  the  people  is  to  be  exer- 
cised by  representatives  chosen  for  the  purpose,  in  such  manner 
as  the   instrument  provides,  and  with  such   reservations   as  it 
makes. 

II.  Generally  the  qualifications  for  the  right  of  suffrage  will 
be  declared,  as  well  as  the  conditions  under  which  it  shall  be 
exercised. 

III.  The  usual  checks  and  balances  of  republican  government, 
in  which  consists  its  chief  excellence,  will  be  retained.     The 
most  important  of  these  are  the  separate  departments  for  the 
exercise  of  legislative,  executive,   and  judicial   power; (a)  and 
these  are  to  be  kept  as  distinct  and  separate  as  possible,  except 
in  so  far  as  the  action  of  one  is  made  to  constitute  a  restraint 
upon  the  action  of  the  others,  to  keep  them  within  proper  bounds, 
and  to  prevent  hasty  and  improvident  action.      Upon  legislative 
action  there  is,  first,  the  check  of  the  executive,  who  will  gener- 
ally be  clothed  with  a  qualified  veto  power,  and  who  may  refuse 
to   execute    laws    deemed    unconstitutional ;    and,    second,    the 

(a)  [^Authority  in  one  department  of  government  to  interfere  with  another  will 
always  be  strictly  construed.  Where  the  constitution  provides  for  sessions  of  the 
legislature  to  be  held  at  the  State  capitol,  "  except  in  case  of  war,  insurrection  or 
pestilence,  when  it  may  by  proclamation  of  the  governor  assemble  for  the  time  being 
elsewhere,"  it  does  not  empower  the  governor  to  adjourn  the  Houses  after  they  have 
convened,  even  though  he  declares  a  state  of  insurrection  to  exist ;  neither  can  he 
under  his  power  to  adjourn  the  legislature,  in  case  of  disagreement  between  the  two 
Houses  in  regard  to  their  adjournment,  adjourn  them  to  meet  at  a  stated  time  at  an- 
other place  when  there  has  been  no  disagreement  between  the  two  Houses.  Taylor 
v.  Beckham,  —  Ky.  — ,  49  L.  R.  A.  258,  56  S.  VV.  177.  See  this  case  in  Supreme 
Court  of  the  United  States,  where  the  writ  of  error  after  discussion  was  dismissed 
on  the  ground  that  no  deprivation  of  rights  secured  by  the  fourteenth  amendment, 
without  due  process,  was  shown,  nor  was  there  any  case  made  of  a  violation  of  the 
guaranty  of  a  republican  form  of  government.  Taylor  v.  Beckham,  178  U.  S.  548, 

20  Sup.  Ct.  Rep.  890.     Dissenting  opinion  of  Harlan,  J.,  20   Sup.  Ct.   Rep.    1009. 
Where  the  legislature  is  empowered  to  remove  judges  for  cause,  but  is  required  to 
give  notice  and  opportunity  to  appear,  this  imports  that  the  cause  shall  be  one  per- 
sonal to  the  judge,  and  he  cannot  be  removed  merely  to  cut  down  expenses.     But  if 
his  court  is  one  which  the  legislature  is  authorized  to  ordain  and  establish,  the  legis- 
lature may  abolish  the  court,  and  the  judge's  office  and  salary  will  thereupon  cease. 
McCulley  v.  State,  102  Tenn.  509,  53  S.  W.  134,  46  L.  R.  A.  567.     That  all  the  terri- 
tory of  one  judicial  district  may  be  distributed  among  other  districts  or  annexed  to 
one  district,  and  the  judge  thus  deprived  of  office,  see  Aikman  v.  Edwards,  55  Kan. 
751,  42  Pac.  366,  30  L.  R.  A.  149;  but  this  cannot  be  done  where  the  judge's  term 
of  office  is  fixed  by  the  constitution.     State  e.  Friedley,  135  Ind.  119,  34  N.  E.  872, 

21  L.  R.  A.  634.     Court  will  not  enjoin  any  attempted  exercise  of  legislative  power 
by  legislature.    State  v.  Thorson,  9  S.  D.  149,  68  N.  W.  202,  33  L.  R.  A.  582.3 


CH.  III.]       FORMATION   AND   AMENDMENT   OF   CONSTITUTIONS.  65 

check  of  the  judiciary,  who  may  annul  unconstitutional  laws, 
and  punish  those  concerned  in  enforcing  them.  Upon  judicial 
action  there  is  the  legislative  check,  which  consists  in  the  power 
to  prescribe  rules  for  the  courts,  and  perhaps  to  restrict  their 
authority;  and  the  executive  check,  of  refusing  aid  in  enforcing 
any  judgments  which  are  believed  to  be  in  excess  of  jurisdiction. 
Upon  executive  action  the  legislature  has  a  power  of  restraint, 
corresponding  to  that  which  it  exercises  upon  judicial  action; 
and  the  judiciary  may  punish  executive  agents  for  any  action  in 
excess  of  executive  authority.  And  the  legislative  department 
has  an  important  restraint  upon  both  the  executive  and  the 
judiciary,  in  the  power  of  impeachment  for  illegal  or  oppressive 
action,  or  for  any  failure  to  perform  official  duty.  The  execu- 
tive, in  refusing  to  execute  a  legislative  enactment,  will  always 
do  so  with  the  peril  of  impeachment  in  view. 

IV.  Local  self-government  having  always  been  a  part  of  the 
English  and  American  systems,  we  shall  look  for  its  recognition 
in  any  such  instrument.     And  even  if  not  expressly  recognized, 
it  is  still  to  be  understood  that  all  these  instruments  are  framed 
with  its  present  existence  and  anticipated  continuance  in  view.1 

V.  We  shall  also  expect  a  declaration  of  rights  for  the  pro- 
tection of  individuals  and  minorities.     This  declaration  usually 
contains  the  following  classes  of  provisions :  — 

1.  Those  declaratory  of  the  general  principles  of  republican 
government;  such  as,  that  all  freemen,  when  they  form  a  social 
compact,  are  equal,  and  no  man,  or  set  of  men,  is  entitled  to 
exclusive,  separate  public  emoluments  or  privileges  (a)  from  the 

1  Park  Commissioners  v.  Common  case  is  valuable  for  its  historical  discus- 
Council  of  Detroit,  28  Mich.  228 ;  People  sion  of  the  principle. 
v.  Albertson,  55  N.  Y.  50.  fJUnder  the  The  legislature  cannot  fix  the  salaries 
constitution  of  Georgia  it  is  held  that  of  firemen  employed  by  municipalities, 
municipalities  cannot  maintain  the  prop-  although  there  is  no  limitation  on  such 
osition  of  absolute  local  self-government  action  in  the  constitution,  since  this  is  a 
and  the  State  legislature  may  by  direct  matter  of  purely  local  concern.  Lexing- 
enactment  control  the  local  police.  Amer-  ton  v.  Thompson,  —  Ky.  — ,  68  S.  W. 
icus  v.  Perry,  114  Ga.  871,  40  S.  E.  1004,  477,  57  L.  R.  A.  775  (May  28,  1902).  A 
67  L.  R.  A.  280.  It  is  held  in  White  v.  legislature  may  create  a  school  district 
Barker,  —  Iowa,  — ,  89  N.  W.  204,  57  L.  and  appoint  its  officers.  Kies  v.  Lowery, 
R.  A.  244  (Feb.  13.  1902),  that  the  legisla-  —  Mich.  — ,  92  N.  W.  289  (Nov.  18, 
ture  could  not  take  from  the  municipality  1902).  For  a  discussion  of  the  "  Right  to 
the  management  of  a  municipal  water  Local  Self-Government,"  see  article  by 
supply  system.  That  action  to  that  ef-  Mr.  Amasa  M.  Eaton,  13  Harv.  L.  Rev. 
feet  was  invalid  for  violation  of  the  prin-  441,  670,  638,  14  id.  20,  116J 
ciple  of  municipal  self-government.  This 

(a)  fJThe  provision  that  no  corporation  shall  be  granted  any  special  or  exclusive 
privilege  or  immunity  is  not  violated  by  an  act  which  allows  trustees  of  an  estate  to 
charge  the  estate  any  reasonable  sum  which  they  may  have  paid  "  to  a  company," 
authorized  by  law  so  to  do,  for  becoming  surety  upon  their  bonds.  Be  Clark,  195  Pa. 

6 


66  CONSTITUTIONAL   LIMITATIONS.  [CH.  III. 

community  but  in  consideration  of  public  services ;  that  absolute, 
arbitrary  power  over  the  lives,  liberty,  and  property  of  freemen 
exists  nowhere  in  a  republic,  not  even  in  the  largest  majority; 
that  all  power  is  inherent  in  the  people,  and  all  free  govern- 
ments are  founded  on  their  authority,  and  instituted  for  their 
peace,  safety,  happiness,  security,  and  the  protection  of  prop- 
erty; that  for  the  advancement  of  these  ends  they  have  at  all 
times  an  inalienable  and  indefeasible  right  to  alter,  reform,  or 
abolish  their  government  in  such  manner  as  they  may  think 
proper;  that  all  elections  shall  be  free  and  equal ;  that  no  power 
of  suspending  the  laws  shall  be  exercised  except  by  the  legis- 
lature or  its  authority;  that  standing  armies  are  not  to  be 
maintained  in  time  of  peace ;  that  representation  shall  be  in 
proportion  to  population ;  that  the  people  shall  have  the  right 
freely  to  assemble  to  consult  of  the  common  good,  to  instruct 
their  representatives,  and  petition  for  redress  of  grievances;  and 
the  like. 

2.  Those  declaratory  of  the  fundamental  rights  of  the  citizen: 
as  that  all  men  are  by  nature  free  and  independent,  and  have 
certain  inalienable  rights,  among  which  are  those  of  enjoying 
and  defending  life  and  liberty,  acquiring,  possessing,  and  pro- 
tecting property,  (a)  and  pursuing  and  obtaining  safety  and 

520,  46  Atl.  127,  48  L.  R.  A.  587.  But  the  privilege  of  taking  oysters  in  public  waters 
cannot  be  restricted  to  taxpayers.  Gustafson  v.  State,  40  Tex.  Cr.  67,  45  S  W.  717, 
48  S.  W.  518,  43  L.  R.  A  615.  But  labor  unions  may  be  granted  right  to  register 
their  trade-marks  and  labels  and  have  them  protected  from  infringement.  Schmalz 
v.  Woolley,  57  N.  J.  Eq.  303,  41  Atl.  939,  43  L.  R.  A.  86,  73  Am.  St.  637;  Perkins  v. 
Heert,  158  N.  Y.  306,  53  N.  E.  18,  43  L.  R.  A.  858,  70  Am.  St.  483.  Sale  of  ferry 
franchise  to  highest  bidder  is  not  a  grant  of  special  or  exclusive  privilege,  even 
though  the  franchise  be  exclusive,  all  persons  being  free  to  bid.  Patterson  v.  Woll- 
man,  5  N.  D.  608,  67  N.  VV.  1040,  33  L.  R.  A.  536;  Nixon  v.  Reid,  8  S.  D.  507, 

67  N.  W.  67,  32  L.  R.  A.  315.     Law  making  an  exception  from  civil  service  regula- 
tions in  case  of  veteran    soldiers,  and  compelling  their  appointment  to  vacancies 
upon  their  sworn  statements  of  qualification,  is  void.     Brown  r.  Russell,  166  Mass.  14, 
43  N.  E.  1005,  32  L.  R.  A.  253,  55  Am.  St.  357.     Statute  authorizing  the  levy  of  an 
arbitrary  tax  upon  ordinary  and  lawful  occupations  is  void.     State  v.  Conlon,  65 
Conn.  478,  33  Atl.  519.  31  L  R.  A.  55,  48  Am.  St.  227.     Statute  granting  to  trade- 
unions   copyright   in   their    trade-marks   is    valid.      State  v.  Bishop,  128  Mo.  373, 
31  S.  W.  9,  29  L.  R.  A.  200,  49  Am.  St.  569,  and  see  note  hereto  in  L.  R.  A.     Statute 
specifying  number  of  deputies   to  be  allowed  county  officers  in  certain  counties, 
but  leaving  it  to  discretion  of   county  court  in  other  counties  is  void.     Weaver  v. 
Davidson  County,  104  Tenn.  315,  59  S.  W.  1105.] 

(a)  £An  act  which  makes  it  unlawful  to  hire  any  laborer  to  work  more  than  eight 
hours  per  day  in  any  mine  or  smelter  is  void.  Re  Morgan,  26  Colo.  415,  58  Pac. 
1071,  47  L.  R.  A.  52,  77  Am.  St.  269.  But  a  State  may  require  that  its  contractors 
and  builders  shall  employ  their  laborers  only  eight  hours  per  day.  Re  Dalton,  61 
Kan.  257,  59  Pac.  336,  47  L.  R.  A.  380.  The  right  to  liberty  does  not  give  to  insur- 
ance corporations  the  right  to  contract  among  themselves  to  maintain  stipulated 
rates.  State  v.  Firemen's  Fund  Ins  Co.,  152  Mo.  1,  52  S.  W.  595,  45  L.  R.  A.  363. 
Right  to  engage  in  ticket  brokerage  cannot  be  restricted  to  persons  designated  by 


CH.  III.]      FORMATION   AND   AMENDMENT   OF   CONSTITUTIONS.  67 

happiness;  that  the  right  to  property  is  before  and  higher  than 
any  constitutional  sanction ;  that  the  free  exercise  and  enjoyment 
of  religious  profession  and  worship,  without  discrimination  or 
preference,  shall  forever  be  allowed;1  that  every  man  may  freely 
speak,  write,  and  publish  his  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  that  right;  that  every  man  may  bear 
arms  for  the  defence  of  himself  and  of  the  State;  that  the  right 
of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects  against  unreasonable  searches  and  seizures  shall  not  be 
violated,  nor  shall  soldiers  be  quartered  upon  citizens  in  time  of 
peace;  and  the  like. 

3.  Those  declaratory  of  the  principles  which  ensure  to  the 
citizen  an  impartial  trial,  and  protect  him  in  his  life,  liberty, 
and  property  against  the  arbitrary  action  of  those  in  authority: 
as  that  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed ; 
that  the  right  to  trial  by  jury  shall  be  preserved ;  that  excessive 
bail  shall  not  be  required,  nor  excessive  punishments  inflicted; 
that  no  person  shall  be  subject  to  be  twice  put  in  jeopardy  for 
the  same  offence,  nor  be  compelled  in  any  criminal  case  to  be 
a  witness  against  himself,  (a)  nor  be  deprived  of  life,  liberty, 
or  property  without  due  process  of  law;  that  private  property 
shall  not  be  taken  for  public  use  without  compensation;  and  the 
like.  (6) 

1  Hale  v.  Everett,  63  N.  H.  9;  Board  of  Education  v.  Minor,  23  Ohio  St.  211. 

transportation  companies.  People  v.  Warden,  &c.,  157  N.  T.  116,  51  N.  E.  1006,  43 
L.  R.  A.  264,  68  Am.  St.  763.  But  see,  in  this  connection,  cases  cited  in  note  3,  page 
886,  post.  No  man  can  be  held  to  answer  for  the  act  of  another  over  whom  he  has  no 
control  or  authority,  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193,  33  Atl.  237,29  L.  R. 
A.  808,  50  Am.  St.  801,  declaring  invalid  an  act  making  the  proprietor  of  a  mine  re- 
sponsible for  the  acts  and  neglects  of  a  licensed  mine  foreman  whom  he  was  by 
statute  compelled  to  employ.  Right  of  employer  to  discharge  employees  joining  or 
refusing  to  withdraw  from  labor  unions  cannot  be  taken  from  him.  State  v.  Julow, 
129  Mo.  163,  31  S.  W.  781,  29  L.  R.  A.  257,  50  Am.  St.  443,  a  statute  fixing  a  license 
fee  of  $1,000  for  persons  engaged  in  hiring  laborers  in  one  State  to  te  employed  in 
another  is  invalid.  State  v.  Moore,  113  N.  C.  697,  18  S.  E.  342.] 

(a)   fJSee  latter  part  of  note  1,  page  442.] 

(6)  fJTlie  provision  that  courts  of  justice  shall  be  open  to  every  person  and  that 
right  and  justice  shall  be  administered  without  denial,  sale,  or  delay  is  violated  by  a 
statute  which  allows  an  attorney's  fee  to  successful  lien  claimants  but  not  to  success- 
ful defendants.  Davidson  v.  Jennings,  27  Colo.  187,  60  Pac.  354,  48  L.  R.  A.  340, 
83  Am.  St.  49.  Such  fees  are  allowed  in  Florida.  Dell  v.  Marvin,  41  Fla.  221,26 
So.  188,  45  L.  R.  A.  201,  79  Am.  St.  171.  Further  proceedings  in  an  action  may  be 
stayed  until  costs  of  an  appeal  are  paid.  Knee  v.  Baltimore  City  Pass.  Ry.  Co.,  87 
Md.  623,  40  Atl.  890,  42  L.  R.  A.  363.  A  person  is  not  deprived  of  property  or  par- 
ticular services  without  compensation  by  a  statute  which  compels  him  to  appear 
before  the  court  and  testify  in  criminal  cases,  and  deprives  him  of  all  right  to  fees 
therefor  or  makes  such  right  contingent  upon  conviction  of  accused.  State  v. 
Henley,  98  Tenn.  665,  41  S.  W.  352,  39  L.  R.  A.  126.  And  an  expert  witness  can 
not  claim  higher  fees  than  other  witnesses,  nor  can  he  refuse  to  testify  until  such 


68  CONSTITUTIONAL  LIMITATIONS.  [CH.  III. 

Other  clauses  are  sometimes  added  declaratory  of  the  princi- 
ples of  morality  and  virtue;  and  it  is  also  sometimes  expressly 
declared  —  what  indeed  is  implied  without  the  declaration  —  that 
everything  in  the  declaration  of  rights  contained  is  excepted  out 
of  the  general  powers  of  government,  and  all  laws  contrary 
thereto  shall  be  void. 

Many  other  things  are  commonly  found  in  these  charters  of 
government;1  but  since,  while  they  continue  in  force,  they  are 
to  remain  absolute  and  unchangeable  rules  of  action  and  deci- 
sion, it  is  obvious  that  they  should  not  be  made  to  embrace 
within  their  iron  grasp  those  subjects  in  regard  to  which  the 
policy  or  interest  of  the  State  or  of  its  people  may  vary  from 
time  to  time,  and  which  are  therefore  more  properly  left  to  the 
control  of  the  legislature,  which  can  more  easily  and  speedily 
make  the  required  changes. 

In  considering  State  constitutions  we  must  not  commit  the 
mistake  of  supposing  that,  because  individual  rights  are  guarded 
and  protected  by  them,  they  must  also  be  considered  as  owing 
their  origin  to  them.  These  instruments  measure  the  powers  of 
the  rulers,  but  they  do  not  measure  the  rights  of  the  governed. 
"  What  is  a  constitution,  and  what  are  its  objects?  It  is  easier 
to  tell  what  it  is  not  than  what  it  is.  It  is  not  the  beginning  of 
a  community,  nor  the  origin  of  private  rights ;  it  is  not  the 
fountain  of  law,  nor  the  incipient  state  of  government;  it  is  not 
the  cause,  but  consequence,  of  personal  and  political  freedom; 
it  grants  no  rights  to  the  people,  but  is  the  creature  of  their 
power,  the  instrument  of  their  convenience.  Designed  for  their 
protection  in  the  enjoyment  of  the  rights  and  powers  which  they 
possessed  before  the  constitution  was  made,  it  is  but  the  frame- 

1  "  This,  then,  is  the  office  of  a  written  agents  by  the  people  ;  to  ascertain,  limit, 

([free]  constitution:  to  delegate  to  vari-  and  define  the   extent  of  the   authority 

ous   public    functionaries    such    of    the  thus  delegated ;    and  to   reserve  to   the 

powers  of  government  as  the  people  do  people  their  sovereignty  over  all  things 

not  intend  to  exercise  for  themselves ;  to  not  expressly  committed  to  their  repre- 

classify  these  powers,  according  to  their  sentatives."     E.   P.    Hurlbut  in   Human 

nature,  and  to  commit  them  to  separate  Rights  and  their  Political  Guaranties, 
agents ;  to  provide  for  the  choice  of  these 

fees  are  secured  to  him.  Dixon  v.  People,  168  111.  179,  48  N.  E.  108,  39  L.  R.  A. 
116  ;  upon  right  of  State  to  require  services  of  witnesses  without  compensation,  see 
note  to  Dixon  v.  People,  above,  in  L.  R.  A.  Moderate  court  fees  may  be  exacted  of 
parties  to  legal  proceedings.  Northern  Counties  Invt.  Trust  v.  Sears,  30  Or.  388,  41 
Pac.  931,  35  L.  R.  A.  188.  Repeal  of  statute  giving  right  of  action  against  county 
for  injury  resulting  from  defective  bridge  does  not  violate  a  provision  that  every 
man  shall  have  remedy  by  due  course  of  law  for  all  injuries  done  him.  Templeton 
v.  Linn.  Co.,  22  Oreg.  313,  29  Pac.  795,  15  L.  R.  A.  730.  Proceedings  in  a  second 
action  in  ejectment  may  be  stayed  until  costs  in  the  first  are  paid.  Shear  v.  Box,  92 
Ala.  596,  8  So.  792,  11  L.  R.  A.  620,  and  note.] 


CH.  III.]      FORMATION  AND   AMENDMENT   OF  CONSTITUTIONS. 


69 


work  of  the  political  government,  and  necessarily  based  upon 
the  pre-existing  condition  of  laws,  rights,  habits,  and  modes  of 
thought.  There  is  nothing  primitive  in  it:  it  is  all  derived 
from  a  known  source.  Tt  presupposes  an  organized  society,  law, 
order,  property,  personal  freedom,  a  love  of  political  liberty,  and 
enough  of  cultivated  intelligence  to  know  how  to  guard  it  against 
the  encroachments  of  tyranny.  A  written  constitution  is  in 
every  instance  a  limitation  upon  the  powers  of  government  in 
the  hands  of  agents;  for  there  never  was  a  written  republican 
constitution  which  delegated  to  functionaries  all  the  latent 
powers  which  lie  dormant  in  every  nation,  and  are  boundless  in 
extent  and  incapable  of  definition."  J 


1  Hamilton  v.  St.  Louis  County  Court, 
15  Mo.  13,  per  Bates,  arguendo.  And  see 
Matter  of  Oliver  Lee  &  Co.'s  Bank,  21 
N.  Y.  9;  Lee  v.  State,  26  Ark.  265-6. 
"  Written  constitutions  sanctify  and  con- 
firm great  principles,  but  the  latter  are 
prior  in  existence  to  the  former."  2 
Webster's  Works,  392.  See  also  1  Bl. 
Com.  124  ;  2  Story,  Life  and  Letters,  278  ; 
Sidney  on  Government,  c.  3,  sees.  27  and 
33.  "  If  this  charter  of  State  government 
which  we  call  a  constitution  were  all 
there  was  of  constitutional  command  ;  if 
the  usages,  the  customs,  the  maxims  that 
have  sprung  from  the  habits  of  life, 
modes  of  thought,  methods  of  trying 
facts  by  the  neighborhood,  and  mutual 
responsibility  in  neighborhood  interests  ; 
the  precepts  that  have  come  to  us  from 
the  revolutions  which  overturned  tyran- 
nies ;  the  sentiments  of  manly  independ- 
ence and  self-control  which  impelled  oar 


ancestors  to  summon  the  local  community 
to  redress  local  evils,  instead  of  relying 
upon  king  or  legislature  at  a  distance  to 
do  so,  —  if  a  recognition  of  all  these  were 
to  be  stricken  from  the  body  of  our  con- 
stitutional law,  a  lifeless  skeleton  might 
remain,  but  the  living  spirit;  that  which 
gives  it  force  and  attraction,  which  makes 
it  valuable  and  draws  to  it  the  affections 
of  the  people ;  that  which  distinguishes 
it  from  the  numberless  constitutions,  so 
called,  which  in  Europe  have  been  set  up 
and  thrown  down  within  the  last  hundred 
years,  many  of  which,  in  their  expres- 
sions, seemed  equally  fair  and  to  possess 
equal  promise  with  ours,  and  have  only 
been  wanting  in  the  support  and  vitality 
which  these  alone  can  give,  —  this  living 
and  breathing  spirit  which  supplies  the 
interpretation  of  the  words  of  the  written 
charter  would  be  utterly  lost  and  gone." 
People  v.  Hurlbut,  24  Mich.  44,  107. 


70  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 


CHAPTER  IV. 

OF  THE  CONSTRUCTION   OP   STATE   CONSTITUTIONS. 

THE  deficiencies  of  human  language  are  such  that,  if  written 
instruments  were  always  prepared  carefully  by  persons  skilled  in 
the  use  of  words,  we  should  still  expect  to  find  their  meaning 
often  drawn  in  question,  or  at  least  to  meet  with  difficulties  in 
their  practical  application.  But  when  draughtsmen  are  careless 
or  incompetent,  these  difficulties  are  greatly  increased  ;  and  they 
multiply  rapidly  when  the  instruments  are  to  be  applied,  not  only 
to  the  subjects  directly  within  the  contemplation  of  those  who 
framed  them,  but  also  to  a  great  variety  of  new  circumstances 
which  could  not  have  been  anticipated,  but  which  must  never- 
theless be  governed  by  the  general  rules  which  the  instruments 
establish.  Moreover,  the  different  points  of  view  from  which  dif- 
ferent individuals  regard  these  instruments  incline  them  to  differ- 
ent views  of  the  instruments  themselves.  All  these  circumstances 
tend  to  give  to  the  subjects  of  interpretation  and  construction 
great  prominence  in  the  practical  administration  of  the  law,  and 
to  suggest  questions  which  often  are  of  no  little  difficulty. 

Interpretation  differs  from  construction  in  that  the  former  is 
the  art  of  finding  out  the  true  sense  of  any  form  of  words  ;  that 
is,  the  sense  which  their  author  intended  to  convey ;  and  of 
enabling  others  to  derive  from  them  the  same  idea  which  the 
author  intended  to  convey.  Construction,  on  the  other  hand,  is 
the  drawing  of  conclusions,  respecting  subjects  that  lie  beyond 
the  direct  expressions  of  the  text,  from  elements  known  from  and 
given  in  the  text ;  conclusions  which  are  in  the  spirit,  though  not 
within  the  letter  of  the  text.  Interpretation  only  takes  place  if  the 
text  conveys  some  meaning  or  other.  But  construction  is  resorted 
to  when,  in  comparing  two  different  writings  of  the  same  indi- 
vidual, or  two  different  enactments  by  the  same  legislative  body, 
there  is  found  contradiction  where  there  was  evidently  no  inten- 
tion of  such  contradiction  one  of  another,  or  where  it  happens 
that  part  of  a  writing  or  declaration  contradicts  the  rest.  When 
this  is  the  case,  and  the  nature  of  the  document  or  declaration, 
or  whatever  else  it  may  be,  is  such  as  not  to  allow  us  to  consider 
the  whole  as  being  invalidated  by  a  partial  or  other  contradiction, 


CH.  IV.]  CONSTRUCTION    OF   STATE    CONSTITUTIONS.  71 

then  resort  must  be  had  to  construction  ;  so,  too,  if  required  to  act 
in  cases  which  have  not  been  foreseen  by  the  framers  of  those 
rules,  by  which  we  are  nevertheless  obliged,  for  some  binding 
reason,  faithfully  to  regulate  as  well  as  we  can  our  action  respect- 
ing the  unforeseen  case.1  In  common  use,  however,  the  word 
construction  is  generally  employed  in  the  law  in  a  sense  embra- 
cing all  that  is  properly  covered  by  both  when  each  is  used  in  a 
sense  strictly  and  technically  correct ;  and  we  shall  so  employ  it 
in  the  present  chapter. 

From  the  earliest  periods  in  the  history  of  written  law,  rules  of 
construction,  sometimes  based  upon  sound  reason,  and  seeking 
the  real  intent  of  the  instrument,  and  at  other  times  altogether 
arbitrary  or  fanciful,  have  been  laid  down  by  those  who  have 
assumed  to  instruct  in  the  law,  or  who  have  been  called  upon  to 
administer  it,  by  the  aid  of  which  the  meaning  of  the  instrument 
was  to  be  resolved.  Some  of  these  rules  have  been  applied  to 
particular  classes  of  instruments  only  ;  others  are  more  general 
in  their  application,  and,  so  far  as  they  are  sound,  may  be  made 
use  of  in  any  case  where  the  meaning  of  a  writing  is  in  dispute. 
To  such  of  these  as  seem  important  in  constitutional  law  we  shall 
refer,  and  illustrate  them  by  references  to  reported  cases,  in  which 
they  have  been  applied. 

A  few  preliminary  words  may  not  be  out  of  place,  upon  the 
questions,  who  are  to  apply  these  rules ;  what  person,  body,  or 
department  is  to  enforce  the  construction ;  and  how  far  a  deter- 
mination, when  once  made,  is  to  be  binding  upon  other  persons, 
bodies,  or  departments. 

We  have  already  seen  that  we  are  to  expect  in  every  constitu- 
tion an  apportionment  of  the  powers  of  government.  We  shall 
also  find  certain  duties  imposed  upon  the  several  departments,  as 
well  as  upon  specified  officers  in  each,  and  we  shall  likewise  dis- 
cover that  the  constitution  has  sought  to  hedge  about  their 
action  in  various  ways,  with  a  view  to  the  protection  of  individual 
rights,  and  the  proper  separation  of  duties.  And  wherever  any 
one  is  called  upon  to  perform  any  constitutional  duty,  or  to  do 
any  act  in  respect  to  which  it  can  be  supposed  that  the  constitu- 
tion has  spoken,  it  is  obvious  that  a  question  of  construction  may 
at  once  arise,  upon  which  some  one  must  decide  before  the  duty 
is  performed  or  the  act  done.  From  the  very  nature  of  the  case, 

1  Lieber,  Legal  and  Political  Hermen-  convey  ideas."   "  Construction,  in  practice, 

eutics.     See  Smith  on  Stat.  and  Const,  determining  the  meaning  and  application 

Construction,  600.     Bouvier   defines  the  as  to  the  case  in  question  of  the  provi- 

two  terms  succinctly  as  follows :  "  Inter-  sions  of   a  constitution,  statute,  will,  or 

pr?tation,  the  discovery  and  representation  other  instrument,  or  of  an   oral   agree- 

of  the  true  meaning  of  any  signs  used  to  ment."    Law  Diet. 


72  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

this  decision  must  commonly  be  made  by  the  person,  body,  or 
department  upon  whom  the  duty  is  imposed,  or  from  whom  the 
act  is  required. 

Let  us  suppose  that  the  constitution  requires  of  the  legislature, 
that,  in  establishing  municipal  corporations,  it  shall  restrict 
their  powers  of  taxation;  and  a  city  charter  is  proposed  which 
confines  the  right  of  taxation  to  the  raising  of  money  for  certain 
specified  purposes,  but  in  regard  to  those  purposes  leaves  'it 
unlimited;  or  which  allows  to  the  municipality  unlimited  choice 
of  purposes,  but  restricts  the  rate;  or  which  permits  persons  to 
be  taxed  indefinitely,  but  limits  the  taxation  of  property :  in 
either  of  these  cases  the  question  at  once  arises,  whether  the 
limitation  in  the  charter  is  such  a  restriction  as  the  constitution 
intends.  Let  us  suppose,  again,  that  a  board  of  supervisors  is, 
by  the  Constitution,  authorized  to  borrow  money  upon  the  credit 
of  the  county  for  any  county  purpose,  and  that  it  is  asked  to 
issue  bonds  in  order  to  purchase  stock  in  some  railway  company 
which  proposes  to  construct  a  road  across  the  county ;  and  the 
proposition  is  met  with  the  query,  Is  this  a  county  purpose,  and 
can  the  issue  of  bonds  be  regarded  as  a  borrowing  of  money, 
within  the  meaning  of  the  people  as  expressed  in  the  consti- 
tution? And  once  again :  let  us  suppose  that  the  governor  is 
empowered  to  convene  the  legislature  on  extraordinary  occa- 
sions, and  he  is  requested  to  do  so  in  order  to  provide  for  a 
class  of  private  claims  whose  holders  are  urgent;  can  this  with 
any  propriety  be  deemed  an  extraordinary  occasion? 

In  these  and  the  like  cases  our  constitutions  have  provided  no 
tribunal  for  the  specific  duty  of  solving  in  advance  the  questions 
which  arise.  In  a  few  of  the  States,  indeed,  the  legislative 
department  has  been  empowered  by  the  constitution  to  call  upon 
the  courts  for  their  opinion  upon  the  constitutional  validity  of  a 
proposed  law,  in  order  that,  if  it  be  adjudged  without  warrant, 
the  legislature  may  abstain  from  enacting  it.1  But  those  pro- 

1  By  the  constitutions  of  Maine,  New  an  existing  act  which  the  legislature  may 

Hampshire,  and  Massachusetts,  the  judges  amend.     Opinion  of  Justices,  148  Mass, 

of  the  Supreme  Court  are  required,  when  623,  21  N.  E.   Rep.  439.     In  Florida  the 

called  upon  by  the  governor,  council,  or  governor  may  require  an  opinion  on  any 

either  house  of  the  legislature,  to  give  question  affecting  his  executive  powers 

their  opinions  "  upon  important  questions  and  duties.     A  duty  with  reference  to  a 

of  law,  and  upon  solemn  occasions."     In  bill  before  it  becomes  a  law,  is  not  an 

Rhode  Island  the  governor  or  either  house  executive  duty,  and  as  to  it  the  judges 

of  the  general  assembly  may  call  for  the  cannot  advise.     Opinion  of  Justices,   23 

opinions  of  the  judges  of  the  Supreme  Fla.  297,  6  So.  925.     QSo  in  South  Dako- 

Court   upon    any    question    of    law.     In  ta.     Re  Constitutional  Provision,  3  S.  D. 

Massachusetts  the  justices  will  not  give  548,   54   N.  W.    650,   19  L.  R.  A.  575.] 

an  opinion  on  the  proper  construction  of  lu  Missouri,  previous  to  the  constitution 


CH.  IV.] 


CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


73 


visions  are  not  often  to  be  met  with,  and  judicial  decisions, 
especially  upon  delicate  and  difficult  questions  of  constitutional 
law,  can  seldom  be  entirely  satisfactory  when  made,  as  they 
commonly  will  be  under  such  calls,  without  the  benefit  of  argu- 
ment at  the  bar,  and  of  that  light  upon  the  questions  involved 
which  might  be  afforded  by  counsel  learned  in  the  law,  and 
interested  in  giving  them  a  thorough  investigation. 

It  follows,  therefore,  that  every  department  of  the  government 
and  every  official  of  every  department  may  at  any  time,  when  a 
duty  is  to  be  performed,  be  required  to  pass  upon  a  question  of 
constitutional  construction.1  Sometimes  the  case  will  be  such 
that  the  decision  when  made  must,  from  the  nature  of  things,  be 
conclusive  and  subject  to  no  appeal  or  review,  however  erro- 
neous it  may  be  in  the  opinion  of  other  departments  or  other 
officers;  but  in  other  cases  the  same  question  may  be  required 
to  be  passed  upon  again  before  the  duty  is  completely  performed. 


of  1875,  the  judges  were  required  to  give 
their  opinions  "  upon  important  questions 
of  constitutional  law,  and  upon  solemn 
occasions  ;  "  and  the  Supreme  Court  held 
that  while  the  governor  determined  for 
himself,  whether  the  occasion  was  such 
as  to  authorize  him  to  call  on  the  judges 
for  their  opinion,  they  must  decide  for 
themselves  whether  the  occasion  was 
such  as  to  warrant  the  governor  in  mak- 
ing the  call.  Opinions  of  Judges,  49  Mo. 
216.  By  a  constitutional  amendment  of 
1885,  the  Colorado  Supreme  Court  is  re- 
quired to  give  its  opinion  upon  impor- 
tant questions  upon  solemn  occasions  to 
the  governor  or  either  house  of  the  legis- 
lature. The  intention,  it  is  held,  is  not 
"to  authorize  an  ex  parte  adjudication 
of  individual  or  corporate  rights,"  nor 
to  exact  "  a  wholesale  exposition  of  all 
constitutional  questions  relating  to  a 
given  subject,  in  anticipation  of  the  pos- 
sible introduction  or  passage  of  meas- 
ures bearing  upon  particular  branches 
of  such  subject."  It  appearing  that  the 
question  was  covered  by  pending  litiga- 
tion, the  court  refused  to  answer.  In  re 
Irrigation  Resolution,  9  Col.  620,  21 
Pac.  470.  Nor  should  it  give  an  opinion 
on  provisions  which  do  not  affect  a  pend- 
ing act.  In  re  Irrigation  Resolution,; supra. 
Questions  must  affect  purely  public 
rights.  In  re  Senate  Resolution,  No. 
65,  12  Col.  466,  21  Pac.  478 ;  [Re  House 
Bill,  No.  99,  26  Col.  140,  56  Pac.  181; 


Re  Senate  Bill,  No.  27,  28  Col.  359,  65 
Pac.  50.] 

In  Vermont,  by  statute  the  governor 
may  require  an  opinion  on  questions  con- 
nected with  the  discharge  of  his  duties; 
and  in  Kentucky  an  opinion  has  been 
given  without  requirement  of  law  on  the 
power  of  the  governor  to  fill  a  vacancy  on 
the  Supreme  Bench.  Opinion  of  Judges, 
79  Ky.  621. 

1  "  It  is  argued  that  the  legislature 
cannot  give  a  construction  to  the  consti- 
tution relative  to  private  rights  secured 
by  it.  It  is  true  that  the  legislature,  in 
consequence  of  their  construction  of  the 
constitution,  cannot  make  laws  repugnant 
to  it.  But  every  department  of  govern- 
ment, invested  with  certain  constitutional 
powers,  must,  in  the  first  instance,  but 
not  exclusively,  be  the  judge  of  its  pow- 
ers, or  it  could  not  act."  Parsons,  Ch.  J., 
in  Kendall  v.  Inhabitants  of  Kingston,  5 
Mass.  524,  533.  The  decision  of  a  gov- 
ernor, having  jurisdiction  to  decide  in 
the  first  instance  whether  tax  exemp- 
tion is  constitutional,  must  be  obeyed 
by  inferior  executive  officers.  State  v. 
Buchanan,  24  W.  Va.  362.  But  a  patent 
commissioner  may  not  refuse  to  perform 
a  ministerial  act  on  the  ground  that  the 
statute  requiring  it  is  unconstitutional. 
United  States  v.  Marble,  3  Mackey,  32. 
Notwithstanding  a  void  proviso  as  to  an 
officer's  salary,  it  is  his  duty  to  give  the 
act  effect.  State  v.  Kelsey,  44  N.  J.  L.  1. 


74  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

The  first  of  these  classes  is  where,  by  the  constitution,  a  par- 
ticular question  is  plainly  addressed  to  the  discretion  or  judg- 
ment of  some  one  department  or  officer,  so  that  the  interference 
of  any  other  department  or  officer,  with  a  view  to  the  substitution 
of  its  own  discretion  or  judgment  in  the  place  of  that  to  which 
the  constitution  has  confided  the  decision,  would  be  impertinent 
and  intrusive,  (a)  Under  every  constitution,  cases  of  this  de- 
scription are  to  be  met  with;  and,  though  it  will  sometimes  be 
found  difficult  to  classify  them,  there  can  be  no  doubt,  when  the 
case  is  properly  determined  to  be  one  of  this  character,  that  the 
rule  must  prevail  which  makes  the  decision  final. 

We  will  suppose,  again,  that  the  constitution  empowers  the 
executive  to  convene  the  legislature  on  extraordinary  occasions, 
and  does  not  in  terms  authorize  the  intervention  of  any  one  else 
in  determining  what  is  and  what  is  not  such  an  occasion  in  the 
constitutional  sense;  it  is  obvious  that  the  question  is  addressed 
exclusively  to  the  executive  judgment,  and  neither  the  legislative 
nor  the  judicial  department  can  intervene  to  compel  action,  if 
the  executive  decide  against  it,  or  to  enjoin  action  if,  in  his 
opinion,  the  proper  occasion  has  arisen.1  And  again,  if,  by  the 

1  Whiteman  v.  Railroad  Co.,  2  Hair,  second  proclamation,  revoking  the  first 

(Del.)  514,  33  Am.  Dec.  411  ;  In  re  State  Held,  that  the  power  of  convening  the 

Census,  9   Col.  642,  21    Pac.    Rep.   477;  legislature  being  a  discretionary  power, 

fJFarrelly  v.  Cole,  60  Kan.  356,  56  Pac.  it  might  be  recalled  before  the  meeting 

492,  44  L.  R.  A.  464.]     In  exercising  his  took  place. 

power  to  call  out  the  militia  in  certain          It  is  undoubted  that,  when  a  case  is 

exigencies,  the  President  is  the  exclusive  within  the  legislative  discretion,  the  courts 

and  final  judge  when  the  exigency  has  cannot  interfere  with  its  exercise.     State 

arisen.     Martin  v.   Mott,  12  Wheat.  19.  v.  Hitchcock,  1  Kan.  178;  State  v.  Boone 

In  People  v.  Parker,  3  Neb.  409,  19  Am.  County  Court,  50  Mo   317;  Patterson  v. 

Rep.  634,   it   appeared    that    an   officer,  Barlow,    60    Pa.    St.    64;    QKimball    v. 

assuming  to  act  as  governor  in  the  ab-  Grantsville  City,  19  Utah,  368,  57  Pac.  1, 

sence   of  the   governor  from    the  State,  45  L.  R.  A    628,]  and  see  cases  post,  181. 

had  issued  a  proclamation  convening  the  The  statement  of  legislative  reasons  in 

legislature  in  extraordinary  session.    The  the  preamble  of  an  act  will  not  affect  its 

governor  returned  previous  to  the  time  validity.     Lothrop  v.  Steadman,  42  Conn, 

named   for   the    meeting,   and   issued   a  583. 

(a)  [[Where  the  constitution  empowers  the  legislature  to  determine  an  election 
contest  for  offices  of  governor  and  lieutenant-governor,  the  decision  of  the  legislature 
in  any  such  contest  is  not  subject  to  review  in  the  courts.  Taylor  v.  Beckham,  — 
Ky.  — ,  49  L.  R.  A.  258,  56  S.  W.  177.  See  this  case  in  Supreme  Court  of  the 
United  States,  178  U.  S.  548,  20  Sup.  Ct.  Rep.  890;  Dissenting  opinion  of  ffarlan,  J., 
20  Sup.  Ct.  Rep.  1009.  Courts  have  jurisdiction  to  review  apportionment  statutes 
for  abuses  of  discretion,  amounting  to  violations  of  the  constitution.  Carter  v. 
Rice,  135  N.  Y.  473,  31  N.  E.  921 ;  State  v.  Cunningham.  83  Wis.  90,  51  N.  W.  724, 
35  Am.  St.  27;  Giddings  v.  Secretary  of  State,  93  Mich.  1,  52  N.  W.  914.  In  the 
last-mentioned  case,  the  question  was  expressly  determined  to  be  a  judicial  one. 
But  see  Fletcher  v.  Tuttle,  151  111.  41,  37  N  E.  683,  42  Am.  St.  220,  in  which  case  it 
was  held  that  a  bill,  which  raised  the  question  of  the  validity  of  an  apportionment 
act,  filed  by  an  elector  for  the  enforcement  of  his  right  to  the  elective  franchise, 
would  not  lie  since  the  right  involved  was  a  purely  political  one.] 


CH.  IV.]  CONSTRUCTION    OF   STATE    CONSTITUTIONS.  75 

constitution,  laws  are  to  take  effect  at  a  specified  time  after 
their  passage,  unless  the  legislature  for  urgent  reasons  shall 
otherwise  order,  we  must  perceive  at  once  that  the  legislature 
alone  is  competent  to  pass  upon  the  urgency  of  the  alleged 
reasons.1  And  to  take  a  judicial  instance:  If  a  court  is  required 
to  give  an  accused  person  a  trial  at  the  first  term  after  indict- 
ment, unless  good  cause  be  shown  for  continuance,  it  is  obvious 
that  the  question  of  good  cause  is  one  for  the  court  alone  to  pass 
upon,  and  that  its  judgment  when  exercised  is,  and  must  be  from 
the  nature  of  the  case,  final.  And  when  in  these  or  any  similar 
case  the  decision  is  once  made,  other  departments  or  other 
officers,  whatever  may  have  been  their  own  opinions,  must 
assume  the  decision  to  be  correct,  and  are  not  at  liberty  to  raise 
any  question  concerning  it,  unless  some  duty  is  devolved  upon 
them  which  presents  the  same  question  anew. 

But  there  are  cases  in  which  the  question  of  construction  is 
equally  addressed  to  two  or  more  departments  of  the  government, 
and  it  then  becomes  important  to  know  whether  the  decision  by 
one  is  binding  upon  the  others,  or  whether  each  is  to  act  upon 
its  own  judgment.  Let  us  suppose  once  more  that  the  governor, 
being  empowered  by  the  constitution  to  convene  the  legislature 
upon  extraordinary  occasions,  has  regarded  a  particular  event 
as  being  such  an  occasion,  and  has  issued  his  proclamation 
calling  them  together  with  a  view  to  the  enactment  of  some 

1  See  post,  p.  224.  In  Gillinwater  v  law  makes  no  provision  for  the  construc- 
Mississippi  &  Atlantic  Railroad  Co.,  13  ti<  n  of  canals  and  turnpike  roads,  and  yet 
111.  1,  it  was  urged  that  a  certain  restric-  they  are  as  much  internal  improvements 
tion  imposed  upon  railroad  corporations  as  railroads,  and  we  might  as  well  be 
by  the  general  railroad  law  was  a  viola-  asked  to  extend  what  we  might  consider 
tion  of  the  provision  of  the  constitution  the  liberal  provisions  of  this  law  to  them, 
which  enjoins  it  upon  the  legislature  "  to  because  they  are  embraced  in  the  consti- 
encourage  internal  improvements  by  pass-  tutional  provision,  as  to  ask  us  to  disre- 
ing  liberal  general  laws  of  incorporation  gard  such  provisions  of  it  as  we  might 
for  that  purpose  "  The  court  say  of  this  regard  as  illiberal.  The  argument  pro- 
provision:  "This  is  a  constitutional  com-  ceeds  upon  the  idea  that  we  should  con- 
mand  to  the  legislature,  as  obligatory  on  sider  that  as  done  which  ought  to  be  done ; 
it  as  any  other  of  the  provisions  of  that  but  that  principle  has  no  application  here, 
instrument;  Imt  it  is  one  which  cannot  Like  laws  upon  other  subjects  within 
be  enforced  by  the  courts  of  justice.  It  legislative  jurisdiction,  it  is  for  the  courts 
addresses  itself  to  the  legislature  alone,  to  say  what  the  law  is,  not  what  it  should 
and  it  is  not  for  us  to  say  whether  it  has  be."  It  is  clear  that  courts  cannot  inter- 
obeyed  the  behest  in  its  true  spirit,  fere  with  matters  of  legislative  discretion. 
Whether  the  provisions  of  this  law  are  Maloy  v.  Marietta,  11  Ohio  St.  636.  As 
liberal,  and  tend  to  encourage  internal  to  self-executing  provisions  in  general, 
improvements,  is  matter  of  opinion,  about  see  post^  p.  119.  [The  courts  have  au- 
which  men  mny  differ;  and  as  we  have  thority  to  decide  which  if  either  of  two 
no  authority  to  revise  legislative  action  contesting  bodies  is  the  State  senate, 
on  the  subject,  it  would  not  become  us  to  Attorney-General  v.  Rogers,  56  N.  J.  L. 
express  our  views  in  relation  to  it.  The  480,  29  Atl.  173,  23  L.  R.  A.  354.] 


76  CONSTITUTIONAL   LIMITATIONS.  [cH.  IV. 

particular  legislation  which  the  event  seems  to  call  for,  and 
which  he  specifies  in  his  proclamation.  Now,  the  legislature 
are  to  enact  laws  upon  their  own  view  of  necessity  and  expedi- 
ency ;  and  they  will  refuse  to  pass  t-he  desired  statute  if  they 
regard  it  as  unwise  or  unimportant.  But  in  so  doing  they  indi- 
rectly review  the  governor's  decision,  especially  if,  in  refusing 
to  pass  the  law,  they  do  so  on  the  ground  that  the  specific  event 
was  not  one  calling  for  action  on  their  part.  In  such  a  case  it 
is  clear  that,  while  the  decision  of  the  governqr  is  final  so  far 
as  to  require  the  legislature  to  meet,  it  is  not  final  in  any  sense 
that  would  bind  the  legislative  department  to  accept  and  act 
upon  it  when  they  enter  upon  the  performance  of  their  duty  in 
the  making  of  laws.1 

So  also  there  are  cases  where,  after  the  two  houses  of  the 
legislature  have  passed  upon  the  question,  their  decision  is  in 
a  certain  sense  subject  to  review  by  the  governor.  If  a  bill  is 
introduced  the  constitutionality  of  which  is  disputed,  the  passage 
of  the  bill  by  the  two  houses  must  be  regarded  as  the  expression 
of  their  judgment  that,  if  approved,  it  will  be  a  valid  law.  But 
if  the  constitution  confers  upon  the  governor  a  veto  power,  the 
same  question  of  constitutional  authority  will  be  brought  by 
the  bill  before  him,  since  it  is  manifestly  his  duty  to  withhold 
approval  from  any  bill  which,  in  his  opinion,  the  legislature 
ought  not  for  any  reason  to  pass.  And  what  reason  so  forcible 
as  that  the  constitution  confers  upon  them  no  authority  to  enact 
it?  In  all  these  and  the  like  cases,  each  department  must  act 
upon  its  own  judgment,  and  cannot  be  required  to  do  that  which 
it  regards  as  a  violation  of  the  constitution,  on  the  ground  solely 
that  another  department  which,  in  the  course  of  the  discharge 
of  its  own  duty,  was  called  upon  first  to  act,  has  reached  the 
conclusion  that  it  will  not  be  violated  by  the  proposed  action. 

But  setting  aside  now  those  cases  to  which  we  have  referred, 
where  from  the  nature  of  things,  and  perhaps  from  explicit 
terms  of  the  constitution,  the  judgment  of  the  department  or 
officer  acting  must  be  final,  we  shall  find  the  general  rule  to  be, 
that  whenever  action  is  taken  which  may  become  the  subject  of 
a  suit  or  proceeding  in  court,  any  question  of  constitutional 
power  or  right  that  was  involved  in  such  action  will  be  open 
for  consideration  in  such  suit  or  proceeding,  and  that  as  the 
courts  must  finally  settle  the  particular  controversy,  so  also  will 
they  finally  determine  the  question  of  constitutional  law. 

For  the  constitution  of  the  State  is  higher  in  authority  than 
any  law,  direction,  or  order  made  by  any  body  or  any  officer 

1  See  Opinions  of  Judges,  49  Mo.  216. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


assuming  to  act  under  it,  since  such  body  or  officer  must  exer- 
cise a  delegated  authority,  and  one  that  must  necessarily  be 
subservient  to  the  instrument  by  which  the  delegation  is  made. 
In  any  case  of  conflict  the  fundamental  law  must  govern,  and  the 
act  in  conflict  with  it  must  be  treated  as  of  no  legal  validity. 
But  no  mode  has  yet  been  devised  by  which  thes"e  questions  of 
conflict  are  to  be  discussed  and  settled  as  abstract  questions, 
and  their  determination  is  necessary  or  practicable  only  when 
public  or  private  rights  would  be  affected  thereby.  They  then 
become  the  subject  of  legal  controversy ;  and  legal  controversies 
must  be  settled  by  the  courts.1  The  courts  have  thus  devolved 
upon  them  the  duty  to  pass  upon  the  constitutional  validity, 
sometimes  of  legislative,  and  sometimes  of  executive  acts.  And 
as  judicial  tribunals  have  authority,  not  only  to  judge,  but  also 
to  enforce  their  judgments,  the  result  of  a  decision  against  the 
constitutionality  of  a  legislative  or  executive  act  will  be  to 
render  it  invalid  through  the  enforcement  of  the  paramount  law 
in  the  controversy  which  has  raised  the  question.2 


1  Governor  v.  Porter,  5  Humph.  165. 
The  legislature  cannot  by  statute  define 
the   words  of  the  constitution    for    the 
courts.      Westinghausen    v.   People,    44 
Mich.  265;  Powell  v.  State,  17  Tex.  App. 
845.     Compare  People  v.  Supervisors  of 
La  Salle,  100  111.  495.    And  see  post,  136, 
note. 

2  "  When  laws  conflict  in  actual  cases, 
they  [the  courts]   must  decide  which  is 
the  superior  law,  and  which  must  yield  ; 
and  as  we  have  seen  that,  according  to 
our  principles,  every  officer  remains  an- 
swerable for  what  he   officially  does,  a 
citizen,  believing  that  the  law  he  enforces 
is  incompatible  with  the  superior  law,  the 
constitution,  simply  sues  the  officer  before 
the  proper  court  as  having  unlawfully 
aggrieved  him   in    the    particular    case. 
The  court,  bound  to  do  justice  to  every 
one,  is  bound  also  to  decide  this  case  as 
a  simple  case  of  conflicting  laws.     The 
court  does  not  decide  directly  upon  the 
doings  of  the  legislature.     It  simply  de- 
cides for  the  case  in  hand,  whether  there 
actually  are  conflicting  laws,  and,  if  so, 
which  is  the  higher  law   that  demands 
obedience,  when  both  may  not  be  obeyed 
at  the  same  time.    As,  however,  this  de- 
cision becomes  the  leading  decision  for  all 
future  cases  of  the  same  import,  until,  in- 
deed, proper  and    legitimate    authority 
should  reverse  it,  the  question  of  consti- 


tutionality is  virtually  decided,  and  it  is 
decided  in  a  natural,  easy,  legitimate  and 
safe  manner,  according  to  the  principle  of 
the  supremacy  of  the  law  and  the  depend- 
ence of  justice.  It  is  one  of  the  most  in- 
teresting and  important  evolutions  of  the 
government  of  law,  and  one  of  the  great- 
est protections  of  the  citizen.  It  may  well 
be  called  a  very  jewel  of  Anglican  liberty 
and  one  of  the  best  fruits  of  our  political 
civilization."  Lieber,  Civil  Liberty  and 
Self-Government. 

"  Whenever  a  law  which  the  judge 
holds  to  be  unconstitutional  is  argued  in 
a  tribunal  of  the  United  States,  he  may  re- 
fuse to  admit  it  as  a  rule ;  this  power  is 
the  only  one  which  is  peculiar  to  the 
American  magistrate,  but  it  gives  rise  to 
immense  political  influence.  Few  laws 
can  escape  the  searching  analysis ;  for 
there  are  few  which  are  not  prejudicial 
to  some  private  interest  or  other,  and 
none  which  may  not  be  brought  before  a 
court  of  justice  by  the  choice  of  parties, 
or  by  the  necessity  of  the  case.  But 
from  the  time  that  a  judge  has  refused 
to  apply  any  given  law  in  a  case,  that  law 
loses  a  portion  of  its  moral  sanction.  The 
persons  to  whose  interest  it  is  prejudicial 
learn  that  means  exist  for  evading  its 
authority ;  and  similar  suits  are  multi- 
plied until  it  becomes  powerless.  One 
of  two  alternatives  must  then  be  resorted 


78 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  IV. 


The  same  conclusion  is  reached  by  stating  in  consecutive 
order  a  few  familiar  maxims  of  the  law.  The  administration  of 
public  justice  is  referred  to  the  courts.  To  perform  this  duty, 
the  first  requisite  is  to  ascertain  the  facts,  and  the  next  to 
determine  the  law  applicable  to  such  facts.  The  constitution  is 
the  fundamental  law  of  the  State,  in  opposition  to  which  any 
other  law,  or  any  direction  or  order,  must  be  inoperative  and 
void.  If,  therefore,  such  other  law,  direction,  or  order  seems 
to  be  applicable  to  the  facts,  but  on  comparison  with  the  funda- 
mental law  the  latter  is  found  to  be  in  conflict  with  it,  the 
court,  in  declaring  what  the  law  of  the  case  is,  must  necessarily 
determine  its  invalidity,  and  thereby  in  effect  annul  it.1  The 
right  and  the  power  of  the  courts  to  do  this  are  so  plain,  and 
the  duty  is  so  generally  — we  may  almost  say  universally  —  con- 
ceded, that  we  should  not  be  justified  in  wearying  the  patience 
of  the  reader  in  quoting  from  the  very  numerous  authorities 
upon  the  subject.2 


to,  —  the  people  must  alter  the  constitu- 
tion, or  the  legislature  must  repeal  the 
law."  De  Tocqueville,  Democracy  in 
America,  c.  6. 

1  "  It  is  idle  to  say  that  the  authority 
of  each  branch  of  the  government  is  de- 
fined and  limited  by  the  constitution,  if 
there  be  not  an  independent  power  able 
and  willing  to  enforce  the  limitations. 
Experience  proves  that  the  constitution 
is  thoughtlessly  but  habitually  violated ; 
and  the  sacrifice  of  individual  rights  is 
too  remotely  connected  with  the  objects 
and  contests  of  the  masses  to  attract  their 
attention.  From  its  very  position  it  is 
apparent  that  the  conservative  power  is 
lodged  in  the  judiciary,  which,  in  the  ex- 
ercise of  its  undoubted  rights,  is  bound 
to  meet  any  emergency  ;  else  causes  would 
be  decided,  not  only  by  the  legislature, 
but  sometimes  without  hearing  or  evi- 
dence." Per  Gibson,  Ch.  J.,  in  De  Chas- 
tellux  v.  Fairchild,  15  Pa.  St.  18. 

"  Nor  will  this  conclusion,  to  use  the 
language  of  one  of  our  most  eminent 
jurists  and  statesmen,  by  any  means  sup- 
pose a  superiority  of  the  judicial  to  the 
legislative  power.  It  will  only  be  sup- 
posing that  the  power  of  the  people  is 
superior  to  both  ;  and  that  where  the  will 
of  the  legislature,  declared  in  its  statutes, 
stands  in  opposition  to  that  declared  by 
the  people  in  the  constitution,  the  judges 
ought  to  be  governed  by  the  latter  rather 
than  the  former.  They  ought  to  regulate 


their  decisions  by  the  fundamental  laws 
rather  than  by  those  which  are  not  fun- 
damental. Neither  would  we,  in  doing 
this,  be  understood  as  impugning  the 
honest  intentions,  or  sacred  regard  to  jus- 
tice, which  we  most  cheerfully  accord  to 
the  legislature.  But  to  be  above  error 
is  to  possess  an  entire  attribute  of  the 
Deity ;  and  to  spurn  its  correction  is 
to  reduce  to  the  same  degraded  level 
the  most  noble  and  the  meanest  of  his 
works."  Bates  v.  Kimball,  2  Chip.  77. 
See  Bailey  v.  Gentry,  1  Mo.  164,  13  Am. 
Dec.  484. 

"  Without  the  limitations  and  restraints 
usually  found  in  written  constitutions,  the 
government  could  have  no  elements  of 
permanence  and  durability  ;  and  the  dis- 
tribution of  its  powers,  and  the  vesting 
their  exercise  in  separate  departments, 
would  be  an  idle  ceremonv."  Brown,  J., 
in  People  v.  Draper,  15  N.  Y.  5M2,  558. 

2  1  Kent,  500-507  ;  Marbury  v.  Madi- 
son, 1  Cranch,  137;  see  post,  p.  227-229; 
Webster  on  the  Independence  of  the 
Judiciary,  Works,  Vol.  III.  p.  29.  In 
this  speech,  Mr.  Webster  lias  forcibly 
set  forth  the  necessity  of  leaving  with 
the  courts  the  power  to  enforce  consti- 
tutional restrictions.  "It  cannot  be  de- 
nied," says  he,  "  that  one  great  object 
of  written  constitutions  is,  to  keep  the 
departments  of  government  as  distinct 
as  possible ;  and  for  this  purpose  to  im- 
pose restraints  designed  to  have  that 


CH.  IV.] 


CONSTRUCTION    OF   STATE    CONSTITUTIONS. 


79 


Conclusiveness  of  Judicial  Decisions. 

But  a  question  which  has  arisen  and  been  passed  upon  in  one 
case  may  arise  again  in  another,  or  it  may  present  itself  under 
different  circumstances  for  the  decision  of  some  other  department 
or  officer  of  the  government.  It  therefore  becomes  of  the  highest 
importance  to  know  whether  a  principle  once  authoritatively  de- 
clared is  to  be  regarded  as  conclusively  settled  for  the  guidance, 
not  only  of  the  court  declaring  it,  but  of  all  courts  and  all  depart- 
ments of  the  government;  or  whether,  on  the  other  hand,  the 
decision  settles  the  particular  controversy  only,  so  that  a  different 
decision  may  be  possible,  or,  considering  the  diversity  of  human 
judgments,  even  probable,  whenever  in  any  new  controversy 
other  tribunals  may  be  required  to  examine  and  decide  upon  the 
same  question. 

In  some  cases  and  for  some  purposes  the  Conclusiveness  of  a 
judicial  determination  is,  beyond  question,  final  and  absolute.  A 
decision  once  made  in  a  particular  controversy,  by  the  highest 
court  empowered  to  pass  upon  it,  is  conclusive  upon  the  parties 
to  the  litigation  and  their  privies,  and  they  are  not  allowed 


effect.  And  it  is  equally  true  that  there 
is  no  department  on  which  it  is  more  nec- 
essary to  impose  restraints  than  upon  the 
legislature.  The  tendency  of  things  is 
almost  always  to  augment  the  power  of 
that  department  in  its  relation  to  the  judi- 
ciary. The  judiciary  is  composed  of  few 
persons,  and  those  not  such  as  mix  habit- 
ually in  the  pursuits  and  objects  which 
most  engage  public  men.  They  are  not, 
or  never  should  be,  political  men.  They 
have  often  unpleasant  duties  to  perform, 
and  their  conduct  is  often  liable  to  be  can- 
vassed and  censured  where  their  reasons 
for  it  are  not  known  or  cannot  be  under- 
stood. The  legislature  holds  the  public 
purse.  It  fixes  the  compensation  of  all 
other  departments  ;  it  applies  as  well  as 
raises  all  revenue.  It  is  a  numerous 
body,  and  necessarily  carries  along  with 
it  a  great  force  of  public  opinion.  Its 
members  are  public  men,  in  constant  con- 
tact with  one  another  and  with  their  con- 
stituents. It  would  seem  to  be  plain 
enough  that,  without  constitutional  pro- 
visions which  should  be  fixed  and  certain, 
such  a  department,  in  case  of  excitement, 
would  be  able  to  encroach  on  the  judi- 
ciary." ..."  The  constitution  being  the 
supreme  law,  it  follows,  of  course,  that 
every  act  of  the  legislature  contrary  to 


that  law  must  be  void.  But  who  shall 
decide  this  question  ?  Shall  the  legisla- 
ture itself  decide  it  ?  If  so,  then  the  con- 
stitution ceases  to  be  a  legal,  and  becomes 
only  a  moral  restraint  upon  the  legisla- 
ture. If  they,  and  they  only,  are  to  judge 
whether  their  acts  be  conformable  to  the 
constitution,  then  the  constitution  is  ad- 
monitory or  advisory  only,  not  legally 
binding,  because  if  the  construction  of  it 
rests  wholly  with  them,  their  discretion, 
in  particular  cases,  may  be  in  favor  of 
very  erroneous  and  dangerous  construc- 
tions. Hence  the  courts  of  law  neces- 
sarily, when  the  case  arises,  must  decide 
on  the  validity  of  particular  acts." 
"  Without  this  check,  no  certain  limita- 
tions could  exist  on  the  exercise  of  legis- 
lative power."  See  also,  as  to  the  dangers 
of  legislative  encroachments,  De  Tocque- 
ville,  Democracy  in  America,  c.  6  ;  Story 
on  Const.  (4th  ed.)  §  632  and  note.  The 
legislature  though  possessing  a  larger 
share  of  power,  no  more  represents  the 
sovereignty  of  the  people  than  either  of 
the  other  departments ;  it  derives  its 
authority  from  the  same  high  source. 
Bailey  v.  Philadelphia,  &c.  Railroad 
Co.,  4  Harr.  389 ;  Whittington  v.  Polk, 
1  II.  &  J.  236 ;  McCauley  v.  Brooks,  16 
Cal.  11. 


80 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IV. 


afterwards  to  revive  the  controversy  in  a  new  proceeding  for  the 
purpose  of  raising  the  same  or  any  other  questions.  The  matter 
in  dispute  has  become  res  judicata,  a  thing  definitely  settled  by 
judicial  decision;  and  the  judgment  of  the  court  imports  abso- 
lute verity.  Whatever  the  question  involved,  —  whether  the 
interpretation  of  a  private  contract,  the  legality  of  an  individual 
act,  or  the  validity  of  a  legislative  enactment,  —  the  rule  of 
finality  is  the  same.  The  controversy  has  been  adjudged;  and, 
once  finally  passed  upon,  it  is  never  to  be  renewed.1  It  must 


1  Duchess  of  Kingston's  Case,  11  State 
Trials,  261,  2  Smith,  Lead.  Cas.  424; 
Young  v.  Black,  7  Cranch,  565 ;  Chapman 
v.  Smith,  16  How.  114;  Aurora  City  r. 
West,  7  Wall.  82 ;  Tioga  R.  R.  Co.  v.  Bloss- 
burg,  &c.  R,  R.  Co.,  20  Wall.  137 ;  The 
Rio  Grande,  23  Wall.  458 ;  Coffey  v.  United 
States,  116  U.  S.  436;  6  Sup.  Ct.  Rep. 
437 ;  United  States  v.  Parker,  120  U.  S. 
89,  7  Sup.  Ct.  Rep.  454;  Wilson's  Exec. 
v.  Deen,  121  U.  S.  525,  7  Sup.  Ct.  Rep. 
1004;  Skelding  v.  Whitney,  3  Wend.  154; 
Etheredge  v.  Osborn,  12  Wend.  399; 
Hayes  v.  Reese,  34  Barb.  151 ;  Hyatt  v. 
Bates,  35  Barb.  308;  Harris  v.  Harris, 
36  Barb.  88 ;  Maddox  v.  Graham,  2  Met. 
(Ky.)  56;  Porter  v.  Hill,  9  Mass.  34; 
Norton  v.  Doherty,  3  Gray,  372;  Thurs- 
ton  v.  Thurston,  99  Mass.  39;  Way  v. 
Lewis,  115  Mass.  26 ;  Blackinton  v.  Black- 
inton,  113  Mass.  231  ;  Witmer  v.  Sehlat- 
ter,  15  S.  &  R.  150 ;  Warner  v.  Scott,  39 
Pa.  St.  274;  Verner  v.  Carson,  66  Pa. 
St.  440;  Kerr  v.  Union  Bank,  18  Md.396; 
Whitehurst  v.  Rogers,  38  Md.  503 ;  Wales 
v.  Lyon,  2  Mich.  276 ;  Prentiss  v.  Holbrook, 
2  Mich.  372;  Van  Kleek  v.  Eggleston,  7 
Mich.  511;  Newberry  v.  Trowbridge,  13 
Mich.  278;  Barker  v.  Cleveland,  19  Mich. 
230 ;  Winslow  v.  Grindall,  2  Me.  64  ;  Slade 
v.  Slade,  58  Me.  157;  Crandall  v.  James, 
6  R.  I.  144;  Babcock  v.  Camp,  12  Ohio 
St.  11 ;  Hawkins  v.  Jones,  19  Ohio  St.  22; 
George  v.  Gillespie,  1  Greene  (Iowa), 421 ; 
Taylor  v.  Chambers,  1  Iowa,  124 ;  Wright 
v.  Leclair,  3  Iowa,  221 ;  Clark  r.  Sammons, 
12  Iowa,  368;  Whittaker  i\  Johnson  Co., 
12  Iowa.  595 ;  Dwyer  v.  Goran,  29  Iowa, 
126 ;  Fairfield  v.  McNany,  37  Iowa,  75 ; 
Eimer  v.  Richards,  25  111.289;  Wells  v. 
McClenning,  23  111.  409;  Crow  u.Bowlby, 
68  III.  23 ;  Peay  v.  Duncan,  20  Ark.  85 ; 
Perrine  v.  Serrell,  30  N.  J.  454;  Weber  v. 
Morris,  &c.,  36  N.  J.  213 ;  Fischli  v.  Cowan, 
1  Blackf.  350;  Denny  v.  Reynolds,  24Ind. 
248 ;  Bates  v.  Spooner,  45  Ind.  489 ;  Daven- 


port v.  Barnett,  51  Ind.  329 ;  Center  Tp.  v. 
Com'rs  Marion  Co.,  110  Ind.  579,  10  N. 
E.  291 ;  Warwick  v.  Underwood,  3  Head, 
288 ;  Jones  v.  Weathersbee,  4  Strob.  50 ; 
Hoover  v.  Mitchell,  25  Gratt.  387 ;  Hun- 
gerford's  Appeal,  41  Conn.  322 ;  Union 
R.  R.  Co.  v.  Traube,  59  Mo.  355 ;  Perry 
v.  Lewis,  49  Miss.  443 ;  Harris  v.  Colquit, 
44  Ga.  663 ;  McCauley  v.  Hargroves,  48 
Ga.  50,  15  Am.  Rep.  660;  Castellaw  v. 
Guilmartin,  54  Ga.  299;  Sloan  r.  Cooper, 
54  Ga.  486;  Doyle  v.  Hallam,  21  Minn. 
515;  Philpotts  v.  Blasdel,  10  Nev.  19; 
Case  v.  New  Orleans,  &c.  R.  R.,  2  Woods, 
236;  Geary  v.  Simmons,  39  Cal.  224;  Gee 
v.  Williamson,  1  Port.  (Ala.)  313,  27  Am. 
Dec.  628;  Cannon  v.  Brame,  45  Ala. 
262;  Finney  v.  Boyd,  26  Wis.  366;  War- 
ner v.  Trow,  36  Wis.  195;  Schroers  v. 
Fisk,  10  Col.  599,  16  Pac.  285.  Ram  on 
Legal  Judgment,  c.  14.  A  judgment, 
however,  is  conclusive  as  an  estoppel, 
as  to  those  facts  only  without  the  exis- 
tence and  proof  of  which  it  could  not 
have  b?en  rendered;  and  if  it  might  have 
been  given  on  any  one  of  several  grounds, 
it  is  conclusive  between  the  parties  as  to 
neither  of  them.  Lea  v.  Lea,  99  Mass. 
493.  And  see  Dickinson  v.  Hayes,  31 
Conn.  417 ;  Church  v.  Chapin,  35  Vt.  223 ; 
Packet  Co.  v.  Sickles,  5  Wall.  580 ;  Spen- 
cer v.  Dearth,  43  Vt.  98 ;  Hill  v.  Morse, 
61  Me.  641.  A  judicial  sale  by  an  admin- 
istrator will  pass  title  though  the  sup- 
posed intestate  proves  to  be  living.  Rod- 
erigas  v.  Savings  Institution,  63  N.  Y. 
460;  s.  c.  20  Am.  Rep.  555;  contra,  John- 
son v.  Beazley,  65  Mo.  260  ;  s.  c.  27  Am. 
Rep.  285,  and  note.  QDeath  of  the  al- 
leged intestate  is  a  jurisdictional  fact,  and 
in  the  absence  of  such  fact  any  admin- 
istration upon  his  estate  is  null.  Scott  v. 
McNeal,  154  U.  S.  34,  14  Sup.  Ct.  Rep. 
1108;  rev.  5  Wash.  309,  31  Pac.  873,  34 
Am.  St.  863.  Many  authorities  are  cited 
in  154  U.  S.  at  page  48.] 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  81 

frequently  happen,  therefore,  that  a  question  of  constitutional 
law  will  be  decided  in  a  private  litigation,  and  the  parties  to  the 
controversy,  and  all  others  subsequently  acquiring  rights  under 
them,  in  the  subject-matter  of  the  suit,  will  thereby  become 
absolutely  and  forever  precluded  from  renewing  the  question  in 
respect  to  the  matter  then  involved.  The  rule  of  conclusiveness 
to  this  extent  is  one  of  the  most  inflexible  principles  of  the  law ; 
insomuch  that  even  if  it  were  subsequently  held  by  the  courts 
that  the  decision  in  the  particular  case  was  erroneous,  such 
holding  would  not  authorize  the  reopening  of  the  old  controversy 
in  order  that  the  final  conclusion  might  be  applied  thereto.1 

But  if  important  principles  of  constitutional  law  can  be  thus 
disposed  of  in  suits  involving  only  private  rights,  and  when  pri- 
vate individuals  and  their  counsel  alone  are  heard,  it  becomes  of 
interest  to  know  how  far,  if  at  all,  other  individuals  and  the 
public  at  large  are  affected  by  the  decision.  And  here  it  will 
be  discovered  that  quite  a  different  rule  prevails,  and  that  a 
judicial  decision  has  no  such  force  of  absolute  conclusiveness  as 
to  other  parties  as  it  is  allowed  to  possess  between  the  parties  to 
the  litigation  in  which  the  decision  has  been  made,  and  those 
who  have  succeeded  to  their  rights. 

A  party  is  concluded  by  a  judgment  against  him  from  disput- 
ing its  correctness,  so  far  as  the  point  directly  involved  in  the 
case  was  concerned,  whether  the  reasons  upon  which  it  was  based 
were  sound  or  not,  and  even  if  no  reasons  were  given  therefor. 
And  if  the  parties  themselves  are  concluded,  so  also  should  be 
all  those  who,  since  the  decision,  claim  to  have  acquired  inter- 
ests in  the  subject-matter  of  the  judgment  from  or  under  the 
parties,  as  personal  representatives,  heirs-at-law,  donees,  or 
purchasers,  and  who  are  therefore  considered  in  the  law  as 
privies.2  But  if  strangers  who  have  no  interest  in  that  subject- 

1  McLean  v.  Hugarin,  13  Johns.  184;  lein  v.  Martin,  59  Cal.  181 ;  Frankland  v. 

Morgan  v.  Plumb,  9  Wend.  287  ;  Wilder  Cassaday,  62  Texas,  418 ;  Adams  Co.  v. 

v.  Case,  16  Wend.  583  ;  Baker  v.  Rand,  13  Burlington  &  M.  R.  R.  Co.,  55  Iowa,  94, 

Barb.  152  ;  Kelley  v.  Pike,  5  Cusli.  484;  7  N.  W.  471.     But  see  Barton  v.  Thomp- 

Hart  v.  Jewett,  11  Iowa,  276;  Colburn  son,  56  Iowa,  571,  9  N.  W.  899. 
f.  Woodworth,  31  Barb.  381;  Newberry  v.          2  The  question  whether  a  judgment, 

Trowbridge,   13   Mich.   278;    Skeldin   v.  by  force  of  its  recitals,  shall  operate  as 

Whitney,  3  Wend.  154  ;  Brockway  j;.  Kin-  a  technical  estoppel,  or  whether  it  shall 

ney,   2  Johns.   210;  Plainer  a.  Best,  11  operate  as  a  bar  only  after  the  proper  parol 

Johns.  530;  Phillips  v.  Berick,  16  Johns,  evidence  shall  have  been  given  to  identify 

136  ;  Page  v.  Fowler,  37  Cal.  100;  Howi-  the  subject  of  litigation,  is  one  which  our 

son  v.  Weeden,  77  Va.  704.    The  rule  laid  subject  does  not  require  us  to  discuss.  The 

down  becomes  the  law  of  the  case.    Bibb  cases  are  examined  fully  and  with  dis- 

v.  Bibb,  79  Ala.  437 ;  Weare  v.  Bearing,  crimination  in  Robinson's  Practice,  Vol. 

60  N.  H.  56;  Pittsburgh,  &c.  Ry.  Co.  v.  VI.,  and  are  also  discussed  in  Bigelow  on 

Hixon,  110  Ind.  225,  11  N.  E.  285  ;  Hein-  Estoppel. 

6 


82  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

matter  are  to  be  in  like  manner  concluded,  because  their  con- 
troversies are  supposed  to  involve  the  same  question  of  law,  we 
shall  not  only  be  forced  into  a  series  of  endless  inquiries,  often 
resulting  in  little  satisfaction,  in  order  to  ascertain  whether  the 
question  is  the  same,  but  we  shall  also  be  met  by  the  query, 
whether  we  are  not  concluding  parties  by  decisions  which  others 
have  obtained  in  fictitious  controversies  and  by  collusion,  or 
have  suffered  to  pass  without  sufficient  consideration  and  dis- 
cussion, and  which  might  perhaps  have  been  given  otherwise 
had  other  parties  had  an  opportunity  of  being  heard. 

We  have  already  seen  that  the  force  of  a  judgment  does  not 
depend  upon  the  reasons  given  therefor,  or  upon  the  circum- 
stance that  any  were  or  were  not  given.  If  there  were,  they 
may  have  covered  portions  of  the  controversy  only,  or  they  may 
have  had  such  reference  to  facts  peculiar  to  that  case,  that  in 
any  other  controversy,  though  somewhat  similar  in  its  facts, 
and  apparently  resembling  it  in  its  legal  bearings,  grave  doubts 
might  arise  whether  it  ought  to  fall  within  the  same  general 
principle.  If  one  judgment  were  absolutely  to  conclude  the 
parties  to  any  similar  controversy,  we  ought  at  least  to  be  able 
to  look  into  the  judicial  mind,  in  order  that  we  might  ascertain 
of  a  surety  that  all  those  facts  which  should  influence  the  ques- 
tions of  law  were  substantially  the  same  in  each,  and  we  ought 
also  to  be  able  to  see  that  the  first  litigation  was  conducted  in 
entire  good  faith,  and  that  every  consideration  was  presented  to 
the  court  which  could  properly  have  weight  in  the  construction 
and  application  of  the  law.  All  these  things,  however,  are 
manifestly  impossible;  and  the  law  therefore  wisely  excludes 
judgments  from  being  used  to  the  prejudice  of  strangers  to  the 
controversy,  and  restricts  their  conclusiveness  to  the  parties 
thereto  and  their  privies.1  Even  parties  and  privies  are  bound 
only  so  far  as  regards  the  subject-matter  then  involved,  and 
would  be  at  liberty  to  raise  the  same  questions  anew,  in  a  dis- 
tinct controversy  affecting  some  distinct  subject-matter.2 

i  Burrill  v.  West,  2  N.  H.  190 ;  Davis  Floyd  v.  Mintsey,  5  Rich.  361 ;  Riggin's 

v.  Wood,  1  Wheat.  6  ;  Jackson  v.  Vedder,  Ex'rs  v.  Brown,  12  Ga.  271;  Persons  v. 

3  Johns.  8;  Case  v.  Reeve,  14  Johns.  79;  Jones,  12  Ga.  371 ;  Buckingham  v.  Lud- 

Alexander  v.  Taylor,  4  Denio,  302;  Van  lum,  37  N.  J.  Eq.  137;  Scales  v.  King, 

Bokkelin  v.  Ingersoll,  5  Wend.  315 ;  Smith  110  111.  456  ;  Leslie  v.  Bonte,  130  111.  498, 

v.    Ballantyne,    10    Paige,  101;    Orphan  22  N.  E.  Rep.  694;  Tiffany  v.  Stewart, 

House  v.  Lawrence,  11  Paige,  80;  Thomas  60  Iowa,   207,  14  N.    W.   241;    Lord  v. 

v.  Hubbell,  15  N.  Y.  405;  Masten  v.  Ol-  Wilcox,  99  Ind  491.     Compare  Benedict 

cott,  101  N.  Y.  152,  4  N.  E.  274;  Wood  v.  Smith,  48  Mich.  593,  12  N.  W.  866; 

v.  Stephen,  1  Serg.  &  R.  175;  Peterson  v.  Howison  v.  Weeden,  77  Va.  704;  Robin- 

Lothrrfp,  34    Pa.    St.    223;    Twambly  v.  son's    Practice,   Vol.    VII.    134    to    156; 

Henley,  4  Mass.  441 ;  Este  c.  Strong,  2  Bigelow  on  Estoppel,  46  et  seq. 
Ohio,  402;   Cowles  v.  Harts,  3  Conn.  516 ;         2  Van  Alstine  v.  Railroad  Co.,  34  Barb. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  83 

All  judgments,  however,  are  supposed  to  apply  the  existing 
law  to  the  facts  of  the  case ;  and  the  reasons  which  are  sufficient 
to  influence  the  court  to  a  particular  conclusion  in  one  case 
ought  to  be  sufficient  to  bring  it  or  any  other  court  to  the  same 
conclusion  in  all  other  like  cases  where  no  modification  of  the 
law  has  intervened.  There  would  thus  be  uniform  rules  for  the 
administration  of  justice,  and  the  same  measure  that  is  meted 
out  to  one  would  be  received  by  all  others.  And  even  if  the 
same  or  any  other  court,  in  a  subsequent  case,  should  be  in 
doubt  concerning  the  correctness  of  the  decision  which  has  been 
made,  there  are  consequences  of  a  very  grave  character  to  be 
contemplated  and  weighed  before  the  experiment  of  disregarding 
it  should  be  ventured  upon.  That  state  of  things,  when  judicial 
decisions  conflict,  so  that  a  citizen  is  always  at  a  loss  in  regard 
to  his  rights  and  his  duties,  is  a  very  serious  evil ;  and  the 
alternative  of  accepting  adjudged  cases  as  precedents  in  future 
controversies  resting  upon  analogous  facts,  and  brought  within 
the  same  reasons,  is  obviously  preferable.  Precedents,  there- 
fore, become  important,  and  counsel  are  allowed  and  expected 
to  call  the  attention  of  the  court  to  them,  not  as  concluding 
controversies,  but  as  guides  to  the  judicial  mind.  Chancellor 
Kent  says:  "A  solemn  decision  upon  a  point  of  law  arising  in 
any  given  case  becomes  an  authority  in  a  like  case,  because  it 
is  the  highest  evidence  which  we  can  have  of  the  law  applicable 
to  the  subject,  and  the  judges  are  bound  to  follow  that  decision 
so  long  as  it  stands  unreversed,  unless  it  can  be  shown  that  the 
law  was  misunderstood  or  misapplied  in  that  particular  case.  If 
a  decision  has  been  made  upon  solemn  argument  and  mature 
deliberation,  the  presumption  is  in  favor  of  its  correctness,  and 
the  community  have  a  right  to  regard  it  as  a  just  declaration  or 

28;  Taylor  v.  McCrackin,  2  Blackf.  260;  facts  were  within  the  issue,  the  judgment 
Cook  r.  Vimont,  6  T.  B.  Monr.  284.  If  is  conclusive  as  to  them,  although  the 
certain  facts  were  not  necessarily  in-  question  raised  in  the  second  action  was 
eluded  in  the  issue,  a  party  is  not  con-  not  actually  litigated.  Harmon  v.  Audi- 
eluded  by  the  judgment  as  to  them,  tor,  123  III.  123,  13  N.  E.  161;  Fairchild 
Davis  v.  Davis,  65  Miss.  498,  4  So.  554 ;  v.  Lynch,  99  N.  Y.  359,  2  N.  E.  20 ;  Tray- 
Doonan  v.  Glynn,  28  W.  Va.  715 ;  Loril-  hern  v.  Colburn,  66  Md.  277,  7  All.  459 ; 
lard  v.  Clyde,  99  N.  Y.  196,  1  N.  E.  614  ;  Kennedy  v.  McCarthy,  73  Ga.  346  ;  Shen- 
Belden  v.  State,  103  N.  Y.  1,  8  N.  E.  363;  andoah  V.  R.  R.  Co.  v.  Griffith,  76  Va. 
Umlauf  v.  Umlauf,  117  111.  580,  6  N.  E.  913;  Cleveland  v.  Creviston,  93  Ind.  81; 
455;  Concha  v.  Concha,  L.  R.  11  App.  Chouteau  v.  Gibson,  76  Mo.  38.  See,  for 
Cas.  541.  If  the  second  action  involves  a  further  discussion  of  this  doctrine,  its 
the  same  property  and  more,  the  judg-  meaning  and  extent,  Spencer  v.  Dearth, 
ment  is  conclusive  only  as  to  those  issues  43  Vt.  98,  and  the  very  full  and  exhaus- 
which  were  actually  tried  and  determined,  tive  discussion  in  Robinson's  Practice, 
Foye  v.  Patch,  132  Mass.  105.  See  Met-  Vol.  VII. 
calf  v.  Gilmore,  63  N.  H.  174.  But  if  th* 


84 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IV. 


exposition  of  the  law,  and  to  regulate  their  actions  and  contracts 
by  it.  It  would  therefore  be  extremely  inconvenient  to  the  public 
if  precedents  were  not  duly  regarded,  and  implicitly  followed. 
It  is  by  the  notoriety  and  stability  of  such  rules  that  professional 
men  can  give  safe  advice  to  those  who  consult  them,  and  people 
in  general  can  venture  to  buy  and  trust,  and  to  deal  with  each 
other.  If  judicial  decisions  were  to  be  lightly  disregarded,  we 
should  disturb  and  unsettle  the  great  landmarks  of  property. 
When  a  rule  has  once  been  deliberately  adopted  and  declared, 
it  ought  not  to  be  disturbed  unless  by  a  court  of  appeal  or  review, 
and  never  by  the  same  court,  except  for  very  urgent  reasons,  and 
upon  a  clear  manifestation  of  error;  and  if  the  practice  were 
otherwise,  it  would  be  leaving  us  in  a  perplexing  uncertainty  as 
to  the  law.1 


1  1  Kent,  475.  And  see  Cro.  Jac.  527  ; 
Rex  v.  Cox,  2  Burr.  787 ;  King  v.  Younger, 
6  T.  R.  450;  Goodtitle  t-.  Otway,  7  T.  R. 
416;  Selby  v.  Bardons,  3  B.  &  Ad.  17; 
Fletcher  v.  Lord  Somers,  3  Bing.  588; 
Hammond  r.  Anderson,  4  Bos.  &  P.  69; 
Lewis  v,  Thornton,  6  Munf.  94 ;  Dugan  v. 
Hollins,  13  Md.  149;  Anderson  v.  Jack- 
son, 16  Johns.  382 ;  Goodell  v.  Jackson, 
20  Johns.  693  ;  Bates  o.  Relyea,  23  Wend- 
336;  Emerson  v.  Atwater,  7  Mich.  12; 
Kelson  v.  Allen,  1  Yerg.  3(30;  Palmer  v. 
Lawrence,  5  N.  Y.  389  ;  Kneeland  v.  Mil- 
waukee, 15  Wis.  454 ;  Boon  r.  Bowers, 
30  Miss.  216;  Frink  v.  Darst,  14  111.  304; 
Broom's  Maxims,  109.  Dr.  Lieber  thinks 
the  doctrine  of  the  precedent  especially 
valuable  in  a  free  country.  "  Liberty  and 
steady  progression  require  the  principle 
of  the  precedent  in  all  spheres.  It  is  one 
of  the  roots  with  which  the  tree  of  liberty 
fastens  in  the  soil  of  real  life,  and  through 
which  it  receives  the  sap  of  fresh  exist- 
ence. It  is  the  weapon  by  which  inter- 
ference is  warded  off.  The  principle  of 
the  precedent  is  eminently  philosophical. 
The  English  Constitution  would  not  have 
developed  itself  without  it.  What  is  called 
the  English  Constitution  consists  of  the 
fundamentals  of  the  British  polity,  laid 
down  in  custom,  precedent,  decisions,  and 
statutes ;  and  the  common  law  in  it  is  a 
far  greater  portion  than  the  statute  law. 
The  English  Constitution  is  chiefly  a  com- 
mon-law constitution ;  and  this  reflex  of 
a  continuous  society  in  a  continuous  law 
is  more  truly  philosophical  than  the  theo- 
retic and  systematic,  but  lifeless,  consti- 


tutions of  recent  France."  Civ.  Lib.  and 
Self-Gov.  See  also  his  chapter  on  prece- 
dents in  the  Hermeneutics.  In  Nelson  v. 
Allen,  1  Yerg.  360,  376,  where  the  consti- 
tutionality of  the  "  Betterment  Law  " 
came  under  consideration,  the  court 
(  White,  J.)  say  :  "  Whatever  might  be 
my  own  opinion  upon  this  question,  not 
to  assent  to  its  settlement  now,  after  two 
solemn  decisions  of  this  court,  the  last 
made  upwards  of  fourteen  years  ago,  and 
not  only  no  opposing  decision,  but  no  at- 
tempt even  by  any  case,  during  all  this 
time,  to  call  the  point  again  in  contro- 
versy, forming  a  complete  acquiescence, 
would  be,  at  the  least,  inconsistent,  per- 
haps mischievous,  and  uncalled  for  by  a 
correct  discharge  of  official  duty.  Much 
respect  has  always  been  paid  to  the  con- 
temporaneous construction  of  statutes, 
and  a  forbidding  caution  hath  always 
accompanied  any  approach  towards  un- 
settling it,  dictated,  no  doubt,  by  easily 
foreseen  consequences  attending  a  sud- 
den change  of  a  rule  of  property,  neces- 
sarily introductory  at  least  of  confusion, 
increased  litigation,  and  the  disturbance 
of  the  peace  of  society.  The  most  able 
judges  and  the  greatest  names  on  the 
bench  have  held  this  view  of  the  subject, 
and  occasionally  expressed  themselves 
to  that  effect,  either  tacitly  or  openly, 
intimating  that  if  they  had  held  a  part 
in  the  first  construction  they  would  have 
been  of  a  different  opinion  ;  but  the  con- 
struction having  been  made,  they  give 
their  assent  thereto.  Thus  Lord  Ellen- 
borough,  in  2  East,  302,  remarks :  '  I  think 


CH.  IT.]  .CONSTRUCTION   OF   STATE   CONSTITUTIONS.  85 

The  doctrine  of  stare  decisis,  however,  is  only  applicable,  in 
its  full  force,  within  the  territorial  jurisdiction  of  the  courts 
making  the  decisions,  since  there  alone  can  such  decisions  be 
regarded  as  having  established  any  rules.  Rulings  made  under 
a  similar  legal  system  elsewhere  may  be  cited  and  respected  for 
their  reasons,  but  are  not  necessarily  to  be  accepted  as  guides, 
except  in  so  far  as  those  reasons  commend  themselves  to  the 
judicial  mind.1  Great  Britain  and  the  thirteen  original  States 
had  each  substantially  the  same  system  of  common  law  origi- 
nally, and  a  decision  now  by  one  of  the  higher  courts  of  Great 
Britain  as  to  what  the  common  law  is  upon  any  point  is  cer- 
tainly entitled  to  great  respect  in  any  of  the  States,  though  not 
necessarily  to  be  accepted  as  binding  authority  any  more  than 
the  decisions  in  any  one  of  the  other  States  upon  the  same  point. 
It  gives  us  the  opinions  of  able  judges  as  to  what  the  law  is, 
but  its  force  as  an  authoritative  declaration  must  be  confined 
to  the  country  for  which  the  court  sits  and  judges.  But  an 
English  decision  before  the  Revolution  is  in  the  direct  line  of 
authority ;  and  where  a  particular  statute  or  clause  of  the  con- 
stitution has  been  adopted  in  one  State  from  the  statutes  or 
constitution  of  another,  after  a  judicial  construction  has  been 
given  it  in  such  last-mentioned  State,  it  is  but  just  to  regard 
the  construction  as  having  been  adopted,  as  well  as  the  words; 
and  all  the  mischiefs  of  disregarding  precedents  would  follow  as 
legitimately  here  as  in  any  other  case.2 

it  is  better  to  abide  by  that  determina-  one  given  under  the  law  of  necessity,  in 

tion,  than  to  introduce  uncertainty  into  consequence  of  an  equal  division  of  the 

this  branch  of  the  law,  it  being  often  more  court,  see  Durant  v.  Essex  Co.,  7  Wall, 

important  to  have  the  rule  settled,  than  107 ;   s.  c.  101   U.  S.  555 ;    Hartman  v. 

to  determine  what  it  shall  be.     I  am  not,  Greenhow,  102  U.  S.  672  ;  Morse  v.  Goold, 

however,  convinced  by  the  reasoning  in  UN.   Y.  281;  Lyon  v.  Circuit  Judge,  37 

this  case,  and  if  the  point  were  new   I  Mich.   377 ;    and  the   cases  collected   in 

should  think  otherwise.'    Lord  Mansfield,  Northern  R.  II.  v.  Concord  R.  R.,  50  N.  H. 

in  1  Burr.  419,  says  :  '  Where  solemn  de-  176. 

terminations  acquiesced  under  had  settled        1  Caldwell  v.  Gale,  11  Mich.  77  ;  Koontz 

precise  cases  and  a  rule  of  property,  they  v.  Nabb,  16  Md.  549;  Nelson  v.  Goree,  34 

ought,  for  the  sake  of  certainty,  to  be  ob-  Ala.  665 ;  Jamison  v.  Burton,  43  Iowa, 

served,  as  if  they  had  originally  formed  a  282. 

part  of  the  text  of  the  statute.'  And  Sir  2  Bond  v.  Appleton,  8  Mass.  472  ;  Rut- 
James  Mansfield,  in  4  B.  &  P.  69,  says:  land  v.  Mendon,  1  Pick.  154;  Common- 
'Ido  not  know  how  to  distinguish  this  wealth  v.  Hartnett,  3  Gray,  450;  Turn- 
from  the  case  before  decided  in  the  court,  pike  Co.  v.  People,  9  Barb.  167  ;  Campbell 
It  is  of  greater  consequence  that  the  law  ».  Quinlin,  4  111.  288 ;  Little  v.  Smith, 
should  be  as  uniform  as  possible,  than  5  111.  400 ;  Rigg  v.  Wilton,  13  111.  15 ; 
that  the  equitable  claim  of  an  individual  Tyler  v.  Tyler,  19  111.  151 ;  Fisher  v.  Deer- 
should  be  attended  to.' "  And  see  People  ing,  60  111.  114;  Langdon  v.  Applegate, 
v.  Cicotte,  16  Mich.  283.  6  Ind.  327 ;  Clark  v.  Jeffersonville,  &c. 
How  far  a  judgment  rendered  by  a  R.  R.  Co.,  44  Ind.  248 ;  Fall  v.  Hazelrigg, 
court  concludes,  notwithstanding  it  was  45  Ind.  576;  Ingraham  v.  Regan,  23 


86 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IV. 


It  will  of  course  sometimes  happen  that  a  court  will  find  a 
former  decision  so  unfounded  in  law,  so  unreasonable  in  its 
deductions,  or  so  mischievous  in  its  consequences,  as  to  feel 
compelled  to  disregard  it.  Before  doing  so,  however,  it  will  be 
well  to  consider  whether  the  point  involved  is  such  as  to  have 
become  a  rule  of  property,  so  that  titles  have  been  acquired  in 
reliance  upon  it,  and  vested  rights  will  be  disturbed  by  any 
change ;  for  in  such  a  case  it  may  be  better  that  the  correction 
of  the  error  be  left  to  the  legislature,  which  can  control  its 
action  so  as  to  make  it  prospective  only,  and  thus  prevent  unjust 
consequences.1 


Miss.  213 ;  Adams  v.  Field,  21  Vt.  256 ; 
Drennan  v.  People,  10  Mich.  169;  Daniels 
v.  Clegg,  28  Mich.  32  ;  Harrison  v.  Sager, 
27  Mich.  476  ;  Pangborn  v.  Westlake,  36 
Iowa,  546;  Attorney-General  v.  Brunst, 
3  Wis.  787 ;  Poertner  v.  Russell,  33  Wis. 
193 ;  Myrick  v.  Hasey,  27  Me.  9 ;  People 
v.  Coleman,  4  Cal.  46 ;  Bemis  v.  Becker, 
1  Kan.  226  ;  Walker  v.  Cincinnati,  21  Ohio 
St.  14 ;  Hess  v.  Pegg,  7  Nev.  23 ;  Freeze 
v.  Tripp,  70  111.  496 ;  In  re  Tuller,  79  111. 
99  ;  Ex  parte  Mathews,  52  Ala.  51 ;  Dan- 
ville v.  Pace,  25  Gratt.  1 ;  Bradbury  v. 
Davis,  5  Col.  265.  But  it  does  not  neces- 
sarily follow  that  the  prior  decision 
construing  the  law  must  be  inflexibly  fol- 
lowed, since  the  circumstances  in  the 
State  adopting  it  may  be  so  different  as 
to  require  a  different  construction.  Little 
v.  Smith,  5  111.  400 ;  Lessee  of  Gray  v. 
Askew,  3  Ohio,  466;  Jamison  v.  Burton, 
43  Iowa,  282.  It  has  very  properly  been 
held  that  the  legislature,  by  enacting, 
without  material  alteration,  a  statute 
which  had  been  judicially  expounded  by 
the  highest  court  of  the  State,  must  be 
presumed  to  have  intended  that  the  same 
words  should  be  received  in  the  new  stat- 
ute in  the  sense  which  had  been  attributed 
to  them  in  the  old.  Grace  v.  McElroy, 
1  Allen,  563  ;  Cronan  v.  Getting,  104  Mass. 
245;  Low  v.  Blanchard,  116  Mass.  272. 
It  is  proper  to  accept  and  follow  the  de- 
cisions of  courts  of  another  State  upon 
the  construction  and  validity  of  their 
own  statutes.  Sidwell  v.  Evans,  1  Pen. 
&  W.  383;  s.  c.  21  Am.  Dec.  387;  Bank 
of  Illinois  c.  Sloo,  16  La.  539,  35  Am. 
Dec.  223,  except  when  it  conflicts  with 
the  constitution  of  the  adopting  State. 
Risser  v.  Hoyt,  63  Mich.  185,  18  N.  W. 
611. 


1  "  After  an  erroneous  decision  touch- 
ing rights  of  property  has  been  followed 
thirty  or  forty  years,  and  even  a  much 
less  time,  the  courts  cannot  retrace  their 
steps  without  committing  a  new  error 
nearly  as  great  as  the  one  at  the  first." 
Branson,  J.,  in  Sparrow  v.  Kingman, 
1  N.  Y.  246,  260.  See  also  Emerson  v. 
At  water,  7  Mich.  12;  Rothschild  v.  Grix, 
31  Mich.  150;  Loeb  v.  Mathis,  37  Ind. 
306;  Pond  t;.  Irwin,  113  Ind.  243,  15 
N.  E.  Rep.  272;  Paulson  v.  Portland, 
16  Oreg.  450,  19  Pac.  Rep.  450 ;  Adams 
Co.  v.  Burlington  &  M.  E.  R.  Co.,  65 
Iowa,  94,  2  N.  W.  1054;  Davidson  v. 
Briggs,  61  Iowa,  309,  7  N.  W.  471  ;  State 
v.  Whitworth,  8  Lea,  594.  Where  an 
old  constitution  has  been  construed  by 
the  court,  a  new  court  after  the  adoption 
of  a  new  constitution  will  follow  the  old 
construction  without  regard  to  its  own 
views.  Emery  v.  Reed,  65  Cal.  351, 
4  Pac.  200. 

"  It  is  true  that  when  a  principle  of 
law,  doubtful  in  its  character  or  uncer- 
tain in  the  subject-matter  of  its  appli- 
cation, has  been  settled  by  a  series  of 
judicial  decisions,  and  acquiesced  in  fora 
considerable  time,  and  important  rights 
and  interests  have  become  established 
under  such  decisions,  courts  will  hesitate 
long  before  they  will  attempt  to  overturn 
the  result  so  long  established.  But  when 
it  is  apparently  indifferent  which  of  two 
or  more  rules  is  adopted,  the  one  which 
shall  have  been  adopted  by  judicial  sanc- 
tion will  be  adhered  to,  though  it  may 
not,  at  the  moment,  appear  to  be  the 
preferable  rule.  But  when  a  question 
involving  important  public  or  private 
rights,  extending  through  all  coming 
time,  has  been  passed  upon  on  a  single 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  87 

Whenever  the  case  is  such  that  judicial  decisions  which  have 
been  made  are  to  be  accepted  as  law,  and  followed  by  the  courts 
in  future  cases,  it  is  equally  to  be  expected  that  they  will  be 
followed  by  other  departments  of  the  government  also.  Indeed, 
in  the  great  majority  of  cases,  the  officers  of  other  departments 
have  no  option;  for  the  courts  possess  the  power  to  enforce 
their  construction  of  the  law  as  well  as  to  declare  it;  and  a 
failure  to  accept  and  follow  it  in  one  case  would  only  create  a 
necessity  for  new  litigation  with  similar  result.  Nevertheless, 
there  are  exceptions  to  this  rule  which  embrace  all  those  cases 
where  new  action  is  asked  of  another  department,  which  that 
department  is  at  liberty  to  grant  or  refuse  for  any  reasons  which 
it  may  regard  as  sufficient.  We  cannot  conceive  that,  because 
the  courts  have  declared  an  expiring  corporation  to  have  been 
constitutionally  created,  the  legislature  would  be  bound  to  renew 
its  charter,  or  the  executive  to  sign  an  act  for  that  purpose,  if 
doubtful  of  the  constitutional  authority,  even  though  no  other 
adverse  reasons  existed.1  In  the  enactment  of  laws  the  legisla- 
ture must  act  upon  its  own  reasons;  mixed  motives  of  power, 
justice,  and  policy  influence  its  action;  and  it  is  always  justifi- 
able and  laudable  to  lean  against  a  violation  of  the  constitution. 
Indeed,  cases  must  sometimes  occur  when  a  court  should  refrain 
from  declaring  a  statute  unconstitutional,  because  not  clearly 
satisfied  that  it  is  so,  though,  if  the  judges  were  to  act  as  legis- 
lators upon  the  question  of  its  enactment,  they  ought  with  the 

occasion,  and  which  decision  can  in  no  Owen,  43  Texas,  41,  48 ;  Ram  on  Legal 
just  sense  be  said  to  have  been  acqui-  Judgment,  c.  14,  §  3.  "Common  error" 
esced  in,  it  is  not  only  the  right,  but  the  does  not  make  law  until  sanctioned  by  a  su- 
duty,  of  the  court,  when  properly  called  perior  tribunal,  and  subsequently  treated 
upon,  to  re-examine  the  questions  in-  as  law  in  business  affairs.  Ocean  Beach 
volved,  and  again  subject  them  to  ju-  Ass.  v.  Brinley,  34  N.  J.  Eq.  438. 
dicial  scrutiny.  We  are  by  no  means  *  In  the  celebrated  case  of  the  appli- 
unmindful  of  the  salutary  tendency  of  cation  of  the  Bank  of  the  United  States 
the  rule  stare  decisis,  but  at  the  same  for  a  new  chapter,  President  Jackson  felt 
time  we  cannot  be  unmindful  of  the  les-  himself  at  liberty  to  act  upon  his  own 
sons  furnished  by  our  own  consciousness,  view  of  constitutional  power,  in  opposi- 
as  well  as  by  judicial  history,  of  the  lia-  tion  to  that  previously  declared  by  the 
bility  to  error  and  the  advantages  of  Supreme  Court,  and  President  Lincoln 
review."  Per  Smith,  J.,  Pratt  v.  Brown,  expressed  similar  views  regarding  the 
3  Wis.  603, 609.  And  see  Kneeland  v.  Mil-  conclusiveness  of  the  Dred  Scott  decision 
waukee,  15  Wis.  454 ;  Taylor  v.  French,  upon  executive  and  legislative  action. 
19  Vt.  49;  Bellows  v.  Parsons,  13  N.  H.  See  Story  on  Const.  (4th  ed.)  §  375, note. 
256;  Hannel  v.  Smith,  15  Ohio,  134  ;  Day  It  is  notorious  that  while  the  reconstruc- 
ts. Munson,  14  Ohio  St.  488;  Green  Cas-  tion  of  States  was  going  on,  after  the  late 
tie,  &c.  Co.  v  State,  28  Ind.  382  ;  Harrow  Civil  War,  Congress  took  especial  pains  in 
v.  Myers,  29  Ind.  469  ;  Paul  v.  Davis,  some  cases  to  so  shape  its  legislation  that 
100  Ind.  422  ;  Burks  v.  Hinton,  77  Va.  the  Federal  Supreme  Court  should  have 
1 ;  Mead  v.  McGraw,  19  Ohio  St.  55 ;  no  opportunity  to  question  and  deny  its 
Linn  v.  Minor,  4  Nev.  462 ;  Willis  v.  validity. 


88  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

same  views  to  withhold  their  assent,  from  grave  doubts  upon 
that  subject.  The  duty  is  different  in  the  two  cases,  and  pre- 
sumptions may  control  in  one  which  do  not  exist  in  the  other.1 
But  those  cases  where  new  legislation  is  sought  stand  by  them- 
selves, and  are  not  precedents  for  those  which  involve  only 
considerations  concerning  the  constitutional  validity  of  existing 
enactments.  The  general  acceptance  of  judicial  decisions  as 
authoritative,  by  each  and  all,  can  alone  prevent  confusion, 
doubt,  and  uncertainty,  and  any  other  course  is  incompatible 
with  a  true  government  of  law. 

Construction  to  be  Uniform. 

A  cardinal  rule  in  dealing  with  written  instruments  is  that 
they  are  to  receive  an  unvarying  interpretation,  and  that  their 
practical  construction  is  to  be  uniform.  A  constitution  is  not 
to  be  made  to  mean  one  thing  at  one  time,  and  another  at  some 
subsequent  time  when  the  circumstances  may  have  so  changed 
as  perhaps  to  make  a  different  rule  in  the  case  seern  desirable. 
A  principal  share  of  the  benefit  expected  from  written  constitu- 
tions would  be  lost  if  the  rules  they  established  were  so  flexible 
as  to  bend  to  circumstances  or  be  modified  by  public  opinion. 
It  is  with  special  reference  to  the  varying  moods  of  public  opin- 
ion, and  with  a  view  to  putting  the  fundamentals  of  government 
beyond  their  control,  that  these  instruments  are  framed;  and 
there  can  be  no  such  steady  and  imperceptible  change  in  their 
rules  as  inheres  in  the  principles  of  the  common  law.  Those 
beneficent  maxims  of  the  common  law  which  guard  person  and 
property  have  grown  and  expanded  until  they  mean  vastly  more 
to  us  than  they  did  to  our  ancestors,  and  are  more  minute, 
particular,  and  pervading  in  their  protections;  and  we  may  con- 
fidently look  forward  in  the  future  to  still  further  modifications 
in  the  direction  of  improvement.  Public  sentiment  and  action 
effect  such  changes,  and  the  courts  recognize  them;  but  a  court 
or  legislature  which  should  allow  a  change  in  public  sentiment 
to  influence  it  in  giving  to  a  written  constitution  a  construction 
not  warranted  by  the  intention  of  its  founders,  would  be  justly 
chargeable  with  reckless  disregard  of  official  oath  and  public 
duty ;  and  if  its  course  could  become  a  precedent,  these  instru- 

1  A  constitution  forbade  the  pnyment  after  its  completion  bad  been  declared 

of  any  claim  arising  against    the    State  unconstitutional;  that  the  word  "law" 

under  any  agreement   made  without  an-  did  not  necessarily  mean  a  constitutional 

thority  of  law.     It  was  held  that  this  did  law.     Miller  v.  Dunn,   72   Cal.   462,   14 

not  prevent  the  legislature  from  award-  Pac.  27. 
ing  pay  for  work  done  under  an  act  which 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  89 

ments  would  be  of  little  avail.  The  violence  of  public  passion 
is  quite  as  likely  to  be  in  the  direction  of  oppression  as  in  any 
other;  and  the  necessity  for  bills  of  rights  in  our  fundamental 
laws  lies  mainly  in  the  danger  that  the  legislature  will  be 
influenced,  by  temporary  excitements  and  passions  among  the 
people,  to  adopt  oppressive  enactments.  What  a  court  is  to  do, 
therefore,  is  to  declare  the  law  as  written,  leaving  it  to  the  people 
themselves  to  make  such  changes  as  new  circumstances  may 
require.1  The  meaning  of  the  constitution  is  fixed  when  it  is 
adopted,  and  it  is  not  different  at  any  subsequent  time  when  a 
court  has  occasion  to  pass  upon  it.2 

The  Intent  to  Govern. 

The  object  of  construction,  as  applied  to  a  written  constitu- 
tion, is  to  give  effect  to  the  intent  of  the  people  in  adopting  it.  In 
the  case  of  all  written  laws,  it  is  the  intent  of  the  lawgiver  that 
is  to  be  enforced.  But  this  intent  is  to  be  found  in  the  instru- 
ment itself.  It  is  to  be  presumed  that  language  has  been 
employed  with  sufficient  precision  to  convey  it,  and  unless 
examination  demonstrates  that  the  presumption  does  not  hold 
good  in  the  particular  case,  nothing  will  remain  except  to 
enforce  it.  "  Where  a  law  is  plain  and  unambiguous,  whether 
it  be  expressed  in  general  or  limited  terms,  the  legislature 
should  be  intended  to  mean  what  they  have  plainly  expressed, 
and  consequently  no  room  is  left  for  construction."3  Possible 

1  People   v.   Morrell,   21   Wend.  563  ;  Heirs  of  Ludlow  v.  Johnson,  3  Ohio,  553; 
Newell  v.  People,  7  N.  Y.  9;    Hyatt  v.  District  Township  v.  Dubuque,  7  Iowa, 
Taylor,  42  N.  Y.  258;   Slack  v.  Jacobs,  8  262;  Pattison  v.  Yuba,  13  Cal.  175;  Eze- 
W.  Va.  612,  650.  kiel  v.   Dixon,  3  Ga.  146;  In  re  Murphy, 

2  Campbell,  J.,  in  People  v.  Blodgett,  23  N.  J.  180 ;  Attorney-General  ?-.  Detroit 
13  Mich.  127,  138;    Scott  v.  Sandford,  19  &  Erin  P.  R.  Co.,  2  Mich.   138;    Smith 
How.  393.  v.  Thursby,  28  Md.  244 ;  State  v.  Blasdel, 

8  United  States  v.  Fisher,  2  Cranch,  4  Nev.  241 ;  State  v.  Doron,  5  Nev.  399; 

358;  Bosley  v.  Mattingley,  14  B.  Monr.  Hyatt  r.  Taylor,  42  N.  Y.  268;  Johnson 

89;  Sturgis  v.  Crowninshield,  4  Wheat,  v.    Hudson    R.    R.   Co.,  49   N.   Y.   456; 

122 ;  Schooner  Paulina's  Cargo  v.  United  Beardstown  v.  Virginia,  76  111.  34 ;   St. 

States,  7  Cranch,  52 ;  Ogden  v.  Strong,  2  Louis,  &c.  R.  R.  Co.  v.  Clark,  53  Mo.  214  ; 

Paine,  C.  C.  584 ;  United  States  v.  Rags-  Mundt  v.  Sheboygan,  &c.  R.  R.  Co.,  31 

dale,  1   Hemp.  497;  Southwark  Bank  v.  Wis.  41;  Slack  v.  Jacob,  8  W.  Va.  612; 

Commonwealth,  26  Penn.  St  446;  Ingalls  Hawbecker  v.  Hawbecker,  43  Md.  516; 

».  Cole,  47  Me.  630;  McCluskey  v.  Crom-  Ex  par (t  Mayor  of  Florence,  78  Ala.  419. 

well.  11  N  Y.  593;  Furman  v.  New  York,  The  remarks  of  Mr.  Justice  Branson  in 

6  Sandf .  16  ;  Newell  v.  People,  7  N.  Y.  9 ;  People  v.  Purdy,  2  Hill,  35,  are  very  forci- 

People  v.  N.  Y.  Central  R.  R.  Co.,  24  N.  Y.  ble  in  sltowing  the  impolicy  and  danger 

485;  Bidwell  v  Whittaker,  1  Mich.  469;  of  looking  beyond  the  instrument  itself 

Alexander   v.  Worthington,  6   Md.  471 ;  to  ascertain  its  meaning,  when  the  terms 

Cantwell  v.  Owens,  14  Md.  215 ;  Case  v.  employed  are  positive  and  free  from  all 

Wildridge,  4  Ind.  51 ;  Spencer  v.  State,  ambiguity.     "  It  is  said  that  the  Consti- 

6  Ind.  41 ;  Pitman  v.  Flint,  10  Pick.  604 ;  tution  does  not  extend  to  public  corpora- 


90 


COXSTITUTIOXAL   LIMITATIONS. 


[CH.  IV. 


or  even  probable  meanings,  when  one  is  plainly  declared  in  the 


tions,  and  therefore  a  majority  vote  was 
sufficient.  I  do  not  so  read  the  Consti- 
tution. The  language  of  the  clause  is : 
'  The  assent  of  two-thirds  of  the  mem- 
bers elected  to  each  branch  of  the  legis- 
lature shall  be  requisite  to  every  bill  creat- 
ing, continuing,  altering,  or  renewing  any 
body  politic  or  corporate.'  These  words 
are  as  broad  in  their  signification  as  any 
which  could  have  been  selected  for  the 
occasion  from  our  vocabulary,  and  there 
is  not  a  syllable  in  the  whole  instrument 
tending  in  the  slightest  degree  to  limit  or 
qualify  the  universality  of  the  language. 
If  the  clause  can  be  so  construed  that  it 
shall  not  extend  alike  to  all  corporations, 
whether  public  or  private,  it  may  then,  I 
think,  be  set  down  as  an  established  fact 
that  the  English  language  is  too  poor  for 
the  framing  of  fundamental  laws  which 
shall  limit  the  powers  of  the  legislative 
branch  of  the  government.  No  one  has, 
I  believe,  pretended  that  the  Constitution, 
looking  at  that  alone,  can  be  restricted  to 
any  particular  class  or  description  of  cor- 
porations. But  it  is  said  that  we  may 
look  beyond  the  instrument  for  the  pur- 
pose of  ascertaining  the  mischief  against 
which  the  clause  was  directed,  and  thus 
restrict  its  operation.  But  who  shall  tell 
us  what  that  mischief  was  1  Although 
most  men  in  public  life  are  old  enough  to 
remember  the  time  when  the  Constitution 
was  framed  and  adopted,  they  are  not 
agreed  concerning  the  particular  evils 
against  which  this  clause  was  directed. 
Some  suppose  the  clause  was  intended  to 
guard  against  legislative  corruption,  and 
others  that  it  was  aimed  at  monopolies. 
Some  are  of  opinion  that  it  only  extends 
to  private  without  touching  public  cor- 
porations, while  others  suppose  that  it 
only  restricts  the  power  of  the  legislature 
when  creating  a  single  corporation,  and 
not  when  they  are  made  by  the  hundred. 
In  this  way  a  solemn  instrument — for  so 
I  think  the  Constitution  should  be  con- 
sidered —  is  made  to  mean  one  thing 
by  one  man  and  something  else  by  an- 
other, until,  in  the  end,  it  is  in  danger  of 
being  rendered  a  mere  dead  letter ;  and 
that,  too,  where  the  language  is  so  plain 
and  explicit  that  it  is  impossible  to  mean 
more  than  one  thing,  unless  we  first  lose 
sight  of  the  instrument  itself,  and  allow 
ourselves  to  roam  at  large  in  the  bound- 


less fields  of  speculation.  For  one,  I  dare 
not  venture  upon  such  a  course.  Written 
constitutions  of  government  will  soon 
come  to  be  regarded  as  of  little  value  if 
their  injunctions  may  be  thus  lightly  over- 
looked ;  and  the  experiment  of  setting  a 
boundary  to  power  will  prove  a  failure. 
We  are  not  at  liberty  to  presume  that 
the  framers  of  the  Constitution,  or  the 
people  who  adopted  it,  did  not  under- 
stand the  force  of  language."  See  also 
same  case,  4  Hill,  384,  and  State  v.  King, 
44  Mo.  285.  Another  court  has  said  : 
"  This  power  of  construction  in  courts  is 
a  mighty  one,  and,  unrestrained  by  set- 
tled rules,  would  tend  to  throw  a  painful 
uncertainty  over  the  effect  that  might  be 
given  to  the  most  plainly  worded  statutes, 
and  render  courts,  in  reality,  the  legisla- 
tive power  of  the  State.  Instances  are 
not  wanting  to  confirm  this.  Judge-made 
law  has  overrode  the  legislative  depart- 
ment. It  was  the  boast  of  Chief  Justice 
Pemberton,  one  of  the  judges  of  the  despot 
Charles  II.,  and  not  the  worst  even  of 
those  times,  that  he  had  entirely  outdone 
the  Parliament  in  making  law.  We  think 
that  system  of  jurisprudence  best  and 
safest  which  controls  most  by  fixed  rules, 
and  leaves  least  to  the  discretion  of  the 
judge ;  a  doctrine  constituting  one  of  the 
points  of  superiority  in  the  common  law 
over  that  system  which  has  been  admin- 
istered in  France,  where  authorities  had 
no  force,  and  the  law  of  each  case  was 
what  the  judge  of  the  case  saw  fit  to 
make  it.  We  admit  that  the  exercise 
of  an  unlimited  discretion  may,  in  a  par- 
ticular instance,  be  attended  with  a  salu- 
tary result;  still  history  informs  us  that 
it  has  often  been  the  case  that  the  arbi- 
trary discretion  of  a  judge  was  the  law  of 
a  tyrant,  and  warns  us  that  it  may  be  so 
again."  Perkins,  J.,  in  Spencer  v.  State, 
6  Ind.  41,  46.  "  Judge-made  law,"  as  the 
phrase  is  here  employed,  is  that  made  by 
judicial  decisions  which  construe  away 
the  meaning  of  statutes,  or  find  meanings 
in  them  the  legislature  never  held.  The 
phrase  is  sometimes  used  as  meaning, 
simply,  the  law  that  becomes  established 
by  precedent.  The  uses  and  necessity  of 
judicial  legislation  are  considered  and  ex- 
plained at  length  by  Mr.  Austin,  in  his 
Province  of  Jurisprudence. 


CH.  IV.]  CONSTRUCTION    OF   STATE   CONSTITUTIONS.  91 

instrument  itself,  the  courts  are  not   at   liberty  to   search   for 
elsewhere. 

"  Whether  we  are  considering  an  agreement  between  parties, 
a  statute,  or  a  constitution,  with  a  view  to  its  interpretation, 
the  thing  which  we  are  to  seek  is  the  thought  which  it  expresses. 
To  ascertain  this,  the  first  resort  in  all  cases  is  to  the  natural 
signification  of  the  words  employed,  in  the  order  of  grammatical 
arrangement  in  which  the  framers  of  the  instrument  have  placed 
them.  If,  thus  regarded,  the  words  embody  a  definite  meaning, 
which  involves  no  absurdity  and  no  contradiction  between  dif- 
ferent parts  of  the  same  writing,  then  that  meaning,  apparent 
on  the  face  of  the  instrument,  is  the  one  which  alone  we  are  at 
liberty  to  say  was  intended  to  be  conveyed.  In  such  a  case  there 
is  no  room  for  construction.  That  which  the  words  declare  is 
the  meaning  of  the  instrument,  and  neither  courts  nor  legisla- 
tures have  a  right  to  add  to  or  take  away  from  that  meaning." 1 

The  Whole  Instrument  to  be  examined. 

Nor  is  it  lightly  to  be  inferred  that  any  portion  of  a  written 
law  is  so  ambiguous  as  to  require  extrinsic  aid  in  its  construc- 
tion. Every  such  instrument  is  adopted  as  a  whole,  and  a 
clause  which,  standing 'by  itself,  might  seem  of  doubtful  import, 
may  yet  be  made  plain  by  comparison  with  other  clauses  or 
portions  of  the  same  law.  It  is  therefore  a  very  proper  rule 
of  construction,  that  the  whole  is  to  be  examined  with  a  view  to 
arriving  at  the  true  intention  of  each  part ;  and  this  Sir  Edward 
Coke  regards  as  the  most  natural  and  genuine  method  of  ex- 
pounding a  statute.2  If  any  section  of  a  law  be  intricate, 
obscure,  or  doubtful,  the  proper  mode  of  discovering  its  true 
meaning  is  by  comparing  it  with  the  other  sections,  and  finding 
out  the  sense  of  one  clause  by  the  words  or  obvious  intent  of 
another.3  And  in  making  this  comparison  it  is  not  to  be  sup- 
posed that  any  words  have  been  employed  without  occasion,  or 
without  intent  that  they  should  have  effect  as  part  of  the  law. 
The  rule  applicable  here  is,  that  effect  is  to  be  given,  if  possible, 

i  Newell  v.  People,  7  N.  Y.  9,  97,  per  Freeholders,  &c.,  38  N.  J.  214;   Gold  v. 

Johnson,  J. ;  Chesapeake,  &c.   Ry.  Co.  v.  Fite,  2  Bax.  237 ;  State  v.  Gammon,  73 

Miller,  19  W.  Va.  409.     And  see  Denn  v.  Mo.  421 ;  Broom's  Maxims  (5th  Am.  ed.), 

Reid,  10  Pet.  524 ;  Greencastle  Township  551,  marg. 
r.  Black,  5  Ind.  566  ;  Bartlett  v.  Morris,  9          2  Co.  Lit.  381  a. 

Port.  266;  Leonard  v.  Wiseman,  31  Md.          8  Stowell  v.  Lord  Zouch,  Plowd.  365; 

201,  per  Bartol,  Cli.  J. ;  Way  v.  Way,  64  Chance  v.  Marion   County,   64   111.  66 ; 

111.  406;  McAdoo  v.  Benbow,  63  N.   C.  Dyer  v.  Bayne,    54    Md.  87;    Broom's 

461;    Hawkins  v.  Carrol,  50  Miss.  735;  Maxims,  621. 
Cearfoss  v.  State,  42  Md.  403;  Douglas  v. 


92  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

to  the  whole  instrument,  and  to  every  section  and  clause.  If 
different  portions  seem  to  conflict,  the  courts  must  harmonize 
them,  if  practicable,  and  must  lean  in  favor  of  a  construction 
which  will  render  every  word  operative,  rather  than  one  which 
may  make  some  words  idle  and  nugatory.1 

This  rule  is  applicable  with  special  force  to  written  constitu- 
tions, in  which  the  people  will  be  presumed  to  have  expressed 
themselves  in  careful  and  measured  terms,  corresponding  with 
the  immense  importance  of  the  powers  delegated,  leaving  as 
little  as  possible  to  implication.2  It  is  scarcely  conceivable 
that  a  case  can  arise  where  a  court  would  be  justified  in  declar- 
ing any  portion  of  a  written  constitution  nugatory  because  of 
ambiguity.  One  part  may  qualify  another  so  as  to  restrict  its 
operation,  or  apply  it  otherwise  than  the  natural  construction 
would  require  if  it  stood  by  itself;  but  one  part  is  not  to  be 
allowed  to  defeat  another,  if  by  any  reasonable  construction  the 
two  can  be  made  to  stand  together.3 

In  interpreting  clauses  we  must  presume  that  words  have  been 
employed  in  their  natural  and  ordinary  meaning.  As  Marshall, 
Ch.  J.,  says:  The  framers  of  the  constitution,  and  the  people 
who  adopted  it,  "must  be  understood  to  have  employed  words  in 
their  natural  sense,  and  to  have  intended  what  they  have  said. "  4 

1  Attorney-General  v.  Detroit  &  Erin  general  rule  in  the  construction  of  writ- 
Plank  Road  Co.,  2  Mich.  1-38;  People  v.  ings,  that,  a  general  intent  appearing,  it 
Burns,  5  Mich.  114;  District  Township  shall  control  the  particular  intent;  but 
v.  Dubuque,  7  Iowa,  262;  Manly  v.  State,  this  rule  must  sometimes  give  way,  and 
7  Md.  135;  Parkinson  v.  State,  14  Md.  effect  must  be  given  to  a  particular  in- 
184 ;  Belleville  Railroad  Co.  v.  Gregory,  tent  plainly  expressed  in  one  part  of  a 
15111.20;  Ogden  v.  Strong,  2  Paine,  C.  C.  constitution,  though  apparently  opposed 
584;  Ryegate  v.  Wardsboro,  30  Vt.  746;  to  a  general  intent  deduced  from  other 
Brooks  v.  Mobile  School  Commissioners,  parts.  Warren  v.  Shuman,  5  Tex.  441. 
31  Ala.  227 ;  Den  v.  Dubois,  16  N.  J.  285;  In  Quick  v.  Whitewater  Township,  7  Ind. 
Den  r.  Schenck,  8  N.  J.  29;  Bigelow  v.  670,  it  was  said  that  if  two  provisions  of 
W.  Wisconsin  R.  R.,  27  Wis.  478;  Gas  a  written  constitution  are  irreconcilably 
Company  v.  Wheeling,  8  W.  Va.  320;  repugnant,  that  which  is  last  in  order  of 
Parker  v.  Savage,  6  Lea,  406 ;  Crawfords-  time  and  in  local  position  is  to  be  pre- 
ville,  &c.  Co.  v.  Fletcher,  104  Ind.  97,  2  ferred.  In  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
N.  E.  243.  See  Sams  v.  King,  18  Fla.  Rambolt,  67  Tex.  654,  4  S.  W.  356,  this 
557.  £That  the  title  may  be  considered  rule  was  recognized  as  a  last  resort,  but 
in  order  to  throw  light  upon  an  other-  if  the  last  provision  is  more  comprehen- 
wise  obscure  provision,  see  Knowlton  v.  sive  and  specific,  it  was  held  that  it 
Moore,  178  U.  S.  41,  20  Sup.  Ct.  Rep.  should  be  given  effect  on  that  ground. 
747.  See  also  People  v.  McElroy,  72  The  rule  applies  to  constitutions  that 
Mich.  446,  40  N.  W.  750,  2  L.  R.  A.  609,  a  later  amendment  operates  to  repeal  an 
and  note.]  earlier  provision  inconsistent  with  it. 

a  Wolcott  v.  Wigton,  7  Ind.  44 ;  People  People  v.  Angle,  109  N.  Y.  664,  17  N.  E. 

v.   Purdy,   2    Hill,   31,   per   Bronson,   J. ;  413. 

Greencastle  Township  v.  Black,  5  Ind.          *  Gibbons  r.  Ogden,  9  Wheat.  1,  188. 

657 ;  Green  v.  Weller,  32  Miss.  650.  See  Settle  v.  Van  Evrea,  49  N.  Y.  281 ; 

8  People  v.  Wright,  6  Col.  92.    It  is  a  Jenkins  v.  Ewin,  8  Heisk.  456 ;  Way  v. 


CH,  IV.] 


CONSTRUCTION   OF   STATE    CONSTITUTIONS. 


93 


This  is  but  saying  that  no  forced  or  unnatural  construction  is 
to  be  put  upon  their  language ;  and  it  seems  so  obvious  a  truism 
that  one  expects  to  see  it  universally  accepted  without  question; 
but  the  attempt  is  made  so  often  by  interested  subtlety  and 
ingenious  refinement  to  induce  the  courts  to  force  from  these 
instruments  a  meaning  which  their  frarners  never  held,  that  it 
frequently  becomes  necessary  to  re-declare  this  fundamental 
maxim.1  Narrow  and  technical  reasoning  is  misplaced  when 
it  is  brought  to  bear  upon  an  instrument  framed  by  the  people 
themselves,  for  themselves,  and  designed  as  a  chart  upon  which 
every  man,  learned  and  unlearned,  may  be  able  to  trace  the 
leading  principles  of  government. 

But  it  must  not  be  forgotten,  in  construing  our  constitutions, 
that  in  many  particulars  they  are  but  the  legitimate  successors 
of  the  great  charters  of  English  liberty,  whose  provisions 
declaratory  of  the  rights  of  the  subject  have  acquired  a  well- 
understood  meaning,  which  the  people  must  be  supposed  to  have 
had  in  view  in  adopting  them.  We  cannot  understand  these 


Way,  64  111.  406;  Stuart  v.  Hamilton,  66 
111.  253;  Hale  v.  Everett,  53  N.  H.  9; 
State  v.  Brewster,  42  N.  J.  125 ;  Carpenter 
v.  People,  8  Col.  116,  5  Pac.  828. 

1  State  v.  Mace,  5  Md.  337 ;  Manly  v. 
State,  7  Md.  135  ;  Green  v.  Weller,  32 
Miss.  650 ;  Greencastle  Township  v. 
Black,  5  Ind.  566;  People  v.  N.  Y.  Cen- 
tral Railroad  Co.,  34  Barb.  123,  and  24 
N.  Y.  485;  Story  on  Const.  §  453.  "  The 
true  sense  in  which  words  are  used  in  a 
statute  is  to  be  ascertained  generally  by 
taking  them  in  their  ordinary  and  popu- 
lar signification,  or,  if  they  be  terms  of 
art,  in  their  technical  signification.  But 
it  is  also  a  cardinal  rule  of  exposition, 
that  the  intention  is  to  be  deduced  from 
the  whole  and  every  part  of  the  statute, 
taken  and  compared  together,  from  the 
words  of  the  context,  and  such  a  con- 
struction adopted  as  will  best  effectuate 
the  intention  of  the  lawgiver.  One  part 
is  referred  to  in  order  to  help  the  con- 
struction of  another,  and  the  intent  of 
the  legislature  is  not  to  be  collected  from 
any  particular  expression,  but  from  a 
general  view  of  the  whole  act.  Dwarris, 
658,  698,  702,  703.  And  when  it  appears 
that  the  framers  have  used  a  word  in  a 
particular  sense  generally  in  the  act,  it 
will  be  presumed  that  it  was  intended  to 
be  used  in  the  same  sense  throughout 
the  act,  unless  an  intention  to  give  it  a 


different  signification  plainly  appears  in 
the  particular  part  of  the  act  alleged  to  be 
an  exception  to  the  general  meaning  indi- 
cated. Dwarris,  704  et  seq.  When  words 
are  used  to  which  the  legislature  has 
given  a  plain  and  definite  import  in  the 
act,  it  would  be  dangerous  to  put  upon 
them  a  construction  which  would  amount 
to  holding  that  the  legislature  did  not 
mean  what  it  has  expressed.  It  follows 
from  these  principles  that  the  statute 
itself  furnishes  the  best  means  of  its  own 
exposition;  and  if  the  sense  in  which 
words  were  intended  to  be  used  can  be 
clearly  ascertained  from  all  its  parts  and 
provisions,  the  intention  thus  indicated 
shall  prevail,  without  resorting  to  other 
means  of  aiding  in  the  construction.  And 
these  familiar  rules  of  construction  apply 
with  at  least  as  much  force  to  the  con- 
struction of  written  constitutions  as  to 
statutes ;  the  former  being  presumed  to 
be  framed  with  much  greater  care  and 
consideration  than  the  latter."  Green  v. 
Weller,  32  Miss.  650,  678.  Words  re- 
enacted  after  they  have  acquired  a  set- 
tled meaning  will  be  understood  in  that" 
meaning.  Fulmer  v.  Commonwealth,  97 
Penn.  St.  503.  The  argument  ab  incon- 
venienti  cannot  be  suffered  to  influence 
the  courts  by  construction  to  prevent 
the  evident  intention.  Chance  v.  Marion 
County,  64  111.  66. 


94  CONSTITUTIONAL    LIMITATIONS.  [CH.    IV. 

provisions  unless  we  understand  their  history;  and  when  we 
find  them  expressed  in  technical  words,  and  words  of  art,  we 
must  suppose  these  words  to  be  employed  in  their  technical 
sense.  When  the  Constitution  speaks  of  an  ex  post  facto  law, 
it  means  a  law  technically  known  by  that  designation;  the 
meaning  of  the  phrase  having  become  defined  in  the  history  of 
constitutional  law,  and  being  so  familiar  to  the  people  that  it  is 
not  necessary  to  employ  language  of  a  more  popular  character  to 
designate  it.  The  technical  sense  in  these  cases  is  the  sense 
popularly  understood,  because  that  is  the  sense  fixed  upon  the 
words  in  legal  and  constitutional  history  where  they  have  been 
employed  for  the  protection  of  popular  rights.1 

The  Common  Law  to  be  kept  in  View. 

It  is  also  a  very  reasonable  rule  that  a  State  constitution  shall 
be  understood  and  construed  in  the  light  and  by  the  assistance 
of  the  common  law,  and  with  the  fact  in  view  that  its  rules  are 
still  left  in  force.  By  this  we  do  not  mean  that  the  common 
law  is  to  control  the  constitution,  or  that  the  latter  is  to  be 
warped  and  perverted  in  its  meaning  in  order  that  no  inroads, 
or  as  few  as  possible,  may  be  made  in  the  system  of  common- 
law  rules,  but  only  that  for  its  definitions  we  are  to  draw  from 
that  great  fountain,  and  that  in  judging  what  it  means,  we  are 
to  keep  in  mind  that  it  is  not  the  beginning  of  law  for  the  State, 
but  that  it  assumes  the  existence  of  a  well-understood  system 
which  is  still  to  remain  in  force  and  be  administered,  but  under 

1  See  Jenkins  v.  Ewin,  8  Heisk.  476.  Kent,  of  which  the  thirteen  provinces 
It  is  quite  possible,  however,  in  applying  were  a  part  and  parcel ;  for  in  their  char- 
constitutional  maxims,  to  overlook  en-  ters  they  were  to  hold  of  the  manor  of 
tirely  the  reason  upon  which  they  rest,  Greenwich  in  Kent,  of  which  manor  they 
and  "  considering  merely  the  letter,  go  were  by  charter  to  be  parcel !  The  opin- 
but  skin  deep  into  the  meaning."  On  the  ion,  it  is  said,  "  raised  a  very  loud  laugh," 
great  debate  on  the  motion  for  withdraw-  but  Sir  James  continued  to  support  it, 
ing  the  confidence  of  Parliament  from  and  concluded  by  declaring  that  he  would 
the  ministers,  after  the  surrender  of  Corn-  give  the  motion  a  hearty  negative.  Thus 
wallis,  —  a  debate  which  called  out  the  would  he  have  settled  a  great  principle  of 
best  abilities  of  Fox  and  Pitt  as  well  as  constitutional  right,  for  which  a  seven 
of  the  ministry,  and  necessarily  led  to  the  years'  bloody  war  had  been  waged,  by 
discussion  of  the  primary  principle  in  putting  it  in  the  form  of  a  meaningless 
free  government,  that  taxation  and  repre-  legal  fiction.  Hansard's  Debates,  Vol. 
sentation  shall  go  together,  —  Sir  James  XXII.  p.  1184.  Lord  Mahon,  following 
Mariott  rose,  and  with  great  gravity  pro-  Lord  Campbell,  refers  the  origin  of  this 
ceedecl  to  say,  that  if  taxation  and  repre-  wonderful  argument  to  Mr.  Hardinge,  a 
sentation  were  to  go  hand  in  hand,  then  Welsh  judge,  and  nephew  of  Lord  Cam- 
Britain  had  an  undoubted  right  to  tax  den;  7  Mahon's  Hist.  139.  He  was  said 
America,  because  she  was  represented  in  to  have  been  a  good  lawyer,  but  must 
the  British  Parliament.  She  was  repre-  have  read  the  history  of  his  country  to 
eented  by  the  members  for  the  county  of  little  purpose. 


CH.  IV.] 


CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


95 


such  limitations  and  restrictions  as  that  instrument  imposes.1 
It  is  a  maxim  with  the  courts  that  statutes  in  derogation  of  the 
common  law  shall  be  construed  strictly,2  —  a  maxim  which  we 
fear  is  sometimes  perverted  to  the  overthrow  of  the  legislative 
intent;  but  there  can  seldom  be  either  propriety  or  safety  in 
applying  this  maxim  to.  constitutions.  When  these  instruments 
assume  to  make  any  change  in  the  common  law,  the  change 
designed  is  generally  a  radical  one ;  but  as  they  do  not  go 
minutely  into  particulars,  as  do  statutes,  it  will  sometimes  be 
easy  to  defeat  a  provision,  if  courts  are  at  liberty  to  say  that 
they  will  presume  against  any  intention  to  alter  the  common 
law  further  than  is  expressly  declared.  A  reasonable  construc- 
tion is  what  such  an  instrument  demands  and  should  receive; 
and  the  real  question  is,  what  the  people  meant,  and  not  how 
meaningless  their  words  can  be  made  by  the  application  of 
arbitrary  rules.3 

As  a  general  thing,  it  is  to  be  supposed  that  the  same  word 
is  used  in  the  same  sense  wherever  it  occurs  in  a  constitution.4 


1  State  v.  Noble,  118  Ind.  350,  21  N.  E. 
Kep.  244. 

2  Broom's  Maxims,  33;  Sedg.  on  Stat. 
&    Const.    Law,   313.      See   Harrison   v. 
Leach,  4  W.  Va.  383. 

3  Under  a  clause  of  the  constitution 
of  Michigan  which  provided  that  "  the 
real  and  personal  estate  of  every  female 
acquired  before  marriage,  and  all  property 
to  which  she  may  afterwards  become  en- 
titled, by  gift,  grant,  inheritance,  or  de- 
vise, shall  be  and  remain  the  estate  and 
property  of  such  female,  and  shall  not  be 
liable  for  the  debts,  obligations,   or  en- 
gagements of  her  husband,  and  may  be 
devised  or  bequeathed  by  her  as  if  she 
were  unmarried,"  it  was  held  that  a  mar- 
ried woman  could  not  sell  her  personal 
property  without  the  consent  of  her  hus- 
band, inasmuch  as  the  power  to  do  so  was 
not  expressly  conferred,  and  the  clause, 
being  in  derogation  of  the  common  law, 
was  not  to  be  extended  by  construction. 
Brown  v.  Fifield,  4  Mich.  322.     The  dan- 
ger  of   applying  arbitrary  rules    in   the 
construction  of  constitutional  principles 
might  well,  as  it  seems  to  us,  be  illus- 
trated by   this  case.     For  while  on  the 
one  hand  it  might  be  contended  that,  as  a 
provision  in  derogation  of  the  common 
law,    the   one   quoted   should   receive   a 
strict  construction,  on  the  other  hand  it 
might  be  insisted  with  perhaps  equal  rea- 


son that,  as  a  remedial  provision,  in 
furtherance  of  natural  right  and  justice, 
it  should  be  liberally  construed,  to  effect 
the  beneficial  purpose  had  in  view.  Thus 
arbitrary  rules,  of  directly  opposite  ten- 
dency and  force,  would  be  contending  for 
the  mastery  in  the  same  case.  The  sub- 
sequent decisions  under  the  same  provi- 
sion do  not  appear  to  have  followed  this 
lead.  See  White  v.  Zane,  10  Mich.  333  ; 
McKee  v.  Wilcox,  11  Mich.  358;  Farr  v. 
Sherman,  11  Mich.  33;  Watson  ».  Thur- 
ber,  11  Mich.  457;  Burdeno  v.  Amperse, 
14  Mich.  91 ;  Tong  v.  Marvin,  15  Mich.  60; 
Tillman  v.  Shackleton,  15  Mich.  447; 
Devries  v.  Conklin,  22  Mich.  255;  Rankin 
v.  West,  25  Mich.  195.  The  common  law 
is  certainly  to  be  kept  in  view  in  the 
interpretation  of  such  a  clause,  since 
otherwise  we  do  not  ascertain  the  evil 
designed  to  be  remedied,  and  perhaps  are 
not  able  fully  to  understand  and  explain 
the  terms  employed ;  but  it  is  to  be 
looked  at  with  a  view  to  the  real  intent, 
rather  than  for  the  purpose  of  arbitrarily 
restraining  it.  See  Bishop,  Law  of  Mar- 
ried Women,  §§  18-20  and  cases  cited ; 
McGinnis  v.  State,  9  Humph.  43;  State 
v.  Lash,  16  N.  J.  380,  32  Am.  Dec,  397; 
Cadwallader  v.  Harris,  76  111.  370;  Moyer 
v.  Slate  Co.,  71  Pa.  St.  293. 

*  Brien  v.  Williamson,  8  Miss.  14.     If 
in  one  place  in  a  statute  the  meaning  of  a 


96  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

Here  again,  however,  great  caution  must  be  observed  in  applying 
an  arbitrary  rule ;  for,  as  Mr.  Justice  Story  has  well  observed: 
"  It  does  not  follow,  either  logically  or  grammatically,  that 
because  a  word  is  found  in  one  connection  in  the  Constitution 
with  a  definite  sense,  therefore  the  same  sense  is  to  be  adopted 
in  every  other  connection  in  which  it  occurs.  This  would  be 
to  suppose  that  the  framers  weighed  only  the  force  of  single 
words,  as  philologists  or  critics,  and  not  whole  clauses  and 
objects,  as  statesmen  and  practical  reasoners.  And  yet  nothing 
has  been  more  common  than  to  subject  the  Constitution  to  this 
narrow  and  mischievous  criticism.1  Men  of  ingenious  and 
subtle  minds,  who  seek  for  symmetry  and  harmony  in  language, 
having  found  in  the  Constitution  a  word  used  in  some  sense 
which  falls  in  with  their  favorite  theory  of  interpreting  it,  have 
made  that  the  standard  by  which  to  measure  its  use  in  every 
other  part  of  the  instrument.  They  have  thus  stretched  it,  as 
it  were,  on  the  bed  of  Procrustes,  lopping  off  its  meaning  when 
it  seemed  too  large  for  their  purposes,  and  extending  it  when  it 
seemed  too  short.  They  have  thus  distorted  it  to  the  most 
unnatural  shapes,  and  crippled  where  they  have  sought  only  to 
adjust  its  proportions  according  to  their  own  opinions."2  And 
he  gives  many  instances  where,  in  the  national  Constitution,  it 
is  very  manifest  the  same  word  is  employed  in  different  mean- 
ings. So  that,  while  the  rule  may  be  sound  as  one  of  presump- 
tion merely,  its  force  is  but  slight,  and  it  must  readily  give  way 
to  a  different  intent  appearing  in  the  instrument. 

Where  a  constitution  is  revised  or  amended,  (a)  the  new  pro- 
visions come  into  operation  at  the  same  moment  that  those  they 
take  the  place  of  cease  to  be  of  force;  and  if  the  new  instrument 
re-enacts  in  the  same  words  provisions  which  it  supersedes,  it 
is  a  reasonable  presumption  that  the  purpose  was  not  to  change 

word  or  phrase  is  clear,  it  will  generally  l  See  remarks  of  Johnson,  J.,  in  Ogden. 

be  taken  in  the  same  sense  throughout  v.  Saunders,  12  Wheat.  213,  '290. 

the  act.     Rhodes  v.  Weldy,  46  Ohio  St.  2  Story   on   Const.    §   454.     And   see 

234,  20  N.  E.  Rep.  461.  Cherokee  Nation  v.  Georgia,  5  Pet  1,  19. 

(a)  [[Whether  the  attempt  to  amend  has*  sufficiently  complied  with  the  constitu- 
tional requirements  of  formality  in  amending  the  constitution  is  a  question  for  the 
courts,  and  that  the  legislature  has  declared  the  amendment  adopted  is  immaterial. 
State  v.  Powell,  77  Miss.  543,  27  So.  927,  48  L.  R.  A.  652.  That  an  amendment  must 
be  complete  and  not  conditional  and  dependent,  for  its  force,  upon  the  subsequent 
acts  and  discretion  of  certain  officers,  see  Livermore  v.  Waite,  102  Cal.  113,  36  Pac. 
424,  25  L.  R.  A.  312,  in  which  an  attempted  amendment  relating  to  the  relocation  of 
the  State  capitol  was  declared  invalid.  All  preliminary  steps  prescribed  for  amend- 
ment of  constitution  must  be  taken  in  full  compliance  with  requirements.  State  v. 
Tooker,  15  Mont.  8,  37  Pac.  840,  25  L.  R.  A.  560 ;  State  v.  Brookhart,  113  Iowa,  250, 
84  N.  W.  1064.] 


CH.  IV.] 


CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


97 


the  law  in  those  particulars,  but  to  continue  it  in  uninterrupted 
operation.  This  is  the  rule  in  the  case  of  statutes,1  and  it  some- 
times becomes  important,  where  rights  had  accrued  before  the 
revision  or  amendment  took  place.  Its  application  to  the  case 
of  an  amended  or  revised  constitution  would  seem  to  be  unques- 
tionable. 

Operation  to  be  Prospective. 

We  shall  venture  also  to  express  the  opinion  that  a  constitution 
should  operate  prospectively  only,  unless  the  words  employed  show 
a  clear  indention  that  it  should  have  a  retrospective  effect.  This 
is  the  rule  in  regard  to  statutes,  and  it  is  "  one  of  such  obvious 
convenience  and  justice,  that  it  must  always  be  adhered  to  in 
the  construction  of  statutes,  unless  in  cases  where  there  is 
something  on  the  face  of  the  enactment  putting  it  beyond  doubt 
that  the  legislature  meant  it  to  operate  retrospectively. "  2  Retro- 
spective legislation,  except  when  designed  to  cure  formal  defects, 
or  otherwise  operate  remedially,  is  commonly  objectionable  in 
principle,  and  apt  to  result  in  injustice;  and  it  is  a  sound  rule 
of  construction  which  refuses  lightly  to  imply  an  intent  to  enact 
it.  And  we  are  aware  of  no  reasons  applicable  to  ordinary 
legislation  which  do  not,  upon  this  point,  apply  equally  well  to 
constitutions.3 


>  Laude  v.  Chicago,  &c.  R.  R.  Co.,  33 
Wis.  640;  Gilkey  v.  Cook,  60  Wis.  133, 
18  N.  W.  639.  Blackwood  v.  Van  Vleit, 
30  Mich.  118. 

2  Moon  v.  Durden,  2  Exch.  22.  See 
Dash  v.  Van  Kleek,  7  Johns.  477  ;  Brown 
v.  Wilt-ox,  22  Miss.  127;  Price  v.  Mott, 
62  Pa.  St.  315;  Broom's  Maxims,  28; 
post,  p.  629  and  note. 

8  In  Allbyer  v.  State,  10  Ohio  St.  588, 
a  question  arose  under  the  provision  of 
the  constitution  that  "all  laws  of  a  gen- 
eral nature  shall  have  a  uniform  operation 
throughout  the  State."  Another  clause 
provided  that  all  laws  then  in  force,  not 
inconsistent  with  the  constitution,  should 
continue  in  force  until  amended  or  re- 
pealed. Allbyer  was  convicted  and  sen- 
tenced to  imprisonment  under  a  crimes 
act  previously  in  force  applicable  to  Ham- 
ilton County  only,  and  the  question  was, 
whether  that  act  was  not  inconsistent  with 
the  provision  above  quoted,  and  therefore 
repealed  by  it.  The  court  held  that  the 
provision  quoted  evidently  had  regard  to 
future  and  not  to  past  legislation,  and 
therefore  was  not  repealed.  A  similar 


decision  was  made  in  State  v.  Barbee,  3 
Ind.  258;  Evans  ».  Phillipi,  117  Pa.  St. 
226,  11  All.  630;  Pecot  v.  Police  Jury, 
41  La.  Ann.  706,  6  So.  077.  So  as  to 
the  effect  of  a  provision  allowing  com- 
pensation for  property  injured,  but  not 
taken,  in  course  of  public  improvements. 
Folkenson  v.  Easton,  116  Pa.  St.  523,  8 
Atl.  869.  See  also  State  v.  Thompson, 
2  Kan.  432;  Slack  v.  Maysville,  &c.  R.  R, 
Co.,  13  B.  Monr.  1 ;  State  v.  Macon  County 
Court,  41  Mo.  453 ;  N.  C.  Coal  Co.  v.  G.  C. 
Coal  &  Iron  Co.,  37  Md.  657.  In  Matter 
of  Oliver  Lee  &  Co.'s  Bank,  21  N.  Y. 
9,  12,  Denio,  J.,  says :  "  The  rule  laid 
down  in  Dash  v.  Van  Kleek,  7  Johns.  477, 
and  other  cases  of  that  class,  by  which 
the  courts  are  admonished  to  avoid,  if 
possible,  such  an  interpretation  as  would 
give  a  statute  a  retrospective  operation, 
has  but  a  limited  application,  if  any,  to 
the  construction  of  a  constitution.  When, 
therefore,  we  read  in  the  provision  under 
consideration,  that  the  stockholders  of 
every  banking  corporation  shall  be  sub- 
ject to  a  certain  liability,  we  are  to  attrib- 
ute to  the  language  its  natural  meaning, 


98  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

Implications. 

The  implications  from  the  provisions  of  a  constitution  are 
sometimes  exceedingly  important,  and  have  large  influence  upon 
its  construction.  In  regard  to  the  Constitution  of  the  United 
States  the  rule  has  been  laid  down,  that  where  a  general  power 
is  conferred  or  duty  enjoined,  every  particular  power  necessary 
for  the  exercise  of  the  one  or  the  performance  of  the  other  is 
also  conferred.1  The  same  rule  has  been  applied  to  the  State 
constitution,  with  an  important  modification,  by  the  Supreme 
Court  of  Illinois.  "That  other  powers  than  those  -expressly 
granted  may  be,  and  often  are,  conferred  by  implication,  is  too 
well  settled  to  be  doubted.  Under  every  constitution  the  doc- 
trine of  implication  must  be  resorted  to,  in  order  to  carry  out 
the  general  grants  of  power.  A  constitution  cannot  from  its 
very  nature  enter  into  a  minute  specification  of  all  the  minor 
powers  naturally  and  obviously  included  in  it  and  flowing  from 
the  great  and  important  ones  which  are  expressly  granted.  It 
is  therefore  established  as  a  general  rule,  that  when  a  constitu- 
tion gives  a  general  power,  or  enjoins  a  duty,  it  also  gives,  by 
implication,  every  particular  power  necessary  for  the  exercise 
of  the  one  or  the  performance  of  the  other.  The  implication 
under  this  rule,  however,  must  be  a  necessary,  not  a  conjectural 
or  argumentative  one.  And  it  is  further  modified  by  another 
rule,  that  where  the  means  for  the  exercise  of  a  granted  power 
are  given,  no  other  or  different  means  can  be  implied,  as  being 
more  effectual  or  convenient.  "2  The  rule  applies  to  the  exer- 
cise of  power  by  all  departments  and  all  officers,  and  will  be 
touched  upon  incid-entally  hereafter. 

Akin  to  this  is  the  rule  that  "  where  the  power  is  granted  in 
general  terms,  the  power  is  to  be  construed  as  coextensive  with 
the  terms,  unless  some  clear  restriction  upon  it  is  deducible 
[expressly  or  by  implication]  from  the  context."3  This  rule 
has  been  so  frequently  applied  as  a  restraint  upon  legislative 
encroachment  upon  the  grant  of  power  to  the  judiciary,  that  we 

without  inquiring  whether  private  inter-  Northwestern     Fertilizing  Co.   v.   Hyde 

ests  may  not  be  prejudiced  by   such  a  Park,  70  111.  634. 

sweeping  mandate."      The  remark   was          2  Field  v.  People,  3  111.  79,  83.     See 

obiter,  as  it  was  found  that  enough  ap-  Fletcher  v.  Oliver,    25    Ark.    289.       In 

peared  in  the  constitution  to  show  clearly  Nevada  it  has  been  held  that  a  constitu- 

that  it  was  intended  to  apply  to  existing,  tional  provision  that  the  counties  shall 

as  well  as  to  subsequently  created,  bank-  provide  for  their  paupers  will  preclude  a 

ing  institutions.  State    asylum    for    the    poor.      State  v. 

1  Story   on   Const.   §   430.     See  also  Hallock,  14  Nev.  202,  33  Am.  Rep.  559. 
United  States  v.  Fisher,  2  Cranch,  858;          8  Story  on  Const.  §§  424-426.  See  Du 

McCulloch  v.  Maryland,  4  Wheat.  316 ;  Page  County  v.  Jenks,  65  111.  275. 


CH.  IV.] 


CONSTRUCTION  OF   STATE   CONSTITUTIONS. 


99 


shall  content  ourselves  in  this  place  with  a  reference  to  the  cases 
collected  upon  his  subject  and  given  in  another  chapter.1 

Another  rule  of  construction  is,  that  when  the  constitution 
defines  the  circumstances  under  which  a  right  may  be  exercised 
or  a  penalty  imposed,  the  specification  is  an  implied  prohibition 
against  legislative  interference  to  add  to  the  condition,  or  to 
extend  the  penalty  to  other  cases.  On  this  ground  it  has  been 
held  by  the  Supreme  Court  of  Maryland,  that  where  the  consti- 
tution defines  the  qualifications  of  an  officer,  it  is  not  in  the 
power  of  the  legislature  to  change  or  superadd  to  them,  unless 
the  power  to  do  so  is  expressly  or  by  necessary  implication  con- 
ferred by  the  constitution  itself.2  Other  cases  recognizing  the 
same  principle  are  referred  to  in  the  note.3 


1  See  post,  pp.  124,  162. 

2  Thomas  v.  Owens,  4  Md.  189.     And 
see  Barker  v.  People,  3  Cow.  686 ;  Matter 
of  Dorsey,  7  Port.  293. 

8  The  legislature  cannot  add  to  the 
constitutional  qualifications  of  voters  :  Ri- 
eon  v.  Fair,  24  Ark.  161 ;  St.  Joseph,  &c. 
II.  R.  Co.  v.  Buchanan  County  Court,  39 
Mo.  485 ;  State  v.  Williams,  5  Wis.  308 ; 
State  v  Baker,  38  Wis.  71 ;  Monroe  v.  Col- 
lins, 17  Ohio  St.  665;  Stat.e  v.  Symonds, 
67  Me.  148;  State  v.  Staten,  6  Cold.  233; 
Davies  v.  McKeeby,  5  Nev.  369 ;  McCaf- 
ferty  v.  Gayer,  59  Pa.  St.  109;  Quinn 
v.  State,  35  Ind.  485 ;  Clayton  v.  Harris, 
7  Nev.  64 ;  Randolph  v.  Good,  3  W.  Va. 
551 ;  [Morris  v.  Powell,  125  Ind.  281,  25 
N.  E.  221,  9  L.  R.  A.  326.  Nor  diminish 
them :  Allison  v.  Blake,  57  N.  J.  L.  6, 
29  Atl.  417,  25  L.  R.  A.  480,  and  note ; 
except  in  the  case  of  school  officers  and 
other  officers  not  provided  for  in  the 
Constitution.  Plummer  v.  Yost,  144  111. 
68,  33  N.  E.  191,  19  L.  R.  A.  110;]  nor 
of  an  officer:  Feibleman  v.  State,  98  Ind. 
616;  nor  shorten  the  constitutional  term 
of  an  office :  Howard  v.  State,  10  Ind. 
99;  Cotten  v.  Ellis,  7  Jones,  N.  C.  545 ; 
State  v.  Askew,  48  Ark.  82,  2  S.  W. 
349 ;  nor  practically  abolish  the  office  by 
repealing  provision  for  salary:  Reid  v. 
Smoulter,  128  Pa.  324,  6  L.  R.  A.  517, 
18  Atl.  Rep.  445;  nor  extend  the  consti- 
tutional term  :  People  v.  Bull,  46  N.  Y. 
57;  Goodin  v.  Thoman,  10  Kan.  191; 
State  ?>.  Brewster,  44  Ohio  St.  589,  6 
N.  E.  653  ;  fJKahn  v.  Sutro,  1 14  Cal.  316, 
46  Pac.  87,  33  L.  R.  A.  620;  see  also  Hill 
v.  Slade,  41  Md.  640,  48  Atl.  64  (Nov.  15, 
1900);]  but  see  Jordan  v.  Bailey,  37 


Minn.  174,  33  N.  W.  778  ;  nor  add  to  the 
constitutional  grounds  for  removing  an 
officer:  Lowe  v.  Commonwealth,  3  Met. 
(Ky.)  237;  Brown  v.  Grover,  6  Bush,  1, 
as  by  enacting  that  intoxication  while 
discharging  his  duties  shall  be  deemed 
misfeasance  in  office,  Com.  v.  Williams, 
79  Ky.  42;  but  see  McComas  v.  Krug, 
81  Ind.  327  ;  nor  change  the  compensa- 
tion prescribed  by  the  constitution  :  King 
v.  Hunter,  65  N.  C.  603 ;  see  also,  on 
these  questions,  post,  p.  388,  note ;  nor 
provide  for  the  choice  of  officers  a  dif- 
ferent mode  from  that  prescribed  by 
the  constitution  :  People  v.  Raymond,  37 
N.  Y.428 ;  Devoy  v.  New  York,  35  Barb. 
264;  22  How.  Pr.  226;  People  v.  Blake, 
49  Barb.  9 ;  People  v.  Albertson,  55  N.  Y. 
50;  Opinions  of  Justices,  117  Mass.  603; 
State  v.  Goldstucker,  40  Wis.  124;  see 
post,  p.  388,  note.  A  legislative  extension 
of  an  elective  office  is  void  as  applied  to 
incumbents.  People  v.  McKinney,  52 
N.  Y.  374.  fJBut  where  the  constitution 
contains  no  prohibition,  the  legislature 
may  prescribe  the  qualifications  of  voters 
at  municipal  elections.  Hanna  v.  Young, 
84  Md.  179,  35  Atl.  674,  34  L.  R.  A.  55. 
And  of  officers :  State  v.  McCallister,  38 
W.  Va.  485,  18  S.  E.  770,  24  L.  R.  A. 
343.  Where  the  constitution  limits  the 
term,  appointee  under  statute  providing 
for  holding  during  good  behavior  can- 
not hold  beyond  constitutional  term. 
Neumeyer  v.  Krakel,  —  Ky.  — ,  62  S.  W. 
618  (Apr.  25,  1901).] 

It  is  not  unconstitutional  to  allow  the 
governor  to  supply  temporary  vacancies 
in  offices  which  under  the  constitution 
are  elective.  Sprague  v.  Brown,  40  Wis. 


100  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

The  Light  which  the  Purpose  to  be  accomplished  may  afford  in 

Construction. 

The  considerations  thus  far  suggested  are  such  as  have  no 
regard  to  extrinsic  circumstances,  but  are  those  by  the  aid  of 
which  we  seek  to  arrive  at  the  meaning  of  the  constitution 
from  an  examination  of  the  words  employed.  It  is  possible, 
however,  that  after  we  shall  have  made  use  of  all  the  lights 
which  the  instrument  itself  affords,  there  may  still  be  doubts 
to  clear  up  and  ambiguities  to  explain.  Then,  and  only  then, 
are  we  warranted  in  seeking  elsewhere  for  aid.  We  are  not  to 
import  difficulties  into  a  constitution,  by  a  consideration  of 
extrinsic  facts,  when  none  appear  upon  its  face.  If,  however, 
a  difficulty  really  exists,  which  an  examination  of  every  part  of 
the  instrument  does  not  enable  us  to  remove,  there  are  certain 
extrinsic  aids  which  may  be  resorted  to,  and  which  are  more  or 
less  satisfactory  in  the  light  they  afford.  Among  these  aids  is 
a  contemplation  of  the  object  to  be  accomplished  or  the  mischief 
designed  to  be  remedied  or  guarded  against  by  the  clause  in  which 
the  ambiguity  is  met  with.1  "When  we  once  know  the  reason 
which  alone  determined  the  will  of  the  lawmakers,  we  ought  to 
interpret  and  apply  the  words  used  in  a  manner  suitable  and 
consonant  to  that  reason,  and  as  will  be  best  calculated  to 
effectuate  the  intent.  Great  caution  should  always  be  observed 
in  the  application  of  this  rule  to  particular  given  cases ;  that  is, 
we  ought  always  to  be  certain  that  we  do  know,  and  have 
actually  ascertained,  the  true  and  only  reason  which  induced 
the  act.  It  is  never  allowable  to  indulge  in  vague  and  uncertain 
conjecture,  or  in  supposed  reasons  and  views  of  the  framers  of 
an  act,  where  there  are  none  known  with  any  degree  of  cer- 
tainty."2 The  prior  state  of  the  law  will  sometimes  furnish  the 
clue  to  the  real  meaning  of  the  ambiguous  provision,3  and  it  is 

612.    £But  such  vacancy  does  not  arise  by  A.  613.    Where  the  term  fixed  by  statute 

mere  failure  to  hold  the  election.     Ijams  is  unconstitutional,  the  tenure  is  at  the 

v.  Duvall,  85  Md.  252,  36  Atl.  819,  36  L.  will  of  the  appointing  power.     Lewis  v. 

R.  A.  127.     Enumeration  in  constitution  Lewelling,  63  Kan.  201,  36  Pac.  351,  23 

of  certain  modes  in  which  vacancies  arise  L.  R.  A.  510.] 

does  not   prevent  legislative  certain  of          1  Alexander   v.   Worthington,   5  Md. 

other  modes.     State  v.  Lansing,  46  Neb.  471  ;   District  Township   v.  Dubuque,  7 

514,  64  N.  W.  1104,  35  L.  R.  A.  124.     Ill-  Iowa,  262.     See  Smith  v.  People,  47  N. 

ness  of  governor  which  disables  him  to  Y.  330;  People  v.  Potter,  47  N.  Y.  375 ; 

perform   his   duties  is  such  vacancy  as  Ball  v.  Chadwick,  46  111.  28;  Sawyer  v. 

authorizes  the  officer  designated  by  the  Insurance  Co  ,  46  Vt.  697. 
constitution    to  assume  the  powers  and          2  Smith  on  Stat.  and  Const.  Construc- 

discharge  the  duties  of  the  governor  until  tion,  634.     See  also  remarks  of  Branson, 

the  disability  is  removed.  Barnard  v.  Tag-  J.,  in  People  v.  Purdy,  2  Hill,  35-37. 
gart,  66  N.  H.  362,  29  Atl.  1027,  25  L.  R.          8  Baltimore   v.    State,    15    Md.    376; 


CH.  IV.]  CONSTRUCTION   OF  STATE   CONSTITUTIONS.  101 

especially  important  to  look  into  it  if  the  constitution  is  the 
successor  to  another,  and  in  the  particular  in  question  essential 
changes  have  apparently  been  made.1 


Proceedings  of  the   Constitutional  Convention. 

When  the  inquiry  is  directed  to  ascertaining  the  mischief 
designed  to  be  remedied,  or  the  purpose  sought  to  be  accom- 
plished by  a  particular  provision,  it  may  be  proper  to  examine 
the  proceedings  of  the  convention  which  framed  the  instrument.2 
Where  the  proceedings  clearly  point  out  the  purpose  of  the  pro- 
vision, the  aid  will  be  valuable  and  satisfactory ;  but  where  the 
question  is  one  of  abstract  meaning,  it  will  be  difficult  to  derive 
from  this  source  much  reliable  assistance  in  interpretation. 
Every  member  of  such  a  convention  acts  upon  such  motives  and 
reasons  as  influence  him  personally,  and  the  motions  and  debates 
do  not  necessarily  indicate  the  purpose  of  a  majority  of  a  con- 
vention in  adopting  a  particular  clause.  It  is  quite  possible  for 
a  clause  to  appear  so  clear  and  unambiguous  to  the  members  of 
a  convention  as  to  require  neither  discussion  nor  illustration; 
and  the  few  remarks  made  concerning  it  in  the  convention  might 
have  a  plain  tendency  to  lead  directly  away  from  the  meaning  in 
the  minds  of  the  majority.  It  is  equally  possible  for  a  part  of 
the  members  to  accept  a  clause  in  one  sense  and  a  part  in 
another.  And  even  if  we  were  certain  we  had  attained  to  the 
meaning  of  the  convention,  it  is  by  no  means  to  be  allowed  a 
controlling  force,  especially  if  that  meaning  appears  not  to  be 
the  one  which  the  words  would  most  naturally  and  obviously 
convey.3  For  as  the  constitution  does  not  derive  its  force  from 
the  convention  which  framed,  but  from  the  people  who  ratified 
it,  the  intent  to  be  arrived  at  is  that  of  the  people,  and  it  is  not 
to  be  supposed  that  they  have  looked  for  any  dark  or  abstruse 
meaning  in  the  words  employed,  but  rather  that  they  have 
accepted  them  in  the  sense  most  obvious  to  the  common  under- 
standing, and  ratified  the  instrument  in  the  belief  that  that  was 

Henry  v.  Tilson,  19  Vt.  447;  Hamilton  v.  son,  J.,  People  v.  Purdy,  2  Hill,  31 ;  Peo- 

St.    Louis    County    Court,    16    Mo.    3 ;  pie  v.  N.  Y.  Central  Railroad  Co.,  24  N. 

People  v.  Gies,   25  Mich.  83;   Servis  v.  Y.  485.     See  State  v.  Kennon,  7  Ohio  St. 

Beatty,  32  Miss.  52  ;  Bandel  v.  Isaac,  13  546 ;  Wisconsin  Cent.  R.  R.  Co.  v.  Taylor 

Md  202;  Story  on  Const.  §  428.  Co.,  52  Wis.  37,  8  N.  W.  833;  State  v. 

1  People  v.   Blodgett,   13   Mich.   127,  Barnes,  24  Fla.  29,  3  So.  433. 

147.  3  Taylor   v.    Taylor,    10    Minn.   107. 

2  Per   Waliuortk,  Chancellor,  Coutant  And  see  Eakin  v.  Raub,  12  S.  &  R.  352  ; 
v.  People,  11  Wend.  611,  518,  and  Clark  Aldridge  v.  Williams,  3  How.  1;  Stater. 
v.  People,  26  Wend.  599,  602 ;  per  Bron-  Doron,  5  Nev.  399. 


102  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

the  sense  designed  to  be  conveyed.1  These  proceedings  therefore 
are  less  conclusive  of  the  proper  construction  of  the  instrument 
than  are  legislative  proceedings  of  the  proper  construction  of  a 
statute;  since  in  the  latter  case  it  is  the  intent  of  the  legislature 
we  seek,  while  in  the  former  we  are  endeavoring  to  arrive  at  the 
intent  of  the  people  through  the  discussions  and  deliberations  of 
their  representatives.  The  history  of  the  calling  of  the  conven- 
tion, the  causes  which  led  to  it,  and  the  discussions  and  issues 
before  the  people  at  the  time  of  the  election  of  the  delegates, 
will  sometimes  be  quite  as  instructive  and  satisfactory  as  any- 
thing to  be  gathered  from  the  proceedings  of  the  convention.2 

Contemporaneous  and  Practical  Construction. 

An  important  question  which  now  suggests  itself  is  this:  How 
far  the  contemporaneous  interpretation,  or  the  subsequent  prac- 
tical construction  of  any  particular  provision  of  the  constitution, 
is  to  have  weight  with  the  courts  when  the  time  arrives  at  which 
a  judicial  decision  becomes  necessary.  Contemporaneous  inter- 
pretation may  indicate  merely  the  understanding  with  which  the 
people  received  it  at  the  time,  or  it  may  be  accompanied  by  acts 
done  in  putting  the  instrument  in  operation,  and  which  neces- 
sarily assume  that  it  is  to  be  construed  in  a  particular  way.  In 
the  first  case  it  can  have  very  little  force,  because  the  evidences 
of  the  public  understanding,  when  nothing  has  been  done  under 
the  provision  in  question,  must  always  of  necessity  be  vague  and 
indecisive.  But  where  there  has  been  a  practical  construction, 
which  has  been  acquiesced  in  for  a  considerable  period,  con- 
siderations in  favor  of  adhering  to  this  construction  sometimes 
present  themselves  to  the  courts  with  a  plausibility  and  force 
which  it  is  not  easy  to  resist.  Indeed,  where  a  particular  con- 
struction has  been  generally  accepted  as  correct,  and  especially 
when  this  has  occurred  contemporaneously  with  the  adoption  of 
the  constitution,  and  by  those  who  had  opportunity  to  under- 
stand the  intention  of  the  instrument,  it  is  not  to  be  denied  that 
a  strong  presumption  exists  that  the  construction  rightly  inter- 
prets the  intention.  And  where  this  has  been  given  by  officers 
in  the  discharge  of  their  official  duty,  and  rights  have  accrued 
in  reliance  upon  it,  which  would  be  divested  by  a  decision  that 
the  construction  was  erroneous,  the  argument  ab  inconvenienti 
is  sometimes  allowed  to  have  very  great  weight. 

1  State  v.  Mace,  5  Md.  337  ;  Manly  v.          *  See  People  v.  Harding,  63  Mich.  481, 
State,  7  Md.  135 ;  Hills  v.  Chicago,  60  111.     19  N.  W.  155. 
86 ;  Beardstown  v.  Virginia,  76  111.  34. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  103 

The  Supreme  Court  of  the  United  States  has  had  frequent 
occasion  to  consider  this  question.  In  Stuart  v.  Laird,1  decided 
in  1803,  that  court  sustained  the  authority  of  its  members  to 
sit  as  circuit  judges  on  the  ground  of  a  practical  construction, 
commencing  with  the  organization  of  the  government. 

In  Martin  v.  Hunter's  Lessee,2  Justice  Story,  after  holding 
that  the  appellate  power  of  the  United  States  extends  to  cases 
pending  in  the  State  courts,  and  that  the  25th  section  of  the 
Judiciary  Act,  which  authorized  its  exercise,  was  supported 
by  the  letter  and  spirit  of  the  Constitution,  proceeds  to  say: 
"  Strong  as  this  conclusion  stands  upon  the  general  language  of 
the  Constitution,  it  may  still  derive  support  from  other  sources. 
It  is  an  historical  fact,  that  this  exposition  of  the  Constitution, 
extending  its  appellate  power  to  State  courts,  was,  previous  to 
its  adoption,  uniformly  and  publicly  avowed  by  its  friends,  and 
admitted  by  its  enemies,  as  the  basis  of  their  respective  reason- 
ings both  in  and  out  of  the  State  conventions.  It  is  an  historical 
fact,  that  at  the  time  when  the  Judiciary  Act  was  submitted  to 
the  deliberations  of  the  First  Congress,  composed,  as  it  was,  not 
only  of  men  of  great  learning  and  ability,  but  of  men  who  had 
acted  a  principal  part  in  framing,  supporting,  or  opposing  that 
Constitution,  the  same  exposition  was  explicitly  declared  and 
admitted  by  the  friends  and  by  the  opponents  of  that  system. 
It  is  an  historical  fact,  that  the  Supreme  Court  of  the  United 
States  have  from  time  to  time  sustained  this  appellate  jurisdic- 
tion in  a  great  variety  of  cases,  brought  from  the  tribunals  of 
many  of  the  most  important  States  in  the  Union,  and  that  no 
State  tribunal  has  ever  breathed  a  judicial  doubt  on  the  subject, 
or  declined  to  obey  the  mandate  of  the  Supreme  Court,  until  the 
present  occasion.  This  weight  of  contemporaneous  exposition 
by  all  parties,  this  acquiescence  by  enlightened  State  courts,  and 
these  judicial  decisions  of  the  Supreme  Court  through  so  long  a 
period,  do,  as  we  think,  place  the  doctrine  upon  a  foundation 
of  authority  which  cannot  be  shaken  without  delivering  over 
the  subject  to  perpetual  and  irremediable  doubts."  The  same 
doctrine  was  subsequently  supported  by  Chief  Justice  Marshall 
in  a  case  involving  the  same  point,  and  in  which  he  says  that 
"  great  weight  has  always  been  attached,  and  very  rightly 
attached,  to  contemporaneous  exposition."3 

In  Bank  of  United  States  v.  Halstead 4  the  question  was  made, 
whether  the  laws  of  the  United  States  authorizing  the  courts  of 

1  1  Cranch,  299.  »  Cohens   v.   Virginia,  6  Wheat.  264. 

2  1    Wheat.   304,  861.     See  Story  on     418. 

Const.  §§  405-408.  *  10  Wheat.  61,  63. 


104  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

the  Union  so  to  alter  the  form  of  process  of  execution  used  in 
the  Supreme  Courts  of  the  States  in  September,  1789,  as  to 
subject  to  execution  lands  and  other  property  not  thus  subject 
by  the  State  laws  in  force  at  that  time,  were  constitutional ;  and 
Mr.  Justice  Thompson,  in  language  similar  to  that  of  Chief 
Justice  Marshall  in  the  preceding  case,  says:  "If  any  doubt 
existed  whether  the  act  of  1792  vests  such  power  in  the  courts, 
or  with  respect  to  its  constitutionality,  the  practical  construction 
given  to  it  ought  to  have  great  weight  in  determining  both  ques- 
tions." And  Mr.  Justice  Johnson  assigns  a  reason  for  this  in  a 
subsequent  case:  "Every  candid  mind  will  admit  that  this  is  a 
very  different  thing  from  contending  that  the  frequent  repetition 
of  wrong  will  create  a  right.  It  proceeds  upon  the  presumption 
that  the  contemporaries  of  the  Constitution  have  claims  to  our 
deference  on  the  question  of  right,  because  they  had  the  best 
opportunities  of  informing  themselves  of  the  understanding  of 
the  framers  of  the  Constitution,  and  of  the  sense  put  upon  it  by 
the  people  when  it  was  adopted  by  them."1  Like  views  have 
been  expressed  by  Chief  Justice  Waite  in  a  recent  decision.2 

Great  deference  has  been  paid  in  all  cases  to  the  action  of  the 
executive  department,  where  its  officers  have  been  called  upon, 
under  the  responsibilities  of  their  official  oaths,  to  inaugurate  a 
new  system,  and  where  it  is  to  be  presumed  they  have  carefully 
and  conscientiously  weighed  all  considerations,  and  endeavored 
to  keep  within  the  letter  and  the  spirit  of  the  Constitution.  If 
the  question  involved  is  really  one  of  doubt,  the  force  of  their 
judgment,  especially  in  view  of  the  injurious  consequences  that 
may  result  from  disregarding  it,  is  fairly  entitled  to  turn  the 
scale  in  the  judicial  mind.3 

1  Ogden  v.  Saunders,  12  Wheat.  290.  Farmers'  and  Mechanics'  Bank  v.  Smith, 
See  Pike  v.  Megoun,  44  Mo.  491 ;  State  v.  3  S.  &  It.  63 ;  Norris  v.  Clymer,  2  Pa.  St. 
Parkinson,  5  Nev.  15.  277;  Moers  v.  City  of  Reading,  21  Pa.  St. 

2  Minor  v.  Happersett,  21  Wall.  162.  188;    Washington  v.  Page,  4  Cal.  838; 
To  like  effect  is  Ex  parte  Reynolds,  12  S.  Surgett  v.  Lapice,  8  How.  48;  Bissell  v. 
W.  Rep.  570  (Ark.).     And  see  Collins  v.  Penrose,  8  How.  317;  Troup  v.  Haight, 
Henderson,  11  Bush,  74,92.  Hopk.  239;  United  States  v.  Gilmore,  8 

8  Union   Insurance    Co.  v.   Hoge,   21  Wall.  330;  Brown  v.  United  States,  113 

How.  35,  66;  Edward's  Lessee  v.  Darby,  U.  S.  568,  5  Sup.  Ct.  Rep.  648;  Hedge- 

12  Wheat.  206;  Hughes  v.  Hughes,  4  T.  B.  cock  v.  Davis,  64  N.  C.  650;  Lafayette, 

Monr.  42;  Chambers  v.Fisk,  22  Tex.  504;  &c.  R.  R.  Co.  v.  Geiger,  34  Ind.   185; 

Britton  v.  Ferry,  14  Mich.  53 ;  Bay  City  Bunn   v.   People,   45  111.   397 ;    Scanlan 

v.  State  Treasurer,  23  Mich.  409 ;  West-  v.   Childs,    33    Wis.    663;    Faribault    v. 

brook  v.  Miller,  56  Mich.  148,  22  N.  W  Misener,  20  Minn.  396;  State  v.  Glenn, 

256;  Plummer  v.  Plummer,  37  Miss.  185;  18  Nev.  34,  1  Pac.  186;  State  v.  Kelsey, 

Burgess  v.  Pue,  2  Gill,  11 ;  State  v.  May-  44  N.  J.  L.  1 ;  £  United  States  v.  Ala.  G. 

hew,  2  Gill,  487 ;  Baltimore  v.  State,  15  Southern  R.  Co.,  142  U.  S.  615,  12  Sup. 

Md.  876 ;   Coutant  v.  People,  11  Wend.  Ct.  Rep.  306 ;  French  v.  State,  141  Ind. 

611;   People  o.  Dayton,  55  N.  Y.  367;  618, 41  N.  E.2;  29  L.  R.  A.  HSfj    Where 


CH.  IV.]  CONSTRUCTION    OF  STATE   CONSTITUTIONS.  105 

Where,  however,  no  ambiguity  or  doubt  appears  in  the  law, 
we  think  the  same  rule  obtains  here  as  in  other  cases,  that  the 
court  should  confine  its  attention  to  the  law,  and  not  allow 
extrinsic  circumstances  to  introduce  a  difficulty  where  the  lan- 
guage is  plain.  To  allow  force  to  a  practical  construction  in 
such  a  case  would  be  to  suffer  manifest  perversions  to  defeat  the 
evident  purpose  of  the  lawmakers.  "Contemporary  construc- 
tion .  .  .  can  never  abrogate  the  text ;  it  can  never  fritter  away 
its  obvious  sense;  it  can  never  narrow  down  its  true  limitations; 
it  can  never  enlarge  its  natural  boundaries. " 1  While  we  con- 
ceive this  to  be  the  true  and  only  safe  rule,  we  shall  be  obliged 
to  confess  that  some  of  the  cases  appear,  on  first  reading,  not  to 
have  observed  these  limitations.  In  the  case  of  Stuart  v.  Laird,2 
above  referred  to,  the  practical  construction  was  regarded  as 
conclusive.  To  the  objection  that  the  judges  of  the  Supreme 
Court  had  no  right  to  sit  as  circuit  judges,  the  court  say :  "  It 
is  sufficient  to  observe  that  practice  and  acquiescence  under  it 
for  a  period  of  several  years,  commencing  with  the  organization 
of  the  judicial  system,  affords  an  irresistible  answer,  and  has 
indeed  fixed  the  construction.  It  is  a  contemporary  interpreta- 
tion of  the  most  forcible  nature.  This  practical  exposition  is 
too  strong  and  obstinate  to  be  shaken  or  controlled.  Of  course 
the  question  is  at  rest,  and  ought  not  now  to  be  disturbed." 
This  is  certainly  very  strong  language  ;  but  language  very  similar 
in  character  was  used  by  the  Supreme  Court  of  Massachusetts 
in  one  case  where  large  and  valuable  estates  depended  upon  a 
particular  construction  of  a  statute,  and  very  great  mischief 

the  constitution  lias  been  construed  by  Fed.  Rep.  93.     [TJpon  whether  or  not  an 

the  political  departments  of  the  govern-  executive  officer  may  raise  the  question 

ment  in  its  application  to  a  political  ques-  of  constitutionality  of  an  act  which  casts 

tion,  the  courts  will  not  only  give  great  ministerial  duties  upon  him,  as  a  defence 

consideration  to  their  action,  but  will  gen-  to  a  mandamus  proceeding  to  compel  per- 

erally  follow  the  construction  implicitly,  formance  of   such   duties,   see   State   v. 

People  v.  Supervisors  of  La   Salle,  100  Heard,  47  La.  Ann.  1679,  18  So.  746,  47 

111.  495.     The  passage  of  an  act  by  the  L.  R.  A.  513,  and  cases  collected  in  note 

first  State  legislature  is  a  contemporary  thereto  in  L.  R.  A.] 

interpretation  of  a  constitutional  clause  *  Story    on    Const.   §  407.     And  see 

zn  pari  materia  of  much  weight.     Cooper  Evans  v.  Myers,  25  Pa.  St.  116;  Sadler  v. 

Mf'g  Co.  v.  Ferguson,  113  U.  S.  727,  5  Langham,  34  Ala.  311;  Barnes  v.  First 

Sup.  Ct.  Rep.  739 ;  People  v.  Wright,  6  Parish  in  Falmouth,  6  Mass.  401 ;  Union 

Col.  92.     Where  undercolor  of  authority  Pacific  R.  R.  Co.  v.  United  States,  10  Ct. 

long  practical  construction  has  sanctioned  of  Cl.  Rep.   548  ;  s.  c.  in  error,  91  U.  S. 

certain  appointments  by  the  legislature,  it  72.     £See  also  St.  Paul,  M.  &  M.  R.  Co.  v. 

will  control.    Hoveyv.  State,  118  Ind.  502,  Phelps,  137  U.  S.  528,  11  Sup.   Ct.  Rep. 

21  N.  E.  Rep.  890;  Biggs  v.  McBride,  17  168;  and  Merritt  v.  Cameron,  137  U.  S. 

Oreg.  640,  21  Pac.  Rep.  878.    The  execu-  542,  11  Sup.  Ct.  Rep.  174.J 

tive  construction  of  treaties  is  entitled  to  2  1  Cranch,  299. 
a  similar  respect.   Castro  v.  De  Uriarte,  16 


106  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

would  follow  from  changing  it.  The  court  said  that,  "although 
if  it  were  now  res  Integra,  it  might  be  very  difficult  to  maintain 
such  a  construction,  jet  at  this  day  the  argument  ab  inconvenlenti 
applies  with  great  weight.  We  cannot  shake  a  principle  which 
in  practice  has  so  long  and  so  extensively  prevailed.  If  the 
practice  originated  in  error,  yet  the  error  is  now  so  common 
that  it  must  have  the  force  of  law.  The  legal  ground  on  which 
this  provision  is  now  supported  is,  that  long  and  continued 
usage  furnishes  a  contemporaneous  construction  which  must 
prevail  over  the  mere  technical  import  of  the  words."1  Lan- 
guage nearly  as  strong  was  also  used  by  the  Supreme  Court  of 
Maryland,  where  the  point  involved  was  the  possession  of  a  cer- 
tain power  by  the  legislature,  which  it  had  constantly  exercised 
for  nearly  seventy  years.2 

It  is  believed,  however,  that  in  each  of  these  cases  an  exami- 
nation of  the  Constitution  left  in  the  minds  of  the  judges  suffi- 
cient doubt  upon  the  question  of  its  violation  to  warrant  their 
looking  elsewhere  for  aids  in  interpretation,  and  that  the  cases 
are  not  in  conflict  with  the  general  rule  as  above  laid  down. 
Acquiescence  for  no  length  of  time  can  legalize  a  clear  usurpa- 
tion of  power,  where  the  people  have  plainly  expressed  their  will 
in  the  Constitution,  and  appointed  judicial  tribunals  to  enforce 
it.  A  power  is  frequently  yielded  to  merely  because  it  is  claimed, 
and  it  may  be  exercised  for  a  long  period,  in  violation  of  the 
constitutional  prohibition,  without  the  mischief  which  the  Con- 
stitution was  designed  to  guard  against  appearing,  or  without 
any  one  being  sufficiently  interested  in  the  subject  to  raise  the 
question;  but  these  circumstances  cannot  be  allowed  to  sanction 
a  clear  infraction  of  the  Constitution.3  We  think  we  allow  to 
contemporary  and  practical  construction  its  full  legitimate  force 

1  Rogers   v.   Goodwin,   2    Mass.    476.          8  See  further,  on  this  subject,  the  case 
See  also  Fall  v.  Hazelrigg,  45  Ind.  576;  of  Sadler  »;.  Langham,  34  Ala.  311,  334; 
Scanlan  v.  Childs,  33  Wis.  663.  People  v.  Allen,  42  N.  Y.  378 ;  Brown  v. 

2  State  v.  Mayhew,  2  Gill,  487.    In  State,  5  Col.  525 ;  Halm  v.  United  States, 
Essex  Co.  v.  Pacific  Mills,  14  Allen,  389,  14  Ct.  of  Cl.  305;  Swift  v.  United  States, 
the  Supreme  Court  of 'Massachusetts  ex-  14  Ct.  of  Cl.  481.     Practical  acquiescence 
pressed  the  opinion  that  the  constitution-  in  a  supposed  unconstitutional  law  is  en- 
ality   of  the   acts    of  Congress   making  titled  to  much  greater  weight  when  the 
treasury  notes  a  legal  tender  ought  not  defect  which   is   pointed   out  relates  to 
to  be  treated  by  a  State  court  as  open  to  mere  forms  of  expression  or  enactment 
discussion  after  the  notes  had  practically  than  when  it  concerns  the  substance  of 
constituted  the  currency  of  the  country  legislation ;  and  if  the  objection  is  purely 
for  five  years.     At  a  still  later  day,  how-  technical,  long  acquiescence  will  be  con- 
ever,  the  judges  of  the  Supreme  Court  of  elusive  against  it.     Continental  Imp.  Co. 
the  United  States  held  these  acts  void,  v.  Phelps,  47  Mich.  299,  11  N.  W.  167. 
though  they  afterwards  receded  from  this 

position. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


107 


when  we  suffer  it,  where  it  is  clear  and  uniform,  to  solve  in  its 
own  favor  the  doubts  which  arise  on  reading  the  instrument  to 
be  construed.1 


1  There  are  cases  which  clearly  go 
further  than  any  we  have  quoted,  and 
which  sustain  legislative  action  which 
they  hold  to  be  usurpation,  on  the  sole 
ground  of  long  acquiescence.  Tims  in 
Brigham  v.  Miller,  17  Ohio,  446,  the  ques- 
tion was,  Has  the  legislature  power  to 
grant  divorces  ?  The  court  say  :  "  Our 
legislature  have  assumed  and  exercised 
this  power  for  a  period  of  more  than  forty 
years,  although  a  clear  and  palpable  as- 
sumption of  power,  and  an  encroachment 
upon  the  judicial  department,  in  violation 
of  the  Constitution.  To  deny  this  long- 
exercised  power,  and  declare  all  the  con- 
sequences resulting  from  it  void,  is  preg- 
nant with  fearful  consequences.  If  it 
affected  only  the  rights  of  property,  we 
should  not  hesitate;  but  second  marriages 
have  been  contracted  and  children  born, 
and  it  would  bastardize  all  these,  although 
born  under  the  sanction  of  an  apparent 
wedlock,  authorized  by  an  act  of  the  legis- 
lature before  they  were  born,  and  in  con- 
sequence of  which  the  relation  was  formed 
which  gave  them  birth.  On  account  of 
these  children,  and  for  them  only,  we 
hesitate.  And  in  view  of  this,  we  are 
constrained  to  content  ourselves  with 
simply  declaring  that  the  exercise  of  the 
power  of  granting  divorces,  on  the  part 
of  the  legislature,  is  unwarranted  and  un- 
constitutional, an  encroachment  upon  the 
duties  of  the  judiciary,  and  a  striking 
down  of  the  dearest  rights  of  individuals, 
without  authority  of  law.  We  trust  we 
have  said  enough  to  vindicate  the  Consti- 
tution, and  feel  confident  that  no  depart- 
ment of  State  has  any  disposition  to  violate 
it,  and  that  the  evil  will  cease."  So  in 
Johnson  v.  Joliet  &  Chicago  Railroad  Co., 
23  111.  202,  207,  the  question  was  whether 
railroad  corporations  could  be  created  by 
special  law,  without  a  special  declaration 
by  way  of  preamble  that  the  object  to  be 
accomplished  could  not  be  attained  by 
general  law.  The  court  say  :  "  It  is  now 
too  late  to  make  this  objection,  since,  by 
the  action  of  the  general  assembly  under 
this  clause,  special  acts  have  been  so  long 
the  order  of  the  day  and  the  ruling  pas- 
sion with  every  legislature  which  has  con- 
vened under  the  Constitution,  until  their 


acts  of  this  description  fill  a  huge  and 
misshapen  volume,  and  important  and 
valuable  rights  are  claimed  under  them. 
The  clause  has  been  wholly  disregarded, 
and  it  would  now  produce  far-spread  ruin 
to  declare  such  acts  unconstitutional  and 
void.  It  is  now  safer  and  more  just  to 
all  parties  to  declare  that  it  must  be  un- 
derstood that,  in  the  opinion  of  the  gen- 
eral assembly  at  the  time  of  passing  the 
special  act,  its  object  could  not  be  attained 
under  the  general  law,  and  this  without 
any  recital  by  way  of  preamble,  as  in  the 
act  to  incorporate  the  Central  Railroad 
Company.  That  preamble  was  placed 
there  by  the  writer  of  this  opinion,  and  a 
strict  compliance  with  this  clause  of  the 
Constitution  would  have  rendered  it  neces- 
sary in  every  subsequent  act.  But  the 
legislature,  in  their  wisdom,  have  thought 
differently,  and  have  acted  differently, 
until  now  our  special  legislation  and  its 
mischiefs  are  beyond  recovery  or  rem- 
edy." These  cases  certainly  presented 
very  strong  motives  for  declaring  the  law 
to  be  what  it  was  not;  but  it  would  have 
been  interesting  and  useful  if  either  of 
these  learned  courts  had  enumerated  the 
evils  that  must  be  placed  in  the  opposite 
scale  when  the  question  is  whether  a  con- 
stitutional rule  shall  be  disregarded;  not 
the  least  of  which  is,  the  encouragement 
of  a  disposition  on  the  part  of  legislative 
bodies  to  set  aside  constitutional  restric- 
tions, in  the  belief  that,  if  the  unconstitu- 
tional law  can  once  be  put  in  force,  and 
large  interests  enlisted  under  it,  the  courts 
will  not  venture  to  declare  it  void,  but 
will  submit  to  the  usurpation,  no  matter 
how  gross  and  daring.  We  agree  with  the 
Supreme  Court  of  Indiana,  that,  in  con- 
struing constitutions,  courts  have  nothing 
to  do  with  the  argument  ab  inconvenienti, 
and  should  not  "bend  the  Constitution  to 
suit  the  law  of  the  hour : "  Greencastle 
Township  v.  Black,  6  Ind.  557,  565;  and 
with  Bronson,  Ch.  J.,  in  what  he  says  in 
Oakley  v.  Aspinwall,  3  N.  Y.  647,  568  : 
"  It  is  highly  probable  that  inconveniences 
will  result  from  following  the  Constitution 
as  it  is  written.  But  that  consideration 
can  have  no  force  with  me.  It  is  not  for 
us,  but  for  those  who  made  the  instru- 


108  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

Unjust  Provisions. 

We  have  elsewhere  expressed  the  opinion  that  a  statute  can- 
not be  declared  void  on  the  ground  solely  that  it  is  repugnant 
to  a  supposed  general  intent  or  spirit  which  it  is  thought  pervades 
or  lies  concealed  in  the  Constitution,  but  wholly  unexpressed, 
or  because,  in  the  opinion  of  the  court,  it  violates  fundamental 
rights  or  principles,  if  it  was  passed  in  the  exercise  of  a  power 
which  the  Constitution  confers.1  Still  less  will  the  injustice  of 
a  constitutional  provision  authorize  the  courts  to  disregard  it, 
or  indirectly  to  annul  it  by  construing  it  away.  It  is  quite 
possible  that  the  people  may,  under  the  influence  of  temporary 
prejudice,  or  a  mistaken  view  of  public  policy,  incorporate  pro- 
visions in  their  charter  of  government,  infringing  upon  the 
proper  rights  of  individual  citizens  or  upon  principles  which 
ought  ever  to  be  regarded  as  sacred  and  fundamental  in  repub- 
lican government;  and  it  is  also  possible  that  obnoxious  classes 
may  be  unjustly  disfranchised.  The  remedy  for  such  injustice 
must  be  found  in  the  action  of  the  people  themselves,  through 
an  amendment  of  their  work  when  better  counsels  prevail.  Such 
provisions,  when  free  from  doubt,  must  receive  the  same  con- 
struction as  any  other.  We  do  not  say,  however,  that  if  a  clause 

ment,  to  supply  its  defects.     If  the  legis-  ess.     But  if  the  legislature  or  the  courts 

lature  or  the  courts  may  take  that  office  undertake  to  cure  defects  by  forced  and 

upon  themselves,  or  if,   under  color  of  unnatural   constructions,   they   inflict    a 

construction,  or  upon  any  other  specious  wound  upon  the  Constitution  which  noth- 

ground,  they  may  depart  from  that  which  ing  can   heal.     One   step  taken   by  the 

is  plainly  declared,  the  people  may  well  legislature  or  the  judiciary,  in  enlarging 

despair  of  ever  being  able  to  set  any  the  powers  of  the  government,  opens  the 

boundary  to  the  powers  of  the  govern-  door  for  another  which  will  be  sure  to 

ment.    Written  constitutions  will  be  more  follow  ;  and  so  the  process  goes  on  until 

than  useless.     Believing  as  I  do  that  the  all    respect  for   the  fundamental   law  is 

success  of  free  institutions  depends  upon  lost,  and  the  powers  of  the  government 

a  rigid  adherence  to  the  fundamental  law,  are  just  what  those  in  authority  please  to 

I  have  never  yielded  to  considerations  of  call  them."  See  also  Encking  v.  Simmons, 

expediency  in  expounding  it.     There  is  28  Wis.  272.     Whether  there  may  not  be 

always  some  plausible  reason  for  latitudi-  circumstances  under  which  the  State  can 

narian  constructions  which  are  resorted  to  be  held  justly  estopped  from  alleging  the 

for  the  purpose  of  acquiring  power;  some  invalidity  of  its  own  action  in  apportion- 

evil  to  be  avoided  or  some  good  to  be  at-  ing  the  political  divisions  of  the    State, 

tained  by  pushing  the  powers  of  the  gov-  and  imposing  burdens  on  citizens,  where 

ernment  bey  ond  their  legitimate  boundary,  such  action  has  been  acquiesced  in  for  a 

It  is  by  yielding  to  such  influences  that  considerable  period,  and  rights  have  been 

constitutions   are    gradually   undermined  acquired   through   bearing    the   burdens 

and   finally   overthrown.      My   rule   has  under  it,  see  Rumsey  v.  People,  19  N.  Y. 

ever  been  to  follow  the  fundamental  law  41  ;   People  v.  Maynard,  15  Mich.  470 ; 

as  it  is  written,  regardless  of  consequences.  Kneeland  v.  Milwaukee,  15  Wis.  454. 

If  the  law  does  not  work  well,  the  people  1  See  post,  p.  240,  and  cases  referred  to 

can  amend  it;   and   inconveniences   can  in  notes, 
be  borne  long  enough  to  await  that  proc- 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  109 

should  bo  found  in  a  constitution  which  should  appear  at  first 
blush  to  demand  a  construction  leading  to  monstrous  and  absurd 
consequences,  it  might  not  be  the  duty  of  the  court  to  question 
and  cross-question  such  clause  closely,  with  a  view  to  discover 
in  it,  if  possible,  some  other  meaning  more  consistent  with  the 
general  purposes  and  aims  of  these  instruments.-  When  such  a 
case  arises,  it  will  be  time  to  consider  it.1 

Duty  in  Case  of  Doubt. 

But  when  all  the  legitimate  lights  for  ascertaining  the  mean- 
ing of  the  constitution  have  been  made  use  of,  it  may  still  happen 
that  the  construction  remains  a  matter  of  doubt.  In  such  a  case 
it  seems  clear  that  every  one  called  upon  to  act  where,  in  his 
opinion,  the  proposed  action  would  be  of  doubtful  constitution- 
ality, is  bound  upon  the  doubt  alone  to  abstain  from  acting. 
Whoever  derives  power  from  the  constitution  to  perform  any 
public  function  is  disloyal  to  that  instrument,  and  grossly  dere- 
lict in  duty,  if  he  does  that  which  he  is  not  reasonably  satisfied 
the  constitution  permits.  Whether  the  power  be  legislative, 
executive,  or  judicial,  there  is  manifest  disregard  of  constitu- 
tional and  moral  obligation  by  one  who,  having  taken  an  oath 
to  observe  that  instrument,  takes  part  in  an  action  which  he 
cannot  say  he  believes  to  be  no  violation  of  its  provisions.  A 
doubt  of  the  constitutionality  of  any  proposed  legislative  enact- 
ment should  in  any  case  be  reason  sufficient  for  refusing  to  adopt 
it;  and,  if  legislators  do  not  act  upon  this  principle,  the  reasons 
upon  which  are  based  the  judicial  decisions  sustaining  legisla- 
tion in  very  many  cases  will  cease  to  be  of  force. 

Directory  and  Mandatory  Provisions. 

The  important  question  sometimes  presents  itself,  whether  we 
are  authorized  in  any  case,  when  the  meaning  of  a  clause  of  the 
Constitution  is  arrived  at,  to  give  it  such  practical  construction 
as  will  leave  it  optional  with  the  department  or  officer  to  which 
it  is  addressed  to  obey  it  or  not  as  he  shall  see  fit.  In  respect 
to  statutes  it  has  long  been  settled  that  particular  provisions 
may  be  regarded  as  directory  merely;  by  which  is  meant  that 
they  are  to  be  considered  as  giving  directions  which  ought  to  be 
followed,  but  not  as  so  limiting  the  power  in  respect  to  which 
the  directions  are  given  that  it  cannot  effectually  be  exercised 
without  observing  them.  The  force  of  many  of  the  decisions  on 

1  McMullen  v.  Hodge,  6  Tex.  34.  See  Cincinnati,  21  Ohio  St.  14 ;  Bailey  v. 
Clarke  v.  Irwin,  5  Nev.  Ill  ;  Walker  v.  Commonwealth,  11  Bush,  688. 


110  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

this  subject  will  be  readily  assented  to  by  all ;  while  others  are 
sometimes  thought  to  go  to  the  extent  of  nullifying  the  intent  of 
the  legislature  in  essential  particulars.  It  is  not  our  purpose  to 
examine  the  several  cases  critically,  or  to  attempt  —  what  we 
deem  impossible  —  to  reconcile  them  all ;  but  we  shall  content 
ourselves  with' quoting  from  a  few,  with  a  view,  if  practicable, 
to  ascertaining  some  line  of  principle  upon  which  they  can  be 
classified. 

There  are  cases  where,  whether  a  statute  was  to  be  regarded  as 
merely  directory  or  not,  was  made  to  depend  upon  the  employing 
or  failing  to  employ  negative  words  plainly  importing  that  the 
act  should  be  done  in  a  particular  manner  or  time,  and  not 
otherwise.1  The  use  of  such  words  is  often  conclusive  of  an 
intent  to  impose  a  limitation ;  but  their  absence  is  by  no  means 
equally  conclusive  that  the  statute  was  not  designed  to  be  man- 
datory.2 Lord  Mansfield  would  have  the  question  whether  man- 
datory or  not  depend  upon  whether  that  which  was  directed  to 
be  done  was  or  was  not  of  the  essence  of  the  thing  required.3 
The  Supreme  Court  of  New  York,  in  an  opinion  afterwards 
approved  by  the  Court  of  Appeals,  laid  down  the  rule  as  one 
settled  by  authority,  that  "statutes  directing  the  mode  of  pro- 
ceeding by  public  officers  are  directory,  and  are  not  regarded  as 
essential  to  the  validity  of  the  proceedings  themselves,  unless  it 
be  so  declared  in  the  statute. "  *  This  rule  strikes  us  as  very 
general,  and  as  likely  to  include  within  its  scope,  in  many  cases, 
things  which  are  of  the  very  essence  of  the  proceeding.  The 
questions  in  that  case  were  questions  of  irregularity  under  elec- 
tion laws,  not  in  any  way  hindering  the  complete  expression  of 
the  will  of  the  electors;  and  the  court  was  doubtless  right  in 
holding  that  the  election  was  not  to  be  avoided  for  a  failure  in 
the  officers  appointed  for  its  conduct  to  comply  in  all  respects 
with  the  directions  of  the  statute  there  in  question.  The  same 
court  in  another  case  say :  "  Statutory  requisitions  are  deemed 
directory  only  when  they  relate  to  some  immaterial  matter, 
where  a  compliance  is  a  matter  of  convenience  rather  than  of 
substance. "  5  The  Supreme  Court  of  Michigan,  in  a  case  involv- 

1  Slayton  v.  Hulings,  7  Ind.  144 ;  King         6  People  v.   Schermerhorn,   19  Barb. 
v.  Inhabitants  of  St.  Gregory,  2  Ad.  &  El.  640,  658.     If  a  statute  imposes  a  duty  and 
99  ;  King  v.  Inhabitants  of  Hipswell,  8  gives  the  means  of  performing  that  duty, 
B.  &  C.  466.  it  must  be  held  to  be  mandatory.    Veazie 

2  District     Township  v.  Dubuque,  7  v.  China,  50  Me.  618.     "  It  would  not  per- 
lowa,  262,  284.  haps  be  easy  to  lay  down  any  general  rule 

8  Rex  v.  Locksdale,  1  Burr.  447.  as  to  when  the  provisions  of  a  statute  are 

*  People  v.  Cook,  14  Barb.  290;  B.C.     merely  directory,  and   when  mandatory 

8  N.  Y.  67.  or   imperative.    Where  the  words   are 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  Ill 

ing  the  validity  of  proceedings  on  the  sale  of  land  for  taxes,  laid 
down  the  rule  that  "  what  the  law  requires  to  be  done  for  the 
protection  of  the  taxpayer  is  mandatory,  and  cannot  be  regarded 
as  directory  merely."1  A  similar  rule  has  been  recognized  in 
a  case  in  Illinois.  Commissioners  had  been  appointed  to  ascer- 
tain and  assess  the  damage  and  recompense  due  to  the  owners 
of  land  which  might  be  taken,  on  the  real  estate  of  the  persons 
benefited  by  a  certain  local  improvement,  in  proportion  as  nearly 
as  might  be  to  the  benefits  resulting  to  each.  By  the  statute, 
when  the  assessment  was  completed,  the  commissioners  were  to 
sign  and  return  the  same  to  the  city  council  within  forty  days 
of  their  appointment.  This  provision  was  not  complied  with, 
but  return  was  made  afterwards,  and  the  question  was  raised  as 
to  its  validity  when  thus  made.  In  the  opinion  of  the  court, 
this  question  was  to  be  decided  by  ascertaining  whether  any 
advantage  would  be  lost,  or  right  destroyed,  or  benefit  sacrificed, 
either  to  the  public  or  to  any  individual,  by  holding  the  provi- 
sion directory.  After  remarking  that  they  had  held  an  assess- 
ment under  the  general  revenue  law,  returned  after  the  time 
appointed  by  law,  as  void,  because  the  person  assessed  would 
lose  the  benefit  of  an  appeal  from  the  assessment,2  they  say  of 
the  statute  before  the  court:  "There  are  no  negative  words  used 
declaring  that  the  functions  of  the  commissioners  shall  cease 
after  the  expiration  of  the  forty  days,  or  that  they  shall  not 
make  their  return  after  that  time;  nor  have  we  been  able  to 
discover  the  least  right,  benefit,  or  advantage  which  the  property 
owner  could  derive  from  having  the  return  made  within  that 
time,  and  not  after.  No  time  is  limited  and  made  dependent  on 
that  time,  within  which  the  owner  of  the  property  may  apply  to 

affirmative,  and  relate  to  the  manner  in  ute  providing  that  a  court  may  appoint 

whicli  power  or  jurisdiction  vested  in  a  three  commissioners  to  determine  public 

public  officer  or  body  is  to  be  exercised,  rights,  "may"  is  mandatory,  and  parties 

and  not  to  the  limits  of  the  power  or  juris-  cannot  agree  that  less  than  three  shall 

diction  itself,  they  may,  and  often  have  act.     Monmouth  v.  Leeds,  76  Me.  28. 

been,  construed  to  be  directory  ;  but  neg-  a  Clark    v.   Crane,  5   Mich.  160,  154. 

ative  words,  which  go  to  the  power  or  See   also   Young  v.  Joslin,  13  R.  I.  675; 

jurisdiction  itself,  have  never,  that  lam  Sliawnee  County  v.  Carter,  2  Kan.  115; 

aware  of,  been  brought  within  that  cate-  £Marx  v.  Hanthorn,   148  U.   S.   172,  13 

gory.     '  A  clause  is  directory,'  says  Taun-  Sup.  Ct  Rep.  608]     In  Life  Association 

ton,  J.,  '  when  the  provisions  contain  mere  v.  Board  of  Assessors,  49  Mo.  512,  it  is 

matter  of  discretion  and  no   more;  but  held  that  a  constitutional  provision  that 

not  so  when  they  are  followed  by  words  "all  property  subject  to  taxation  ought 

of  positive  prohibition.'    Pearse  v.  Mor-  to  be  taxed  in  proportion  to  its  value  " 

rice,  2  Ad.  &  El.  96."     Per  Sharsvood.J.,  is  a  prohibition  against  its  being  taxed 

in   Bladen   v.   Philadelphia,   60    Pa.   St.  in  any  other  mode,  and  the  word  ought  is 

464,  466.     And  see  Pittsburg  v.  Coursin,  mandatory. 

74  Pa.  St.  400 ;  Kennedy  v.  Sacra-  2  Wheeler  v.  Chicago,  24  111.  105,  10& 
mento,  19  Fed.  Rep.  580.  Under  a  stat- 


112  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

have  the  assessment  reviewed  or  corrected.  The  next  section 
requires  the  clerk  to  give  ten  days'  notice  that  the  assessment 
has  been  returned,  specifying  the  day  when  objections  may  be 
made  to  the  assessment  before  the  common  council  by  parties 
interested,  which  hearing  may  be  adjourned  from  day  to  day; 
and  the  common  council  is  empowered  in  its  discretion  to  con- 
firm or  annul  the  assessment  altogether,  or  to  refer  it  back  to 
the  same  commissioners,  or  to  others  to  be  by  them  appointed. 
As  the  property  owner  has  the  same  time  and  opportunity  to 
prepare  himself  to  object  to  the  assessment  and  have  it  cor- 
rected, whether  the  return  be  made  before  or  after  the  expira- 
tion of  the  forty  days,  the  case  differs  from  that  of  Marsh  v. 
Chesnut,1  at  the  very  point  on  which  that  case  turned.  Nor 
is  there  any  other  portion  of  the  chapter  which  we  have  discov- 
ered, bringing  it  within  the  principle  of  that  case,  which  is  the 
well-recognized  rule  in  all  the  books."2 

The  rule  is  nowhere  more  clearly  stated  than  by  Chief  Justice 
Shaw,  in  Torrey  v.  Milbury,8  which  was  also  a  tax  case.  "In 
considering  the  various  statutes  regulating  the  assessment  of 
taxes,  and  the  measures  preliminary  thereto,  it  is  not  always 
easy  to  distinguish  which  are  conditions  precedent  to  the  legality 
and  validity  of  the  tax,  and  which  are  directory  merely,  and  do 
not  constitute  conditions.  One  rule  is  very  plain  and  well  settled, 
that  all  those  measures  that  are  intended  for  the  security  of  the 
citizen,  for  ensuring  equality  of  taxation,  and  to  enable  every 
one  to  know  with  reasonable  certainty  for  what  polls  and  for 
what  real  and  personal  estate  he  is  taxed,  and  for  what  all  those 
who  are  liable  with  him  are  taxed,  are  conditions  precedent; 
and  if  they  are  not  observed,  he  is  not  legally  taxed ;  and  he  may 
resist  it  in  any  of  the  modes  authorized  by  law  for  contesting 
the  validity  of  the  tax.  But  many  regulations  are  made  by 

1  14  111.  223.  to  hold  any  requirement  of  a  law  unneces- 

2  Wheeler  v.  Chicago,  24  111.  105,  108.     sary  to  be   complied  with,  unless  it  be 
8  21  Pick.  64,67.    We  commend  in  the     manifest  the  legislature  did  not  intend  to 

same  connection  the  views  of  Lewis,  Ch.  impose  the  consequence  which  would  nat- 
J.,  in  Corbett  v.  Bradley,  7  Nev.  108:  urally  follow  from  a  non-compliance,  or 
"  When  any  requirement  of  a  statute  is  which  would  result  from  holding  the  re- 
held  to  be  directory,  and  therefore  not  quirement  mandatory  or  indispensable, 
material  to  be  followed,  it  is  upon  the  as-  If  it  be  clear  that  no  penalty  wns  in- 
sumption  that  the  legislature  itself  so  tended  to  be  imposed  for  a  non-com  pli- 
considered  it,  and  did  not  make  the  right  ance,  then,  as  a  matter  of  course,  it  is 
conferred  dependent  upon  a  compliance  but  carrying  out  the  will  of  the  legisla- 
with  the  form  prescribed  for  securing  it.  ture  to  declare  the  statute  in  that  respect 
It  is  upon  this  principle  that  the  courts  to  be  simply  directory.  But  if  there  be 
often  hold  the  time  designated  in  a  stat-  anything  to  indicate  the  contrary,  a  full 
ute,  where  a  thing  is  to  be  done,  to  be  di-  compliance  witli  it  must  be  enforced." 
rectory.  No  court  certainly  has  the  right  See  also  Hurford  v.  Omaha,  4  Neb.  336. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  113 

statutes  designed  for  the  information  of  assessors  and  officers, 
and  intended  to  promote  method,  system,  and  uniformity  in  the 
modes  of  proceeding,  a  compliance  or  non-compliance  with  which 
does  in  no  respect  affect  the  rights  of  taxpaying  citizens.  These 
may  be  considered  directory ;  officers  may  be  liable  to  legal 
animadversion,  perhaps  to  punishment,  for  not  observing  them; 
but  yet  their  observance  is  not  a  condition  precedent  to  the 
validity  of  the  tax." 

We  shall  quote  further  only  from  a  single  other  case  upon  this 
point.  The  Supreme  Court  of  Wisconsin,  in  considering  the 
validity  of  a  statute  not  published  within  the  time  required  by 
la\v,  "  understand  the  doctrine  concerning  directory  statutes  to 
be  this:  that  where  there  is  no  substantial  reason  why  the  thing 
to  be  done  might  not  as  well  be  done  after  the  time  prescribed 
as  before,  no  presumption  that  by  allowing  it  to  be  so  done  it 
may  work  an  injury  or  wrong,  nothing  in  the  act  itself,  or  in 
other  acts  relating  to  the  same  subject-matter,  indicating  that 
the  legislature  did  not  intend  that  it  should  rather  be  done  after 
the  time  prescribed  than  not  to  be  done  at  all,  there  the  courts 
assume  that  the  intent  was,  that  if  not  done  within  the  time 
prescribed  it  might  be  done  afterwards.  But  when  any  of  these 
reasons  intervene,  then  the  limit  is  established."1 

These  cases  perhaps  sufficiently  indicate  the  rules,  so  far  as 
any  of  general  application  can  be  declared,  which  are  to  be 
made  use  of  in  determining  whether  the  provisions  of  a  statute 
are  mandatory  or  directory.  Those  directions  which  are  not  of 
the  essence  of  the  thing  to  be  done,  but  which  are  given  with  a 
view  merely  to  the  proper,  orderly,  and  prompt  conduct  of  the 
business,  and  by  a  failure  to  obey  which  the  rights  of  those 
interested  will  not  be  prejudiced,  are  not  commonly  to  be  re- 
garded as  mandatory ;  and  if  the  act  is  performed,  but  not  in  the 
time  or  in  the  precise  mode  indicated,  it  may  still  be  sufficient, 
if  that  which  is  done  accomplishes  the  substantial  purpose  of  the 
statute.2  But  this  rule  presupposes  that  no  negative  words  are 

1  State  v.  Lean,  9  Wis.  279,  292.     See  Ark.  609 ;  State  Auditor  v.  Jackson  Co., 

further,  for  the  views  of  this  court  on  the  65  Ala.  142. 

subject  here  discussed,  Wendel  v.  Dur-  a  The  following,  in  addition  to  those 

bin,  26  Wis.  390.    The  general  doctrine  cited,  are  some  of  the  cases  in  this  coun- 

of  the  cases  above  quoted  is  approved  and  try  in  which  statutes  have  been  declared 

followed  in  French  v.  Edwards,  13  Wall,  directory  only :  Odiorner.  Rand,  59  N.  H. 

606.     In  Low  v.  Dunham,  61  Me.  566,  a  504 ;  Pond  v.  Negus,  3  Mass.  230 ;  Wil- 

statute  is  said  to    be   mandatory  where  liams  v.   School    District,   21   Pick.  75 ; 

public  interests  or  rights  are  concerned,  City  of  Lowell  v.  Hadley,  8  Met.  180 ; 

and  the   public  or  third  persons  have  a  Holland    v.  Osgood,  8   Vt.  276 ;    Corliss 

claim  dejure  that  the  power  shall  be  ex-  v.  Corliss,  8  Vt.   373;    People  i>.  Allen, 

erciscd.    And  see  Wiley  v.  Flournoy,  30  6  Wend.  486 ;  Marchant  v.  Langworthy, 

8 


114  CONSTITUTIONAL   LIMITATIONS.  [CH.  IV. 

employed  in  the  statute  which  expressly  or  by  necessary  impli- 
cation forbid  the  doing  of  the  act  at  any  other  time  or  in  any 
other  manner  than  as  directed.  Even  as  thus  laid  down  and 
restricted,  the  doctrine  is  one  to  be  applied  with  much  circum- 
spection ;  for  it  is  not  to  be  denied  that  the  courts  have  some- 
times, in  their  anxiety  to  sustain  the  proceedings  of  careless  or 
incompetent  officers,  gone  very  far  in  substituting  a  judicial  view 
of  what  was  essential  for  that  declared  by  the  legislature.1 

But  the  courts  tread  upon  very  dangerous  ground  when  they 
venture  to  apply  the  rules  which  distinguish  directory  and 
mandatory  statutes  to  the  provisions  of  a  constitution.  Con- 
stitutions do  not  usually  undertake  to  prescribe  mere  rules  of 
proceeding,  except  when  such  rules  are  looked  upon  as  essential 
to  the  thing  to  be  done ;  and  they  must  then  be  regarded  in  the 
light  of  limitations  upon  the  power  to  be  exercised.  It  is  the 
province  of  an  instrument  of  this  solemn  and  permanent  character 
to  establish  those  fundamental  maxims,  and  fix  those  unvarying 
rules  by  which  all  departments  of  the  government  must  at  all 
times  shape  their  conduct;  and  if  it  descends  to  prescribing 
mere  rules  of  order  in  unessential  matters,  it  is  lowering  the 
proper  dignity  of  such  an  instrument,  and  usurping  the  proper 
province  of  ordinary  legislation.  We  are  not  therefore  to 
expect  to  find  in  a  constitution  provisions  which  the  people,  in 
adopting  it,  have  not  regarded  as  of  high  importance,  and  worthy 
to  be  embraced  in  an  instrument  which,  for  a  time  at  least,  is  to 
control  alike  the  government  and  the  governed,  and  to  form  a 
standard  by  which  is  to  be  measured  the  power  which  can  be 
exercised  as  well  by  the  delegate  as  by  the  sovereign  people 
themselves.  If  directions  are  given  respecting  the  times  or 

6  Hill,  646 ;  Ex  parte  Heath,  3  Hill,  42  ;  Ala.  620 ;  Sorchan  v.  Brooklyn,  62  N.  Y. 
People  v.  Honey,  12  Wend.  481 ;  Jackson  339;   People  v.  Tompkins,  64  N.  Y.  53; 
v.  Young,  5  Cow.  269 ;  Striker  v.  Kelley,  Limestone  Co.  v.  Rather,  48  Ala.  433 ; 

7  Hill,  9;  People  v.  Peck.  11  Wend.  604;  Webster  v.  French,  12  111.  302;  McKune 
Matter  of  Mohawk  &  Hudson  Railroad  v.  Weller,  11  Cal.  49;  State  v.  Co.  Com- 
Co.,  19  Wend.   135 ;   People  v.  Runkel,  missioners   of    Baltimore,  29    Md.   516 ; 
9  Johns.  147 ;  Gale  v.  Mead,  2  Denio,  160 ;  Fry  v.  Booth,  19  Ohio  St.  25  ;  Whalin  v. 
Doughty  v.  Hope,  3  Denio,  249 ;  Elmen-  Macomb,  76  111.  49 ;  Hurford  v.  Omaha, 
dorf  v.  Mayor,  &c.  of  New  York,  25  Wend.  4  Neb.  336 ;   Lackawana1  Iron  Co.  v.  Lit- 
692;   Thames  Manufacturing  Co.  v.  La-  tie  Wolf,  38  Wis.  152;  R.  R.  Co.  v.  War- 
throp,  7  Conn.  550  ;  Colt  v.  Eves,  12  Conn,  ren  Co.,  10  Bush,  711 ;  Grant  v.  Spencer, 
243;  People  v.  Doe,  1  Mich.  451  ;  Parks  1  Mont.  136.     The   list  might  easily  be 
v.  Goodwin,  1  Doug.  (Mich.)  56;  Hickey  largely  increased. 

v.  Hinsdale,  8  Mich.  267  ;  People  v.  Hart-          1  See  upon  this  subject  the  remarks  of 

well,  12  Mich.  508 ;  State  v.  McGinley,  Mr.  Sedgwick  in   his  work  on  Statutory 

4  Ind.  7;  Stayton  v.  Hulings,  7  Ind.  144;  and  Constitutional  Law,  p.  375,  and  those 

New  Orleans  v.  St.  Romes,  9  La.  Ann.  573 ;  of  Hubbard,  J.,  in  Briggs  v.  Georgia,  15 

Edwards  v.  James,  13  Tex.  52 ;  State  v.  Vt.  61.     Also  see  Dryfus  v.  Dridges,  45 

Click,  2  Ala.  26;  Savage  v.  Walshe,  26  Miss.  247. 


CH.  IV.]  CONSTRUCTION   OF  STATE   CONSTITUTIONS.  115 

modes  of  proceeding  in  which  a  power  should  be  exercised,  there 
is  at  least  a  strong  presumption  that  the  people  designed  it 
should  be  exercised  in  that  time  and  mode  only ; 1  and  we  im- 
pute to  the  people  a  want  of  due  appreciation  of  the  purpose  and 
proper  province  of  such  an  instrument,  when  we  infer  that  such 
directions  are  given  to  any  other  end.  Especially  when,  as  has 
been  already  said,  it  is  but  fair  to  presume  that  the  people  in 
their  constitution  have  expressed  themselves  in  careful  and 
measured  terms,  corresponding  with  the  immense  importance 
of  the  powers  delegated,  and  with  a  view  to  leave  as  little  as 
possible  to  implication.2 

There  are  some  cases,  however,  where  the  doctrine  of  directory 
statutes  has  been  applied  to  constitutional  provisions ;  but  they 
are  so  plainly  at  variance  with  the  weight  of  authority  upon  the 
precise  points  considered  that  we  feel  warranted  in  saying  that 
the  judicial  decisions  as  they  now  stand  do  not  sanction  the 
application.  In  delivering  the  opinion  of  the  New  York  Court 
of  Appeals  in  one  case,  Mr.  Justice  Willard  had  occasion  to 
consider  the  constitutional  provision,  that  on  the  final  passage 
of  a  bill  the  question  shall  be  taken  by  ayes  and  noes,  which 
shall  be  duly  entered  upon  the  journals;  and  he  expressed  the 
opinion  that  it  was  only  directory  to  the  legislature.3  The 
remark  was  obiter  dictum,  as  the  court  had  already  decided  that 
the  provision  had  been  fully  complied  with ;  and  those  familiar 
with  the  reasons  which  have  induced  the  insertion  of  this  clause 
in  our  constitutions  will  not  readily  concede  that  its  sole  design 
was  to  establish  a  mere  rule  of  order  for  legislative  proceedings 
which  might  be  followed  or  not  at  discretion.  Mr.  Chief  Justice 
Thurman,  of  Ohio,  in  a  case  not  calling  for  a  discussion  of  the 
subject,  has  considered  a  statute  whose  validity  was  assailed  on 
the  ground  that  it  was  not  passed  in  the  mode  prescribed  by  the 
constitution.  "By  the  term  mode,"  he  says,  "I  do  not  mean  to 

1  See  State  v.  Johnson,  26  Ark.  281.  People  v.  Lawrence,  36  Barb.  177  ;  State 
£  Where  the   Constitution  provides  that  v.  Johnson,  26  Ark.  281 ;  State  v.  Glenn, 
the  legislature  shall  apportion  the  State  18  Nev.  34,  1  Pac.  186.     "  The  essential 
into  legislative  districts  every  ten  years,  nature  and   object  of  constitutional  law 
and  that  such  appointment  shall  be  based  being  restrictive  upon  the  powers  of  the 
upon  the  last  preceding  federal  census,  several  departments  of  government,  it  is 
one  exercise  of  this  power  of  apportion-  difficult  to  comprehend  how  its  provisions 
nient  exhausts  it,  and  the  State  cannot  can   be   regarded  as  merely  directory." 
be  reapportioned  until  after  the  next  fed-  Nicholson,  Ch.  J.,  in  Cannon  v.  Mathes, 
eral  census.     People  v.  Hutchinson,  172  8    Heisk.    504,    517.     Unless    expressly 
111.  486,  50  N.  E.  599,  40  L.  R.  A.  770.]  permissive,  constitutional  provisions  are 

2  Wolcott  v.  Wigton,  7  Ind.  44;  per  mandatory.     Varney  v.   Justice,  86  Ky. 
Branson,  J.,  in  People  v.  Purdy,  2  Hill,  596,  6  S.  W.  457. 

81 ;  Greencastle  Township  «>.  Black,  5  Ind.  8  People  v.  Supervisors  of  Chenango, 
666 ;  Opinions  of  Judges,  18  Me.  458.  See  8  N.  Y.  317. 


116  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

include  the  authority  in  which  the  lawmaking  power  resides,  or 
the  number  of  votes  a  bill  must  receive  to  become  a  law.  That 
the  power  to  make  law,  is  vested  in  the  assembly  alone,  and  that 
no  act  has  any  force  that  was  not  passed  by  the  number  of  votes 
required  by  the  constitution,  are  nearly,  or  quite,  self-evident 
propositions.  These  essentials  relate  to  the  authority  by  which, 
rather  than  the  mode  in  which,  laws  are  to  be  made.  Now  to 
secure  the  careful  exercise  of  this  power,  and  for  other  good 
reasons,  the  constitution  prescribes  or  recognizes  certain  things 
to  be  done  in  the  enactment  of  laws,  which  things  form  a  course 
or  mode  of  legislative  procedure.  Thus  we  find,  inter  alia,  the 
provision  before  quoted  that  every  bill  shall  be  fully  and  dis- 
tinctly read  on  three  different  days,  unless,  in  case  of  urgency, 
three-fourths  of  the  house  in  which  it  shall  be  pending  shall 
dispense  with  this  rule.  This  is  an  important  provision  without 
doubt,  but,  nevertheless,  there  is  much  reason  for  saying  that 
it  is  merely  directory  in  its  character,  and  that  its  observance  by 
the  assembly  is  secured  by  their  sense  of  duty  and  official  oaths, 
and  not  by  any  supervisory  power  of  the  courts.  Any  other 
construction,  we  incline  to  think,  would  lead  to  very  absurd  and 
alarming  consequences.  If  it  is  in  the  power  of  every  court 
(and  if  one  has  the  power,  every  one  has  it)  to  inquire  whether 
a  bill  that  passed  the  assembly  was  ' fully '  and  'distinctly  '  read 
three  times  in  each  house,  and  to  hold  it  invalid  if,  upon  any 
reading,  a  word  was  accidentally  omitted,  or  the  reading  was 
indistinct,  it  would  obviously  be  impossible  to  know  what  is  the 
statute  law  of  the  State.  Now  the  requisition  that  bills  shall  be 
fully  and  distinctly  read  is  just  as  imperative  as  that  requiring 
them  to  be  read  three  times ;  and  as  both  relate  to  the  mode  of 
procedure  merely,  it  would  be  difficult  to  find  any  sufficient 
reason  why  a  violation  of  one  of  them  would  be  less  fatal  to  an 
act  than  a  violation  of  the  other." l 

A  requirement  that  a  law  shall  be  read  distinctly,  whether 
mandatory  or  directory,  is,  from  the  very,  nature  of  the  case, 
addressed  to  the  judgment  of  the  legislative  body,  whose  decision 
as  to  what  reading  is  sufficiently  distinct  to  be  a  compliance 
cannot  be  subject  to  review.  But  in  the  absence  of  authority  to 
the  contrary,  we  should  not  have  supposed  that  the  requirement 
of  three  successive  readings  on  different  days  stood  upon  the 
same  footing.2  To  this  extent  a  definite  and  certain  rule  is 

i  Miller  v.  State,  3  Ohio  St.  475,  483.          2  See  People  v.  Campbell,  8  III.  466; 

The  provision  for  three  readings  on  sep-  McCulloch  v  State,  11  Ind.  424 ;  Cannon 

arate  days  does  not  apply  to  amendments  v.  Mathes,   8.    Heisk.   504;    Spangler  v. 

made  in  the  progress  of  the  bill  through  Jacob}',  14  111.297;  People  ;•.  Starne,  35 

the  houses.    People  v.  Wallace,  70  111.  680.  111.  121 ;  Kyan  v.  Lynch,  68  111.  loO. 


CH.  IV.]  CONSTRUCTION   OF   STATE  CONSTITUTIONS.  117 

capable  of  being,  and  has  been,  laid  down,  which  can  be  literally 
obeyed ;  and  the  legislative  body  cannot  suppose  or  adjudge  it  to 
have  been  done  if  the  fact  is  otherwise.  The  requirement  has 
an  important  purpose,  in  making  legislators  -proceed  in  their 
action  with  caution  and  deliberation ;  and  there  cannot  often  be 
difficulty  in  ascertaining  from  the  legislative  records  themselves 
if  the  constitution  has  been  violated  in  this  particular.  There 
is,  therefore,  no  inherent  difficulty  in  the  question  being  reached 
and  passed  upon  by  the  courts  in  the  ordinary  mode,  if  it  is 
decided  that  the  constitution  intends  legislation  shall  be  reached 
through  the  three  readings,  and  not  otherwise. 

The  opinion  above  quoted  was  recognized  as  law  by  the 
Supreme  Court  of  Ohio  in  a  case  soon  after  decided.  In  that 
case  the  court  proceed  to  say:  "The  .  .  .  provision  .  .  .  that 
no  bill  shall  contain  more  than  one  subject,  which  shall  be 
clearly  expressed  in  its  title,  is  also  made  a  permanent  rule  in 
the  introduction  and  passage  of  bills  through  the  houses.  The 
subject  of  the  bill  is  required  to  be  clearly  expressed  in  the  title 
for  the  purpose  of  advising  members  of  its  subject,  when  voting 
in  cases  in  which  the  reading  has  been  dispensed  with  by  a  two- 
thirds  vote.  The  provision  that  a  bill  shall  contain  but  one 
subject  was  to  prevent  combinations  by  which  various  and  dis- 
tinct matters  of  legislation  should  gain  a  support  which  they 
could  not  if  presented  separately.  As  a  rule  of  proceeding  in 
the  General  Assembly,  it  is  manifestly  an  important  one.  But 
if  it  was  intended  to  effect  any  practical  object  for  the  benefit  of 
the  people  in  the  examination,  construction,  or  operation  of  acts 
passed  and  published,  we  are  unable  to  perceive  it.  The  title 
of  an  act  may  indicate  to  the  reader  its  subject,  and  under  the 
rule  each  act  would  contain  one  subject.  To  suppose  that  for 
such  a  purpose  the  Constitutional  Convention  adopted  the  rule 
under  consideration  would  impute  to  them  a  most  minute  pro- 
vision for  a  very  imperfect  heading  of  the  chapters  of  laws  and 
their  subdivision.  This  provision  being  intended  to  operate 
upon  bills  in  their  progress  through  the  General  Assembly,  it 
must  be  held  to  be  directory  only.  It  relates  to  bills,  and  not 
to  acts.  It  would  be  most  mischievous  in  practice  to  make  the 
validity  of  every  law  depend  upon  the  judgment  of  every  judicial 
tribunal  of  the  State,  as  to  whether  an  act  or  a  bill  contained 
more  than  one  subject,  or  whether  this  one  subject  was  clearly 
expressed  in  the  title  of  the  act  or  bill.  Such  a  question  would 
be  decided  according  to  the  mental  precision  and  mental  disci- 
pline of  each  justice  of  the  peace  and  judge.  No  practical 
benefit  could  arise  from  such  inquiries.  We  are  therefore  of 


118 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  IV. 


the  opinion  that  in  general  the  only  safeguard  against  the  vio- 
lation of  these  rules  of  the  houses  is  their  regard  for,  and  their 
oath  to  support,  the  constitution  of  the  State.  We  say,  in  gen- 
eral, the  only  safeguard;  for  whether  a  manifestly  gross  and 
fraudulent  violation  of  these  rules  might  authorize  the  court  to 
pronounce  a  law  unconstitutional,  it  is  unnecessary  to  determine. 
It  is  to  be  presumed  no  such  case  will  ever  occur."  * 

If  the  prevailing  doctrine  of  the  courts  were  in  accord  with 
this  decision,  it  might  become  important  to  consider  whether 
the  object  of  the  clause  in  question,  as  here  disclosed,  was  not 
of  such  a  character  as  to  make  the  provision  mandatory  even  in 
a  statute.  But  we  shall  not  enter  upon  that  subject  here,  as 
elsewhere  we  shall  have  occasion  to  refer  to  decisions  made  by 
the  highest  judicial  tribunals  in  nearly  all  the  States,  recogniz- 


i  Pirn  v.  Nicholson,  6  Ohio  St.  176, 
179.  Those  provisions  which  relate  to 
the  structure  of  a  bill  or  the  forms  to  be 
observed  in  its  passage  are  generally  di- 
rectory, while  those  as  to  the  number  of 
members  necessary  to  pass  a  bill  and  as 
to  the  effect  and  operation  of  a  bill  when 
passed,  are  usually  mandatory.  Ex  parte 
Talk,  42  Ohio  St.  638.  But  the  authenti- 
cation of  an  act  must  be  by  signature,  and 
one  which,  though  passed,  is  nol^  signed 
nor  enrolled  is  void.  State  v.  Kiesewet- 
ter,  45  Ohio  St.  254,  12  N.  E.  807. 

See  also  in  line  with  Pirn  v.  Nicholson, 
supra ;  Washington  v.  Page,  4  Cal.  388. 
In  Hill  v.  Boyland,  40  Miss.  618,  a  provi- 
sion requiring  of  all  officers  an  oath  to 
support  the  constitution  was  held  not  to 
invalidate  the  acts  of  officials  who  had 
neglected  to  take  such  an  oath.  And  in 
McPherson  v.  Leonard,  29  Md.  377,  the 
provision  that  the  style  of  all  laws  shall 
be,  "  Be  it  enacted  by  the  General  As- 
sembly of  Maryland,"  was  held  directory. 
Similar  rulings  were  made  in  Cape 
Girardeau  v.  Riley,  52  Mo.  424;  St.  Louis 
v.  Foster,  52  Mo.  513 ;  Swann  v.  Buck, 
40  Miss.  268. 

Directly  the  opposite  has  been  held  in 
Nevada.  State  v.  Rogers,  10  Nev.  250. 
So  a  requirement  that  indictments  shall 
conclude,  "against  the  peace  and  dignity 
of  the  people  of  West  Virginia,"  was  held 
in  Lemons  v.  People.  4  W.  Va.  755,  1 
Green  Cr.  R.  666,  to  be  mandatory,  and 
an  indictment  which  complied  with  it, 
except  in  abbreviating  the  name  of  the 
State,  was  held  bad. 


A  statute  which  is  passed  in  obedience 
to  a  constitutional  requirement  must  be 
held  mandatory.  State  v.  Pierce,  35  Wis. 
93,  99. 

A  provision  that  the  legislature  shall 
provide  for  determining  contested  elec- 
tions is  mandatory  upon  that  depart- 
ment, but  if  in  its  enactments  it  fails  to 
carry  out  the  provision,  the  courts  can- 
not annul  the  acts  on  that  ground. 
Schulherr  v.  Bordeaux,  64  Miss.  59,  8 
So.  201.  So  if  the  legislature  disregards 
a  provision  that  before  a  special  law  is 
enacted  there  must  be  evidence  of  pub- 
lication of  notice  of  intention  to  introduce 
it.  Davis  v.  Gaines,  48  Ark.  370,  3  S.  W. 
184. 

If  a  constitution  provides  "  that  when 
any  bill  is  presented  for  an  act  of  in- 
corporation, it  shall  be  continued  until 
another  election  of  members  of  Assembly 
shall  have  taken  place  and  public  notice 
of  the  pendency  thereof  given,  it  does 
not  necessarily  follow  that  the  organ- 
ization under  the  charter  is  not  as  to 
all  practical  purposes  valid.  The  pro- 
vision is  directory  to  the  Assembly,  and 
in  the  absence  of  any  clause  forbid- 
ding the  enactment,  does  not  affect  the 
corporators  unless  the  State  itself  in- 
tervenes. Whitney  r.  Wyman,  101  U.  S. 
392,  397.  The  State  may  waive  condi- 
tions, and  so  long  as  the  State  raises 
no  objection  it  is  immaterial  to  other 
parties  whether  it  is  a  corporation  de 
facto  or  de  jure.  'Ibid."  McClinch  v. 
Sturgis,  72  Me.  288,  295. 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS.  119 

ing  similar  provisions  as  mandatory,  and  to  be  enforced  by  the 
courts.  And  we  concur  fully  in  what  was  said  by  Mr.  Justice 
Emmot  in  speaking  of  this  very  provision,  that  "it  will  be  found 
upon  full  consideration  to  be  difficult  to  treat  any  constitutional 
provision  as  merely  directory  and  not  imperative."1  And  with 
what  was  said  by  Mr.  Justice  Lumpkin,  as  to  the  duty  of  the 
courts:  "It  has  been  suggested  that  the  prohibition  in  the  seven- 
teenth section  of  the  first  article  of  the  Constitution,  'Nor  shall 
any  law  or  ordinance  pass  containing  any  matter  different  from 
what  is  expressed  in  the  title  thereof, 'is  directory  only  to  the 
legislative  and  executive  or  law-making  departments  of  the 
government.  But  we  do  not  so  understand  it.  On  the  contrary, 
we  consider  it  as  much  a  matter  of  judicial  cognizance  as  any 
other  provision  in  that  instrument.  If  the  courts  would  refuse 
to  execute  a  law  suspending  the  writ  of  habeas  corpus  when  the 
public  safety  did  not  require  it,  a  law  violatory  of  the  freedom 
of  the  press  or  trial  by  jury,  neither  would  they  enforce  a  statute 
which  contained  matter  different  from  what  was  expressed  in  the 
title  thereof."2 

Self-executing  Provisions. 

But  although  none  of  the  provisions  of  a  constitution  are  to 
be  looked  upon  as  immaterial  or  merely  advisory,  there  are 
some  which,  from  the  nature  of  the  case,  are  as  incapable  of 
compulsory  enforcement  as  are  directory  provisions  in  general.3 
The  reason  is  that,  while  the  purpose  may  be  to  establish  rights 
or  to  impose  duties,  they  do  not  in  and  of  themselves  constitute 
a  sufficient  rule  by  means  of  which  such  right  may  be  protected 
or  such  duty  enforced.  In  such  cases,  before  the  constitutional 
provision  can  be  made  effectual,  supplemental  legislation  must 
be  had ;  and  the  provision  may  be  in  its  nature  mandatory  to 
the  legislature  to  enact  the  needful  legislation,  though  back  of 
it  there  lies  no  authority  to  enforce  the  command.  Sometimes 
the  constitution  in  terms  requires  the  legislature  to  enact  laws 
on  a  particular  subject;  and  here  it  is  obvious  that  the  require- 
ment has  only  a  moral  force:  the  legislature  ought  to  obey  it; 
but  the  right  intended  to  be  given  is  only  assured  when  the 

1  People   v.  Lawrence,  36  Barb.  177,     43  Ala.  224;  Nougues  v.  Douglass,  7  Cal. 
186;  QMulnix  v.  Mutual  Hen.  L.  Ins.  Co.,     65;  State  v.  McCann,  4  Lea,  1. 

23   Col.  85,  46   Pae.  1114,  33  L.  R.   A.          3  There  are  also  many  which  merely 

827.]  contemplate  the  exercise  of  powers  con- 

2  Protho  v.  Orr,  12  Ga.  36.     See   also  ferred,  when  the  legislature  in  its  discre- 
Opinions  of  Judges,  18  Me.  458;    Indiana  tion  shall  deem  it  wise  ;  like  the  provision 
Central  Railroad  Co.  v.  Potts,  7  Ind.  681;  that  "suits  may  be  brought  against  the 
People   v.    Starne,   35  111.  121  ;  State  v.  State  in  such  courts  as  may  be  by  law 
Miller,  45  Mo.  495 ;  Weaver  v.  Lapsley,  provided."     Ex  parte  State,  52  Ala.  231. 


120  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

legislation  is  voluntarily  enacted.1  Illustrations  may  be  found 
in  constitutional  provisions  requiring  the  legislature  to  provide 
by  law  uniform  and  just  rules  for  the  assessment  and  collection 
of  taxes;  these  must  lie  dormant  until  the  legislation  is  had;2 
they  do  not  displace  the  law  previously  in  force,  though  the 
purpose  may  be  manifest  to  do  away  with  it  by  the  legislation 
required.3  So,  however  plainly  the  constitution  may  recognize 
the  right  to  appropriate  private  property  for  the  general  benefit, 
the  appropriation  cannot  be  made  until  the  law  has  pointed  out 
the  cases,  and  given  the  means  by  which  compensation  may  be 
assured.*  A  different  illustration  is  afforded  by  the  new  amend- 
ments to  the  federal  Constitution.  The  fifteenth  amendment 
provides  that  "the  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition  of  servi- 
tude. "  To  this  extent  it  is  self-executing,  and  of  its  own  force 
it  abolishes  all  distinctions  in  suffrage  based  on  the  particulars 
enumerated.  But  when  it  further  provides  that  "  Congress  shall 
have  power  to  enforce  this  article  by  appropriate  legislation,"  it 
indicates  the  possibility  that  the  rule  may  not  be  found  suffi- 
ciently comprehensive  or  particular  to  protect  fully  this  right  to 
equal  suffrage,  and  that  legislation  may  be  found  necessary  for 
that  purpose.6  Other  provisions  are  completely  self-executing, 

1  School  Board  v.  Patten,  62  Mo.  444.  executing  to  this  extent,  that  everything 

See  Schulherr  v.  Bordeaux,  64  Miss.  59,  done  in  violation  of  it  is  void.  Brien  v. 

8  So.  201 ;  [State  v.  Spokane,  24  Wash.  Williamson,  8  Miss.  14;  £  Russell  c.  Ayer, 

63,  63  Pac.  1116-3  12°  N-  c-  180>  27  s-  E-  133>  '37  L-  R-  A- 

4  Williams  v.  Detroit,  2  Mich.  560 ;  246.]  A  provision  that  "  the  legislature 

People  v.  Lake  Co.,  33  Cal.  487  :  Bowie  shall  have  no  power  to  authorize  lotteries 

».  Lott,  24  La.  Ann.  214 ;  Mississippi  for  any  purpose,  and  shall  pass  laws  to 

Mills  v.  Cook,  56  Miss.  40 ;  Coatesville  prohibit  the  sale  of  lottery  tickets  in  this 

Gas  Co.  v.  Chester  Co.,  97  Pa.  St.  476.  State,"  was  held  to  be  of  itself  a  prohibi- 

8  Moore,  J.,  in  Supervisors  of  Dod-  tion  of  lotteries.  Bass  v.  Nashvile,  Meigs, 

dridge  v.  Stout,  9  W.  Va.  703,  705  ;  Cahoon  421 ;  Yerger  v.  Rains,  4  Humph.  259.  In 

v.  Commonwealth,  20  Gratt.  733;  Lehigh  State  v.  Woodward,  89  Ind.  110,  it  was 

Iron  Co.  v.  Lower  Macungie,  81  Pa.  St.  held  that  a  like  provision  took  away  any 

482;  Erie  Co.  v.  Erie,  113  Pa.  St.  360,  pre-existing  authority  to  carry  them  on, 

6  Atl.  136.  but  that  it  needed  legislation  to  make 

4  Lamb  v.  Lane,  4  Ohio  St.  167.  See  them  criminal.  All  negative  or  pro- 
School  Board  v.  Patten,  62  Mo.  444 ;  hibitive  provisions  in  a  constitution  are 
Myers  v.  English,  9  Cal.  341 ;  Gillinwater  self-executing.  Law  v.  People,  87  111.  385. 
v.  Mississippi,  &c.  R.  R.  Co.,  13  111.  1  ;  f_Where  the  constitution  requires  that 
Cairo,  &c.  R.  R.  Co.  v.  Trout,  32  Ark.  17.  all  public  institutions  shall  be  located  at 
A  provision  that  all  printing  shall  be  the  seat  of  government,  the  courts  have 
done  by  the  lowest  bidder  under  regula-  power  to  determine  whether  a  proposed 
tions  supplied  by  law  is  not  self-execut-  insane  asylum  is  a  public  institution,  and, 
ing.  Brown  v.  Seay,  86  Ala.  122,  5  So.  if  it  is  found  so  to  be,  to  enjoin  its  loca- 
216.  tion  elsewhere.  State  v.  Metschan,  32 

6  United  States  v.  Reese,  92  U.  S.  Oreg.  372,  46  Pac.  791,  41  L.  R.  A.  692, 

214.  Any  constitutional  provision  is  self-  63  Pac.  1071.  Prohibition  of  donations 


CH.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


121 


and  manifestly  contemplate  no  legislation  whatever  to  give  them 
full  force  and  operation.1 

A  constitutional  provision  may  be  said  to  be  self-executing  if 
it  supplies  a  sufficient  rule  by  means  of  which  the  right  given 
may  be  enjoyed  and  protected,  or  the  duty  imposed  may  be 
enforced;2  and  it  is  not  self-executing  when  it  merely  indicates 
principles,  without  laying  down  rules  by  means  of  which  those 
principles  may  be  given  the  force  of  law.  Thus,  a  constitution 
may  very  clearly  require  county  and  town  government;  but  if  it 
fails  to  indicate  its  range,  and  to  provide  proper  machinery,  it 
is  not  in  this  particular  self-executing,  and  legislation  is  essen- 
tial.3 Rights  in  such  a  case  may  lie  dormant  until  statutes  shall 
provide  for  them,  though  in  so  far  as  any  distinct  provision  is 
made  which  by  itself  is  capable  of  enforcement,  it  is  law,  (a)  and 
all  supplementary  legislation  must  be  in  harmony  with  it. 


by  municipalities  to  private  corporations 
is  self-executing.  Washingtonian  Home 
v.  Chicago,  167  111.  414,  41  N.  E.  893, 
29  L.  Ii.  A.  798Q 

1  See  People  v.  Bradley,  60  111.  390; 
People  v.  McRoberts,  62  111.  38  ;  Mitchell 
v.   Illinois,    &c.    Coal   Co.,   68   111.   286; 
Beecher  v.  Baldy,  7  Mich.  488 ;   People 
i'.  Humsey.  64  111.  41;  State  v.  Holladay, 
64  Mo.  526  ;  Miller  v.  Max,  65  Ala.  322; 
Hills  v.  Chicago,  60  111.  86  ;  Kine  v.  Def- 
enbaugh,  64  111.  291 ;  People  o.  Hoge,  65 
Cal  (>12  ;  Rowan  v.  Runnels,  5  How.  134; 
Friedman  v.  Mathes,  8  Heisk.  488  ;  John- 
son v.  Parkersburgh,  16  W.  Va.  402,  37 
Am.  Rep.  779;    De  Turk  v.  Com.,  129 
Pa.  St.  161,  18  All.  Rep.  757. 

2  Friedman  v.  Mathes,  8  Heisk.  488 ; 
State  c.  Weston,  4  Neb.  216;  People  v. 
Hoge,  55  Cal.  612 ;  Ewing  v.  Orville  M. 
Co.,  56  Cal.  649  ;  Hills  v.  Chicago,  64  111. 
86.     A  provision  imposing  a  duty  upon 
an  officer  is  self-executing.    State  v.  Bab- 
cock,  19  Neb.  230,  27  N.  W.  98.     So,  one 
providing  for  jury  trial  in  all  of  a  certain 
class   of  cases.     Woodward  Iron   Co.  v. 
Cabaniss,   87  Ala.  328,   6  So.  300.     So 
one   providing  that  compensation  shall 
be  given  for  property  "  damaged  "  in  the 
course  of  a  public  improvement.     House- 
holder v.  Kansas  City,  83  Mo.  488.    FJSo 


one  providing  that  "knowledge,  by  any 
employee  injured,  of  the  defective  or 
unsafe  character  or  conditions  of  any 
machinery,  ways  or  appliances,  shall 
be  no  defence  to  an  action  for  injury 
caused  thereby."  Illinois  C.  R.  Co.  v. 
Ihlenberg.  75  Fed.  Rep.  873,  34  L.  R.  A. 
393.  That  justices  of  peace  in  cities 
above  6,000  shall  be  paid  by  salaries  in- 
stead of  fees.  Anderson  v.  Whatcom 
County,  15  Wash.  47,  45  Pac.  665,  33 
L.  R.  A.  137.  That  civil  service  appoint- 
ments "  shall  be  made  according  to  merit 
and  fitness,  to  be  ascertained,  so  far  as 
practicable,  by  examinations  which  so 
far  as  practicable  shall  be  competitive." 
People  v.  Roberts,  148  N.  Y.  360,  42  N.  E. 
1082,  31  L.  R.  A.  399.  That  no  person 
shall  hold  a  State  and  a  federal  office  at 
the  same  time.  De  Turk  v.  Com.,  129  Pa. 
151,  18  All.  757,  5  L.  R.  A.  853,  15  Am. 
St.  705.  Authorization  of  tax  by  an  elec- 
tion. Logan  o.  Ouachita  Parish,  105  La. 
499,  29  So.  975.] 

8  Wall,  Ex  parte,  48  Cal.  279;  Attor- 
ney-General v.  Common  Council  of 
Detroit,  29  Mich.  108.  For  exemption 
provisions,  not  self-executing,  see  Green 
v.  Aker,  11  Ind.  223;  Speidel  v.  Schlosser, 
13  W.  Va.  686. 


(a)  [The  Constitution  of  the  State  of  Kansas  of  1859,  art.  12,  §  2,  provides  as 
follows:  "  Dues  from  corporations  shall  be  secured  by  individual  liability  of  the  stock- 
holders to  an  additional  amount  equal  to  the  stock  owned  by  each  stockholder ;  and  such 
other  means  as  shall  be  provided  by  law  ;  .  .  ."  The  portion  italicized  is  self-ex- 
ecuting, and  enters  as  a  part  of  the  contractual  liability  of  every  person  who  volun- 


122  CONSTITUTIONAL  LIMITATIONS.  [CH.  IV. 

The  provisions  exempting  homesteads  from  forced  sale  for  the 
satisfaction  of  debts  furnish  many  illustrations  of  self-executing 
provisions,  and  also  of  those  which  are  not  self-executing. 
Where,  as  in  California,  the  constitution  declares  that  "the 
legislature  shall  protect  by  law  from  forced  sale  a  certain 
portion  of  the  homestead  and  other  property  of  all  heads  of 
families,"  the  dependence  of  the  provision  on  subsequent  legis- 
lative action  is  manifest.  But  where,  as  in  some  other  States, 
the  constitution  defines  the  extent,  in  acres  or  amount,  that  shall 
be  deemed  to  constitute  a  homestead,  and  expressly  exempts 
from  any  forced  sale  what  is  thus  defined,  a  rule  is  prescribed 
whicli  is  capable  of  enforcement.  Perhaps  even  in  such  cases, 
legislation  may  be  desirable,  by  way  of  providing  convenient 
remedies  for  the  protection  of  the  right  secured,  or  of  regulating 
the  claim  of  the  right  so  that  its  exact  limits  may  be  known  and 
understood ;  but  all  such  legislation  must  be  subordinate  to  the 
constitutional  provision,  and  in  furtherance  of  its  purpose,  and 
must  not  in  any  particular  attempt  to  narrow  or  embarrass  it. 
The  provision  of  a  constitution  which  defines  a  homestead  and 
exempts  it  from  forced  sale  is  self-executing,  at  least  to  this 
extent,  that,  though  it  may  admit  of  supplementary  legislation 
in  particulars  where  in  itself  it  is  not  as  complete  as  may  be 
desirable,  it  will  override  and  nullify  whatever  legislation, 
either  prior  or  subsequent,  would  defeat  or  limit  the  homestead 
which  is  thus  defined  and  secured. 

We  have  thus  indicated  some  of  the  rules  which  we  think  are 
to  be  observed  in  the  construction  of  constitutions.  It  will  be 
perceived  that  we  have  not  thought  it  important  to  quote  and  to 

tarily  becomes  a  stockholder  in  any  corporation  (except  railroad,  charitable,  and 
religious  corporations,  expressly  excepted  in  later  part  of  above  section)  created 
under  the  laws  of  Kansas.  Whitman  v.  National  Bank  of  Oxford,  176  U.  S.  559,  20 
Sup.  Ct.  Rep.  477,  nff.  76  Fed.  Rep.  697,  and  51  U.  S.  App.  536,  83  Fed.  Rep.  288,  28 
C.  C.  A.  404.  But  see  Woodworth  i>.  Bowles,  61  Kan.  669,  60  Pac.  331,  in  which  it 
is  said  that  the  use  of  the  future  tense  "  shall  be  secured  "  indicates  that  the  constitu- 
tional clause  above  given  is  not  self-executing.  The  "  double  liability  clause"  of  the 
Minnesota  Constitution,  which  provides  that  "  each  stockholder  in  any  corporation 
(excepting  those  organized  for  the  purpose  of  carrying  on  any  kind  of  manufactur- 
ing or  mechanical  business)  shall  be  liable  to  the  amount  of  stock  held  or  owned  by 
him  "  is  held  to  create  expropris  vigore  an  individual  liability  on  the  part  of  each  stock- 
holder. Willis  v.  Mabon,  48  Minn.  140,  sub  nom.  Willis  v.  St.  Paul  Sanitation  Co., 
50  N.  W.  1110,  16  L.  R.  A.  281, 31  Am.  St.  626.  So  too  no  supplementary  legislation 
is  needed  to  make  effective  the  provision  of  the  Nebraska  Constitution  dpclaring  that 
"every  stockholder  in  a  banking  corporation  or  institution  shall  be  individually  re- 
sponsible and  liable  to  its  creditors,  over  and  above  the  amount  of  stock  by  him  held, 
to  an  amount  equal  to  his  respective  stock  or  shares  so  held,  for  all  its  "  liabilities  ac- 
cruing while  he  remains  such  stockholder."  Farmers'  Loan  and  T.  Co.  v.  Funk,  49 
Neb.  353,  68  N.  W.  520.  In  this  connection,  see  note  appended  to  44  L.  ed.  U.  S.  589, 
and  another  on  self-executing  constitutional  provisions  in  16  L.  R.  A.  281.] 


Oil.  IV.]  CONSTRUCTION   OF   STATE   CONSTITUTIONS. 


123 


dwell  upon  those  arbitrary  rules  to  which  so  much  attention  is 
sometimes  given,  and  which  savor  rather  of  the  closet  than  of 
practical  life.  Our  observation  would  lead  us  to  the  conclusion 
that  they  are  more  often  resorted  to  as  aids  in  ingenious  attempts 
to  make  the  constitution  seem  to  say  what  it  does  not,  than  with 
a  view  to  make  that  instrument  express  its  real  intent.  All 
external  aids,  and  especially  all  arbitrary  rules,  applied  to 
instruments  of  this  popular  character,  are  of  very  uncertain 
value ;  and  we  •  do  not  regard  it  as  out  of  place  to  repeat  here 
what  we  have  had  occasion  already  to  say  in  the  course  of  this 
chapter,  that  they  are  to  be  made  use  of  with  hesitation,  and 
only  with  much  circumspection.1 


1  See  People  v.  Cowles,  13  N.  T.  350, 
per  Johnson,  J. ;  Temple  v.  Mead,  4  Vt.  535, 
540,  per  Williams,  J. ;  People  v.  Fancher, 
50  N.  Y.  291.  "  In  construing  so  impor- 
tant an  instrument  as  a  constitution,  espe- 
cially those  parts  which  affect  the  vital 
principle  of  a  republican  government,  the 
elective  franchise,  or  the  manner  of  exer- 
cising it,  we  are  not,  on  the  one  hand,  to 
indulge  ingenious  speculations  which  may 
lead  us  wide  from  the  true  sense  and 
spirit  of  the  instrument,  nor,  on  the  other, 
to  apply  to  it  such  narrow  and  constrained 
views  as  may  exclude  the  real  object  and 
intent  of  those  who  framed  it.  We  are 
to  suppose  that  the  authors  of  such  an 
instrument  had  a  thorough  knowledge  of 
the  force  and  extent  of  the  words  they 
employ ;  that  they  had  a  beneficial  end 
and  purpose  in  view ;  and  that,  more  es- 
pecially in  any  apparent  restriction  upon 
the  mode  of  exercising  the  right  of  suf- 
frage, there  was  some  existing  or  antici- 
pated evil  which  it  was  their  purpose  to 
avoid.  If  an  enlarged  sense  of  any  par- 
ticular form  of  expression  should  be  neces- 
sary to  accomplish  so  great  an  object  as 
a  convenient  exercise  of  the  fundamental 
privilege  or  right,  —  that  of  election,  — 


such  sense  must  be  attributed.  We  are 
to  suppose  that  those  who  were  delegated 
to  the  great  business  of  distributing  the 
powers  which  emanated  from  the  sov- 
ereignty of  the  people,  and  to  the  estab- 
lishment of  the  rules  for  the  perpetual 
security  of  the  rights  of  person  and  prop- 
erty, had  the  wisdom  to  adapt  their 
language  to  future  as  well  as  existing 
emergencies,  so  that  words  competent  to 
the  then  existing  state  of  the  community, 
and  at  the  same  time  capable  of  being 
expanded  to  embrace  more  extensive  re- 
lations, should  not  be  restrained  to  their 
more  obvious  and  immediate  sense,  if, 
consistently  with  the  general  object  of 
the  authors  and  the  true  principles  of  the 
compact,  they  can  be  extended  to  other 
relations  and  circumstances  which  an 
improved  state  of  society  may  produce. 
Qui  hasret  in  litera  hceret  in  cortice  is  a 
familiar  maxim  of  the  law.  The  letter 
killeth,  but  the  spirit  maketh  alive,  is  the 
more  forcible  expression  of  Scripture." 
Parker,  Ch.  J.,  in  Henshaw  v.  Foster,  9 
Pick.  312,  316.  There  are  some  very 
pertinent  and  forcible  remarks  by  Mr. 
Justice  Miller  on  this  general  subject  in 
Woodson  v.  Murdock,  22  Wall.  351,  381- 


124  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 


CHAPTER  V. 

OF  THE   POWERS  WHICH   THE  LEGISLATIVE  DEPARTMENT  MAY 

EXERCISE. 

IN  considering  the  powers  which  may  be  exercised  by  the 
legislative  department  of  one  of  the  American  States,  it  is 
natural  that  we  should  recur  to  those  possessed  by  the  Parlia- 
ment of  Great  Britain,  after  which,  in  a  measure,  the  American 
legislatures  have  been  modelled,  and  from  which  we  derive  our 
legislative  usages  and  customs,  or  parliamentary  common  law, 
as  well  as  the  precedents  by  which  the  exercise  of  legislative 
power  in  this  country  has  been  governed.  It  is  natural,  also, 
that  we  should  incline  to  measure  the  power  of  the  legislative 
department  in  America  by  the  power  of  the  like  department  in 
Britain;  and  to  concede  without  reflection  that  whatever  the 
legislature  of  the  country  from  which  we  derive  our  laws  can 
do,  may  also  be  done  by  the  department  created  for  the  exercise 
of  legislative  authority  in  this  country.  But  to  guard  against 
being  misled  by  a  comparison  between  the  two,  we  must  bear  in 
mind  the  important  distinction  already  pointed  out,  that  with 
the  Parliament  rests  practically  the  sovereignty  of  the  country, 
so  that  it  may  exercise  all  the  powers  of  the  government  if  it 
wills  so  to  do;  while  on  the  other  hand  the  legislatures  of  the 
American  States  are  not  the  sovereign  authority,  and,  though 
vested  with  the  exercise  of  one  branch  of  the  sovereignty,  they 
are  nevertheless,  in  wielding  it,  hedged  in  on  all  sides  by  im- 
portant limitations,  some  of  which  are  imposed  in  express  terms, 
and  others  by  implications  which  are  equally  imperative. 

"  The  power  and  jurisdiction  of  Parliament,  says  Sir  Edward 
Coke,1  is  so  transcendent  and  absolute,  that  it  cannot  be  con- 
fined, either  for  persons  or  causes,  within  any  bounds.  And  of 
this  high  court  it  may  truly  be  said:  'Si  antiquitatem  spectes, 
est  vetustissima;  si  dignitatem,  est  honoratissima;  si  jurisdic- 
tionem,  est  capacissima. '  It  hath  sovereign  and  uncontrolled 
authority  in  the  making,  confirming,  enlarging,  restraining, 
abrogating,  repealing,  reviving,  and  expounding  of  laws,  con- 
cerning matters  of  all  possible  denominations,  ecclesiastical  or 

*  4  Inst.  36. 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE  DEPARTMENT.  125 

temporal,  civil,  military,  maritime,  or  criminal ;  this  being  the 
place  where  that  absolute  despotic  power,  which  must  in  all 
governments  reside  somewhere,  is  intrusted  by  the  constitution 
of  these  kingdoms.  All  mischiefs  and  grievances,  operations 
and  remedies,  that  transcend  the  ordinary  course  of  the  laws, 
are  within  the  reach  of  this  extraordinary  tribunal.  It  can 
regulate  or  new-model  the  succession  to  the  Crown,  as  was  done 
in  the  reign  of  Henry  VIII.  and  William  III.  It  can  alter  the 
established  religion  of  the  land,  as  was  done  in  a  variety  of 
instances,  in  the  reigns  of  King  Henry  VIII.  and  his  three 
children.  It  can  change  and  create  afresh  even  the  constitution 
of  the  kingdom  and  of  Parliaments  themselves,  as  was  done  by 
the  Act  of  Union,  and  the  several  statutes  for  triennial  and 
septennial  elections.  It  can,  in  short,  do  everything  that  is  not 
naturally  impossible;  and  therefore  some  have  not  scrupled  to 
call  its  power,  by  a  figure  rather  too  bold,  the  omnipotence  of 
Parliament.  True  it  is,  that  what  the  Parliament  doth,  no 
authority  upon  earth  can  undo;  so  that  it  is  a  matter  most 
essential  to  the  liberties  of  this  kingdom  that  such  members  be 
delegated  to  this  important  trust  as  are  most  eminent  for  their 
probity,  their  fortitude,  and  their  knowledge ;  for  it  was  a  known 
apothegm  of  the  great  Lord  Treasurer,  Burleigh,  'that  England 
could  never  be  ruined  but  by  a  Parliament; '  and  as  Sir  Matthew 
Hale  observes :  '  This  being  the  highest  and  greatest  court,  over 
which  none  other  can  have  jurisdiction  in  the  kingdom,  if 
by  any  means  a  misgovernment  should  anyway  fall  upon  it, 
the  subjects  of  this  kingdom  are  left  without  all  manner  of 
remedy. '  " 1 

The  strong  language  in  which  the  complete  jurisdiction  of 
Parliament  is  here  described  is  certainly  inapplicable  to  any 
authority  in  the  American  States,  unless  it  be  to  the  people  of 
the  States  when  met  in  their  primary  capacity  for  the  formation 

1  Bl.  Com.  160 ;   Austin  on  Jurispru-  subordinate  to  it.    It  may  participate  in 

dence,  Lee.  6;  Fischel  on  English  Con-  making  changes   as   the  constitution  it- 

stitution,  b.  7,  ch.  7.     The  British  legisla-  self  may  provide,  but  not  otherwise,  and 

ture  is  above  the  constitution,  and  moulds  constitutional  principles  which  the  Brit- 

and  modifies  it  at  discretion  as  public  ex-  ish   Parliament   will  deal   with  as  shall 

igencies  and  the  needs  of  the  time  may  seem    needful    are    inflexible     laws    in 

require.  But  in  the  American  system  such  America  until  the  people,  under  the  forms 

a  thing  as  unlimited  power  is  unknown,  provided  for  constitutional  amendments, 

Loan  Association   v.  Topeka,  20  Wall,  see   fit  to  change   them.      Such  radical 

655,  663;  Campbell's  Case,  2  Bland  Ch.  changes,  for  example,  as   recently  have 

209,  20  Am.  Dec.  360;   [^Missouri   Pac.  been  made  in  the   Irish  land  laws,  and 

II.    Co.    v.   Nebraska,    Bd.   of   Transp.,  such  forced    modification    in   contracts, 

164   U.   S.   403,  17  Sup.  Ct.  Rep.  130J  would  be  impossible  in  the  United  States 

Every  American  legislature  is  the  crea-  without  a  change  in  both   Federal  and 

ture    of    the  constitution,    and    strictly  State  constitutions. 


126  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

of  their  fundamental  law ;  and  even  then  there  rest  upon  them 
the  restraints  of  the  Constitution  of  the  United  States,  which 
bind  them  as  absolutely  as  they  do  the  governments  which  they 
create.  It  becomes  important,  therefore,  to  ascertain  in  what 
respect  the  State  legislatures  resemble  the  Parliament  in  the 
powers  they  exercise,  and  how  far  we  may  extend  the  compari- 
son without  losing  sight  of  the  fundamental  ideas  and  principles 
of  the  American  system. 

The  first  and  most  notable  difference  is  that  to  which  we  have 
already  alluded,  and  which  springs  from  the  different  theory  on 
which  the  British  Constitution  rests.  So  long  as  the  Parliament 
is  recognized  as  rightfully  exercising  the  sovereign  authority  of 
the  country,  it  is  evident  that  the  resemblance  between  it  and 
American  legislatures  in  regard  to  their  ultimate  powers  cannot 
be  traced  very  far.  The  American  legislatures  only  exercise  a 
certain  portion  of  the  sovereign  power.  The  sovereignty  is  in 
the  people;1  and  the  legislatures  which  they  have  created  are 
only  to  discharge  a  trust  of  which  they  have  been  made  a  de- 
positary, but  which  has  been  placed  in  their  hands  with  well- 
defined  restrictions. 

Upon  this  difference  it  is  to  be  observed,  that  while  Parliament, 
to  any  extent  it  may  choose,  may  exercise  judicial  authority, 
one  of  the  most  noticeable  features  in  American  constitutional 
law  is  the  care  which  has  been  taken  to  separate  legislative, 
executive,  and  judicial  functions.  It  has  evidently  been  the 
intention  of  the  people  in  every  State  that  the  exercise  of  each 
should  rest  with  a  separate  department.  The  different  classes 
of  power  have  been  apportioned  to  different  departments ;  and 
as  all  derive  their  authority  from  the  same  instrument,  there  is 
an  implied  exclusion  of  each  department  from  exercising  the 
functions  conferred  upon  the  others. 

There  are  two  fundamental  rules  by  which  we  may  measure 
the  extent  of  the  legislative  authority  in  the  States:  — 

1.  In  creating  a  legislative  department  and  conferring  upon 
it  the  legislative  power,  the  people  must  be  understood  to  have 
conferred  the  full  and  complete  power  as  it  rests  in,  and  may  be 
exercised  by,  the  sovereign  power  of  any  country,  subject  only 
to  such  restrictions  as  they  may  have  seen  fit  to  impose,  and  to 
the  limitations  which  are  contained  in  the  Constitution  of  the 
United  States.  The  legislative  department  is  not  made  a  special 
agency  for  the  exercise  of  specifically  defined  legislative  powers, 
but  is  intrusted  with  the  general  authority  to  make  laws  at 
discretion. 

i  Ante,  p.  114. 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  127 

2.  But  the  apportionment  to  this  department  of  legislative 
power  does  not  sanction  the  exercise  of  executive  or  judicial 
functions,  except  in  those  cases,  warranted  by  parliamentary 
usage,  where  they  are  incidental,  necessary,  or  proper  to  the 
exercise  of  legislative  authority,  or  where  the  constitution 
itself,  in  specified  cases,  may  expressly  permit  it.1  Executive 
power  is  so  intimately  connected  with  legislative,  that  it  is  not 
easy  to  draw  a  line  of  separation;  but  the  grant  of  the  judicial 
power  to  the  department  created  for  the  purpose  of  exercising 
it  must  be  regarded  as  an  exclusive  grant,  covering  the  whole 
power,  subject  only  to  the  limitations  which  the  constitutions 
impose,  and  to  the  incidental  exceptions  before  referred  to.2 
While,  therefore,  the  American  legislatures  may  exercise  the 
legislative  powers  which  the  Parliament  of  Great  Britain  wields, 
except  as  restrictions  are  imposed,  they  are  at  the  same  time 
excluded  from  other  functions  which  may  be,  and  sometimes 
habitually  are,  exercised  by  the  Parliament. 

"The  people  in  framing  the  constitution,"  says  Denio,  Ch.  J., 
"committed  to  the  legislature  the  whole  lawmaking  power  of 
the  State,  which  they  did  not  expressly  or  impliedly  withhold. 
Plenary  power  in  the  legislature,  for  all  purposes  of  civil  gov- 
ernment, is  the  rule.  A  prohibition  to  exercise  a  particular 
power  is  an  exception.  In  inquiring,  therefore,  whether  a  given 
statute  is  constitutional,  it  is  for  those  who  question  its  validity 
to  show  that  it  is  forbidden.  I  do  not  mean  that  the  power 
must  be  expressly  inhibited,  for  there  are  but  few  positive  re- 
straints upon  the  legislative  power  contained  in  the  instrument. 
The  first  article  lays  down  the  ancient  limitations  which  have 
always  been  considered  essential  in  a  constitutional  government, 
whether  monarchial  or  popular ;  and  there  are  scattered  through 
the  instrument  a  few  other  provisions  hi  restraint  of  legislative 
authority.  But  the  affirmative  prescriptions  and  the  general 
arrangements  of  the  constitution  are  far  more  fruitful  of  re- 
straints upon  the  legislature.  Every  positive  direction  contains 
an  implication  against  anything  contrary  to  it,  or  which  would 
frustrate  or  disappoint  the  purpose  of  that  provision.  The  frame 

1  See    post,    pp.    134-162,    531,    632.  A  statute  attempting  to  confer  upon  a 
([And  even  where  the  power  is  legisla-  State  board  authority  to  adjudge  priori- 
live,  if  the  Constitution  lias  limited  its  ties   of  claimants  to  the  use   of  public 
exercise  to  certain  times,  the  attempt  to  waters  is  held  not  to  be  unconstitutional 
exercise  it  at  other  times  is  necessarily  as   conferring   judicial    power  in   Farm 
void.     Harmison  t.  Ballot  Com'rs  of  Jef-  Investment    Co.   v.   Carpenter,  9    Wyo. 
ferson  Co.,  45  W.  Va.  179,  31  S.  E.  394,  110,  61  Pac.  258,  87  Am.  St.  918.] 
42  L.  R.  A.  591;  Denney  v.  State,  144         2  See  post,  p.  129,  note. 
Ind.  503,  42  N.  E.  929,  31  L.  B.  A.  726. 


128  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

of  the  government,  the  grant  of  legislative  power  itself,  the 
organization  of  the  executive  authority,  the  erection  of  the  prin- 
cipal courts  of  justice,  create  implied  limitations  upon  the  law- 
making  authority  as  strong  as  though  a  negative  was  expressed 
in  each  instance;  but  independently  of  these  restraints,  express 
or  implied,  every  subject  within  the  scope  of  civil  government 
is  liable  to  be  dealt  with  by  the  legislature."1 

"It  has  never  been  questioned,  so  far  as  I  know,"  says  Red- 
field,  Ch.  J.,  "that  the  American  legislatures  have  the  same 
unlimited  power  in  regard  to  legislation  which  resides  in  the 
British  Parliament,  except  where  they  are  restrained  by  written 
constitutions.  That  must  be  conceded,  I  think,  to  be  a  funda- 
mental principle  in  the  political  organizations  of  the  American 
States.  We  cannot  well  comprehend  how,  upon  principle,  it 
should  be  otherwise.  The  people  must,  of  course,  possess  all 
legislative  power  originally.  They  have  committed  this  in  the 
most  general  and  unlimited  manner  to  the  several  State  legis- 
latures, saving  only  such  restrictions  as  are  imposed  by  the 
Constitution  of  the  United  States,  or  of  the  particular  State  in 
question. "  2 

"I  entertain  no  doubt,"  says  Comstoclc,  J.,  "that,  aside  from 
the  special  limitations  of  the  constitution,  the  legislature  cannot 
exercise  powers  which  are  in  their  nature  essentially  judicial  or 
executive.  These  are,  by  the  constitution,  distributed  to  other 
departments  of  the  government.  It  is  only  the  '  legislative 
power '  which  is  vested  in  the  senate  and  assembly.  But  where 
the  constitution  is  silent,  and  there  is  no  clear  usurpation  of 
the  powers  distributed  to  other  departments,  I  think  there  would 
be  great  difficulty  and  great  danger  in  attempting  to  define  the 
limits  of  this  power.  Chief  Justice  Marshall  said :  '  How  far 
the  power  of  giving  the  law  may  involve  every  other  power,  in 
cases  where  the  constitution  is  silent,  never  has  been,  and  per- 
haps never  can  be,  definitely  stated. '  3  That  very  eminent  judge 

1  People  v  Draper,  15  N.  T.  532,  543.  140,  per  Branson,  J. ;  State  v.  Reid,  1  Ala. 

2  Thorpe  v  Rutland  &  Burlington  Rail-  612,  35  Am.  Dec.  44  ;  Andrews  v.  State, 
road    Co.,   27   Vt.    140,   142.      See  also  3  Heisk.  165 ;  Knoxville,  &c.  R.  R.  Co.  v. 
Adams  v.  Howe,  14  Mass.  340,  14  Am.  Hicks,  9  Bax.  442 ;  Lewis's  Appeal,  67 
Dec.  216 ;  People  v.  Rucker,  5  Col.  455 ;  Pa.   St.   153 ;  Walker  v.  Cincinnati,   21 
People   v.   Osborne,  7  Col.   605,  4   Pac.  Ohio   St.  14;   People  v.  Wright,  70  111. 
1074;  Leggett  v.  Hunter,  19  N.  Y.  445;  388.    That  the  rule  as  to  the  extent  of 
Cochran  v.  Van  Surlay,  20  Wend.  365 ;  legislative    power    is    substantially    the 
People  v.  Morrell,  21  Wend.  563;  Sears  same  in  Canada,  see  Valin  v.  Langlois, 
v.  Cottrell,  5  Mich.  251 ;  Beauchamp  v.  3  Can.  Sup.  Ct.  1 ;  Mayor,  &c.  v.  The 
State,  6  Blackf.  299 ;  Mason  v.  Wait,  5  Queen,  3  Can.  Sup.  Ct.  505. 

Ill   127  ;  People  v.  Supervisors  of  Orange,          8  Fletcher  v.  Peck,  6  Cranch,  87,  136. 
27  Barb.  575;  Taylor  v.  Porter,  4  Hill, 


CH.  V.]      POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  129 


felt  the  difficulty ;  but  the  danger  was  less  apparent  then  than  it 
is  now,  when  theories,  alleged  to  be  founded  in  natural  reason 
or  inalienable  rights,  but  subversive  of  the  just  and  necessary 
powers  of  government,  attract  the  belief  of  considerable  classes 
of  men,  and  when  too  much  reverence  for  government  and  law 
is  certainly  among  the  least  of  the  perils  to  which  our  institu- 
tions are  exposed.  I  am  reluctant  to  enter  upon  this  field  of 
inquiry,  satisfied,  as  I  am,  that  no  rule  can  be  laid  down  in 
terms  which  may  not  contain  the  germ  of  great  mischief  to 
society,  by  giving  to  private  opinion  and  speculation  a  license 
to  oppose  themselves  to  the  just  and  legitimate  powers  of 
government."  1 

Other  judicial  opinions  in  great  number  might  be  cited  in 
support  of  the  same  general  doctrine ;  but  as  there  will  be  occa- 
sion to  refer  to  them  elsewhere  when  the  circumstances  under 
which  a  statute  may  be  declared  unconstitutional  are  considered, 
we  refrain  from  further  references  in  this  place.2  Nor  shall 
we  enter  upon  a  discussion  of  the  question  suggested  by  Chief 
Justice  Marshall,  as  above  quoted ; 3  since,  however  interesting  it 


1  Wynehamer  v.  People,  13  N.  Y.  378, 
391. 

2  See  post,  p.  237,  and  cases  cited  in 
notes. 

3  The  power  to  distribute  the  judicial 
power,  except  so  far  as  that  has  been  done 
by  the  Constitution,  rests  with  the  legis- 
lature: Commonwealth  v.  Hippie,  69  Pa. 
St.  9 ;  State  v.  New  Brunswick,  42  N.  J. 
61 ;  State  v.  Brown,  71  Mo.  454  ;  Jackson 
v.  Nimmo,  3  Lea,  COS;  see  Burke  v.  St. 
Paul,  M.  &c.  Ry.  Co.,  35  Minn.  172,  28 
N.   W.  190;   St.  Paul   v.   Umstetter,   37 
Minn.  15,  33  N.  W.  115;  but  when   the 
Constitution  has  conferred  it  upon  cer- 
tain  specified  courts,  this   must  be  un- 
derstood to  embrace  the  whole  judicial 
power,  and    the   legislature   cannot  vest 
any  portion  of  it  elsewhere.     Greenough 
v.  Greenough,  11  Pa.   St.  489;  State  v. 
Maynard,  14  111.  420;  Gibson  v.  Emer- 
son, 7  Ark.   172;   Chandler  v.   Nash,  5 
Mich.  409;  Succession  of  Tanner,  22  La. 
Ann.  90;  Gough  r.  Dorsey,  27  Wis.  119; 
Van   Slyke  v.  Ins.  Co.,  39  Wis.  390,  20 
Am.  Rep.  50;  Alexander  v.  Bennett,  60 
N.  Y.  204;  People  v.  Young,  72  111.  411 ; 
Jn  re  Cleveland,  51  N.  J.  L.  311,  17  Atl. 
772;    Risser  v.   Hoyt,  53  Mich.   185,  18 
N.  W.  611  ;   Shoultz  v.   McPheeters,  79 
Ind.  373.     QAnd  when  the  Constitution 
gives    the   court    appellate    jurisdiction 


only,  except  in  certain  specified  cases, 
the  legislature  cannot  enlarge  the  origi- 
nal jurisdiction  of  the  court.  Klein  v. 
Valerius,  87  Wis.  54,  57  N.  W.  1112,  22 
L.  "R.  A.  609.  Nor  can  the  legislature 
redistribute  the  judicial  power.  Brown 
v.  Circuit  Judge,  75  Mich.  274,  42  N.  W. 
827,  6  L.  R.  A.  226,  13  Am.  St.  438; 
Watson  v.  Blackstone,  98  Va.  618,  38  S.  E. 
939.  Cannot  confer  the  power  of  the 
court  upon  a  single  judge  thereof.  State 
v.  Woodson,  161  Mo.  444,  61  S.  W.  252. 
Congress  may  provide  that  the  determi- 
nation by  the  treasury  department  of 
whether  an  alien  is  entitled  to  land  shall 
be  final.  Nishimura  Ekiu  v.  U.  S.,  142 
U.  S.  651,  12  Sup.  Ct.  Rep.  336.]  The 
legislature  cannot  select  persons  to  assist 
courts  in  the  performance  of  their  duties 
and  act  as  a  commission  of  appeal.  State 
».  Noble,  118  Ind.  350,  21  N.  E.  244; 
In  re  Courts  of  Appeals,  9  Col.  623,  21 
Pac.  471.  Courts  established  by  the  leg- 
islature cannot  exercise  jurisdiction  to 
the  exclusion  of  that  conferred  by  the 
Constitution  on  other  courts.  Montross 
v.  State,  61  Miss.  429.  See  State  v.  Butt, 
25  Fla.  258,  6  So.  597.  But  a  general  pro- 
vision in  the  Constitution  for  the  distri- 
bution of  the  judicial  power,  not  referring 
to  courts-martial,  would  not  be  held  to 
forbid  such  courts  by  implication.  People 


130 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


may  be  as  an  abstract  question,  it  is  made  practically  unimpor- 
tant by  the  careful  separation  of  powers  and  duties  between  the 


v.  Daniell,  50  N.  Y.  274.  Nor  would  it  be 
held  to  embrace  administrative  functions 
of  a  quasi  judicial  nature,  such  as  the  as- 
sessment of  property  for  taxation.  State 
i?.  Commissioners  of  Ormsby  County,  7 
Nov..  392,  and  cases  cited.  See  Auditor 
of  State  v.  Atchison,  &c.  R.  R.  Co.,  6  Kan. 
600,  7  Am.  Rep.  575.  But  a  court  may 
determine  whether  a  proposed  local  im- 
provement shall  be  undertaken.  Bryant 
r.  Robbing,  70  Wis.  258,  35  N.  W.  545. 
QA  judge  of  a  superior  court  cannot  be 
required  or  empowered  to  pass  upon  and 
modify  or  approve  a  plan  for  the  location 
of  a  street  railway.  Norwalk  Street  R. 
Co  's  Appeal,  69  Conn.  576,  37  Atl.  1080, 
39  L.  It.  A.  794;  nor  a  court  to  direct 
how  a  telegraph  or  telephone  company 
may  use  the  streets  of  a  city.  Zanesville 
v.  Zanesville  T.  &  Tel.  Co.,  63  Ohio,  442, 
69  N.  E.  109  (Oct.  16,  1900) ;  New  York 
&  N.  J.  Tel.  Co.  v.  Mayor  of  Bound 
Brook,  66  N.  J.  L.  168,  48  Atl.  1022. 
County  board  cannot  determine  which 
rooms  in  court  house  shall  be  occupied 
by  certain  judges.  Dahnke  v.  People, 
168  111.  102,  48  N.  E.  137,  39  L.  R.  A. 
197.  Court  during  its  session  has  full 
control  over  that  portion  of  court  house 
necessary  to  the  convenient  transaction 
of  its  business.  Vigo  County  v.  Stout, 
186  Ind.  53,  35  N.  E.  683,  22  L.  R.  A.  398, 
ii ml  note ;  and  may  order  repairs  to  court 
house,  although  it  cannot  order  the  erec- 
tion of  additions  thereto  or  the  rebuilding 
thereof.  White  County  v.  Gwin,  136  Ind. 
662,  36  N.  E.  237,  22  L.  R.  A.  402.]  It  is 
not  competent  to  confer  upon  the  courts 
the  power  to  tax :  Monday  v.  Rahway,  43 
N.  J.  338 ;  nor  to  impose  on  them  admin- 
istrative duties.  Houseman  v.  Kent  Circ. 
Judge,  58  Mich.  364,  25  N.  W.  369.  But 
after  thirty-five  years  of  exercise  of  such 
power  under  a  statute,  it  is  too  late  to 
object.  Locke  v.  Speed,  62  Mich.  408, 
28  N.  W.  917.  [The  legislature  cannot 
create  a  "  court  of  visitation  "  for  the  con- 
trol of  corporations  and  endow  it  with 
executive,  legislative,  and  judicial  powers. 
State  v.  Johnson,  61  Kan.  803,  60  Pac. 
1068,  49  L.  R.  A.  662.  Nor  can  it  consti- 
tute a  board  of  State  auditors,  which  is  a 
purely  executive  board,  a  court  of  review 
to  pass  upon  the  rightfulness  of  a  convic- 


tion of  crime,  and  in  case  conviction  be 
found  wrongful  to  allow  damages  for  the 
imprisonment  consequent  thereupon.  Al- 
len v.  Board  of  State  Auditors,  122  Mich. 
324,  81  N.  W.  113,  47  L.  R.  A.  117,  80  Am. 
St.  573.]  The  power  to  appoint  election 
commissioners  not  having  been  expressly 
conferred  on  any  department,  the  legisla- 
ture may  impose  the  duty  of  appointment 
on  the  county  court.  People  v.  Hoffman, 
116  111.  587,  5  N.  E.  596,  8  N.  E.  788. 
Such  appointments  are  upheld  in  In  re 
Citizens  of  Cincinnati,  2  Flipp.  228;  Rus- 
sell v.  Cooley,  69  Ga.  215.  But  in  Super- 
visors of  Election,  114  Mass.  247,  19  Am. 
Rep.  341,  a  contrary  doctrine  is  laid 
down.  A  chief  justice  cannot  be  empow- 
ered to  determine  which  claimant  of  an 
office  shall  hold  it  pending  a  contest. 
Such  power,  if  executive,  cannot  be  given 
a  judge;  if  judicial,  belongs  to  a  court. 
In  re  Cleveland,  51  N.  J.  L.  311,  17  Atl. 
772.  The  legislature  cannot  require  a 
court  to  give  its  opinions  in  writing: 
Vaughn  v.  Harp,  49  Ark.  160,  4  S.  W. 
751 ;  nor  to  write  syllabi  to  its  decisions. 
In  re  Griffiths,  118  Ind.  83,  20  N.  E.  513. 
[Jit  is  held  in  Illinois  that  the  legisla- 
ture cannot  interfere  with  the  power  of 
the  courts  to  regulate  the  licensing  of 
attorneys.  Re  Day,  181  111.  73,  54  N.  E. 
646,  50  L.  R.  A.  519.  See  also  Re  Leach, 
134  Ind.  665,  34  N.  E.  641,  21  L.  R.  A. 
701.  The  legislature  cannot  define  what 
shall  be  considered  a  contempt  of  court. 
Bradley  v.  State,  111  Ga.  168,  36  S.  E. 
630,  50  L.  R.  A.  691,  78  Am.  St.  157 ;  Hale 
v.  State,  55  Ohio  St.  210,  45  N.  E.  199,  36 
L.  R.  A.  254,  and  note,  60  Am.  St.  691. 
On  the  other  hand,  a  court  has  no  power 
to  enjoin  a  legislative  body.  State  v. 
Superior  Court  of  Milwaukee  Co.,  105 
Wis.  651,  81  N.  W.  1046,  48  L.  R.  A.  819. 
But  see  Roberts  v.  Louisville,  92  Ivy. 
95,  17  S.  W.  216,  13  L.  R.  A.  844,  and 
note.  Nor  has  a  court  power  to  deter- 
mine whether  or  not  a  senator  of  the 
State  legislature  whose  term  has  not 
yet  expired,  has  disqualified  himself  from 
further  acting  as  senator.  Covington  r. 
Buffett,  90  Md.  569,  45  Atl.  204,  47  L.  R. 
A.  622.  Not  to  establish  rules  and  regu- 
lations for  the  extension  of  telephone 
lines.  Michigan  Tel.  Co.  v.  St.  Joseph, 


CH.  V.]       POWERS   EXEKCISED   BY  LEGISLATIVE   DEPAETMENT.  131 

several  departments  of  the  government  which  has  been  made  hy 
each  of  the  State  constitutions.  Had  no  such  separation  been 
made,  the  disposal  of  executive  and  judicial  duties  must  have 
devolved  upon  the  department  vested  with  the  general  authority 
to  make  laws;1  but  assuming  them  to  be  apportioned  already, 
we  are  only  at  liberty  to  liken  the  power  of  the  State  legislature 
to  that  of  the  Parliament,  when  it  confines  its  action  to  an  exer- 
cise of  legislative  functions  ;  and  such  authority  as  is  in  its  nature 
either  executive  or  judicial  is  beyond  its  constitutional  powers, 
with  the  few  exceptions  to  which  we  have  already  referred. 

It  will  be  important  therefore  to  consider  those  cases  where 
legislation  has  been  questioned  as  encroaching  upon  judicial 
authority ;  and  to  this  end  it  may  be  useful,  at  the  outset,  to 
endeavor  to  define  legislative  and  judicial  power  respectively, 
that  we  may  the  better  be  enabled  to  point  out  the  proper  line 
of  distinction  when  questions  arise  in  their  practical  application 
to  actual  cases. 

The  legislative  power  we  understand  to  be  the  authority, 
under  the  Constitution,  to  make  laws,  and  to  alter  and  repeal 
them.  Laws,  in  the  sense  in  which  the  word  is  here  employed, 
are  rules  of  civil  conduct,  or  statutes,  which  the  legislative  will 
has  prescribed.  "  The  laws  of  a  State,"  observes  Mr.  Justice 
Story,  "are  more  usually  understood  to  mean  the  rules  and 
enactments  promulgated  by  the  legislative  authority  thereof,  or 
long-established  local  customs  having  the  force  of  laws." 2  "  The 
difference  between  the  departments  undoubtedly  is,  that  the 
legislature  makes,  the  executive  executes,  and  the  judiciary 

121  Mich.  502,  80  N.  W.  383,  47  L.  R.  A.  of  a  system  of  sewerage  without  prescrib- 

87,  80  Am.  St.  520.     Upon  distinction  be-  ing  any  further  direction  for  such  appor- 

tween  legislative  and  judicial  powers,  see  tionment  than  that  it  shall  be  just  and 

Re  Janvrin,  174  Mass.  514,  55  N.  E.  381,  equitable.    Re  Kingman,  153  Mass.  566, 

47  L.  R.  A.  319.    The  legislature  has  no  27  N.  E.  778,  12  L.  R.  A.  417.     The  tegis- 

power  to  make  a  conclusive  finding  of  lature   cannot   validate   warrants    issued 

facts,  and  thereupon  direct  a  municipal-  under   an    unconstitutional    law.     Felix 

ity  to  pay  a  specified  claim.     Board  of  v.  Wallace  Co.  Com'rs,  62  Kan.  832,  62 

Edn.  v.  State,  51  Ohio  St.  531,  38  N.  E.  Pac.  667,  84  Am.  St.  424.     Congress  may 

614,  25  L.  R.  A.  770,  46  Am.  St.  588.  provide  that  inspectors  of  customs  may 

Where  the  legislature  is  authorized  to  finally  determine  whether  immigrants  are 

regulate    the    method   of  procedure   in  entitled    to    land.      Nishimura    Kkiu    w. 

"Courts  below  the  Supreme  Court"  it  United  States,  142  U.  S.  651,  12  Sup.  Ct. 

has  no  power  over  procedure  in  the  Su-  Rep.  336.] 

preme  Court.     Herndon  v.  Imperial  Fire  1  Calder  v.  Bull,  2  Root,  350,  and  3 

Ins.  Co.,  Ill  N.  C.  384,  16  S.  E.  465,  18  Dall.  386;  Ross  v.  Whitman,  6  Cal.  361  ; 

L.  R.  A.  647.     The  legislature  can  direct  Smith  v.  Judge,  17  Cal.  547;  per  Patter- 

a  court  to  appoint  certain  commissioners  son,  J.,  in  Cooper  v.  Telfair,  4  Dall.  19; 

and  confer   upon   the  commissioners   so  Martin  v.  Hunter's  Lessee,  1  Wheat.  304. 

to  be  appointed  the  power  to  apportion  2  Swift  v.  Tyson,  16  Pet.  18. 
among  several  cities  and  towns  the  cost 


132 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


construes,  the  law."1  And  it  is  said  that  that  which  distin- 
guishes a  judicial  from  a  legislative  act  is,  that  the  one  is  a 
determination  of  what  the  existing  law  is  in  relation  to  some 
existing  thing  already  done  or  happened,  while  the  other  is  a 
predetermination  of  what  the  law  shall  be  for  the  regulation  of 
all  future  cases  falling  under  its  provisions.2  And  in  another 
case  it  is  said:  "The  legislative  power  extends  only  to  the  mak- 
ing of  laws,  and  in  its  exercise  it  is  limited  and  restrained  by 
the  paramount  authority  of  the  federal  and  State  constitutions. 
It  cannot  directly  reach  the  property  or  vested  rights  of  the 
citizen  by  providing  for  their  forfeiture  or  transfer  to  another, 
without  trial  and  judgment  in  the  courts ;  for  to  do  so  would  be 
the  exercise  of  a  power  which  belongs  to  another  branch  of  the 
government,  and  is  forbidden  to  the  legislative."3  "That  is 
not  legislation  which  adjudicates  in  a  particular  case,  prescribes 
the  rule  contrary  to  the  general  law,  and  orders  it  to  be  enforced. 
Such  power  assimilates  itself  more  closely  to  despotic  rule  than 
any  other  attribute  of  government."4 

On  the  other  hand,  to  adjudicate  upon,  and  protect  the  rights 
and  interests  of  individual  citizens,  and  to  that  end  to  construe 
and  apply  the  laws,  is  the  peculiar  province  of  the  judicial  de- 
partment.5 "No  particular  definition  of  judicial  power,"  says 


1  Per  Marshall,  Ch.  J.,  in  Wayman  v. 
Southard,  10  Wheat.  46 ;  per  Gibson,  Ch. 
J.,  in  Greenougli  v.  Greenough,  11  Pa. 
St.   494.      See    Governor    v.    Porter,    7 
Humph.  165;   State  v.  Gleason,  12  Fla. 
190;  Hawkins  v.  Governor,  1  Ark.  570; 
Westinghausen  v.  People,  44  Mich.  265, 
6  N.  W.  641. 

2  Bates   v    Kimball,  2   Chip.   77.     A 
prospective  determination  by  a  court  of 
the  validity  of  school  rules,  compiled  un- 
der legislative  authority,  is  not  an  exer- 
cise of  judicial  power.    In  re  School  Law 
Manual,  63  N.  H.  574,  4  Atl.  878.     Power 
to  supersede  an  ordinance  upon  petition 
of  taxpayers   as  contrary  to  law  cannot 
be  conferred  upon  a  court :   Shephard  v. 
Wheeling,  30  W.'Va.  479,  4  S.  E.  635; 
nor  to  fix  the  salary  of  a  reporter  in  ad- 
vance :  Smith  v.  Strother,  68  Cal.  194,  8 
Pac.  852 ;  nor  to  make  upon  its  own  whim 
a  party  a  competent  witness  who  other- 
wise would  not  be.     Tillman  r.  Cocke,  9 
Bax.  429. 

3  Newland  v.  Marsh,  19  111.  383. 

4  Ervine's  Appeal,  16  Pa.  St.  256,  266. 
See   also   Greenough   v.   Greenougli,   11 
Pa.   St.  489;   Dechastellux  v.  Fairchild, 


15  Pa.  St.  18 ;  Trustees,  &c.  v.  Bailey,  10 
Fla.  238. 

6  Cincinnati,  &c.  Railroad  Co.  v.  Com- 
missioners of  Clinton  Co.,  1  Ohio  St.  77. 
See  also  King  v.  Dedham  Bank,  15  Mass. 
447 ;  Gordon  v.  Ingraham,  1  Grant's  Cases, 
152;  People  v.  Supervisors  of  New  York, 

16  N.  Y.  424 ;  Beebe  v.  State,  6  Ind.  501 ; 
Greenough  v.  Greenough,  11  Pa.  St.  489; 
Taylor  v.  Place,  4  R.  I.  324.     £It  is  also  a 
part  of  the  function  of  the  judiciary  to 
determine  whether  a  proposed  constitu- 
tional amendment  has  been  in  fact  adopted 
under  the  forms  prescribed  for  such  case 
by  the  constitution,  and  the  legislative 
declaration  that  it  has  been  so  adopted  is 
null.     State  v.  Powell,  77  Miss.  543,  27 
So.  927, 48  L.  R.  A.  652.    But  see  Worman 
v.  Hagan,  78  Md.  152,  27  Atl.  616,  21  L. 
R.  A.  716,  to  effect  that  governor's  procla- 
mation of  adoption  is  conclusive.     It  is 
also  a  proper  function  of  a  court  to  re- 
quire proper  authorities  to  prescribe  rules 
and  regulations  for  extension  of  telephone 
lines,  and  to  pass  upon  the  validity  of  such 
rules  when  properly  brought  in  question. 
Mich.  Tel.  Co.  v.  St.  Joseph,  121  Mich. 
502,  80  N.  W.  383,  47  L.  R.  A.  87,  80  Am. 
St.  520.] 


CH.  V.]        POWERS    EXERCISED   BY    LEGISLATIVE    DEPARTMENT.  133 

Woodbury,  J.,  "is  given  in  the  constitution  [of  New  Hampshire], 
and,  considering  the  general  nature  of  the  instrument,  none  was 
to  be  expected.  Critical  statements  of  the  meanings  in  which 
all  important  words  were  employed  would  have  swollen  into 
volumes ;  and  when  those  words  possessed  a  customary  significa- 
tion, a  definition  of  them  would  have  been  useless.  But 'powers 
judicial,'  '  judiciary  powers,'  and  '  judicatories  '  are  all  phrases 
used  in  the  constitution;  and  though  not  particularly  defined, 
are  still  so  used  to  designate  with  clearness  that  department  of 
government  which  it  was  intended  should  interpret  and  admin- 
ister the  laws.  On  general  principles,  therefore,  those  inquiries, 
deliberations,  orders,  and  decrees,  which  are  peculiar  to  such  a 
department,  must  in  their  nature  be  judicial  acts.  Nor  can  they 
be  both  judicial  and  legislative;  because  a  marked  difference 
exists  between  the  employments  of  judicial  and  legislative 
tribunals.  The  former  decide  upon  the  legality  of  claims  and 
conduct,  and  the  latter  make  rules  upon  which,  in  connection 
with  the  constitution,  those  decisions  should  be  founded.  It  is 
the  province  of  judges  to  determine  what  is  the  law  upon  exist- 
ing cases.  In  fine,  the  law  is  applied  by  the  one,  and  made  by 
the  other.  To  do  the  first,  therefore,  —  to  compare  the  claims 
of  parties  with  the  law  of  the  land  before  established,  —  is  in  its 
nature  a  judicial  act.  But  to  do  the  last  —  to  pass  new  rules 
for  the  regulation  of  new  controversies  —  is  in  its  nature  a 
legislative  act;  and  if  these  rules  interfere  with  the  past,  or  the 
present,  and  do  not  look  wholly  to  the  future,  they  violate  the 
definition  of  a  law  as  'a  rule  of  civil  conduct; ' 1  because  no  rule 

1  1  Bl.  Com.  44.  The  distinction  be-  vested  in  the  courts.  People  v.  Stuart, 
tween  legislative  and  judicial  power  lies  74  Mich.  411,  41  N.  W.  1091.  See  Brown 
between  a  rule  and  a  sentence.  Shrader,  v.  Duffus,  66  Iowa,  193,  23  N.  W.  396. 
Ex  parte,  33  Cal.  279.  See  Shumway  v.  It  is  not  an  infringement  of  judicial  power 
Bennett,  29  Mich.  451 ;  Supervisors  of  to  enact  that  a  jury  shall  assess  the  pun- 
Election,  114  Mass  247.  The  legislature  ishment  in  a  murder  case.  State  v.  Hock- 
cannot  empower  election  boards  to  decide  ett,  70  Iowa,  442,  30  N.  W.  742;  nor  that 
whether  one  by  duelling  has  forfeited  his  persons  sentenced  to  jail  may  be  employed 
right  to  vote  or  hold  office.  Common-  on  roads  by  county  commissioners,  under 
wealth  c.  Jones,  10  Bush,  725;  Burkett  regulations  to  be  made  by  them.  Holland 
v.  McCurty,  10  Bush,  758.  But  a  board  v.  State,  23  Fla.  123,  1  So.  621. 
may  be  empowered  to  recount  votes  and  But  it  is  an  invasion  of  judicial  power 
make  a  statement  of  results.  If  they  to  provide  that  in  case  of  doubt  a  statute 
have  no  power  to  investigate  frauds,  they  shall  be  construed  so  as  to  save  a  lien 
do  not  exercise  judicial  power.  Andrews  given  by  it.  Meyer  v.  Berlandi,  39  Minn. 
v.  Carney,  74  Mich.  278,  41  N.  W.  923.  438,  40  N.  W.  513.  Power  to  declare 
Under  a  constitutional  provision  allowing  what  acts  shall  be  a  misdemeanor  cannot 
the  legislature  to  provide  for  removal  of  be  conferred  on  commissioners  of  vine 
an  election  officer  for  such  cause  as  it  culture.  Ex  parte  Cox,  63  Cal.  21.  A 
deems  proper,  the  power  to  determine  county  clerk  cannot  fix  the  amount  of 
whether  the  cause  exists  need  not  be  bail.  Gregory  v.  State,  94  Ind.  384. 


134  CONSTITUTIONAL  LIMITATIONS.  [CH.  V. 

of  conduct  can  with  consistency  operate  upon  what  occurred 
before  the  rule  itself  was  promulgated. 

"It  is  the  province  of  judicial  power,  also,  to  decide  private 
disputes  between  or  concerning  persons;  but  of  legislative  power 
to  regulate  public  concerns,  and  to  make  laws  for  the  benefit  and 
welfare  of  the  State.  Nor  does  the  passage  of  private  statutes 
conflict  with  these  principles ;  because  such  statutes,  when  law- 
ful, are  enacted  on  petition,  or  by  the  consent  of  all  concerned; 
or  else  they  forbear  to  interfere  with  past  transactions  and  vested 
rights."1 

With  these  definitions  and  explanations,  we  shall  now  proceed 
to  consider  some  of  the  cases  in  which  the  courts  have  attempted 
to  draw  the  line  of  distinction  between  the  proper  functions  of 
the  legislative  and  judicial  departments,  in  cases  where  it  has 
been  claimed  that  the  legislature  have  exceeded  their  power  by 
invading  the  domain  of  judicial  authority. 

Declaratory  Statutes. 

Legislation  is  either  introductory  of  new  rules,  or  it  is  declar- 
atory of  existing  rules.  "A  declaratory  statute  is  one  which  is 
passed  in  order  to  put  an  end  to  a  doubt  as  to  what  is  the  com- 

[^Failure  of  a  railroad   commissioner  to  176  Mass.  71,  55  N.  E.  812,  51  L.  R.  A. 

require  a  railway  company  to  station  a  433. 

flagman  at  a  given   crossing   cannot  be          The  courts  have  jurisdiction  to  pass 

made  conclusive  proof  that  the  omission  upon  the  claims  of  rival  bodies  to  be  the 

to  station  such  flagman  is  not  negligence.  State  senate,  and  to  determine  which,  if 

Grand  Trunk  R.  Co.  v.  Ives,  144  Q.  S.  either,  is  the  constitutional  senate.     At- 

408,  12  ,Sup.  Ct.  Rep.  679.     An  adminis-  torney-General  v.  Rogers,  56  N.  J.  L.  480, 

trative  board  may  be  empowered  to  ad-  28  Atl.  726,29  Atl.  173,23  L.  R.  A.  354.] 
judicate  upon  priorities  of  water-rights  l  Merrill  v.  Sherburne,  1  N.  H.  199, 

and  to  make  independent  investigations  203.     See  Jones  v.  Perry,  10  Yerg.  69; 

in  regard  thereto  and  to  declare  its  find-  Taylor  v.  Porter,  4  Hill,  140 ;   Ogden  v. 

ings,  provided  parties  interested  in  such  Blackledge,  2  Cranch,  272 ;  Dash  v.  Van 

adjudications  are  allowed  by  the  statute  Kleek,  7  Johns.  477;  Wilkinson  v.  Leland, 

a  reasonable  opportunity  to  appeal  there-  2  Pet.  627 ;  Leland  v.  Wilkinson,  10  Pet 

from   to   the  regular  courts.     Farm   In-  294;  State  v.  Hopper,  71  Mo.  425.     QA 

vestment  Compaq-  v.  Carpenter,  9  Wyo.  statute  creating  a  commission  to  review 

110,  61  Pac.  258,  50  L.  R.  A.  747.      A  a  tax  assessment  to  be  appointed  by  the 

ministerial  officer  may  be  empowered  to  circuit  judge  of  the  county  is  not  invalid 

investigate   land   titles,  and  his  findings  as  vesting  judicial  power  in  the  commis- 

may  be  made  prima  facie  evidence.    Peo-  sion  in  the  sense  in  which  that  term  is 

pie  v.  Simon,  176  111.  165,  52  N.  E.  910,  used  in   the   constitution   of   Wisconsin. 

44  L.  R.  A.  801,  68  Am    St.  175;  for  The  term  as  there   used  has   reference 

other  case?  on  Torrens  Land  Registra-  alone  to  judicial  power  as  exercised  in 

tion  Acts,  see  People  v.  Chase,  165  111.  the  administration  of  the  law  in  actions 

527,  46  N.  E.  454,  36  L.  R.  A.  105,  and  and   proceedings   in   courts  of  law   and 

State  v.  Guilbert,   56  Ohio   St.  575,  47  equity.     State  ex  rel.  Ellis  v.  Thome,  1 12 

N.  E.  551,  38  L.  R.  A.  519,  60  Am.  St.  Wis.  81,  87  N.  W.  797,  55  L.  R.  A.  956.] 
756 ,  also  Tyler  v.  Court  of  Registration, 


CH.  V.]        POWERS    EXERCISED    BY   LEGISLATIVE    DEPARTMENT.  135 

raon  law,  or  the  meaning  of  another  statute,  and  which  declares 
what  it  is  and  ever  has  been."1  Such  a  statute,  therefore,  is 
always  in  a  certain  sense  retrospective;  because  it  assumes  to 
determine  what  the  law  was  before  it  was  passed;  and  as  a. 
declaratory  statute  is  important  only  in  those  cases  where  doubts 
have  already  arisen,  the  statute,  when  passed,  may  be  found  to 
declare  the  law  to  be  different  from  what  it  has  already  been 
adjudged  to  be  by  the  courts.  Thus  Mr.  Fox's  Libel  Act  declared 
that,  by  the  law  of  England,  juries  were  judges  of  the  law  in 
prosecutions  for  libel ;  it  did  not  purport  to  introduce  a  new 
rule,  but  to  declare  a  rule  already  and  always  in  force.  Yet 
previous  to  the  passage  of  this  act  the  courts  had  repeatedly  held 
that  the  jury  in  these  cases  were  only  to  pass  upon  the  fact  of 
publication  and  the  truth  of  the  innuendoes;  and  whether  the 
publication  was  libellous  or  not  was  a  question  of  law  which 
addressed  itself  exclusively  to  the  court.  It  would  appear, 
therefore,  that  the  legislature  declared  the  law  to  be  what  the 
courts  had  declared  it  was  not.  So  in  the  State  of  New  York, 
after  the  courts  had  held  that  insurance  companies  were  taxable 
to  a  certain  extent  under  an  existing  statute,  the  legislature 
passed  another  act,  declaring  that  such  companies  were  only 
taxable  at  a  certain  other  rate ;  and  it  was  thereby  declared  that 
such  was  the  intention  and  true  construction  of  the  original 
statute.2  In  these  cases  it  will  be  perceived  that  the  courts,  in 
the  due  exercise  of  their  authority  as  interpreters  of  the  'laws, 
have  declared  what  the  rule  established  by  the  common  law  or 
by  statute  is,  and  that  the  legislature  has  then  interposed,  put 
its  own  construction  upon  the  existing  law,  and  in  effect  declared 
the  judicial  interpretation  to  be  unfounded  and  unwarrantable. 
The  courts  in  these  cases  have  clearly  kept  within  the  proper 
limits  of  their  jurisdiction,  and  if  they  have  erred,  the  error  has 
been  one  of  judgment  only,  and  has  not  extended  to  usurpation 
of  power.  Was  the  legislature  also  within  the  limits  of  its 
authority  when  it  passed  the  declaratory  statute? 

The  decision  of  this  question  must  depend  perhaps  upon  the 
purpose  which  was  in  the  mind  of  the  legislature  in  passing  the 
declaratory  statute;  whether  the  design  was  to  give  to  the  rule 
now  declared  a  retrospective  operation,  or,  on  the  other  hand, 
merely  to  establish  a  construction  of  the  doubtful  law  for  the 
determination  of  cases  that  may  arise  in  the  future.  It  is  always 
competent  to  change  an  existing  law  by  a  declaratory  statute ; 
and  where  the  statute  is  only  to  operate  upon  future  cases,  it  is 

1  Bouv.  Law  Diet.  "Statute;"  Austin  2  People  v.  Supervisors  of  New  York, 
on  Jurisprudence,  Lect.  37.  16  N.  Y.  424. 


136 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


no  objection  to  its  validity  that  it  assumes  the  law  to  have  heen 
in  the  past  what  it  is  now  declared  that  it  shall  be  in  the  future.1 
But  the  legislative  action  cannot  be  made  to  retroact  upon  past 
controversies,  and  to  reverse  decisions  which  the  courts,  in  the 
exercise  of  their  undoubted  authority,  have  made;  for  this  would 
not  only  be  the  exercise  of  judicial  power,  but  it  would  be  its 
exercise  in  the  most  objectionable  and  offensive  form,  since 
the  legislature  would  in  effect  sit  as  a  court  of  review  to  which 
parties  might  appeal  when  dissatisfied  with  the  rulings  of  the 
courts.2 


1  Union  Iron  Co.  v.  Pierce,  4  Bias.  327. 

2  In  several  different  cases  the  courts 
of    Pennsylvania    had    decided    that    a 
testator's  mark  to  his  name,  at  the  foot 
of  a  testamentary  paper,  but  without  proof 
that  the  name  was  written  by  his  express 
direction,  was  not  the  signature  required 
by  the  statute,  and  the  legislature,  to  use 
the    language  of   Chief  Justice    Gibson, 
"declared,  in  order  to  overrule  it,  that 
every  last  will  and  testament  heretofore 
marie,  or  hereafter  to  be  made,  except 
such  as  may  have  been  fully  adjudicated 
prior  to  the  passage  of  this  act,  to  which 
the  testator's  name  is  subscribed  by  his 
direction,  or  to   which  the   testator  has 
made  his  mark  or  cross,  shall  be  deemed 
and  taken  to  be  valid.     How  this  man- 
date to  the  courts  to  establish  a  particular 
interpretation  of  a  particular  statute  can 
be  taken  for  anything  else  than  an  exer- 
cise of  judicial  power  in  settling  a  ques- 
tion of  interpretation,  I  know  not.     The 
judiciary  had  certainly  recognized  a  legis- 
lative interpretation  of  a  statute  before 
it  had  itself  acted,  and  consequently  be- 
fore a  purchaser  could  be  misled  by  its 
judgment;  but  he  might  have  paid  for  a 
title   on   the   unmistakable    meaning    of 
plain  words ;  and  for  the  legislature  sub- 
sequently to  distort  or  pervert  it,  and  to 
enact  that  white  meant  black,   or  that 
black  meant  white,  would  in  the  same  de- 
gree be  an  exercise  of  arbitrary  and  un- 
constitutional   power."      Greenough    v. 
Greenough,   11   Pa.   St.   489,  494.    The 
act  in  this  case  was  held  void  so  far  as  its 
operation  was  retrospective,  but  valid  as 
to  future  cases.     And  see  James  v.  Ro'w- 
land,  42  Md.  462;  Reiser  v.  Tell  Associa- 
tion, 39  Pa.   St.  137.     The  constitution 
of  Georgia  entitled  the  head  of  a  family  to 
enter  a  homestead,  and  the  courts  decided 
that  a  single  person,  having  no  others 


dependent  upon  him,  could  not  be  re- 
garded the  head  of  a  family,  though 
keeping  house  with  servants.  After- 
wards, the  legislature  passed  an  act,  de- 
claring that  any  single  person  living 
habitually  as  housekeeper  to  himself 
should  be  regarded  as  the  head  of  a  fam- 
ily. Held  void  as  an  exercise  of  judicial 
power.  Calhoun  v.  McLendon,  42  Ga. 
405.  The  fact  that  the  courts  had  pre- 
viously given  a  construction  to  the  law 
may  show  more  clearly  a  purpose  in  the 
legislature  to  exercise  judicial  authority, 
but  it  would  not  be  essential  to  that  end. 
As  is  well  said  in  Haley  v.  Philadelphia, 
68  Pa.  St.  45,  47:  "It  would  be  mon- 
strous to  maintain  that  where  the  words 
and  intention  of  an  act  were  so  plain  that 
no  court  had  ever  been  appealed  to  for 
the  purpose  of  declaring  their  meaning, 
it  was  therefore  in  the  power  of  the  legis- 
lature, by  a  retrospective  law,  to  put  a 
construction  upon  them  contrary  to,  the 
obvious  letter  and  spirit.  Reiser  v.  Wil- 
liam Tell  Fund  Association,  39  Pa.  St. 
137,  is  an  authority  in  point  against  such 
a  doctrine.  An  expository  act  of  as- 
sembly is  destitute  of  retroactive  force, 
because  it  is  an  act  of  judicial  power,  and 
is  in  contravention  of  the  ninth  section 
of  the  ninth  article  of  the  Constitution, 
which  declares  that  no  man  can  be  de- 
prived of  his  property  unless  '  by  the 
judgment  of  his  peers  or  the  law  of  the 
land.'"  See  8  Am.  Rep.  155,  156.  And 
on  the  force  and  effect  of  declaratory 
laws  in  general,  see  Salters  v.  Tobias,  3 
Paige,  338 ;  Postmaster-General  v.  Early, 
12  Wheat.  136 ;  Union  Iron  Co.  r.  Pierce, 
4  Biss.  327 ;  Planters'  Bank  v.  Black,  19 
Miss.  43;  Gough  v.  Pratt,  9  Md.  526; 
McNichol  v.  U.  S.,  &c.  Agency.  74  Mo. 
457;  Titusville  Iron  Works  v.  Keystone 
Oil  Co.,  122  Pa.  St.  627, 15  Atl.  917  ;  Steb- 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  137 

As  the  legislature  cannot  set  aside  the  construction  of  the  law 
already  applied  by  the  courts  to  actual  cases,  neither  can  it 
compel  the  courts  for  the  future  to  adopt  a  particular  construc- 
tion of  a  law  which  the  legislature  permits  to  remain  in  force. 
"To  declare  what  the  law  is,  or  has  been  is  a  judicial  power; 
to  declare  what  the  law  shall  be,  is  legislative.  One  of  the 
fundamental  principles  of  all  our  governments  is,  that  the  legis- 
lative power  shall  be  separate  from  the  judicial."1  If  the  legis- 
lature would  prescribe  a  different  rule  for  the  future  from  that 
which  the  courts  enforce,  it  must  be  done  by  statute,  and  cannot 
be  done  by  a  mandate  to  the  courts,  which  leaves  the  law 
unchanged,  but  seeks  to  compel  the  courts  to  construe  and 
apply  it,  not  according  to  the  judicial,  but  according  to  the 
legislative  judgment.2  But  in  any  case  the  substance  of  the 
legislative  action  should  be  regarded  rather  than  the  form ;  and 
if  it  appears  to  be  the  intention  to  establish  by  declaratory  stat- 
ute a  rule  of  conduct  for  the  future,  the  courts  should  accept 
and  act  upon  it,  without  too  nicely  inquiring  whether  the  mode 
by  which  the  new  rule  is  established  is  or  is  not  the  best,  most 
decorous,  and  suitable  that  could  have  been  adopted. 

If  the  legislature  cannot  thus  indirectly  control  the  action 
of  the  courts,  by  requiring  of  them  a  construction  of  the 
law  according  to  its  own  views,  it  is  very  plain  it  cannot 
do  so  directly,  by  setting  aside  their  judgments,  compelling 
them  to  grant  new  trials,3  ordering  the  discharge  of  offend- 

bins  v.  Cotn'rs  Pueblo  Co.,  2  McCrary,  tion  of  mere  errors  in  taxation  by  legis- 

19(5.      The    words    "  former  jeopardy  "  lation  of  a  retrospective  character.     See 

had  a  settled  meaning  when  the  Constitu-  post,  p.  630. 

tion  was  adopted  which  by  a  declaratory  2  Governor  v.  Porter,  5  Humph.  165; 

statute   the    legislature    cannot  change.  People  v.  Supervisors,  &c.,  16  N.  Y.  424; 

Powell  v.  State,  17  Tex.  App.  345.  Reiser  v.   Tell   Association,   39   Pa.   St. 

1  Dash  v.  Van  Kleek,  7  Johns.  477, 498,  137 ;  O'Conner  v.  Warner,  4  W.  &'  S.  223 ; 

per  Thompson,  J. ;  Ogden  v.  Blackledge,  Lambertson  v.  Hogan,  2  Pa.  St.  22.     An 

2  Cranch,  272;  Lambertson  v.  Hogan,  2  act  directing  that  a   certain   deposition 

Pa.   St.  2'2;  Seibert  v.  Linton,  5  W.  Va.  which  had  previously  been  taken  should 

67;  Arnold  v.  Kelley,  6  W.  Va.  446  ;  Me-  be  read  in  evidence  on  the  trial  of  a  cer- 

Daniel  v.  Correll,  19  111.  226.     The  legis-  tain  cause,  notwithstanding  informalities, 

lature  cannot  dictate  what  instructions  is  void.     Dupy  v.  Wickwire,  1  D.  Chip. 

shall  be  given  by  the  court  to  a  jury,  ex-  237,  6  Am.  Dec.  729. 

cept  by  general  law.     State  v.  Hopper,  8  Lewis  v.  Webb,  3  Me.  326  ;  Durham 

71  Mo.  425.     A  legislative  act  directing  v.  Lewiston,  4  Me.  140;  Atkinson  v.  Dun- 

the  levy  and  collection  of  a  tax  which  has  lap,  50  Me.  Ill ;  Bates  v.  Kimball,  2  Chip, 

already    been    declared    illegal    by    the  77 ;  Staniford  v.  Barry,  1  Aik.  314 ;  Mer- 

judiciary,  is  void,  as  an  attempted  rever-  rill  v.  Sherburne,  1  N.  H.  199;  Opinion  of 

sal  of  judicial  action.  Mayor,  &c.  v.  Horn,  Judges  in  Matter  of  Dorr,  3  R.  I.  299; 

26   Md.    191;   Butler  v.   Supervisors    of  Taylor  r.  Place,  4  R.  I.  324 ;  De  Chastel- 

Saginaw,  26   Mich.    22.     See  Forster  v.  lux   v.  Fairchild,   15  Pa.  St.  18;   Young 

Forster,   129   Mass.   559.     This  doctrine,  v.  State  Bank,  4  Ind.  301 ;  Beebe  v.  State, 

however,  would  not  prevent  the  correc-  6  Ind.  601 ;  Lanier  v.  Gallatas,  13  La.  Ann. 


138  CONSTITUTIONAL  LIMITATIONS.  [CH.  V. 

ers,1  or  directing  what  particular  steps  shall  be  taken  in  the 
progress  of  a  judicial  inquiry.2     And  as  a  court  must  act  as  an 


175;  Mayor,  &c.  v.  Horn,  26  Md.  194; 
Weaver  v.  Lapsley,  43  Ala.  224;  San- 
ders D.  Cabaniss,  43  Ala.  173 ;  Moser  v. 
White,  29  Mich.  69;  Sydnor  v.  Palmer, 
32  Wis.  406;  People  v.  Frisbie,  26  Cal. 
135;  Lawson  v.  Jeffries,  47  Miss.  686, 
12  Am.  Rep.  342;  Ratcliffe  v.  Anderson, 
31  Gratt.  105,  31  Am.  Rep.  716.  And  see 
post,  pp.  557-561,  and  notes.  It  is  not 
competent  hy  legislation  to  authorize  the 
court  of  final  resort  to  reopen  and  re- 
hear cases  previously  decided.  Dorsey 
»;.  Dorsey,  37  Md.  64,  1 1  Am.  Rep.  528. 
The  legislature  may  control  remedies, 
&c.,  but,  when  the  matter  has  proceeded 
to  judgment,  it  has  passed  beyond  legis- 
lative control.  Oliver  v.  McClure,  28 
Ark.  555;  Griffin's  Executory.  Cunning- 
ham, 20  Gratt.  31;  Teel  v.  Yancey,  23 
Gratt.  690;  Hooker  n.  Hooker,  18  Miss. 
599.  After  an  appeal  bond  was  signed 
by  the  attorney,  the  court  held  bonds 
so  signed  bad.  A  statute  validating  all 
prior  bonds  so  signed  is  void.  Andrews 
v.  Bcnne,  15  R.  I.  451,  8  Atl.  540. 

1  In  State  v.  Fleming,  7  Humph.  152, 
a  legislative  resolve  that  "no  fine,  forfeit- 
ure, or  imprisonment  should  be  imposed 
or  recovered  under  the  act  of  1837  [then 
in  force],  and  that  all  causes  pending  in 
any  of  the  courts  for  such  offence  should 
be  dismissed,"  was  held  void  as  an  in- 
vasion of  judicial  authority.  The  legis- 
lature cannot  declare  a  forfeiture  of  a  right 
to  act  as  curators  of  a  college.  State  v. 
Adams,  44  Mo.  570.  Nor  can  it  authorize 
the  governor  or  any  other  State  officer 
to  pass  upon  the  validity  of  State  grants 
and  correct  errors  therein  ;  this  being  ju- 
dicial. Hilliard  v.  Connelly,  7  Ga.  172. 
Nor,  where  a  corporate  charter  provides 
that  it  shall  not  be  repealed  "unless  it  shall 
be  made  to  appear  to  the  legislature  that 
there  has  been  a  violation  by  the  com- 
pany of  some  of  its  provisions,"  can  there 
be  a  repeal  before  a  judicial  inquiry  into 
the  violation.  Flint,  &c.  Plank  Road  Co. 
v.  Woodhull,  25  Mich.  99.  A  legislative 
act  cannot  turn  divorces  nisi  into  absolute 
divorces,  of  its  own  force.  Sparhawk  v. 
Sparliawk,  116  Mass.  315.  But  to  take 
away  by  statute  a  statutory  right  of  ap- 
peal is  not  an  exercise  of  judicial  author- 
ity. Ex  parte  Me  Cardie,  7  Wall.  506. 


And  it  has  been  held  that  a  statute  allow- 
ing an  appeal  in  a  particular  case  was 
valid.  Prout  v.  Berry,  2  Gill,  147  ;  State 
v.  Northern  Central  R.  R.  Co.,  18  Md.  193. 
A  retroactive  statute,  giving  the  right  of 
appeal  in  cases  in  which  it  had  previously 
been  lost  by  lapse  of  time,  was  sustained 
in  Page  v.  Mathews's  Adm'r,  40  Ala.  547. 
But  in  Carleton  v.  Goodwin's  Ex'r,  41  Ala. 
153,  an  act  the  effect  of  which  would  have 
been  to  revive  discontinued  appeals,  was 
held  void  as  an  exercise  of  judicial  au- 
thority. See  cases  cited  in  next  note. 

1  Opinions  of  Judges  on  the  Dorr  Case, 
3  R.  I.  299;  State  v.  Hopper,  71  Mo.  425. 
In  the  case  of  Picquet,  Appellant,  5  Pick. 
64,  the  judge  of  probate  had  ordered  let- 
ters of  administration  to  issue  to  an  appli- 
cant therefor,  on  his  giving  bond  in  the 
penal  sum  of  $50,000,  with  sureties  within 
the  Commonwealth,  for  the  faithful  per- 
formance of  his  duties.  He  was  unable 
to  give  the  bond,  and  applied  to  the  legis- 
lature for  relief.  Thereupon  a  resolve  was 
passed  "empowering"  the  judge  of  pro- 
bate to  grant  the  letters  of  administration, 
provided  the  petitioner  should  give  bond 
with  his  brother,  a  resident  of  Paris, 
France,  as  surety,  and  "  that  such  bond 
should  be  in  lieu  of  any  and  all  bond  or 
bonds  by  any  law  or  statute  in  this  Com- 
monwealth now  in  force  required,"  &c. 
The  judge  of  probate  refused  to  grant  the 
letters  on  the  terms  specified  in  this  re- 
solve, and  the  Supreme  Court,  while  hold- 
ing that  it  was  not  compulsory  upon  him, 
also  declared  their  opinion  that,  if  it  were 
so,  it  would  be  inoperative  and  void.  In 
Bradford  v.  Brooks,  2  Aik.  284,  it  was  de- 
cided that  the  legislature  had  no  power 
to  revive  a  commission  for  proving  claims 
against  an  estate  after  it  had  once  expired. 
See  also  Bagg's  Appeal,  43  Pa.  St.  612; 
Trustees  v.  Bailey,  10  Fla.  238.  In  Hill 
v.  Sunderland,  3  Vt.  507,  and  Burch  v. 
Newberry,  10  N.  Y.  374,  it  was  held  that 
the  legislature  had  no  power  to  grant  to 
parties  a  right  to  appeal  after  it  was  gone 
under  the  general  law.  In  Burt  v.  Wil- 
liams, 24  Ark.  91,  it  was  held  that  the 
granting  of  continuances  of  pending  cases 
was  the  exercise  of  judicial  authority,  and 
a  legislative  act  assuming  to  do  this  was 
void.  And  where,  by  the  general  law, 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  139 

organized  body  of  judges,  and,  where  differences  of  opinion 
arise,  they  can  only  decide  by  majorities,  it  has  been  held  that 
it  would  not  be  in  the  power  of  the  legislature  to  provide  that, 
in  certain  contingencies,  the  opinion  of  the  minority  of  a  court, 
vested  with  power  by  the  Constitution,  should  prevail,  so  that 
the  decision  of  the  court  in  such  cases  should  be  rendered  against 
the  judgment  of  its  members.1 

Nor  is  it  in  the  power  of  the  legislature  to  bind  individuals  by 
a  recital  of  facts  in  a  statute,  to  be  used  as  evidence  against  the 
parties  interested.  A  recital  of  facts  in  the  preamble  of  a 
statute  may  perhaps  be  evidence,  where  it  relates  to  matters  of 
a  public  nature,  as  that  riots  or  disorders  exist  in  a  certain  part 
of  the  country ; 2  but  where  the  facts  concern  the  rights  of  indi- 
viduals, the  legislature  cannot  adjudicate  upon  them.  As  pri- 
vate statutes  are  generally  obtained  on  the  application  of  some 
party  interested,  and  are  put  in  form  to  suit  his  wishes,  perhaps 
their  exclusion  from  being  made  evidence  against  any  other 
party  would  result  from  other  general  principles;  but  it  is  clear 
that  the  recital  could  have  no  force,  except  as  a  judicial  finding 
of  facts;  and  that  such  finding  is  no't  within  the  legislative 
province.3 

We  come  now  to  a  class  of  cases  in  regard  to  which  there  has 
been  serious  contrariety  of  opinion;  springing  from  the  fact, 
perhaps,  that  the  purpose  sought  to  be  accomplished  by  the 
statutes  is  generally  effected  by  judicial  proceedings,  so  that  if 
the  statutes  are  not  a  direct  invasion  of  judicial  authority,  they 

the  courts  have  no  authority  to  grant  a  restriction  of  this  character,  the  ruling  of 
divorce  for  a  given  cause,  the  legislature  this  case  is  that  the  legislature  cannot 
cannot  confer  the  authority  in  a  particu-  impose  it.  The  court  was  nearly  equally 
lar  case.  Simmonds  v.  Siramonds,  103  divided,  standing  seven  to  six.  But  the 
Mass.  572,  4  Am.  Rep.  576.  And  see  post,  decision  of  a  majority  of  a  court  is  bind- 
pp.  153,  note,  559,  and  note.  ing  as  though  unanimous.  Feige  v.  Mich. 
1  In  Clapp  i).  Ely,  27  N.  J.  622,  it  was  Cent.  R.  R.  Co.,  62  Mich.  1,  28  N.  W. 
held  that  a  statute  which  provided  that  685.  A  statute  authorizing  an  unofficial 
no  judgment  of  the  Supreme  Court  should  person  to  sit  in  the  place  of  a  judge  who 
be  reversed  by  the  Court  of  Errors  and  is  disqualified  was  held  void  in  Van 
Appeals,  unless  a  majority  of  those  mem-  Slyke  v.  Insurance  Co.,  39  Wis.  390,  20 
bers  of  the  court  who  were  competent  to  Am.  Rep.  60.  That  judicial  power  can- 
sit  on  the  hearing  and  decision  should  not  be  delegated,  see  Cohen  v.  HofiE,  3 
concur  in  the  reversal,  was  unconstitu-  Brev.  500.  Therefore  a  commission  of 
tional.  Its  effect  would  be,  if  the  court  appeals  created  by  statute  cannot  decide 
were  not  full,  to  make  the  opinion  of  the  causes  in  place  of  the  constitutional 
minority  in  favor  of  affirmance  control  Supreme  Court.  State  v.  Noble,  118  Ind. 
that  of  the  majority  in  favor  of  reversal,  350,  21  N.  E.  244. 
unless  the  latter  were  a  majority  of  the  2  Rex  v.  Sutton,  4  M.  &  S.  632. 
whole  court.  Such  a  provision  in  the  s  Elmendorf  v.  Carmichael,  3  Litt. 
constitution  might  be  proper  and  unex-  475,  14  Am.  Dec.  86 ;  Parmelee  v. 
ceptionable  ;  but  if  the  constitution  has  Thompson,  7  Hill,  77;  Lothrop  v.  Stead- 
created  a  court  of  appeals,  without  any  man,  42  Conn.  583,  592. 


140  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

at  least  cover  ground  which  the  courts  usually  occupy  under 
general  laws  conferring  the  jurisdiction  upon  them.     We  refer  to 


Statutes  empowering  Guardians  and  other  Trustees  to 
sell  Lands. 

Whenever  it  becomes  necessary  or  proper  to  sell  the  estate  of 
a  decedent  for  the  payment  of  debts,  or  of  a  lunatic  or  other 
incompetent  person  for  the  same  purpose,  or  for  future  support, 
or  of  a  minor  to  provide  the  means  for  his  education  and  nur- 
ture, or  for  the  most  profitable  investment  of  the  proceeds,  or  of 
tenants  in  common  to  effectuate  a  partition  between  them,  it 
will  probably  be  found  in  every  State  that  some  court  is  vested 
with  jurisdiction  to  make  the  necessary  order,  if  the  facts  after 
a  hearing  of  the  parties  in  interest  seem  to  render  it  important. 
The  case  is  eminently  one  for  judicial  investigation.  There  are 
facts  to  be  inquired  into,  in  regard  to  which  it  is  always  possible 
that  disputes  may  arise;  the  party  in  interest  is  often  incom- 
petent to  act  on  his  own  behalf,  and  his  interest  is  carefully  to 
be  inquired  into  and  guarded;  and  as  the  proceeding  will  usually 
be  ex  parte^  there  is  more  than  the  ordinary  opportunity  for 
fraud  upon  the  party  interested,  as  well  as  upon  the  authority 
which  grants  permission.  It  is  highly  and  peculiarly  proper, 
therefore,  that  by  general  laws  judicial  inquiry  should  be  pro- 
vided for  these  cases,  and  that  such  laws  should  require  notice 
to  all  proper  parties,  and  afford  an  opportunity  for  the  presenta- 
tion of  any  facts  which  might  bear  upon  the  propriety  of  granting 
the  applications. 

But  it  will  sometimes  be  found  that  the  general  laws  provided 
for  these  cases  are  not  applicable  to  some  which  arise;  or,  if 
applicable,  that  they  do  not  accomplish  fully  all  that  in  some 
cases  seems  desirable;  and  in  these  cases,  and  perhaps  also  in 
some  others  without  similar  excuse,  it  has  not  been  unusual  for 
legislative  authority  to  intervene,  and  by  special  statute  to  grant 
the  permission  which,  under  the  general  law,  would  be  granted 
by  the  courts.  The  power  to  pass  such  statutes  has  often  been 
disputed,  and  it  may  be  well  to  see  upon  what  basis  of  authority, 
as  well  as  of  reason,  it  rests. 

If  in  fact  the  inquiry  which  precedes  the  grant  of  authority  is 
in  its  nature  judicial,  it  would  seem  clear  that  such  statutes 
must  be  ineffectual  and  void.  But  if  judicial  inquiry  is  not 
essential,  and  the  legislature  may  confer  the  power  of  sale  in 
such  a  case  upon  an  ex  parte  presentation  of  evidence,  or  upon 
the  representations  of  the  parties  without  any  proof  whatever, 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  141 

then  we  must  consider  the  general  laws  to  be  passed,  not  because 
the  cases  fall  necessarily  within  the  province  of  judicial  action, 
but  because  the  courts  can  more  conveniently  consider,  and  more 
properly,  safely,  and  inexpensively  pass  upon  such  cases,  than 
the  legislative  body  to  which  the  power  primarily  belongs.1 

The  rule  upon  this  subject  which  appears  to  be  deducible  from 
the  authorities,  is  this:  If  the  party  standing  in  position  of 
trustee  applies  for  permission  to  convert  by  a  sale  the  real  prop- 
erty into  personal,  in  order  to  effectuate  the  purposes  of  the 
trust,  and  to  accomplish  objects  in  the  interest  of  the  cestui  que 
trust  not  otherwise  attainable,  there  is  nothing  in  the  granting 
of  permission  which  is  in  its  nature  judicial.  To  grant  permis- 
sion is  merely  to  enlarge  the  sphere  of  the  fiduciary  authority, 
the  better  to  accomplish  the  purpose  for  which  the  trusteeship 
exists;  and  while  it  would  be  entirely  proper  to  make  the  ques- 
tions which  might  arise  assume  a  judicial  form,  by  referring 
them  to  some  proper  court  for  consideration  and  decision,  there 
is  no  usurpation  of  power  if  the  legislature  shall,  by  direct 
action,  grant  the  permission. 

In  the  case  of  Rice  v.  Parkman,2  certain  minors  having  become 
entitled  to  real  estate  by  descent  from  their  mother,  the  legisla- 
ture passed  a  special  statute  empowering  their  father  as  guardian 
for  them,  and,  after  giving  bond  to  the  judge  of  probate,  to  sell 
and  convey  the  lands,  and  put  the  proceeds  at  interest  on  good 
security  for  the  benefit  of  the  minor  owners.  A  sale  was  made 
accordingly;  but  the  children,  after  coming  of  age,  brought  suit 
against  the  party  claiming  under  the  sale,  insisting  that  the 
special  statute  was  void.  There  was  in  force  at  the  time  this 
special  statute  was  passed,  a  general  statute,  under  which  license 
might  have  been  granted  by  the  courts;  but  it  was  held  that  this 
general  law  did  not  deprive  the  legislature  of  that  full  and  com- 
plete control  over  such  cases  which  it  would  have  possessed  had 
no  such  statute  existed.  "If,"  say  the  court,  "the  power  by 
which  the  resolve  authorizing  the  sale  in  this  case  was  passed 
were  of  a  judicial  nature,  it  would  be  very  clear  that  it  could 

1  There  are  constitutional  provisions  plicable,  might  also  be  held  to  exclude 
in  Kentucky,  Virginia,  Missouri,  Oregon,  such  special  authorization. 
Nevada,  Indiana,  Marj-land,  New  Jersey,  2  16  Mass.  326.  See  the  criticism  of 
Arkansas,  Florida,  Illinois,  Wisconsin,  this  case  in  Jones  v.  Perry,  10  Yerg.  69, 
Texas,  West  Virginia,  Michigan,  and  Col-  30  Am.  Dec.  430.  That  case  is  out  of 
orado,  forbidding  special  laws  licensing  harmony  with  the  current  of  authority 
the  sale  of  the  lands  of  minors  and  other  on  the  subject  here  considered.  In  Call- 
persons  under  legal  disability.  Perhaps  fornia  it  has  been  held  that  where  a  minor 
the  general  provision  in  some  other  con-  has  a  guardian,  it  is  not  competent  for  the 
stitutions,  forbidding  special  laws  in  cases  legislature  to  empower  another  to  se'l  Ins 
where  a  general  law  could  be  made  ap-  lands.  Lincoln  v.  Alexander,  62  Cal.  482, 

28  Am.  Rep.  639. 


142  CONSTITUTIONAL  LIMITATIONS.  [CH.  V. 

not  have  been  exercised  by  the  legislature  without  violating  an 
express  provision  of  the  constitution.  But.it  does  not  seem  to 
us  to  be  of  this  description  of  power;  for  it  was  not  a  case  of 
controversy  between  party  and  party,  nor  is  there  any  decree  or 
judgment  affecting  the  title  to  property.  The  only  object  of  the 
authority  granted  by  the  legislature  was  to  transmute  real  into 
personal  estate,  for  purposes  beneficial  to  all  who  were  interested 
therein.  This  is  a  power  frequently  exercised  by  the  legislature 
of  this  State,  since  the  adoption  of  the  constitution,  and  by  the 
legislatures  of  the  province  and  of  the  colony,  while  under  the 
sovereignty  of  Great  Britain,  analogous  to  the  power  exercised 
by  the  British  Parliament  on  similar  subjects  time  out  of  mind. 
Indeed  it  seems  absolutely  necessary  for  the  interest  of  those 
who,  by  the  general  rules  of  law,  are  incapacitated  from  dispos- 
ing of  their  property,  that  a  power  should  exist  somewhere  of 
converting  lands  into  money.  For  otherwise  many  minors 
might  suffer,  although  having  property ;  it  not  being  in  a  con- 
dition to  yield  an  income.  This  power  must  rest  in  the  legisla- 
ture in  this  Commonwealth;  that  body  being  alone  competent  to 
act  as  the  general  guardian  and  protector  of  those  who  are  dis- 
abled to  act  for  themselves. 

"  It  was  undoubtedly  wise  to  delegate  this  authority  to  other 
bodies,  whose  sessions  are  regular  and  constant,  and  whose 
structure  may  enable  them  more  easily  to  understand  the  merits 
of  the  particular  application  brought  before  them.  But  it  does 
not  follow  that,  because  the  power  has  been  delegated  by  the 
legislature  to  courts  of  law,  it  is  judicial  in  its  character.  For 
aught  we  see,  the  same  authority  might  have  been  given  to  the 
selectmen  of  each  town,  or  to  the  clerks  or  registers  of  the 
counties,  it  being  a  mere  ministerial  act,  certainly  requiring 
discretion,  and  sometimes  knowledge  of  law,  for  its  due  exercise, 
but  still  partaking  in  no  degree  of  the  characteristics  of  judicial 
power.  It  is  doubtless  included  in  the  general  authority  granted 
by  the  people  to  the  legislature  by  the  constitution.  For  full 
power  and  authority  is  given  from  time  to  time  to  make,  ordain, 
and  establish  all  manner  of  wholesome  and  reasonable  orders, 
laws,  statutes,  and  ordinances,  directions,  and  instructions  (so 
as  the  same  be  not  repugnant  or  contrary  to  the  constitution),  as 
they  shall  judge  to  be  for  the  good  and  welfare  of  the  Common- 
wealth, and  of  the  subjects  thereof.  No  one  imagines  that, 
under  this  general  authority,  the  legislature  could  deprive  a 
citizen  of  his  estate,  or  impair  any  valuable  contract  in  which 
he  might  be  interested.  But  there  seems  to  be  no  reason  to 
doubt  that,  upon  his  application,  or  the  application  of  those 


CH.  V.]       POWERS    EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  143 

\vho  properly  represent  him,  if  disabled  from  acting  himself, 
a  beneficial  change  of  his  estate,  or  a  sale  of  it  for  purposes 
necessary  and  convenient  for  the  lawful  owner,  is  a  just  and 
proper  subject  for  the  exercise  of  that  authority.  It  is,  in  fact, 
protecting  him  in  his  property,  which  the  legislature  is  bound 
to  do,  and  enabling  him  to  derive  subsistence,  comfort,  and 
education  from  property  which  might  otherwise  be  wholly  use- 
less during  that  period  of  life  when  it  might  be  most  beneficially 
employed. 

"If  this  be  not  true,  then  the  general  laws  under  which  so 
many  estates  of  minors,  persons  non  compos  mentis,  and  others, 
have  been  sold  and  converted  into  money,  are  unauthorized  by 
the  constitution,  and  void.  For  the  courts  derive  their  authority 
from  the  legislature,  and,  it  not  being  of  a  judicial  nature,  if 
the  legislature  had  it  not,  they  could  not  communicate  it  to  any 
other  body.  Thus,  if  there  were  no  power  to  relieve  those  from 
actual  distress  who  had  unproductive  property,  and  were  disabled 
from  conveying  it  themselves,  it  would  seem  that  one  of  the 
most  essential  objects  of  government  —  that  of  providing  for 
the  welfare  of  the  citizens  —  would  be  lost.  But  the  argument 
which  has  most  weight  on  the  part  of  the  defendants  is,  that  the 
legislature  has  exercised  its  power  over  this  subject  in  the  only 
constitutional  way,  by  establishing  a  general  provision;  and 
that,  having  done  this,  their  authority  has  ceased,  they  having 
no  right  to  interfere  in  particular  cases.  And  if  the  question 
were  one  of  expediency  only,  we  should  perhaps  be  convinced  by 
the  argument,  that  it  would  be  better  for  all  such  applications 
to  be  made  to  the  courts  empowered  to  sustain  them.  But  as  a 
question  of  right,  we  think  the  argument  fails.  The  constituent, 
when  he  has  delegated  an  authority  without  an  interest,  may  do 
the  act  himself  which  he  has  authorized  another  to  do ;  and 
especially  when  that  constituent  is  the  legislature,  and  is  not 
prohibited  by  the  constitution  from  exercising  the  authority. 
Indeed,  the  whole  authority  might  be  revoked,  and  the  legisla- 
ture resume  the  burden  of  the  business  to  itself,  if  in  its  wisdom 
it  should  determine  that  the  common  welfare  required  it.  It  is 
not  legislation  which  must  be  by  general  acts  and  rules,  but  the 
use  of  a  parental  or  tutorial  power,  for  purposes  of  kindness, 
without  interfering  with  or  prejudice  to  the  rights  of  any  but 
those  who  apply  for  specific  relief.  The  title  of  strangers  is  not 
in  any  degree  affected  by  such  an  interposition."1 

1  In  Shumway  v.  Bennett,  29  Mich,  it  is  held  that  the  question  of  incorporat- 
451,  the  distinction  between  judicial  and  ing  territory  as  a  village  cannot  be  made 
administrative  power  is  pointed  out,  and  a  judicial  question.  A  like  decision  is 


144 


CONSTITUTIONAL   LIMITATIONS. 


[CII.  V. 


A  similar  statute  was  sustained  by  the  Court  for  tlie  Correction 
of  Errors  in  New  York.  "It  is  clearly,"  says  the  Chancellor, 
"within  the  powers  of  the  legislature,  as  parens patrics,  to  pre- 
scribe such  rules  and  regulations  as  it  may  deem  proper  for  the 
superintendence,  disposition,  and  management  of  the  property 
and  effects  of  infants,  lunatics,  and  other  persons  who  are 
incapable  of  managing  their  own  affairs.  But  even  that  power 
cannot  constitutionally  be  so  far  extended  as  to  transfer  the 
beneficial  use  of  the  property  to  another  person,  except  in  those 
cases  where  it  can  legally  be  presumed  the  owner  of  the  prop- 
erty would  himself  have  given  the  use  of  his  property  to  the 
other,  if  he  had  been  in  a  situation  to  act  for  himself,  as  in  the 
case  of  a  provision  out  of  the  estate  of  an  infant  or  lunatic  for 
the  support  of  an  indigent  parent  or  other  near  relative.1 

made  in  State  v.  Simons,  32  Minn.  640, 
21  N.  W.  750,  and  by  Chancellor  Cooper, 
in  Ex  parte  Burns,  1  Tenn.  Ch.  R.  83, 
though  it  is  said  in  that  case  that  the 
organization  of  corporations  which  are 
created  by  legislative  authority  may  be 
referred  to  the  courts.  See,  on  the  same 
subject,  State  v.  Armstrong,  3  Sneed, 
634;  Galesburg  v.  Hawkinson,  75  111. 
152.  Compare  Burlington  v.  Leebrick, 
43  Iowa,  252,  and  Wahoo  v.  Dickinson, 
23  Neb.  426,  36  N.  W.  813,  where  it 
is  held  the  question  of  extending,  after 
hearing,  the  limits  of  a  municipality  may 
be  decided  by  a  court.  That  the  courts 
cannot  be  clothed  with  legislative  author- 
ity, see  State  v.  Young,  29  Minn.  474, 
9  N.  W.  737.  Compare  Ex  parte  Mato, 
19  Tex.  App.  112.  For  the  distinction 
between  political  and  judicial  power,  see 
further,  Dickey  v.  Reed,  78  111.  261; 
Commonwealth  v.  Jones,  10  Bush,  725. 
And  see  post,  pp.  149,  150,  and  notes.  In 
Hegarty's  Appeal,  75  Pa.  St.  603,  the 
power  of  a  legislature  to  authorize  a  trus- 
tee to  sell  the  lands  of  parties  who  were 
sui  juris,  and  might  act  on  their  own  be- 
half, was  denied,  and  the  case  was  dis- 
tinguished from  Norris  v.  Clymer,  2  Pa. 
St.  277,  and  others  which  had  followed  it. 
The  foreclosure  of  a  mortgage  on  private 
property  cannot  be  accomplished  by  legis- 
lative enactment.  Ashuelot  R.  R.  Co.  v. 
Elliott,  58  N.  H.  451. 

Power  to  try  city  officers  by  impeach- 
ment may  rest  in  a  city  council,  the  judg- 
ment extending  only  to  removal  arid  dis- 
qualification to  hold  any  corporate  office. 
S'ate  r.  Judges,  35  La.  Ann.  1075. 


1  Cochran  v.  Van  Surlay,  20  Wend.  365, 
373.  See  the  same  case  in  the  Supreme 
Court,  sub  nom.  Clarke  r.  Van  Surlay,  15 
Wend.  436.  See  also  Suydam  v.  William- 
son, 24  How.  427  ;  Williamson  v.  Suydam, 
6  Wall.  723 ;  Heirs  of  Holman  v.  Bank  of 
Norfolk,  12  Ala.  369 ;  Florentine  v.  Bar- 
ton, 2  Wall.  210.  In  Hoyt  v.  Sprague,  103 
U.  S.  613,  it  was  held  competent,  by 
special  statute,  to  provide  for  the  invest- 
ment of  the  estate  of  minors  in  a  manu- 
facturing corporation,  and  that,  after  the 
investment  was  accordingly  made,  no  ac- 
count could  be  demanded  on  their  behalf, 
except  of  the  stock  and  its  dividends.  But 
the  legislature  cannot  empower  the  guar- 
dian of  infants  to  mortgage  their  lands  to 
pay  demands  which  are  not  obligations 
against  them  or  their  estate.  Burke  v. 
Mechanics'  Savings  Bank,  12  R.  I.  513. 
In  Brevoort  r.  Grace,  53  N.  Y.  245,  the 
power  of  the  legislature  to  authorize  the 
sale  of  lands  of  infants  by  special  statute 
was  held  to  extend  to  the  future  contin- 
gent interests  of  those  not  in  being,  but 
not  to  the  interests  of  non-consenting 
adults,  competent  to  act  on  their  own  be- 
half. In  Opinions  of  the  Judges,  4  N.  H. 
665,  672,  the  validity  of  such  a  special 
statute,  under  the  constitution  of  New 
Hampshire,  was  denied.  The  judges  say  : 
"  The  objection  to  the  exercise  of  such  a 
power  by  the  legislature  is,  that  it  is  in  its 
nature  both  legislative  and  judicial.  It 
is  the  province  of  the  legislature  to  pre- 
scribe the  rule  of  law,  but  to  apply  it  to 
particular  cases  is  the  business  of  the 
courts  of  law.  And  the  thirty-eighth  ar- 
ticle in  the  Bill  of  Rights  declares  that 


CH.  V.]      POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  145 


The  same  ruling  has  often  been  made  in  analogous  cases.  In 
Ohio,  a  special  act  of  the  legislature  authorizing  commissioners 
to  make  sale  of  lands  held  in  fee  tail,  by  devisees  under  a  will, 
in  order  to  cut  off  the  entailment  and  effect  a  partition  between 
them, — the  statute  being  applied  for  by  the  mother  of  the 
devisees  and  the  executor  of  the  will,  and  on  behalf  of  the 
devisees,  —  was  held  not  obnoxious  to  constitutional  objection, 
and  to  be  sustainable  on  immemorial  legislative  usage,  and  on 
the  same  ground  which  would  support  general  laws  for  the  same 
purpose.1  In  a  case  in  the  Supreme  Court  of  the  United  States, 


'  in  the  government  of  this  State  the  three 
essential  powers  thereof,  to  wit,  the  legis- 
lative, executive,  and  judicial,  ought  to 
be  kept  as  separate  from,  and  independ- 
ent of,  each  other  as  the  nature  of  a  free 
government  will  admit,  or  as  is  consistent 
with  that  chain  of  connection  that  binds 
the  whole  fabric  of  the  constitution  in  one 
indissoluble  bond  of  union  and  amity.' 
The  exercise  of  such  a  power  by  the  legis- 
lature can  never  be  necessary.  By  the 
existing  laws,  judges  of  probate  have  very 
extensivejurisdiction  to  license  the  sale  of 
the  real  estate  of  minors  by  their  guar- 
dians. If  the  jurisdiction  of  the  judges  of 
probate  be  not  sufficiently  extensive  to 
reach  all  proper  cases,  it  may  be  a  good 
reason  why  that  jurisdiction  should  be 
extended,  but  can  hardly  be  deemed  a 
sufficient  reason  for  the  particular  inter- 
position of  the  legislature  in  an  individual 
case.  If  there  be  a  defect  in  the  laws, 
they  should  be  amended.  Under  our  in- 
stitutions all  men  are  viewed  as  equal,  en- 
titled to  enjoy  equal  privileges,  and  to  be 
governed  by  equal  laws.  If  it  be  fit  and 
proper  that  license  should  be  given  to  one 
guardian,  under  particular  circumstances, 
to  sell  the  estate  of  his  ward,  it  is  fit  and 
proper  that  all  other  guardians  should, 
under  similar  circumstances,  have  the 
same  license.  This  is  the  very  genius 
and  spirit  of  our  institutions.  And  we 
are  of  opinion  that  an  act  of  the  legisla- 
ture to  authorize  the  sale  of  the  land  of  a 
particular  minor  by  his  guardian  cannot 
be  easily  reconciled  with  the  spirit  of  the 
article  in  the  Bill  of  Rights  which  we  have 
just  cited.  It  is  true  that  the  grant  of 
such  a  license  by  the  legislature  to  the 
guardian  is  intended  as  a  privilege  and  a 
benefit  to  the  ward.  But  by  the  law  of 
the  land  no  minor  is  capable  of  assenting 
to  a  sale  of  his  real  estate  in  such  a  man- 


ner as  to  bind  himself.  And  no  guardian 
is  permitted  by  the  same  law  to  deter- 
mine when  the  estate  of  his  ward  ought 
and  when  it  ought  not  to  be  sold.  In  the 
contemplation  of  the  law,  the  one  has 
not  sufficient  discretion  to  judge  of  the 
propriety  and  expediency  of  a  sale  of  his 
estate,  and  the  other  is  not  to  be  intrusted 
with  the  power  of  judging.  Such  being 
the  general  law  of  the  land,  it  is  presumed 
that  the  legislature  would  be  unwilling  to 
rest  the  justification  of  an  act  authorizing 
the  sale  of  a  minor's  estate  upon  any  assent 
which  the  guardian  or  the  minor  could 
give  in  the  proceeding.  The  question  then 
is,  as  it  seems  to  us :  Can  a  ward  be  de- 
prived of  his  inheritance  without  his  con- 
sent by  an  act  of  the  legislature  which  is 
intended  to  apply  to  no  other  individual? 
The  fifteenth  article  in  the  Bill  of  Rights 
declares  that  no  subject  shall  be  deprived 
of  his  property  but  by  the  judgment  of  hia 
peers  or  the  law  of  the  land.  Can  an  act 
of  the  legislature,  intended  to  authorize 
one  man  to  sell  the  land  of  another  with- 
out his  consent  be  'the  law  of  the  land  * 
within  the  meaning  of  the  constitution  ? 
Can  it  be  the  law  of  the  land  in  a  free 
country  ?  If  the  question  proposed  to  us 
can  be  resolved  into  these  questions,  as  it 
appears  to  us  it  may,  we  feel  entirely 
confident  that  the  representatives  of  the 
people  of  this  State  will  agree  with  us  in 
the  opinion  we  feel  ourselves  bound  to  ex- 
press on  the  question  submitted  to  us,  that 
the  legislature  cannot  authorize  a  guar- 
dian of  minors,  by  a  special  act  or  resolve, 
to  make  a  valid  conveyance  of  the  real 
estate  of  his  wards."  See  also  Jones  r. 
Perry,  10  Yerg.  59,  30  Am.  Dec.  430; 
Lincoln  v.  Alexander,  52  Cal.  482,  28  Am. 
Rep.  6«9. 

1  Carroll    v.   Lessee    of    Olmsted,  16 
Ohio,  251. 


10 


146  CONSTITUTIONAL    LIMITATIONS.  [CH.  V. 

where  an  executrix  who  had  proved  a  will  in  New  Hampshire 
made  sale  of  lands  without  authority  in  Rhode  Island,  for  the 
purpose  of  satisfying  debts  against  the  estate,  a  subsequent  act 
of  the  Rhode  Island  legislature,  confirming  the  sale,  was  held 
not  an  encroachment  upon  the  judicial  power.  The  land,  it  was 
said,  descended  to  the  heirs  subject  to  a  lien  for  the  payment  of 
debts,  and  there  is  nothing  in  the  nature  of  the  act  of  authoriz- 
ing a  sale  to  satisfy  the  lieu,  which  requires  that  it  should  be 
performed  by  a  judicial  tribunal,  or  that  it  should  be  performed 
by  a  delegate  rather  than  by  the  legislature  itself.  It  is  reme- 
dial in  its  nature,  to  give  effect  to  existing  rights.1  The  case 
showed  the  actual  existence  of  debts,  and  indeed  a  judicial 
license  for  the  sale  of  lands  to  satisfy  them  had  been  granted 
in  New  Hampshire  before  the  sale  was  made.  The  decision 
was  afterwards  followed  in  a  carefully  considered  case  in  the 
same  court.2  In  each  of  these  cases  it  is  assumed  that  the 
legislature  does  not  by  the  special  statute  determine  the  exist- 
ence or  amount  of  the  debts,  and  disputes  concerning  them  would 
be  determinable  in  the  usual  modes.  Many  other  decisions  have 
been  made  to  the  same  effect.3 

This  species  of  legislation  may  perhaps  be  properly  called 
prerogative  remedial  legislation.  It  hears  and  determines  no 
rights ;  it  deprives  no  one  of  his  property.  It  simply  authorizes 
one's  real  estate  to  be  turned  into  personal,  on  the  application 

1  Wilkinson  v.  Leland,  2  Pet.  627,  660.  565 ;  Sohier  v.  Massachusetts,  &c.  Hospi- 
Compare  Brevoort  v.  Grace,  53  N.  Y.  245.  tal,  3  Gush.  483 ;  Lobrano  v.  Nelligan,  9 

2  Watkins  v.  Holman's  Lessee,  16  Pet.  Wall.  295.     Contra,  Brenham  v.  Story,  39 
25,  60.     See  also  Florentine  v.  Barton,  2  Cal.  179.    In  Moore  v.  Maxwell,  18  Ark. 
Wall.  210;  Doe  v.  Douglass,  8  Blackf.  10.  469,  a  special  statute  authorizing  the  ad- 

8  Thurston  v.  Thurston,  6  R.  I.  296,  ministrator  of  one  who  held  the   mere 

302  ;  Williamson  v.  Williamson,  11  Miss,  naked  legal  title  to  convey  to  the  owner 

715;    McComb  v.  Gilkey,  29  Miss.  146;  of  the  equitable  title  was  held  valid.     To 

Boon  v.  Bowers,  30  Miss.  246;  Stewart  the  same  effect  is  Reformed  P.  D.  Church 

v.  Griffith,  33  Mo.  13 ;  Estep  v.  Hutchman,  v.  Mott,  7  Paige.  77,  32  Am.  Dec.  613. 

14  S.  &  R.  435;  Snowhill  v.  Sriowliill,  17  A  special  act  allowing  the  widow  to  sell 

N.  J.  Eq.  30  ;  Dorsey  v.  Gilbert,  11  G.  &  J.  lands   of  the  deceased  husband,  subject 

87 ;    Norris   v.   Clymer,   2   Pa.   St.  277  ;  to  the  approval  of  the  probate  judge,  is 

Sergeant  v.  Kuhn,  2  Pa.  St.  393;  Kerr  v.  valid.     Bruce  v.  Bradshaw,  69  Ala.  360. 

Kitchen,  17    Pa.    St.   433;    Coleman  v.  In   Stanley  v.  Colt,  5  Wall.  119,  an  act 

Carr,  1  Miss.  258;  Davison  v.  Johonnot,  7  permitting  the  sale  of  real  estate  which 

Met.  388  ;  Towle  v.  Forney,  14  N.  Y.  423 ;  had  been  devised  to  charitable  uses  was 

Leggett  v.  Hunter,  19  N.  Y.  445;  Bre-  sustained,  —  no  diversion  of  the  gift  being 

voort  v.  Grace,  53  N.  Y.  245;  Gannett  v.  made.     A  more  doubtful  case  is  that  of 

Leonard,  47   Mo.   205;    Kibby   v.  Chet-  Linsley  v.  Hubbard,44  Conn.  109,  26  Am. 

wood's  Adm'rs,  4  T.  B.  Monr.  91;  She-  Rep.  431,  in  which  it  was  held  competent, 

ban's    Heirs  v.  Barnett's  Heirs,  6  T.  B.  on  petition  of  tenant  for  life,  to  order  a 

Monr.  594 ;  Davis  v.  State  Bank,  tf  Ind.  sale  of  lands  for  the  benefit  of  all  con- 

316;  Richardson  v.  Monson,  23  Conn.  94;  cerned,  though  against  remonstrance  of 

Ward  v.  New  England,  &c.  Co.,  1  Cliff,  owners  of  the  reversion. 


CH.  V.]        POWERS    EXERCISED    BY    LEGISLATIVE    DEPARTMENT.  147 

of  the  person  representing  his  interest,  and  under  such  circum- 
stances that  the  consent  of  the  owner,  if  capable  of  giving  it, 
would  be  presumed.  It  is  in  the  nature  of  the  grant  of  a  privi- 
lege to  one  person,  which  at  the  same  time  affects  injuriously 
the  rights  of  no  other.1 

But  a  different  case  is  presented  when  the  legislature  assumes 
to  authorize  a  person  who  does  not  occupy  a  fiduciary  relation 
to  the  owner,  to  make  sale  of  real  estate,  to  satisfy  demands 
which  he  asserts,  but  which  are  not  judicially  determined,  or 
for  any  other  purpose  not  connected  with  the  convenience  or 
necessity  of  the  owner  himself.  An  act  of  the  legislature  of 
Illinois  undertook  to  empower  a  party  who  had  applied  for  it 
to  make  sale  of  the  lands  pertaining  to  the  estate  of  a  deceased 
person,  in  order  to  raise  a  certain  specified  sum  of  money  which 
the  legislature  assumed  to  be  due  to  him  and  another  person, 
for  moneys  by  them  advanced  and  liabilities  incurred  on  behalf 
of  the  estate,  and  to  apply  the  same  to  the  extinguishment  of 
their  claims.  Now  it  is  evident  that  this  act  was  in  the  nature 
of  a  judicial  decree,  passed  on  the  application  of  parties  adverse 
in  interest  to  the  estate,  and  in  effect  adjudging  a  certain  amount 
to  be  due  them,  and  ordering  lands  to  be  sold  for  its  satisfaction. 
As  was  well  said  by  the  Supreme  Court  of  Illinois,  in  adjudging 
the  act  void:  "If  this  is  not  the  exercise  of  a  power  of  inquiry 
into,  and  a  determination  of,  facts  between  debtor  and  creditor, 
and  that,  too,  ex  parte  and  summary  in  its  character,  we  are  at 
a  loss  to  understand  the  meaning  of  terms ;  nay,  that  it  is  ad- 
judging and  directing  the  application  of  one  person's  property 
to  another,  on  a  claim  of  indebtedness,  without  notice  to,  or 
hearing  of,  the  parties  whose  estate  is  divested  by  the  act. 
That  the  exercise  of  such  power  is  in  its  nature  clearly  judi- 
cial, we  think  too  apparent  to  need  argument  to  illustrate  its 
truth.  It  is  so  self-evident  from  the  facts  disclosed  that  it 
proves  itself."2 

1  It  would  be  equally  competent  for  McLean,  486,  Judge  Pope  assumes  that 
the  legislature  to  authorize  a  person  under  the  case  of  Lane  v.  Dorman  decides  that 
legal  disability  — e.g.  an  infant  —  to  con-  a  special  act,  authorizing  an  executor  to 
vey  his  estate,  as  to  authorize  it  to  be  sell  lands  of  the   testator  to   pay  debts 
conveyed  by  guardian.     McComb  v.  Gil-  against  his  estate,  would  be  unconstitu- 
key,  29  Miss.  146.     QSee  in  this  connec-  tional.     We  do  not  so    understand   that 
tion,   Louisville,  N.   O.    &   T.  K.   Co.    v.  decision.     On  the  contrary,  another  case 
Ely  the,  69    Miss.   939,   11    So.    Ill,   16  in  the   same  volume,  Edwards  v.  Pope, 
L.  R.  A.  251,  and  note  on  constitution-  p.  465,  fully  sustains  the  cases  before  de- 
ality  of  private  statutes  to  authorize  dis-  cided,  distinguishing  them  from   Lane  v. 
posal  of  property.]  Dorman.     But  that  indeed  is  also  done  in 

2  Lane  v.  Dorman,  4  111.  238,  242,  36  the  principal  case,  where  the  court,  after 
Am.  Dec.  543.     In  Dubois  v.  McLean,  4  referring  to  similar  cases  in   Kentucky, 


148  . 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


A  case  in  harmony  with  the  one  last  referred  to  was  decided 
by  the  Supreme  Court  of  Michigan.  Under  the  act  of  Congress 
"for  the  relief  of  citizens  of  towns  upon  the  lands  of  the  United 
States,  under  certain  circumstances,"  approved  May  23,  1844, 
and  which  provided  that  the  trust  under  said  act  should  be  con- 
ducted "  under  such  rules  and  regulations  as  may  be  prescribed 
by  the  legislative  authority  of  the  State,"  &c.,  the  legislature 
passed  an  act  authorizing  the  trustee  to  give  deeds  to  a  person 
named  therein,  and  those  claiming  under  him;  thus  undertak- 
ing to  dispose  of  the  whole  trust  to  the  person  thus  named  and 
his  grantees,  and  authorizing  no  one  else  to  be  considered  or  to 
receive  any  relief.  This  was  very  plainly  an  attempted  adjudi- 
cation upon  the  rights  of  the  parties  concerned;  it  did  not 
establish  regulations  for  the  administration  of  the  trust,  but  it 
adjudged  the  trust  property  to  certain  claimants  exclusively,  in 
disregard  of  any  rights  which  might  exist  in  others;  and  it  was 
therefore  declared  to  be  void.1  And  it  has  also  been  held  that, 


say  :  "  These  cases  are  clearly  distin- 
guished from  the  case  at  bar.  The  acts 
were  for  the  benefit  of  all  the  creditors 
of  the  estates,  without  distinction ;  and 
in  one  case,  in  addition,  for  the  purpose 
of  perfecting  titles  contracted  to  be  made 
by  the  intestate.  The  claims  of  the  cred- 
itors of  the  intestate  were  to  be  estab- 
lished by  judicial  or  other  satisfactory 
legal  proceedings,  and,  in  truth,  in  the 
last  case  cited,  the  commissioners  were 
nothing  more  than  special  administrators. 
The  legislative  department,  in  passing 
these  acts,  investigated  nothing,  nor  did 
an  act  which  could  be  deemed  a  judicial 
inquiry.  It  neither  examined  proof,  nor 
determined  the  nature  or  extent  of  claims; 
it  merely  authorized  the  application  of 
the  real  estate  to  the  payment  of  debts 
generally,  discriminating  in  favor  of  no 
one  creditor,  and  giving  no  one  a  prefer- 
ence over  another.  Not  so  in  the  case 
before  us ;  the  amount  is  investigated 
juid  ascertained,  and  the  sale  is  directed 
for  the  benefit  of  two  persons  exclusively. 
The  proceeds  are  to  be  applied  to  the 
payment  of  such  claims  and  none  other, 
for  liabilities  said  to  be  incurred,  but  not 
liquidated  or  satisfied;  and  those,  too, 
created  after  the  death  of  the  intestate." 
See  also  Mason  r.  Wait,  5  III.  127,  184; 
Davenport  v.  Young,  16  111.  548 ;  Rozier 
v.  Fagan,  46  111.  404.  The  case  of  Estep 
v.  Hutchman,  14  S.  &  R.  435,  would  seem 
to  be  more  open  to  question  on  this  point 


than  any  of  the  others  before  cited.  It 
was  the  case  of  a  special  statute,  author- 
izing the  guardian  of  infant  heirs  to  con- 
vey their  lands  in  satisfaction  of  a  con- 
tract made  by  their  ancestor ;  and  the 
statute  was  sustained.  Compare  this 
with  Jones  v.  Perry,  10  Yerg.  59,  where 
an  act  authorizing  a  guardian  to  sell 
lands  to  pay  the  ancestor's  debts  was 
held  void. 

1  Cash,  Appellant,  6  Mich.  193.  The 
case  of  Powers  v.  Bergen,  6  N.  Y.  358,  is 
perhaps  to  be  referred  to  another  princi- 
ple than  that  of  encroachment  upon  judi- 
cial authority.  That  was  a  case  where 
the  legislature,  by  special  act,  had  under- 
taken to  authorize  the  sale  of  property, 
not  for  the  purpose  of  satisfying  liens 
upon  it,  or  of  meeting  or  in  any  way  pro- 
viding for  the  necessities  or  wants  of  the 
owners,  but  solely,  after  paying  expenses, 
for  the  investment  of  the  proceeds.  It 
appears  from  that  case  that  the  executors 
under  the  will  of  the  former  owner  held 
the  lands  in  trust  for  a  daughter  of  the 
testator  during  her  natural  life,  with  a 
vested  remainder  in  fee  in  her  two  chil- 
dren. The  special  act  assumed  to  em- 
power them  to  sell  and  convey  the 
complete  fee,  and  apply  the  proceeds, 
first,  to  the  payment  of  their  commis- 
sions, costs,  and  expenses;  serond,  to  the 
discharge  of  assessments,  liens,  charges, 
and  incumbrances  on  the  land,  of  which, 
however,  none  were  shown  to  exist ;  and 


CH.  V.J       POWERS   EXERCISED   BY  LEGISLATIVE   DEPARTMENT.  149 

whether  a  corporation  has  been  guilty  of  abuse  of  authority 
under  its  charter,  so  as  justly  to  subject  it  to  forfeiture,1  and 
whether  a  widow  is  entitled  to  dower  in  a  specified  parcel  of 
land,54  are  judicial  questions  which  cannot  be  decided  by  the 
legislature.  In  these  cases  there  are  necessarily  adverse  par- 
ties ;  the  questions  that  would  arise  are  essentially  judicial,  and 
over  them  the  courts  possess  jurisdiction  at  the  common  law ; 
and  it  is  presumable  that  legislative  acts  of  this  character  must 
have  been  adopted  carelessly,  and  without  a  due  consideration 
of  the  proper  boundaries  which  mark  the  separation  of  legislative 


third,  to  invest  the  proceeds  and  pay  over 
the  income,  after  deducting  taxes  and 
charges,  to  the  daughter  during  her  life, 
and  after  her  decease  to  convey,  assign, 
or  pay  over  the  same  to  the  persons  who 
would  be  entitled  under  the  will.  The 
court  regarded  this  as  an  unauthorized 
interference  with  private  property  upon 
no  necessity,  and  altogether  void,  as  de- 
priving the  owners  of  their  property  con- 
trary to  the  ''  law  of  the  land."  At  the 
same  time  the  authority  of  those  cases, 
where  it  has  been  held  that  the  legisla- 
ture, acting  as  the  guardian  and  protector 
of  those  who  are  disabled  to  act  for 
themselves  by  reason  of  infancy,  lunacy, 
or  other  like  cause,  may  constitutionally 
pass  either  general  or  private  laws,  under 
which  an  effectual  disposition  of  their 
property  might  be  made,  was  not  ques- 
tioned. Tlie  court  cite,  with  apparent 
approval,  the  cases,  among  others,  of 
Rice  »>.  Parkman,  16  Mass.  326 ;  Cochran 
v.  Van  Surlay,  20  Wend.  365;  and  Wil- 
kinson v.  Leland,  2  Pet.  627.  The  case  of 
Ervine's  Appeal,  16  Pa.  St.  256,  was 
similar,  in  the  principles  involved,  to 
Powers  v.  Bergen,  and  was  decided  in  the 
same  way.  See  also  Kneass's  Appeal,  31 
Pa.  St.  87  ;  Maxwell  v.  Goetschius,  40  N. 
J.  383,  29  Am.  Rep.  242,  and  compare 
with  Ker  v.  Kitchen,  17  Pa.  St.  433; 
Martin's  Appeal,  23  Pa.  St.  433;  Heg- 
arty's  Appeal,  75  Pa.  St.  503;  Tharp  v. 
Fleming,  1  Houston,  580.  There  is  no 
constitutional  objection  to  a  statute  which 
transfers  the  mere  legal  title  of  a  trustee 
to  the  beneficiary.  Reformed  P.  I). 
Church  v.  Mott,  7  Paige,  77,  32  Am. 
Dec.  613. 

1  State  v.  Noyes,  47  Me.  189 ;  Camp- 
bell v.  Union  Bank,  6  How.  (Miss.)  661; 
Canal  Co.  v.  Railroad  Co.,  4  G.  &  J.  1,  22 ; 


Regents  of  University  v.  Williams,  9  G. 
&  J.  365.  In  Miners'  Bank  of  Dubuque 
v.  United  States,  1  Morris,  482,  a  clause 
in  a  charter  authorizing  the  legislature  to 
repeal  it  for  any  abuse  or  misuser  of  cor- 
porate privileges  was  held  to  refer  the 
question  of  abuse  to  the  legislative  judg- 
ment. In  Erie  &  North  East  R.  R.  Co. 
v.  Casey,  26  Pa.  St.  287,  on  the  other 
hand,  it  was  held  that  the  legislature 
could  not  conclude  the  corporation  by  its 
repealing  act,  but  that  the  question  of 
abuse  of  corporate  authority  would  be 
one  of  fact  to  be  passed  upon,  if  denied, 
by  a  jury,  so  that  the  act  would  be  valid 
or  void  as  the  jury  should  find.  Com- 
pare Flint  &  Fentonville  P.  R.  Co.  v. 
Woodhull,  25  Mich.  99;  12  Am.  Rep. 
233,  in  which  it  was  held  that  the  reser- 
vation of  a  power  to  repeal  a  charter  for 
violation  of  its  provisions  necessarily 
presented  a  judicial  question,  and  the  re- 
peal must  be  preceded  by  a  proper  judi- 
cial finding.  In  Carey  v.  Giles,  9  Ga.  253, 
the  appointment  by  the  legislature  of  a 
receiver  for  an  insolvent  bank  was  sus- 
tained ;  and  in  Hindman  v.  Piper,  50  Mo. 
292,  a  legislative  appointment  of  a  trustee 
was  also  sustained  in  a  peculiar  case.  In 
Lothrop  v.  Steadman,  42  Conn.  583,  the 
power  of  the  legislature  as  an  adminis- 
trative measure  to  appoint  a  trustee  to 
take  charge  of  and  manage  the  affairs  of 
a  corporation  whose  charter  had  been 
repealed,  was  affirmed.  For  a  similar 
principle  see  Albertson  v.  Landon,  42 
Conn.  209.  And  see  post,  p.  520.  QAnd 
Congress  has  power  to  declare  the  forfeit- 
ure of  a  land  grant  for  breach  of  condi- 
tion subsequent.  All.  &  Pac.  R.  Co.  v. 
Mingus,  165  U.  S.  413,  17  Sup.  Ct.  Rep. 
348J 

2  Edwards  v.  Pope,  4  111.  466. 


150  CONSTITUTIONAL   LTMITATTOXS.  [CH.  V. 

from  judicial  duties.1  As  well  might  the  legislature  proceed  to 
declare  that  one  man  is  indebted  to  another  in  a  sum  specified, 
and  establish  by  enactment  a  conclusive  demand  against  him.2 

We  have  elsewhere  referred  to  a  number  of  cases  where 
statutes  have  been  held  unobjectionable  which  validated  legal 
proceedings,  notwithstanding  irregularities  apparent  in  them.3 
These  statutes  may  as  properly  be  made  applicable  to  judicial  as 
to  ministerial  proceedings;  and  although,  when  they  refer  to 
such  proceedings,  they  may  at  first  seem  like  an  interference 
with  judicial  authority,  yet  if  they  are  only  in  aid  of  judicial 
proceedings,  and  tend  to  their  support  by  precluding  parties 
from  taking  advantage  of  errors  which  do  not  affect  their  sub- 
stantial rights,  they  cannot  be  obnoxious  to  the  charge  of  usurp- 
ing judicial  power.  The  legislature  does,  or  may,  prescribe  the 
rules  under  which  the  judicial  power  is  exercised  by  the  courts; 
and  in  doing  so  it  may  dispense  with  any  of  those  formalities 
which  are  not  essential  to  the  jurisdiction  of  the  court;  and 
whatever  it  may  dispense  with  by  statute  anterior  to  the  pro- 
ceedings, we  believe  it  may  also  dispense  with  by  statute  after 
the  proceedings  have  been  taken,  if  the  court  has  failed  to  ob- 
serve any  of  those  formalities.  But  it  would  not  be  competent 
for  the  legislature  to  authorize  a  court  to  proceed  and  adjudicate 
upon  the  rights  of  parties,  without  giving  them  an  opportunity 

1  The  unjust  and  dangerous  character  to  stand  against  the  antagonism  of  the 

of  legislation  of  this  description  is  well  legislature  and  the  bar,'  one  independent 

stated  by  the  Supreme  Court  of  Pennsyl-  co-ordinate  branch  of    the    government 

vania  :  "  When,  in  the  exercise  of  proper  will  become  the  subservient  handmaid  of 

legislative  powers,  general   laws  are  en-  another,  and  a  quiet,  insidious  revolution 

acted  which  bear,  or  may  bear,  on  the  be  effected  in  the  administration  of  the 

whole  community,  if  they  are  unjust  and  government,  whilst  its    form    on  paper 

against  the  spirit  of  the  Constitution,  the  remains  the  same."    Ervine's  Appeal,  16 

whole  community  will  be  interested  to  Pa.  St.  256,  268. 

procure  their  repeal  by  a  voice  potential.          2  A  statute  is  void  which  undertakes 

And  that  is  the  great  security  for  just  to  make  railroad  companies  liable  for  the 

and  fair  legislation.     But  when  individ-  expense  of  coroners'  inquests,  and  of  the 

uals  are  selected  from  the  mass,  and  laws  burial  of  persons  dying  on   the  cars,  or 

are    enacted     affecting    their    property,  killed  by  collision  or  other  accident  oc- 

witliout  summons  or  notice,  at  the  insti-  curring  to  the  cars,  irrespective  of  any 

gation  of  an  interested  party,  who  is  to  question  of  negligence.     Ohio  &  M.  R.  R. 

stand  up  for  them,  thus  isolated  from  the  Co.  v.  Lackey,  78   111.  55,  20  Am.  Rep. 

mass,  in  injury  and  injustice,  or  where  259.     [jBut  a  railroad  may  be  made  abso- 

are  they  to  seek  relief  from  such  acts  of  lutely  liable  for  loss  from  fires  caused  by 

despotic  power?    They  have  no  refuge  sparks  from  its   locomotives,  regardless 

but  in  the  courts,  the  only  secure  place  of  the  question  of  negligence.     Matthews 

for  determining  conflicting  rights  by  due  v.  St.  Lmiis  &  S.  F.  R.  Co.,  121  Mo.  298, 

course  of  law.    But  if  the  judiciary  give  24  S.  W.  591,  25  L.  R.  A.  161,  and  note, 

way,  and  in  the  language  of  the  Chief  See  this  case  affirmed  in  105  U.  S.  1,  17 

Justice   in  Greenough  v.  Greenough,  in  Sup.  Ct.  Rep.  243. J 
11  Pa.  St.  489,  'confesses  itself  too  weak          8  See  post,  pp.  630-646. 


CIT.  V.]       POWERS   EXERCISED   BY  LEGISLATIVE   DEPARTMENT.  151 

to  be  heard  before  it;  and,  for  the  same  reason,  it  would  be 
incompetent  for  it,  by  retrospective  legislation,  to  make  valid 
any  proceedings  which  had  been  had  in  the  courts,  but  which 
were  void  for  want  of  jurisdiction  over  the  parties.  Such  a 
legislative  enactment  would  be  doubly  objectionable:  first,  as  an 
exercise  of  judicial  power,  since,  the  proceedings  in  court  being 
void,  it  would  be  the  statute  alone  which  would  constitute  an 
adjudication  upon  the  rights  of  the  parties;  and  second,  because, 
in  all  judicial  proceedings,  notice  to  parties  and  an  opportunity 
to  defend  are  essential,  —  both  of  which  they  would  be  deprived 
of  in  such  a  case.1  And  for  like  reasons  a  statute  validating 
proceedings  had  before  an  intruder  into  a  judicial  office,  before 
whom  no  one  is  authorized  or  required  to  appear,  and  who  could 
have  jurisdiction  neither  of  the  parties  nor  of  the  subject-matter, 
would  also  be  void.2 


1  In  McDaniel  v.  Correll,  19  111.  226,  it 
appeared  that  a  statute  had  been  passed 
to  make  valid  certain  legal  proceedings 
by  which  an  alleged  will  was  adjudged 
void,  and  which  were  had  against  non- 
resident defendants,  over  whom  the  courts 
had  obtained  no  jurisdiction.  The  court 
say  :  "  If  it  was  competent  for  the  legis- 
lature to  make  a  void  proceeding  valid, 
then  it  has  been  done  in  this  case.  Upon 
this  question  we  cannot  for  a  moment 
doubt  or  hesitate.  They  can  no  more 
impart  a  binding  efficacy  to  a  void  pro- 
ceeding, than  they  can  take  one  man's 
property  from  him  and  give  it  to  another. 
Indeed,  to  do  the  one  is  to  accomplish  the 
other.  By  the  decree  in  this  case  the  will 
in  question  was  declared  void,  and,  con- 
sequently, if  effect  be  given  to  the  decree, 
the  legacies  given  to  those  absent  defend- 
ants by  the  will  are  taken  from  them  and 
given  to  others,  according  to  our  statute 
of  descents.  Until  the  passage  of  the  act 
in  question,  they  were  not  bound  by  the 
verdict  of  the  jury  in  this  case,  and  it 
could  not  form  the  basis  of  a  valid  de- 
cree. Had  the  decree  been  rendered 
before  the  passage  of  the  act,  it  would 
have  been  as  competent  to  make  that 
valid  as  it  wns  to  validate  the  antecedent 
proceedings  vpon  which  alone  the  decree 
could  rest.  The  want  of  jurisdiction  over 
the  defendants  was  as  fatal  to  the  one  aa 
it  could  be  to  the  other.  If  we  assume 
the  act  to  be  valid,  then  the  legacies 
which  before  belonged  to  the  legatees 
have  now  ceased  to  be  theirs,  and  this 


result  has  been  brought  about  by  the  leg- 
islative act  alone.  The  effect  of  the  act 
upon  them  is  precisely  the  same  as  if  it 
had  declared  in  direct  terms  that  the 
legacies  bequeathed  by  this  will  to  these 
defendants  should  not  go  to  them,  but 
should  descend  to  the  heirs-nt-law  of  the 
testator,  according  to  our  law  of  descents. 
This  it  will  not  be  pretended  that  they 
could  do  directly,  and  they  had  no  more 
authority  to  do  it  indirectly,  by  making 
proceedings  binding  upon  them  which 
were  void  in  law."  See,  to  the  same 
effect,  Richards  v.  Rote,  68  Pa.  St.  248; 
Pryor  v.  Downey,  60  Cal.  388,  19  Am. 
Rep.  656;  Lane  v.  Nelson,  79  Pa.  St. 
407;  Shonk  v.  Brown,  61  Pa.  St.  320; 
Spragg  v.  Shriver,  25  Pa.  St.  282  ;  Israel 
v.  Arthur,  7  Col.  5. 

2  In  Denny  v.  Mattoon,  2  Allen,  361, 
a  judge  in  insolvency  had  made  certain 
orders  in  a  case  pending  in  another  juris- 
diction, and  which  the  courts  subsequently 
declared  to  be  void.  The  legislature  then 
passed  an  act  declaring  that  they  "  are 
hereby  confirmed,  and  the  same  shall  be 
taken  and  deemed  good  and  valid  in  law, 
to  all  intents  and  purposes  whatsoever." 
On  the  question  of  the  validity  of  this  act 
the  court  says  :  "  The  precise  question  is, 
whether  it  can  be  held  to  operate  so  as  to 
confer  a  jurisdiction  over  parties  and  pro- 
ceedings which  it  has  been  judicially  de- 
termined did  not  exist,  and  give  validity 
to  acts  and  processes  which  have  been 
adjudged  void.  The  statement  of  this 
question  seems  to  us  to  suggest  the  ob- 


152 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


Legislative  Divorces. 

There  is  another  class  of  cases  in  which  it  would  seem  that 
action  ought  to  be  referred  exclusively  to  the  judicial  tribunals, 

which  may  serve  to  determine,  in  all 
cases,  whether  the  limits  of  constitutional 
restraint  are  overstepped  by  the  exercise 
by  one  branch  of  the  government  of  pow- 
ers exclusively  delegated  to  another,  it 
certainly  is  practicable  to  apply  to  each 
case  as  it  arises  some  test  by  which  to 
ascertain  whether  this  fundamental  prin- 
ciple is  violated.  If,  for  example,  the 
practical  operation  of  a  statute  is  to  de- 
termine adversary  suits  pending  between 
party  and  party,  by  substituting  in  place 
of  the  well-settled  rules  of  law  the  arbi- 
trary will  of  the  legislature,  and  thereby 
controlling  the  action  of  the  tribunal  be- 
fore which  the  suits  are  pending,  no  one 
can  doubt  that  it  would  be  an  unauthor- 
ized act  of  legislation,  because  it  directly 
infringes  on  the  peculiar  and  appropriate 
functions  of  the  judiciary.  It  is  the  ex- 
clusive province  of  courts  of  justice  to 
apply  established  principles  to  cases 
within  their  jurisdiction,  and  to  enforce 
their  decisions  by  rendering  judgments 
and  executing  them  by  suitable  process. 
The  legislature  have  no  power  to  inter- 
fere with  this  jurisdiction  in  such  manner 
as  to  change  the  decision  of  cases  pend- 
ing before  courts,  or  to  impair  or  set  aside 
their  judgments,  or  to  take  cases  out  of 
the  settled  course  of  judicial  proceeding. 
It  is  on  this  principle  that  it  has  been 
held  that  the  legislature  have  no  power  to 
grant  a  new  trial  or  direct  a  rehearing  of 
a  cause  which  has  been  once  judicially 
settled.  The  right  to  a  review,  or  to  try 
anew  facts  which  have  been  determined 
by  a  verdict  or  decree,  depends  on  fixed 
and  well-settled  principles,  which  it  is  the 
duty  of  the  court  to  apply  in  the  exer- 
cise of  a  sound  judgment  and  discretion. 
These  cannot  be  regulated  or  governed 
by  legislative  action.  Taylor  v.  Place, 
4  R.  I.  324,  337 ;  Lewis  v.  Webb,  3  Me. 
326;  De  Chastellux  v.  Fairchild,  15  Pa. 
St.  18.  A  fortiori,  an  act  of  the  legisla- 
ture cannot  set  aside  or  amend  final  judg- 
ments or  decrees."  The  court  further 
consider  the  general  subject  at  length, 
and  adjudge  the  particular  enactment 
under  consideration  void,  both  as  an 


vious  and  decisive  objection  to  any  con- 
struction of  the  statute  which  would  lead 
to  such  a  conclusion.  It  would  be  a  di- 
rect exercise  by  the  legislature  of  a  power 
in  its  nature  clearly  judicial,  from  the 
use  of  which  it  is  expressly  prohibited  by 
the  thirtieth  article  of  the  Declaration  of 
Rights.  The  line  which  marks  and  sepa- 
rates judicial  from  legislative  duties  and 
functions  is  often  indistinct  and  uncertain, 
and  it  is  sometimes  difficult  to  decide 
within  which  of  the  two  classes  a  par- 
ticular subject  falls.  All  statutes  of  a 
declaratory  nature,  which  are  designed  to 
interpret  or  give  a  meaning  to  previous 
enactments,  or  to  confirm  the  rights  of 
parties  either  under  their  own  contracts  or 
growing  out  of  the  proceedings  of  courts 
or  public  bodies,  which  lack  legal  valid- 
ity, involve  in  a  certain  sense  the  exercise 
of  a  judicial  power.  They  operate  upon 
subjects  which  might  properly  come 
within  the  cognizance  of  the  courts  and 
form  the  basis  of  judicial  consideration 
and  judgment.  But  they  may,  neverthe- 
less, be  supported  as  being  within  the 
legitimate  sphere  of  legislative  action,  on 
the  ground  that  they  do  not  declare  or 
determine,  but  only  confirm  rights  ;  that 
they  give  effect  to  the  acts  of  parties  ac- 
cording to  their  intent ;  that  they  furnish 
new  and  more  efficacious  remedies,  or 
create  a  more  beneficial  interest  or  tenure, 
or,  by  supplying  defects  and  curing  infor- 
malities in  the  proceedings  of  courts,  or 
of  public  officers  acting  within  the  scope 
of  their  authority,  they  give  effect  to  acts 
to  which  there  was  the  express  or  implied 
assent  of  the  parties  interested.  Statutes 
which  are  intended  to  accomplish  such 
purposes  do  not  necessarily  invade  the 
province,  or  directly  interfere  with  the 
action  of  judicial  tribunals.  But  if  we 
adopt  the  broadest  and  most  comprehen- 
sive view  of  the  power  of  the  legislature, 
we  must  place  some  limit  beyond  which 
the  authority  of  the  legislature  cannot  go 
without  trenching  on  the  clear  and  well- 
defined  boundaries  of  judicial  power." 
"  Although  it  may  be  difficult,  if  not  im- 
possible, to  lay  down  any  general  rule 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE    DEPARTMENT.  153 


but  in  respect  to  which  the  prevailing  doctrine  seems  to  be  that 
the  legislature  has  complete  control  unless  specially  restrained 
by  the  State  constitution.  The  granting  of  divorces  from  the 
bonds  of  matrimony  was  not  confided  to  the  courts  in  England, 
and  from  the  earliest  days  the  Colonial  and  State  legislatures 
in  this  country  have  assumed  to  possess  the  same  power  over 
the  subject  which  was  possessed  by  the  Parliament,  and  from 
time  to  time  they  have  passed  special  laws  declaring  a  dissolu- 
tion of  the  bonds  of  matrimony  in  special  cases.  Now  it  is  clear 
that  "the  question  of  divorce  involves  investigations  which  are 
properly  of  a  judicial  nature,  and  the  jurisdiction  over  divorces 
ought  to  be  confined  exclusively  to  the  judicial  tribunals,  under 
the  limitations  to  be  prescribed  by  law;"1  and  so  strong  is  the 
general  conviction  of  this  fact,  that  the  people  in  framing  their 
constitutions,  in  a  majority  of  the  States,  have  positively  for- 
bidden any  such  special  laws.2 


exercise  of  judicial  authority,  and  also 
because,  in  declaring  valid  the  void  pro- 
ceedings in  insolvency  against  the  debtor, 
under  which  assignees  had  been  ap- 
pointed, it  took  away  from  the  debtor 
his  property,  "not  by  due  process  of  law 
or  the  law  of  the  land,  but  by  an  arbi- 
trary exercise  of  legislative  will."  See, 
further,  Griffin's  Executor  v.  Cunning- 
ham, 20  Grat.  109;  State  r.  Doherty,  60 
Me.  504.  In  proceedings  by  tenants  for 
life,  the  estate  in  remainder  was  ordered 
to  be  sold;  there  was  at  the  time  no  au- 
thority for  ordering  such  a  sale.  It  was 
held  to  be  void,  and  incapable  of  confir- 
mation. Maxwell  v.  Goetschius,  40  N.  J. 
383,29  Am.  Kep.  242. 

1  2  Kent,  106.     See  Levins  v.  Sleator, 
2  Greene  (Iowa),  607. 

2  The  following  are  constitutional  pro- 
visions : —  Alabama:   Divorces  from  the 
bonds  of  matrimony  shall  not  be  granted 
but  in  the  cases  by  law  provided  for,  and 
by  suit  in  chancery ;  but  decrees  in  chan- 
cery for  divorce  shall  be  final,  unless  ap- 
pealed from  in  the  manner  prescribed  by 
law,  within  three  months  from  the  date  of 
the  enrolment  thereof.     Arkansas:   The 
General  Assembly  shall  not  have  power 
to  pass  any  bill  of  divorce,  but  may  pre- 
scribe by  law  the  manner  in  which  such 
cases  may  be  investigated  in  the  courts  of 
justice,  and  divorces  granted.    California: 
No  divorce  shall  be  granted  by  the  legis- 
lature.   The  provision  is  the  same  or  sim- 
ilar in  Iowa,  Indiana,  Maryland,  Michigan, 


Minnesota,  Nevada,  Nebraska,  Oregon, 
New  Jersey,  Texas,  and  Wisconsin.  Flor- 
ida :  Divorces  from  the  bonds  of  matri- 
mony shall  not  be  allowed  but  by  the 
judgment  of  a  court,  as  shall  be  prescribed 
bylaw.  Georgia:  The  Superior  Court 
shall  have  exclusive  jurisdiction  in  all 
cases  of  divorce,  both  total  and  partial. 
Illinois:  The  General  Assembly  shall  not 
pass  .  .  .  special  laws  .  .  .  for  granting 
divorces.  Kansas:  And  power  to  grant 
divorces  is  vested  in  the  District  Courts 
subject  to  regulations  by  law.  Kentucky  : 
The  General  Assembly  shall  have  no 
power  to  grant  divorces,  .  .  .  but  by  gen- 
eral laws  shall  confer  such  powers  on  the 
courts  of  justice.  Louisiana:  The  Gen- 
eral Assembly  shall  not  pass  any  local 
or  special  law  on  the  following  specified 
objects:  .  .  .  Granting  divorces.  Massa- 
chusetts: All  cause  of  marriage,  divorce, 
and  alimony  .  .  .  shall  be  heard  and  de- 
termined by  the  Governor  and  Council, 
until  the  legislature  shall  by  law  make 
other  provision.  Mississippi:  Divorces 
from  the  bonds  of  matrimony  shall  not 
be  granted  but  in  cases  provided  for  by 
law,  and  by  suit  in  chancery.  Missouri: 
The  General  Assembly  shall  not  pass  any 
local  or  special  law  .  .  .  granting  divorces. 
In  Colorado  the  provision  is  the  same. 
New  Hampshire :  All  causes  of  marriage, 
divorce,  and  alimony  .  .  .  shall  be  heard 
and  tried  by  the  Superior  Court,  until  the 
legislature  shall  by  law  make  other  pro- 
vision. New  York:  .  .  .  nor  shall  any 


154 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


Of  the  judicial  decisions  on  the  subject  of  legislative  power 
over  divorces  there  seem  to  be  three  classes  of  cases.  The  doc- 
trine of  the  first  class  seems  to  be  this :  The  granting  of  a  divorce 
may  be  either  a  legislative  or  a  judicial  act,  according  as  the 
legislature  shall  refer  its  consideration  to  the  courts,  or  reserve 
it  to  itself.  The  legislature  has  the  same  full  control  over  the 
status  of  husband  and  wife  which  it  possesses  over  the  other 
domestic  relations,  and  may  permit  or  prohibit  it,  according  to 
its  own  views  of  what  is  for  the  interest  of  the  parties  or  the 
good  of  the  public.  In  dissolving  the  relation,  it  proceeds  upon 
such  reasons  as  to  it  seem  sufficient;  and  if  inquiry  is  made  into 
the  facts  of  the  past,  it  is  no  more  than  is  needful  when  any 
change  of  the  law  is  contemplated,  with  a  view  to  the  establish- 
ment of  more  salutary  rules  for  the  future.  The  inquiry,  there- 
fore, is  not  judicial  in  its  nature,  and  it  is  not  essential  that 
there  be  any  particular  finding  of  misconduct  or  unfitness  in  the 
parties.  As  in  other  cases  of  legislative  action,  the  reasons  or 


divorce  be  granted  otherwise  than  by  due 
judicial  proceedings.  North  Carolina:  The 
General  Assembly  shall  have  power  to 
pass  general  laws  regulating  divorce  and 
alimony,  but  shall  not  have  power  to  grant 
a  divorce  or  secure  alimony  in  any  par- 
ticular case.  Ohio:  The  General  Assem- 
bly shall  grant  no  divorce  nor  exercise 
any  judicial  power,  not  herein  expressly 
conferred.  Pennsylvania :  The  legislature 
shall  not  have  power  to  enact  laws  annul- 
ling the  contract  of  marriage  in  any  case 
where  by  law  the  courts  of  this  Common- 
wealth are,  or  hereafter  may  be,  em- 
powered to  decree  a  divorce.  Tennessee : 
The  legislature  shall  have  no  power  to 
grant  divorces,  but  may  authorize  the 
courts  of  justice  to  grant  them  for  such 
causes  as  may  be  specified  by  law  ;  but 
such  laws  shall  be  general  and  uniform 
in  their  operation  throughout  the  State. 
Virginia:  The  legislature  shall  confer  on 
the  courts  the  power  to  grant  divorces, 
.  .  .  but  shall  not  by  special  legislation 
grant  relief  in  such  cases.  West  Virginia  : 
The  Circuit  Courts  shall  have  power, 
under  such  general  regulations  as  may  be 
prescribed  by  law,  to  grant  divorces,  .  .  . 
but  relief  shall  not  be  granted  by  special 
legislation  in  such  cases.  Under  the  Con- 
stitution of  Michigan,  it  was  held  that,  as 
the  legislature  was  prohibited  from  grant- 
ing divorces,  they  could  pass  no  special 
act  authorizing  the  courts  to  divorce  for  a 


cause  which  was  not  a  legal  cause  for 
divorce  under  the  general  laws.  Teft  v. 
Teft,  3  Mich.  67.  See  also  Clark  v.  Clark, 
10  N.  H.  380;  Simonds  v.  Simonds,  103 
Mass.  572,  4  Am.  Rep.  576.  The  case  of 
White  v.  White,  105  Mass.  325,  was  pe- 
culiar. A  woman  procured  a  divorce  from 
her  husband,  and  by  the  law  then  in 
force  he  was  prohibited  from  marrying 
again  except  upon  leave  procured  from 
the  court.  He  did  marry  again,  however, 
and  the  legislature  passed  a  special  act  to 
affirm  this  marriage.  In  pursuance  of  a 
requirement  of  the  constitution,  jurisdic- 
tion of  all  cases  of  marriage  and  divorce 
had  previously  been  vested  by  law  in  the 
courts.  Held,  that  this  took  from  the 
legislature  all  power  to  act  upon  the  sub- 
ject in  special  cases,  and  the  attempt  to 
validate  the  marriage  was  consequently 
ineffectual.  That  the  legislature  possesses 
authority  to  validate  marriages  and  to 
give  legitimacy  to  the  children  of  invalid 
marriages,  where  the  constitution  has  not 
taken  it  away,  see  Andrews  v.  Page,  3 
Heisk.  653 ;  post,  pp.  533,  534.  ^Constitu- 
tional prohibition  of  legislative  divorces 
does  not  make  invalid  a  statute  providing 
that  a  sentence  to  life  imprisonment  shall 
operate  as  absolute  divorce.  State  v. 
Duket,  90  Wis.  272,  63  N.  W.  83,  31  L.R. 
A.  515,  48  Atn.  St.  928  ;  and  see  note 
hereto  in  L.  R.  A.  upon  effect  of  senten'-e 
upon  marriage  relation.] 


OIL  V.]        POWERS   EXERCISED    BY   LEGISLATIVE  DEPARTMENT.  155 

the  motives  of  the  legislature  cannot  be  inquired  into;  the 
relation  which  the  law  permitted  before  is  now  forbidden,  and 
the  parties  are  absolved  from  the  obligations  growing  out  of  that 
relation  which  continued  so  long  as  the  relation  existed,  but 
which  necessarily  cease  with  its  termination.  Marriage  is  not 
a  contract,  but  a  status  ;  the  parties  cannot  have  vested  rights  of 
property  in  a  domestic  relation;  therefore  the  legislative  act 
does  not  come  under  condemnation  as  depriving  parties  of  rights 
contrary  to  the  law  of  the  land,  but,  as  in  other  cases  within  the 
scope  of  the  legislative  authority,  the  legislative  will  must  be 
regarded  as  sufficient  reason  for  the  rule  which  it  promulgates.1 


1  The  leading  case  on  this  subject  is 
Starr  v.  Pease,  8  Conn.  541.  On  the 
question  whether  a  divorce  is  necessarily 
a  judicial  act,  the  court  say  :  "  A  further 
objection  is  urged  against  this  act ;  viz., 
that  by  the  new  constitution  of  1818, 
there  is  an  entire  separation  of  the  legis- 
lative and  judicial  departments,  and  that 
the  legislature  can  now  pass  no  act  or 
resolution  not  clearly  warranted  by  that 
constitution  ;  that  the  constitution  is  a 
grant  of  power,  and  not  a  limitation  of 
powers  already  possessed ;  and,  in  short, 
that  there  is  no  reserved  power  in  the 
legislature  since  the  adoption  of  this  con- 
stitution. Precisely  the  opposite  of  this 
is  true.  From  the  settlement  of  the  State 
there  have  been  certain  fundamental  rules 
by'  which  power  has  been  exercised. 
These  rules  were  embodied  in  an  instru- 
ment called  by  some  a  constitution,  by 
others  a  charter.  All  agree  that  it  was 
the  first  constitution  ever  made  in  Con- 
necticut, and  made,  too,  by  the  people 
themselves.  It  gave  very  extensive  pow- 
ers to  the  legislature,  and  left  too  much 
(for  it  left  everything  almost)  to  their 
will.  The  constitution  of  1818  proposed 
to,  and  in  fact  did,  limit  that  will.  It 
adopted  certain  general  principles  by  a 
preamble  called  a  Declaration  of  Rights ; 
provided  for  the  election  and  appoint- 
ment of  certain  organs  of  the  government, 
such  as  the  legislative,  executive,  and 
judicial  departments  ;  and  imposed  upon 
them  certain  restraints.  It  found  the  State 
sovereign  and  independent,  with  a  legisla- 
tive power  capable  of  making  all  laws 
necessary  for  the  good  of  the  people,  not 
forbidden  by  the  Constitution  of  the 
United  States,  nor  opposed  to  the  sound 
maxims  of  legislation ;  and  it  left  them 


in  the  same  condition,  except  so  far  as 
limitations  were  provided.  There  is  now 
and  has  been  a  law  in  force  on  the  sub- 
ject of  divorces.  The  law  was  passed  one 
hundred  and  thirty  years  ago.  It  pro- 
vides for  divorces  a  vincufo  matrimonii  in 
four  cases;  viz.,  adultery,  fraudulent  con- 
tract, wilful  desertion,  and  seven  years' 
absence  unheard  of.  The  law  has  re- 
mained in  substance  the  same  as  it  was 
when  enacted  in  1667.  During  all  this 
period  the  legislature  has  interfered  like 
the  Parliament  of  Great  Britain,  and 
passed  spectal  acts  of  divorce  a  vinculo 
matrimonii;  and  at  almost  every  session 
since  the  Constitution  of  the  United 
States  went  into  operation,  now  forty-two 
years,  and  for  the  thirteen  years  of  the 
existence  of  the  Constitution  of  Connec- 
ticut, such  acts  have  been,  in  multiplied 
cases,  passed  and  sanctioned  by  the  con- 
stituted authorities  of  our  State.  We  are 
not  at  liberty  to  inquire  into  the  wisdom 
of  our  existing  law  on  this  subject;  nor 
into  the  expediency  of  such  frequent  in- 
terference by  the  legislature.  We  can 
only  inquire  into  the  constitutionality  of 
the  act  under  consideration.  The  power 
is  not  prohibited  either  by  the  Constitu- 
tion of  the  United  States  or  by  that  of 
this  State.  In  view  of  the  appalling  con- 
sequences of  declaring  the  general  law  of 
the  State  or  the  repeated  acts  of  our  legis- 
lature unconstitutional  and  void,  conse- 
quences easily  conceived,  but  not  easily 
expressed,  —  such  as  bastardizing  the  is- 
sue and  subjecting  the  parties  to  punish- 
ment for  adultery,  —  the  court  should 
come  to  the  result  only  on  a  solemn  con- 
viction that  their  oaths  of  office  and  these 
constitutions  imperiously  demand  it.  Feel- 
ing myself  no  such  conviction,  I  cannot 


156  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

The  second  class  of  cases  to  which  we  have  alluded  hold  that 
divorce  is  a  judicial  act  in  those  cases  upon  which  the  general 
laws  confer  on  the  courts  power  to  adjudicate;  and  that  conse- 
quently in  those  cases  the  legislature  cannot  pass  special  laws, 
but  its  full  control  over  the  relation  of  marriage  will  leave  it  at 
liberty  to  grant  divorces  in  other  cases,  for  such  causes  as  shall 
appear  to  its  wisdom  to  justify  them.1 

A  third  class  of  cases  deny  altogether  the  authority  of  these 
special  legislative  enactments,  and  declare  the  act  of  divorce  to 
be  in  its  nature  judicial,  and  not  properly  within  the  province 
of  the  legislative  power.2  The  most  of  these  decisions,  however, 
lay  more  or  less  stress  upon  clauses  in  the  constitutions  other 
than  those  which  in  general  terms  separate  the  legislative  and 
judicial  functions,  and  some  of  them  would  perhaps  have  been 
differently  decided  but  for  those  other  clauses.  But  it  is  safe  to 
say  that  the  general  sentiment  in  the  legal  profession  is  against 
the  rightfulness  of  special  legislative  divorces ;  and  it  is  believed 
that,  if  the  question  could  originally  have  been  considered  by 
the  courts,  unembarrassed  by  any  considerations  of  long  acquies- 
cence, and  of  the  serious  consequences  which  must  result  from 
affirming  their  unlawfulness,  after  so  many  had  been  granted 
and  new  relations  formed,  it  is  highly  probable  that  these  enact- 
ments would  have  been  held  to  be  usurpations  of  judicial  author- 
pronounce  the  act  void."  Per  Daggett,  while  suit  for  divorce  was  pending  in  a 
J. ;  Hosmer,  Ch.  J.,  and  Bissell,  J.,  con-  court  of  competent  jurisdiction  would 
curring.  Peters,  J.,  dissented.  Upon  the  not  affect  the  rights  to  property  of  the 
same  subject  see  Crane  v.  Meginnis,  1  G.  other,  growing  out  of  the  relation.  Gaines 
&  J.  463  ;  Wright  v.  Wright,  2  Md.  429 ;  v.  Gaines,  9  B.  Monr.  295.  A  statute  per- 
Gaines  v.  Gaines,  9  B.  Monr.  295;  Cabell  mitting  divorces  for  offences  committed 
v.  Cabell,  1  Met.  (Ky.)  319;  Dickson  v.  before  its  passage  is  not  an  ex  post  facto 
Dickson,  1  Yerg.  110;  Melizet's  Appeal,  law  in  the  constitutional  sense.  Jones  v. 
17  Pa.  St.  449;  Cronise  v.  Cronise,  64  Jones,  2  Overton,  2,  6  Am.  Dec.  645. 
Pa.  St.  255 ;  Adams  v.  Palmer,  51  Me.  2  Brigham  v.  Miller,  17  Ohio,  445 ; 
480 ;  Townsend  v.  Griffin,  4  Harr.  440 ;  Clark  i-.  Clark,  10  N.  H.  380  :  Ponder  v. 
Noel  v.  Ewing,  9  Ind.  37 ;  and  the  ex-  Graham,  4  Fla.  23  ;  State  v.  Fry,  4  Mo. 
animation  of  the  whole  subject  by  Mr.  120;  Bryson  v.  Campbell,  12  Mo.  498; 
Bishop,  in  his  work  on  Marriage  and  Bryson  v.  Bryson,  17  Mo.  690 ;  Same 
Divorce.  A  territorial  legislature  having  v.  Same,  44  Mo.  232.  See  also  Jones 
power  covering  all  rightful  subjects  of  v.  Jones,  12  Pa.  St.  350,  354.  Under 
legislation  could  grant  a  divorce.  May-  the  Constitution  of  Massachusetts,  the 
nard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  power  of  the  legislature  to  grant  di- 
Rep.  723.  vorces  is  denied.  Sparha  wk  v.  Sparhawk, 

1  Levins  v.  Sleator,  2  Greene  (Iowa),  116  Mass.  315.  See  clause  in  constitu- 
604;  Opinions  of  Judges,  16  Me.  479;  tion,  ante,  p.  163,  note  2.  Where  a  court 
Adams  v.  Palmer,  51  Me.  480.  See  also  is  given  appellate  jurisdiction  in  a/I  cases, 
Townsend  v.  Griffin,  4  Harr.  440.  In  a  it  is  not  competent  by  statute  to  forbid 
well-reasoned  case  in  Kentucky,  it  was  its  reversing  a  decree  of  divorce.  Tier- 
held  that  a  legislative  divorce  obtained  ney  v.  Tierney,  1  Wash.  Ter.  508.  See 
on  the  application  of  one  of  the  parties  Nichols  v.  Griffin,  1  Wash.  Ter  374. 


CH.  V.]       POWERS   EXERCISED   BY  LEGISLATIVE  DEPARTMENT.  157 

ity,  and  we  should  have  been  spared  the  necessity  for  the  special 
constitutional  provisions  which  have  since  been  introduced. 
Fortunately  these  provisions  render  the  question  now  discussed 
of  little  practical  importance;  at  the  same  time  that  they  refer 
the  decision  upon  applications  for  divorce  to  those  tribunals 
which  must  proceed  upon  inquiry,  and  cannot  condemn  without 
a  hearing.1 

The  force  of  a  legislative  divorce  must  in  any  case  be  confined 
to  a  dissolution  of  the  relation;  it  can  only  be  justified  on  the 
ground  that  it  merely  lays  down  a  rule  of  conduct  for  the  parties 
to  observe  towards  each  other  for  the  future.  It  cannot  inquire 
into  the  past,  with  a  view  to  punish  the  parties  for  their  offences 
against  the  marriage  relation,  except  so  far  as  the  divorce  itself 
can  be  regarded  as  a  punishment.  It  cannot  order  the  payment 
of  alimony,  for  that  would  be  a  judgment;2  it  cannot  adjudge 
upon  conflicting  claims  to  property  between  the  parties,  but  it 
must  leave  all  questions  of  this  character  to  the  courts.  Those 
rights  of  property  which  depend  upon  the  continued  existence  of 
the  relation  will  be  terminated  by  the  dissolution,  but  only  as 
in  any  other  case  rights  in  the  future  may  be  incidentally 
affected  by  a  change  in  the  law.3 

Legislative  Encroachments  upon  Executive  Power. 

If  it  is  difficult  to  point  out  the  precise  boundary  which  sepa- 
rates legislative  from  judicial  duties,  it  is  still  more  difficult 
to  discriminate,  in  particular  cases,  between  what  is  properly 
legislative  and  what  is  properly  executive  duty.  The  authority 
that  makes  the  laws  has  large  discretion  in  determining  the 
means  through  which  they  shall  be  executed;  and  the  perform- 

1  If  marriage  is  a  matter  of  right,  then  ful  powers  of  legislation  "  which  our  con- 
it  would  seem  that  any  particular  mar-  stitutions  confer  upon  the  legislative 
riage  that  parties  might  lawfully  form  department,  a  relation  essential  to  organ- 
they  must  have  a  lawful  right  to  continue  ized  civil  society  might  be  abrogated 
in,  unless  by  misbehavior  they  subject  entirely.  Single  legislative  divorces  are 
themselves  to  a  forfeiture  of  the  right,  but  single  steps  towards  this  barbarism 
And  if  the  legislature  can  annul  the  rela-  which  the  application  of  the  same  prin- 
tion  in  one  case,  without  any  finding  that  ciple  to  every  individual  case,  by  a  gen- 
a  breach  of  the  marriage  contract  has  eral  law,  would  necessarily  bring  upon  us. 
been  committed,  then  it  would  seem  that  See  what  is  said  by  the  Supreme  Court 
they  might  annul  it  in  every  case,  and  of  Missouri  in  Bryson  v.  Bryson,  17  Mo. 
even  prohibit  all  parties  from  entering  590,  594. 

into  the  same  relation  in  the  future.    The  2  Crane  v.  Meginnis,  1  G.  &  J.  463; 

recognition  of  a  full  and  complete  control  Potter's  Dwarris  on  Statutes,  486;  post, 

of  the  relation  in  the   legislature,  to  be  p.  684.  note, 

exercised  at  its  will,  leads  inevitably  to  8  Starr  v.  Pease,  8  Conn.  541. 
this  conclusion  ;  so  that,  under  the  "  right- 


158 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


ance  of  many  duties  which  they  may  provide  for  by  law  they 
may  refer  either  to  the  chief  executive  of  the  State,  or,  at  their 
option,  to  any  other  executive  or  ministerial  officer,  or  even  to 
a  person  specially  named  for  the  duty.1  What  can  be  definitely 
said  on  this  subject  is  this:  That  such  powers  as  are  specially 
conferred  by  the  constitution  upon  the  governor,  or  upon  any 
other  specified  officer,  the  legislature  cannot  require  or  authorize 
to  be  performed  by  any  other  officer  or  authority;  and  from 
those  duties  which  the  constitution  requires  of  him  he  cannot 
be  excused  bylaw.2  But  other  powers  or  duties  the  executive 


1  This  is  affirmed  in  the  case  of  Bridges 
r.  Shallcross,  6  W.  Va.  662.  The  consti- 
tution of  that  State  provides  that  the 
governor  shall  nominate,  and  by  and  with 
the  advice  and  consent  of  the  Senate 
appoint,  all  officers  whose  offices  are  es- 
tablished by  the  constitution  or  shall  be 
created  by  law,  and  whose  appointment 
or  election  is  not  otherwise  provided  for, 
and  that  no  such  officer  shall  be  appointed 
or  elected  by  the  legislature.  The  court 
decided  that  this  did  not  preclude  the 
legislature  from  creating  a  board  of 
public  works  of  which  the  State  officers 
should  be  ex  officio  the  members.  The 
legislature  may  regulate  appointment  to 
statutory  offices :  People  v.  Osborne,  7  Col. 
6U5;  may  provide  a  board  of  civil  service 
commissioners  to  prescribe  qualifications 
of  all  officers  not  provided  for  by  the 
constitution :  Opinion  of  Justices,  138 
Mass.  601.  p?or  other  cases  upon  merit 
system  in  civil  service,  see  People  v.  Kip- 
ley,  171  111.  44,  49  N.  E.  229,  41  L.  R.  A. 
775 ;  Chittenden  v.  Wurster,  152  N.  Y. 
345,  46  N.  E.  857,  37  L.  R.  A.  809 ;  Re 
Keymer,  148  N.  Y.  219,  42  N.  E.  667, 
35  L.  R.  A.  447  ;  Opinion  of  Justices, 
166  Mass.  589,  44  N.  E.  625,  34  L.  R.  A. 
58 ;  Newcomb  v.  Indianapolis,  141  Ind. 
451,  40  N.  E.  919,  28  L.  R.  A.  732; 
Rogers  v.  Buffalo,  123  N.  Y.  173,  25 
N.  E.  274,  9  L.  R.  A.  579 ;  Neumeyer  v. 

Krakel,  -»  Ky. ,  62  S.  W.  518  (April 

25,  1901) ;  People  v.  Mosher,  163  N.  Y. 
32,  67  N.  E.  88,  79  Am.  St.  652 ;  Peo- 
ple v.  Roberts,  148  N.  Y.  360,  42  N.  E. 
1082,  31  L.  R.  A.  399.]  May  appoint  a 
State  board,  if  constitution  does  not  ex- 
pressly empower  the  governor  to  do  so. 
People  v.  Freeman,  80  Cal.  233,  22  Pac. 
173.  See  Hovey  v.  State,  119  Ind.  386, 
21  N.  E.  890;  Biggs  v.  McBride,  17  Oreg. 
640,  21  Pac.  878 ;  State  v.  Covington,  29 


Ohio  St.  102.  [^Appointment  of  police 
officers  cannot  be  intrusted  to  a  bipartisan 
board,  elected  half  by  one  party  in  city 
council  and  half  by  another.  Rathbone 
v.  Wirth,  150  N.  Y.  459,  45  N.  E.  15,  34 
L.  R.  A.  408.  But  a  provision  that  not 
more  than  two  of  the  three  members  of  a 
civil  service  commission  shall  be  of  the 
same  political  party  is  valid.  Rogers  v. 
Buffalo,  123  N.  Y.  173,  25  N.  E.  274,  9 
L.  R.  A.  679.] 

2  Attorney-General  v.  Brown,  1  Wis. 
513.  "  Whatever  power  or  duty  is  ex- 
pressly given  to,  or  imposed  upon,  the 
executive  department,  is  altogether  free 
from  the  interference  of  the  other 
branches  of  the  government.  Especially 
is  this  the  case  where  the  subject  is  com- 
mitted to  the  discretion  of  the  chief  exec- 
utive officer,  either  by  the  constitution 
or  by  the  laws.  So  long  as  the  power  is 
vested  in  him,  it  is  to  be  by  him  exercised, 
and  no  other  branch  of  the  government 
can  control  its  exercise."  Under  the  Con- 
stitution of  Ohio,  which  forbids  the  exer- 
cise of  any  appointing  power  by  the  legis- 
lature, except  as  therein  authorized,  it 
was  held  that  the  legislature  could  not, 
by  law,  constitute  certain  designated  per- 
sons a  State  board,  with  power  to  appoint 
commissioners  of  the  State  House,  and 
directors  of  the  penitentiary,  and  to  re- 
move such  directors  for  cause.  State  v. 
Kennon,  7  Ohio  St.  546.  By  the  Indiana 
Constitution  all  officers  whose  appoint- 
ment is  not  otherwise  provided  for,  shall 
be  chosen  in  such  manner  as  shall  be  pre- 
scribed by  law.  The  power  to  ordain  the 
"manner"  does  not  give  the  legislature 
power  to  appoint.  State  v.  Denny,  118 
Ind.  382,  21  N.  E.  252,  274,  4  L.  R.  A. 
79;  Evansville  v.  State,  118  Ind.  426,  21 
N.  E.  267,  4  L.  R.  A.  93.  And  see  Davis 
v.  State,  7  Md.  151 ;  also  cases  referred 


CH.  V.J       POWERS   EXERCISED   BY   LEGISLATIVE  DEPARTMENT.  159 


cannot  exercise  or  assume  except  by  legislative  authority,  and 


to  in  preceding  note.  [O'Connor  v.  Fond 
du  Lac,  109  Wis.  253,  85  N.  W.  327. 
The  power  of  appointment  to  a  particular 
office  may  be  vested  in  the  State  geolo- 
gist. State  v.  Hyde,  1^9  Ind.  296,  28  N.  E. 
186,  13  L.  R.  A.  79.  The  governor's  power 
of  appointment  cannot  be  indirectly  taken 
away ;  as  by  abolishing  the  office  or 
offices  and  creating  another  and  attaching 
to  it  the  duties  of  the  office  or  offices  abol- 
ished. Johnson  v.  State,  59  N.  J.  L.  535, 
37  Atl.  949,  38  L.  R.  A.  373,  39  Atl.  646.] 
As  to  what  are  public  officers,  see  State 
»;.  Stanley,  66  N.  C.  59,  8  Am.  Rep.  488. 
An  appointment  to  office  was  said,  in  Tay- 
lor v.  Commonwealth,  3  J.  J.  Marsh.  401, 
to  be  intrinsically  an  executive  act.  In 
a  certain  sense  this  is  doubtless  so,  but  it 
would  not  follow  that  the  legislature  could 
exercise  no  appointing  power,  or  could 
confer  none  on  others  than  the  chief  exec- 
utive of  the  State.  Where  the  constitu- 
tion contains  no  negative  words  to  limit 
the  legislative  authority  in  this  regard,  the 
legislature  in  enacting  a  law  must  decide 
for  itself  what  are  the  suitable,  conven- 
ient, or  necessary  agencies  for  its  execu- 
tion, and  the  authority  of  the  executive 
must  be  limited  to  taking  care  that  the 
law  is  executed  by  such  agencies.  See 
Baltimore  v.  State,  15  Md.  376;  [State  v. 
Henderson,  4  Wyo.  535,  35  Pac.  517,  22 
L.  R.  A.  751;  Fox  v.  McDonald,  101  Ala. 
61,  13  So.  416,  21  L.  R.  A.  529,  46  Am. 
St.  98 ;  State  v.  George,  22  Oreg.  142, 29 
Pac.  356,  16  L.  R.  A.  737,  29  Am.  St.  586. 
That  power  to  appoint  CityCommissioners 
may  be  given  to  circuit  judges.  See  Terre 
Haute  v.  Evansville  and  T.  H.  Ry.  Co., 
149  Ind.  174,  46  N.  E.  77,  37  L.  R.  A.  189 ; 
and  see  note  16  L.  R.  A.  737,  on  the  con- 
stitutional power  of  courts  or  judges  to 
appoint  officers.  With  regard  to  require- 
ments of  merit  in  appointees  and  compet- 
itive examinations  for  the  ascertainment 
thereof,  see  People  v.  Kipley,  171  111.  44, 
49  N.  E.  229,  41  L.  R.  A.  775;  Chittenden 
v.  Wurster,  152  N.  Y.  345,  46  N.  E.  857, 
37  L.  R.  A.  809 ;  Re  Keymer,  148  N.  Y. 
219,  42  N.  E.  667,  35  L.  R.  A.  447 ;  Opin- 
ion of  Justices,  166  Mass.  589,  44  N.  E. 
625,  34  L.  R.  A.  58;  People  v.  Roberts, 
148  N.  Y.  360,  42  N.  E.  1082,  31  L.  R.  A. 
399;  Newcomb  w.  Indianapolis,  141  Ind. 
451,  40  N.  E.  919,  28  L.  R.  A.  732;  Rogers 
v.  Buffalo,  123  N.  Y.  173,  25  N.  E.  274, 


9  L.  R.  A.  579;    Neumeyer  v.  Krakel, 

—    Ky.    ,  62  S.   W.  518;  People  v. 

Mosher,  163  N.  Y.  32,  57  N.  E.  88,  79  Am. 
St.  552.  The  mayor  of  a  city  may  be  em- 
powered to  appoint  the  principal  exec- 
utive officers  thereof.  Datz  v.  Cleveland, 
52  N.  J.  L.  188,  19  Atl.  17,  7  L.  R.  A.  431. 
For  other  cases  on  appointing  power,  see 
State  v.  Boucher,  3  N.  D.  389,  56  N.  W. 
142,  21  L.  R.  A.  539.] 

Where  the  governor  has  power  to  re- 
move an  officer  for  neglect  of  duty,  he  is 
the  sole  judge  whether  the  duty  has  been 
neglected.  State  v.  Doherty,  25  La.  Ann. 
119,  13  Am.  Rep.  131 ;  [State  v.  Johnson, 
30  Fla.  433,  11  So.  845,  18  L.  R.  A.  410; 
and  see  Trainor  v.  Wayne  Co.  Auditors, 
89  Mich.  162,  50  N.  W.  809,  15  L.  R.  A. 
95,  and  note  on  power  of  summary  re- 
moval.] The  courts  cannot  review  his 
action  if  it  is  taken  after  a  hearing:  State 
v.  Hawkins,  44  Ohio  St.  98,  5  N.  E.  228; 
but  he  must  afford  an  opportunity  for 
defence.  Dullam  v.  Willson,  53  Mich. 
392,  19  N.  W.  112;  [State  v.  Johnson,  30 
Fla.  433,  11  So.  845,  18  L.  R.  A.  410; 
State  v.  Smith,  35  Neb.  13,  52  N.  W.  700, 
16  L.  R.  A.  791 ;  Biggs  v.  McBride,  17 
Oreg.  640,  21  Pac.  878,  5  L.  R.  A.  115.] 
Contra,  unless  the  right  is  expressly 
secured  to  the  officer.  Donahue  v.  Will 
Co.,  100  111.  94,  and  cases  cited.  [For 
a  case  of  removal  for  gross  carelessness 
in  declaring  the  result  of  a  vote  upon  a 
constitutional  amendment,  see  Attorney- 
General  v.  Jochim,  99  Mich.  358,  58  N.  W. 
611,  23  L.  R.  A.  699,  41  Am.  St.  606.  Pro- 
vision for  impeachment  or  removal  does 
not  prevent  virtual  removal  by  legislature 
through  statute  abolishing  the  office  and 
creating  another  with  same  duties  and 
powers.  State  v.  Hyde,  129  Ind.  296, 28  N. 
E.  186, 13  L.  R.  A.  79.  Power  of  removal 
cannot  be  conferred  on  court.  Gordon  r. 
Moores,  61  Neb.  345,  85  N.  W.  298.] 

If  the  governor  has  power  to  appoint 
with  the  consent  of  Senate,  and  to  re- 
move, he  may  remove  without  such  con- 
sent. Lane  v.  Com.,  103  Pa.  St.  481 ;  • 
Harman  v.  Harwood,  58  Md.  1.  See,  MS 
to  discretionary  powers,  ante,  pp.  73-75, 
notes. 

The  executive,  it  has  been  decided,  has 
power  to  pardon  for  contempt  of  court. 
State  v.  Sauvinet,  24  La.  Ann.  119, 13  Am. 
Rep.  115;  [Sharp  v.  State,  102  Tenn. 


160 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


the  power  which  in  its  discretion  it  confers  it  may  also  in  its 
discretion  withhold,  or  confide  to  other  hands.1  Whether  in 
those  cases  where  power  is  given  by  the  constitution  to  the  gov- 
ernor, the  legislature  have  the  same  authority  to  make  rules  for 
the  exercise  of  the  power  that  they  have  to  make  rules  to  govern 
the  proceedings  in  the  courts,  may  perhaps  be  a  question.2  It 


9,  49  S.  W.  752,  43  L.  R.  A.  788,  73 
Am.  St.  851.]  A  general  power  to  par- 
don may  be  exercised  before  as  well 
as  after  conviction.  Lapeyre  v.  United 
States,  17  Wall.  191;  Dominick  v.  Bow- 
doin,  44  Ga.  357  ;  Grubb  v.  Bullock,  44  Ga. 
379;  [Terr,  v.  Richardson,  9  Okla.  579, 
60  Pac.  244,  49  L.  R.  A.  440.]  The 
President's  power  to  pardon  does  not  ex- 
tend to  the  restoration  of  property  which 
has  been  judicially  forfeited.  Knote  v. 
United  States,  10  Ct.  of  Cl.  397,  and  95 
U.  S.  149;  Osborn  v.  United  States,  91 
U.  S.  474.  The  pardon  may  be  granted 
by  general  proclamation.  Carlisle  v. 
United  States,  16  Wall.  147;  Lapeyre 
v.  United  States,  17  Wall.  191.  The  de- 
livery of  a  pardon  to  the  prison  warden, 
makes  it  operative.  Ex  parte  Powell,  73 
Ala.  517.  One  receiving  a  full  pardon 
from  the  President  cannot  afterwards  be 
required  by  law  to  establish  loyalty  as  a 
condition  to  the  assertion  of  legal  rights. 
Carlisle  v.  United  States,  16  Wall.  147. 
Nor  be  prosecuted  in  a  civil  action  for 
the  same  acts  for  which  he  is  pardoned. 
United  States  v.  McKee,  4  Dill.  128. 
Pardon  removes  all  disabilities  resulting 
from  conviction,  and  may  be  granted 
after  sentence  executed.  State  v.  Foley, 
15  Nev.  64,  37  Am.  Rep.  458 ;  Edwards 
v.  Com.,  78  Va.  39;  State  v.  Dodson,  16 
S.  C.  453;  [State  v.  Martin,  59  Ohio, 
212,  52  N.  E.  188,  43  L.  R.  A.  94, -69  Am. 
St.  762.]  But  a  mere  executive  order 
to  discharge  from  custody  is  not  such  a 
pardon.  State  v.  Kirschner,  23  Mo.  App. 
349.  It  does  not  release  from  the  obliga- 
tion to  pay  costs  of  the  prosecution.  In 
re  Boyd,  34  Kan.  570,  9  Pac.  240;  Smith 
v.  State,  6  Lea,  637.  [Upon  invalidity 
of  legislative  pardon,  see  Singleton  r. 
State,  38  Fla.  297,  21  So.  21,  34  L.  R.  A. 
251,  50  Am.  St.  177,  and  note  thereto  in 
L.  II.  A.  Where  hoard  of  pardons  has 
only  advisory  power,  the  governor's  par- 
doning power  is  in  nowise  infringed. 
Rich  v.  Chamberlain,  104  Mich.  436,  62 
N.  W.  584,  27  L.  R.  A.  573.  Statute 


authorizing  sentence  of  prisoner  for  an 
indefinite  term  not  less  than  the  minimum 
prescribed  by  law  nor  greater  than  tlie 
maximum  with  authority  to  the  board  of 
prison  control  to  release  on  parol  after 
expiration  of  minimum  period  amd  to 
recommit  upon  violation  of  parol  is  void 
as  infringing  upon  governor's  pardoning 
power.  People  v.  Cummings,  88  Mich. 
249,  50  N.  W.  310,  14  L.  R.  A.  285,  and 
note.  Sentence  may  be  suspended  after 
conviction,  and  such  suspension  may  be 
withdrawn  at  any  time.  It  does  not 
encroach  upon  governor's  power  to  grant 
pardons  and  reprieves.  People  v.  Mon- 
roe Co.  Ct.,  141  N.  Y.  288,  36  N.  E.  386, 
23  L.  R.  A.  856.] 

1  "In  deciding  this  question  [as  to  the 
authority  of  the   governor],   recurrence 
must  be  had  to  the  constitution.    That 
furnishes   the  only   rule   by   which   the 
court  can  be  governed.    That  is  the  char- 
ter of  the  governor's  authority.     All  the 
powers  delegated  to  him  hv  or  in  accord- 
ance with  that  instrument,  he  is  entitled 
to  exercise,  and  no  others.    The  constitu- 
tion is  a  limitation  upon  the  powers  of 
the  legislative  department  of  the  govern- 
ment, but  it  is  to  be  regarded  as  a  grant 
of    powers    to    the    other    departments. 
Neither  the  executive  nor  the  judiciary, 
therefore,  can  exercise  any  authority  or 
power  except  such  as  is  clearly  granted 
by  the  constitution."    Field  v.  People,  8 
111  79,  80. 

2  Whether  the  legislature  can  consti- 
tutionally remit  a  fine,  when  the  pardon- 
ing power  is  vested  in  the  governor  by 
the  constitution,  has  been  made  a  ques- 
tion ;  and  the  cases  of  Haley  v.  Clarke,  26 
Ala.  439,  and  People  v.  Bircham,  12  Cal. 
60,  are  opposed  to  each  other  upon  the 
point.     If  the  fine  is  payable  to  the  State, 
perhaps  the  legislature  should  be  consid- 
ered as  having  the   same   right  to   dis- 
charge it  that  they  would  have  to  release 
any  other  debtor  to  the  State  from  his 
obligation.      In    Indiana    the     Supreme 
Court  cannot  be  invested  with  power  to 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  161 


would  seem  that  this  must  depend  generally  upon  the  nature  of 
the  power,  and  upon  the  question  whether  the  constitution,  in 
conferring  it,  has  furnished  a  sufficient  rule  for  its  exercise. 
Where  complete  power  to  pardon  is  conferred  upon  the  execu- 
tive, it  may  be  doubted  if  the  legislature  can  impose  restrictions 
under  the  name  of  rules  or  regulations ;  but  where  the  governor 
is  made  cornmander-in-chief  of  the  military  forces  of  the  State, 
it  is  obvious  that  his  authority  must  be  exercised  under  such 
proper  rules  as  the  legislature  may  prescribe,  because  the  mili- 
tary forces  are  themselves  under  the  control  of  the  legislature, 
and  military  law  is  prescribed  by  that  department.  There 
would  be  this  clear  limitation  upon  the  power  of  the  legislature 


grant  reprieves.  Butler  v.  State,  97  Ind. 
373.  The  Secretary  of  the  Treasury 
may  remit  penalties  for  breach  of  reve- 
nue laws.  The  Laura,  114  U.  S.  411, 
6  Sup.  Ct.  Rep.  881.  In  Michigan  a  judge 
cannot  by  suspending  sentence  indefi- 
nitely practically  pardon  a  prisoner. 
People  r.  Brown,  54  Mich.  15,  19  N.  W. 
671.  An  act  allowing  a  prisoner  to  go  on 
parol,  but  in  legal  control  of  prison  man- 
agers and  subject  to  recall,  is  valid. 
State  v.  Peters,  43  Ohio  St.  629.  4  N.  E. 
81.  In  Morgan  v.  Buffington,  21  Mo.  549, 
it  was  held  that  the  State  auditor  was 
not  obliged  to  accept  as  conclusive  the 
certificate  from  the  Speaker  of  the  House 
as  to  the  sum  due  a  member  of  the  House 
for  attendance  upon  it,  but  that  he  might 
lawfully  inquire  whether  the  amount  had 
been  actually  earned  by  attendance  or 
not.  The  legislative  rule,  therefore,  can- 
not go  to  the  extent  of  compelling  an  ex- 
ecutive officer  to  do  something  else  than 
his  duty,  under  any  pretence  of  regula- 
tion. The  power  to  pardon  offenders  is 
vested  by  the  several  State  constitutions 
in  the  governor.  It  is  not,  however,  a 
power  which  necessarily  inheres  in  the 
executive.  State  v.  Dunning,  9  Ind.  20. 
And  several  of  the  State  constitutions 
have  provided  that  it  shall  be  exercised 
under  such  regulations  as  shall  be  pre- 
scribed by  law.  There  are  provisions 
more  or  less  broad  to  this  purport  in  those 
of  Kansas,  Florida,  Alabama,  Arkansas, 
Texas,  Mississippi,  Oregon,  Indiana,Iowa, 
and  Virginia.  In  State  v.  Dunning,  9  Ind. 
20,  an  act  of  the  legislature  requiring  the 
applicant  for  the  remission  of  a  fine  or  for- 
feiture to  forward  to  the  governor,  with 
his  application,  the  opinion  of  certain 


county  officers  as  to  the  propriety  of  the 
remission,  was  sustained  as  an  act  within 
the  power  conferred  by  the  constitution 
upon  the  legislature  to  prescribe  regula- 
tions in  these  cases.  And  see  Branham 
v.  Lange,  16  Ind.  497.  The  power  to  re- 
prieve is  not  included  in  the  power  to 
pardon.  Ex  parte  Howard,  17  N.  H.  545. 
Contra,  Ex  parte  Fleming,  60  Miss.  910. 
It  has  been  decided  that  to  give  parties 
who  have  been  convicted  and  fined  the 
benefit  of  the  insolvent  laws  is  not  an 
exercise  of  the  pardoning  power.  Ex 
parte  Scott,  19  Ohio  St.  581.  And  where 
the  constitution  provided  that  "  In  all 
criminal  and  penal  cases,  except  those 
of  treason  and  impeachment,  [the  gover- 
nor] shall  have  power  to  grant  pardons 
after  conviction,  and  remit  fines  and  for- 
feitures," &c.,  it  was  held  that  this  did 
not  preclude  the  legislature  from  passing 
an  act  of  pardon  and  amnesty  for  parties 
liable  to  prosecution,  but  not  yet  com- 
victed.  State  r.  Nichols,  26  Ark.  74, 
7  Am.  Rep.  600.  An  act  approved  by 
the  governor  vacating  a  conviction  op  T- 
ates  as  a  pardon.  People  v.  Stewart, 
1  Idaho,  546.  Pardons  may  be  made  con- 
ditional, and  forfeited  if  the  condition  is 
not  observed.  State  v.  Smith,  1  Bailey, 
283;  Lee  v.  Murphy,  22  Gratt.  789;  Re 
lluhl,  6  Sawyer,  186;  Kennedy's  Case, 
135  Mass.  48 ;  Ex  parte  Marks,  64  Cal. 
29,  28  Pac.  109.  But  a  pardon  obtained 
by  fraud  is  held  conclusive,  though  after- 
ward declared  null  by  the  governor. 
Knapp  v.  Thomas,  39  Ohio  St.  377.  £A 
pardon  does  not  relieve  from  forfeiture 
of  bail  bond.  Dale  r.  Commonwealth,  101 
Ky.  612,  42  S.  W.  93,  38  L.  R.  A.  808.] 


11 


162 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


to  prescribe  rules  for  the  executive  department ;  that  they  must 
not  be  such  as,  under  pretence  of  regulation,  divest  the  executive 
of,  or  preclude  his  exercising,  any  of  his  constitutional  preroga- 
tives or  powers.  Those  matters  which  the  constitution  specifi- 
cally confides  to  him  the  legislature  cannot  directly  or  indirectly 
take  from  his  control.  And  on  the  other  hand  the  legislature 
cannot  confer  upon  him  judicial  authority;  such  as  the  authority 
to  set  aside  the  registration  of  voters  in  a  municipality;1  or 
clothe  him  with  any  authority,  not  executive  in  its  nature,  which 
the  legislature  itself,  under  the  constitution,  is  restricted  from 
exercising.3 

It  may  be  proper  to  say  here,  that  the  executive,  in  the  proper 
discharge  of  his  duties  under  the  constitution,  is  as  independent 
of  the  courts  as  he  is  of  the  legislature.3 


1  State  v.  Staten,  6  Cold.  233. 

2  Smith  v.  Norment,  5  Yerg  271. 

8  It  has  been  a  disputed  question 
whether  the  writ  of  mandamus  will  lie 
to  compel  the  performance  of  executive 
duties.  In  the  following  cases  the  power 
has  either  been  expressly  affirmed,  or  it 
has  been  exercised  without  being  ques- 
tioned. State  v.  Moffitt,  5  Ohio,  358; 
State  v.  Governor,  5  Ohio  St.  529 ;  Coltin 
v.  Ellis,?  Jones  (N.  C.),  545;  Chamberlain 
v.  Sibley,  4  Minn.  309;  Magruder  v.  Gov- 
ernor, 25  Md.  173  ;  Groome  v.  Gwinn,  43 
Md.  572;  Tennessee,  £c.  R.  R.  Co.  v. 
Moore,  36  Ala.  371;  Middleton  v.  Lowe, 
30  Cal.  596;  Harpending  v.  Haight,  39 
Cal.  189,  2  Am.  Rep.  433;  Chumasero 
v.  Potts,  2  Mont.  244 ;  Martin  r.  Ingham, 
38  Kan.  641,  17  Pac.  162.  See  Hatch  v. 
Stoneman,  66  Cal.  632,  6  Pac.  734.  In 
the  following  cases  the  power  has  been 
denied  :  Hawkins  v.  Governor,  1  Ark. 
570;  Low  v.  Towns,  8  Ga.  360;  State  v. 
Kirk  wood,  14  Iowa,  162;  Dennett,  Peti- 
tioner, 32  Me.  510;  People  v.  Bissell,  19 
111.  229;  People  v.  Yates,  40  111.  126; 
People  v.  Cullom,  100  111.  472;  State  v. 
Governor,  25  N.  J.  331 ;  Mauran  v.  Smith, 
8  U.  I.  192;  State  v.  Warmoth,  22  La. 
Ann.  1,  2  Am.  Rep.  712  ;  Same  v.  Same, 
24  La.  Ann.  351,  13  Am.  Rep.  126;  Peo- 
ple v.  Governor,  29  Mich.  320,  18  Am.  Rep. 
89 ;  State  v.  Governor,  39  Mo.  388 ;  Vicks- 
burg  &  M.  R.  R.  Co.  v.  Lowry,  61  Miss. 
102;  [Territorial  Ins.  Asylum  v.  Walfley, 
—  Ariz.—,  22  Pac.  383  (8  July,  1889),  8  L. 
R.  A.  188;  Bates  v.  Taylor,  3  Pick.  (Tenn.) 
319,  11  S.  W.  266;  People  v.  Morton,  156 


N.  Y.  136,  50  N.  E.  791,  66  Am.  St.  547. 
This  last  was  a  case  where  it  was  at- 
tempted to  compel  action  of  governor  as 
member  of  board  of  trustees  ex  officio. 
See  also  State  ex  rel.  v.  Nash,  66  Ohio, 
612,  64  N.  E.  658.]  Nor  can  he  be  en- 
joined from  acting.  Smith  v.  Myers, 
109  Ind.  1;  Bates  v.  Taylor,  87  Tenn. 
319.  See  Lacy  v.  Martin,  39  Kan.  703, 
18  Pac.  957 ;  Kilpatrick  v.  Smith,  77  Va. 
347.  In  Hartranft's  Appeal,  85  Pa.  St. 
433,  27  Am.  Rep.  667,  it  was  decided  that 
the  governor  was  not  subject  to  the  sub- 
poena of  the  grand  jury.  In  Minnesota 
it  seems  that  officers  of  the  executive 
department  are  exempt  from  judicial 
process  even  in  the  case  of  ministerial 
duties.  Rice  r.  Austin,  19  Minn.  103; 
County  Treasurer  v.  Dike,  20  Minn. 
363 ;  Western  R.  R,  Co.  v.  De  Graff,  27 
Minn.  1,  6  N.  W.  341 ;  Stater.  Whitcomb, 
28  Minn.  60.  FJSee  also  State  v.  Stone, 
120  Mo.  428,  25  S.  W.  376,  23  L.  R.  A. 
194,41  Am.  St.  705,  and  Frost  v.  Thomas, 
26  Col.  222,  56  Pac.  899,  77  Am.  St.  259. 
That  court  will  not  interfere  with  the 
exercise  of  discretion  on  the  part  of  a 
railroad  commission  where  such  discre- 
tion is  authorized  by  law,  see  Louisville 
&  N.  R.  Co.  v.  Commonwealth,  104  Ky. 
226,  46  S.  W.  707,  47  S.  W.  698,  48  S.  W. 
416,  43  L.  R.  A.  641,  649,  550.  For  effect 
of  clause  denying  governor  power  to  re- 
move officers  for  partisan  reasons,  see 
People  v.  Martin,  19  Col  565,  36  Pac.  543, 
24  L.  R.  A.  201.  In  Maryland,  the  procla- 
mation of  the  governor  that  a  proposed 
amendment  to  the  Constitution  has  been 


CH.  V.]       POWERS    EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  163 


Delegating  Legislative  Powers. 

One  of  the  settled  maxims  in  constitutional  law  is,  that  the 
power  conferred  upon  the  legislature  to  make  laws  cannot  be 
delegated  by  that  department  to  any  other  body  or  authority. 
Where  the  sovereign  power  of  the  State  has  located  the  authority, 
there  it  must  remain ;  and  by  the  constitutional  agency  alone  the 
laws  must  be  made  until  the  constitution  itself  is  changed.  The 
power  to  whose  judgment,  wisdom,  and  patriotism  this  high 
prerogative  has  been  intrusted  cannot  relieve  itself  of  the 
responsibility  by  choosing  other  agencies  upon  which  the  power 
shall  be  devolved,  nor  can  it  substitute  the  judgment,  wisdom, 
and  patriotism  of  any  other  body  for  those  to  which  alone  the 
people  have  seen  fit  to  confide  this  sovereign  trust.1 


duly  adopted  is  not  subject  to  review  by 
any  other  officer  or  department.  Worman 
v.  Hagan,  78  Md.  152,  27  Atl.  616,  21 
L.  B.  A.  716.] 

i  "  These  are  the  bounds  which  the 
trust  that  is  put  in  them  by  the  society, 
and  the  law  of  God  and  nature,  have 
set  to  the  legislative  power  of  every 
Commonwealth,  in  all  forms  of  govern- 
ment :  — 

"  First.  They  are  to  govern  by  pro- 
mulgated established  laws,  not  to  be 
varied  in  particular  cases,  but  to  have 
one  rule  for  rich  and  poor,  for  the  fa- 
vorite at  court  and  the  countryman  at 
plough. 

"  Secondly.  These  laws  also  ought  to 
be  designed  for  no  other  end  ultimately 
but  the  good  of  the  people. 

"  Thirdly.  They  must  not  raise  taxes 
on  the  property  of  the  people  without  the 
consent  of  the  people,  given  by  them- 
selves or  their  deputies.  And  this  prop- 
erly concerns  only  such  governments 
where  the  legislative  is  always  in  being, 
or  at  least  where  the  people  have  not 
reserved  any  part  of  the  legislative  to 
deputies,  to  be  from  time  to  time  chosen 
by  themselves. 

"Fourthly.  The  legislative  neither 
must  nor  can  transfer  the  power  of 
making  laws  to  anybody  else,  or  place 
it  anywhere  but  where  the  people  have." 
Locke  on  Civil  Government,  §  142. 

That  legislative  power  cannot  be  del- 
egated, see  Thome  v.  Cramer,  15  Barb. 
112;  Bradley  v.  Baxter,  15  Barb.  122; 
Barto  v.  Himrod,  8  N.  Y.  483 ;  People  t;. 


Stout,  23  Barb.  349;  Rice  v.  Foster,  4 
Harr.  479;  Santo  v.  State,  2  Iowa,  165; 
Geebrick  v.  State,  5  Iowa,  491 ;  State 
v.  Beneke,  9  Iowa,  203;  State  v.  Weir, 
33  Iowa,  134,  11  Am.  Rep.  115;  People 
v.  Collins,  3  Mich.  343;  Railroad  Com- 
pany v.  Commissioners  of  Clinton  County, 
1  Ohio  St.  77 ;  Parker  v.  Common- 
wealth, 6  Pa.  St.  507 ;  Commonwealth 
v.  Me  Williams,  11  Pa.  St.  61 ;  Maize  v. 
State,  4  Ind.  342 ;  Meshmeier  v.  State,  11 
Ind.  482 ;  State  v.  Parker,  26  Vt.  357 ; 
State  v.  Swisher,  17  Tex.  441  ;  State  v. 
Copeland,  3  R.  I.  33 ;  State  v.  Wilcox,  45 
Mo.  458 ;  Commonwealth  v.  Locke,  72 
Pa.  St.  491;  Ex  parte  Wall,  48  Cal. 
279;  Willis  v.  Owen,  43  Tex.  41 ;  Farns- 
worth  Co.  v.  Lisbon,  62  Me  451 ;  Brewer 
Brick  Co.  v.  Brewer,  62  Me.  62 ;  State  v. 
Hudson  Co.  Com'rs,  37  N.  J.  12;  Auditor 
v.  Holland,  14  Bush,  147 ;  State  v.  Simons, 
32  Minn.  640,  21  N.  W.  750.  ([Statutory 
delegation  of  power  to  incorporated  medi- 
cal societies  to  appoint  medical  exam- 
iners to  examine  and  pass  upon  the  fitness 
of  applicants  for  license  to  practise  medi- 
cine is  not  invalid.  Scholle  r.  State,  90 
Md.  729,  46  Atl.  326,  50  L.  R.  A.  411. 
Power  of  classification  of  towns  and  cities 
cannot  he  delegated.  Jernigan  v.  Madi- 
sonville,  102  Ky.  313,  43  S.  W.  448,  39 
L.  R.  A.  214.  Nor  power  of  taxation 
except  as  constitution  expressly  author- 
izes. State  v.  Des  Moines,  103  Iowa,  76, 
72  N.  W.  639,  39  L.  R.  A.  285.  But  a 
court  may  be  authorized  to  direct  in  what 
manner  its  writs  shall  be  served  and  what 
notice  shall  be  given.  State  v.  Adams 


164 


CONSTITUTIONAL   LIMITATIONS. 


[CH.    V. 


But  it  is  not  always  essential  that  a  legislative  act  should  be 
a  completed  statute  which  must  in  any  event  take  effect  as  law, 


Express  Co.,  66  Minn.  271,  68  N.  W.  1085, 
38  L.  It.  A.  225.  Board  of  health  cannot 
be  authorized  to  make  general  rules  con- 
cerning compulsory  vaccination.  State 
v.  Burdge,  95  Wis.  390,  70  N.  W.  347, 
37  L.  R.  A.  157,  60  Am.  St.  123.  The 
legislature  cannot  delegate  to  an  official 
the  final  authority  to  determine  what 
shall  be  done  to  make  factories  and 
workshops  sanitary.  Schaezlein  v.  Cab- 
nniss,  135  Cal.  466,  67  Pac.  755,  87  Am. 
St.  122 ;  or  the  extent  of  a  taking  for 
waterworks.  Stearns  v.  Barre,  73  Vt. 
281,  50  Atl.  1086,  87  Am.  St.  721.  Stat- 
ute imposing  a  penalty  upon  any  carrier 
charging  more  than  a  reasonable  rate 
without  prescribing  any  means  of  deter- 
mining what  is  such  rate  is  void.  Louis- 
ville &  N.  R.  Co.  v.  Commonwealth,  99 
Ky.  132,  35  S.  W.  129,  33  L.  R.  A.  209, 
59  Am.  St.  457.] 

QCourt  cannot  be  empowered  to  pass 
upon  propriety  of  incorporation  of  lands 
into  a  village.  Re  Application  of  North* 
Milwaukee,  93  Wis.  616,  67  N.  VV.  1033, 
33  L.  R.  A.  638.  Insurance  commissioner 
cannot  be  empowered  to  determine  the 
form  of  standard  insurance  contract  for 
the  State.  Dowling  v.  Lancashire  Ins. 
Co.,  92  Wis.  63,  65  N.  W.  738,  31  L. 
R.  A.  112;  Anderson  v.  Manchester 
Fire  As.  Co.,  59  Minn.  182,  63  N.  W. 
241,  28  L.  R.  A.  609;  O'Neil  v.  Amer- 
ican Fire  Ins.  Co.,  166  Pa.  72,  30  Atl. 
945,  26  L.  R.  A.  715,  45  Am.  St.  650.  A 
statute  authorizing  a  particular  officer  to 
pass  upon  the  question  of  character,  to 
determine  the  granting  of  license  is  not  a 
delegation  of  legislative  power.  Delega- 
tion of  power  to  determine  who  are  within 
the  operation  of  the  law  is  not  a  delega- 
tion of  legislative  power.  State  v.  Thomp- 
son, 160  Mo.  333,  60  S.  W.  1077,  83  Am. 
St.  468,  54  L.  R.  A.  950.  So  permitting 
city  councils  upon  petition  of  specified 
portion  of  voters  of  respective  cities  to 
suspend  certain  penalties  of  a  prohibitory 
liquor  law  is  not  a  delegation  of  legisla- 
tive powers,  nor  is  it  an  infringement  of 
the  pardoning  power  of  the  executive. 
State  v.  Forkner,  94  Iowa,  1,  62  N.  W. 
772,  28  L.  R.  A.  206.  Statute  may  require 
railroad  to  construct  cattle-guards  when 
demand  therefor  is  made  by  owners  of 


lands  through  which  railroad  runs.  Bir- 
mingham M.  R.  Co.  v.  Parsons,  100  Ala. 
662,  13  So.  602,  27  L.  R.  A.  263,  46  Am. 
St.  92.  Elective  franchise  cannot  be 
conferred  upon  women  upon  condition 
that  the  statute  be  approved  at  a  subse- 
quent election.  Re  Municipal  Suffrage 
to  Women,  160  Mass.  586,  36  N.  E.  488, 
23  L.  R.  A.  113,  and  note  hereto  on  power 
to  make  a  statute  contingent  on  popular 
approval.  Law  authorizing  release  from 
imprisonment  for  drunkenness  upon  entry 
of  recognizance  that  convict  will  take  the 
"Jag  Cure,"  and  final  discharge  upon 
exhibition  of  certificate  of  attendance  and 
compliance  with  rules  of  the  institution  ia 
void.  Senate  of  Happy  Home  Club  c. 
Alpena  Co.,  99  Mich.  117,  57  N.  W.  1101, 
23  L.  R.  A.  144.  Where  the  legislature  is 
directed  to  regulate  the  salaries  of  county 
clerks  in  proportion  to  duties  performed, 
and  a  statute  fixes  their  salaries,  the 
legislature  cannot  authorize  county 
boards  to  allow  the  clerks  deputies. 
Dougherty  v.  Austin,  94  Cal.  601,  28 
Pac.  834,  29  Pac.  1092,  16  L.  R.  A.  161, 
and  note  on  delegation  of  legislative 
powers.  Municipality  cannot  be  author- 
ized to  modify  the  jurisdiction  of  courts. 
Vesta  Mills  v.  Charleston,  60  S.  C.  1,  38 
S.  E.  226.  Right  of  initiative  and  refer- 
endum cannot  be  conferred  on  people  of 
a  municipality  in  respect  even  of  munic- 
ipal affairs.  Elliott  v.  Detroit,  121  Mich. 
611,  84  N.  W.  820.] 

QFor  other  cases  denying  right  to  del- 
egate legislative  power,  see  Bradshaw 
r.  Lankford,  73  Md.  428,  21  Atl.  66,  11 
L.  R.  A.  682,  25  Am.  St.  602;  Owensboro 
&  N.  R.  Co.  v.  Todd,  91  Ky.  175, 15  S.  W. 
56,  11  L.  R.  A.  285;  Arms  ».  Ayer,  192 
111.  601,  61  N.  E.  851,  85  Am.  St.  357, 
where  it  is  said,  quoting  from  Dowling  v. 
Lancashire  Ins.  Co.,  92  Wis.  63,  65  N.  W. 
738  :  "  A  law  must  be  complete  in  all  its 
terms  and  provisions  when  it  leaves  the 
legislative  branch  of  the  government,  and 
nothing  must  be  left  to  the  judgment  of 
the  electors  or  other  appointee  or  delegate 
of  the  legislature,  so  that  in  form  and 
substance  it  is  a  law  in  all  its  details  in 
prcesenti,  but  which  may  be  left  to  take 
effect  in  futuro,  if  necessary,  upon  the 
ascertainment  of  any  prescribed  fact  or 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  165 

at  the  time  it  leaves  the  hands  of  the  legislative  department.  A 
statute  may  be  conditional,  and  its  taking  effect  may  be  made  to 
depend  upon  some  subsequent  event.1  Affirmative  legislation 
may  in  some  cases  be  adopted,  of  which  the  parties  interested 
are  at  liberty  to  avail  themselves  or  not  at  their  option.  A 
private  act  of  incorporation  cannot  be  forced  upon  the  corpora- 
tors; they  may  refuse  the  franchise  if  they  so  choose.2  In  these 
cases  the  legislative  act  is  regarded  as  complete  when  it  has 
passed  through  the  constitutional  formalities  necessary  to  per- 
fected legislation,  notwithstanding  its  actually  going  into  opera- 
tion as  law  may  depend  upon  its  subsequent  acceptance.  We 
have  elsewhere  spoken  of  municipal  corporations,  and  of  the 
powers  of  legislation  which  may  be  and  commonly  are  bestowed 
upon  them,  and  the  bestowal  of  which  is  not  to  be  considered  as 
trenching  upon  the  maxim  that  legislative  power  must  not  be 
delegated,  since  that  maxim  is  to  be  understood  in  the  light  of 
the  immemorial  practice  of  this  country  and  of  England,  which 
has  always  recognized  the  propriety  and  policy  of  vesting  in  the 
municipal  organizations  certain  powers  of  local  regulation,  in 
respect  to  which  the  parties  immediately  interested  may  fairly 
be  supposed  more  competent  to  judge  of  their  needs  than  any 
central  authority.  As  municipal  organizations  are  mere  auxil- 
iaries of  the  State  government  in  the  important  business  of 

event."     The  legislature  cannot  delegate  tion  upon  petition  of  a  majority  of  the 

the  power  to  fix  penalties  to  a  Board  of  inhabitants  of  the  territory  to  be  incor- 

Harbor  Commissioners.     Board  of  Har-  porated.     Terr.  v.  Stewart,  1  Wash.  98, 

bor  Commissioners  v.  Excelsior  Redwood  23  Pac.  405,  8  L.  R.  A.  10(1]     It  is  com- 

Co.,  88  Cal.  491,  26  Pac.  375-3  petent  to  make  an  act  take  effect  on  con- 

1  Brig  Aurora    v.    United    States,    7  dition  that  those  applying  for  it  shall 

Cranch,  382 ;  Bull  v.  Read,  13  Gratt.  78;  erect  a  station  at  a  place  named.     State 

State  v.  Parker,  2(3  Vt.  357  ;  Peck  v.  Wed-  v.  New  Haven,  &c.  Co.,  43  Conn.  351. 

dell,  17  Ohio  St.  271  ;  State  v.  Kirkley,  29  Railroad  Commissioners  may  be  empow- 

Md.  85;  Walton  •».  Greenwood,  60  Me.  ered  to  fix  rates.     Georgia  R.  R.,  &c.  Go. 

356;  Baltimore   v.   Clunet,   23  Md.  449.  v.    Smith,   70   Ga.   694.     A   commission 

It  is  not  a  delegation  of  legislative  power  may  be  empowered  to  select  a  site  for 

to  make  the  repeal  of  a  charter  depend  a  public  building.     People  v.  Dunn,  80 

upon  the   failure   of  the  corporation  to  Cal.  211,  22  Pac.  140;   Terr.  v.  Scott,  3 

make  up   a    deficiency  which   is   to   be  Dak.  357,  20  N.  W.  401.     An  act  taxing 

ascertained  and  determined  by  a  tribunal  corporations  of  another  State  doing  busi- 

provided  by  the  repealing  act.     Lothrop  ness  within  the  State  as  its  corporations 

v.  Stedman,  42  Conn.  583.     See  Crease  are  taxed  in  such  other  State  is  not  an 

v.  Babcock,  23  Pick.   334,  344.    Nor  to  abandonment    of    legislative    functions, 

refer  the  question   of  extending  munic-  The  law  is  complete ;  its  operation,  con- 

ipal  boundaries  to  a  court  where  issues  tingent.     Home  Ins.  Co.  v.  Swigert,  104 

may  be  formed  and  disputed  facts  tried.  III.  653 ;   Phrenix  Ins.  Co.   v.  Welch,  29 

Burlington   v.   Leebrick,  43   Iowa,  252;  Kan.  672.     Contra,  Clark  v.  Mobile,  67 

Wahoo   v.   Dickinson,   23   Neb.    426,   36  Ala.  217. 

N.  W.  813.     rjBut  a  court  cannot  be  au-         2  Angell  and  Ames  on  Corp.  §  81. 
thorized  to  create  a  municipal   corpora- 


166 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


municipal  rule,  the  legislature  may  create  them  at  will  from  its 
own  views  of  propriety  or  necessity,  and  without  consulting  the 
parties  interested;  and  it  also  possesses  the  like  power  to  abolish 
them,  without  stopping  to  inquire  what  may  be  the  desire  of  the 
corporators  on  that  subject.1 

Nevertheless,  as  the  corporators  have  a  special  and  peculiar 
interest  in  the  terms  and  conditions  of  the  charter,  in  the  powers 
conferred  and  liabilities  imposed,  as  well  as  in  the  general 
question  whether  they  shall  originally  be  or  afterwards  remain 
incorporated  at  all  or  not,  and  as  the  burdens  of  municipal 
government  must  rest  upon  their  shoulders,  and  especially  as 
by  becoming  incorporated  they  are  held,  in  law,  to  undertake  to 
discharge  the  duties  the  charter  imposes,  it  seems  eminently 
proper  that  their  voice  should  be  heard  on  the  question  of  their 
incorporation,  and  that. their  decisions  should  be  conclusive, 
unless,  for  strong  reasons  of  State  policy  or  local  necessity,  it 
should  seem  important  for  the  State  to  overrule  the  opinion  of 
the  local  majority.  The  right  to  refer  any  legislation  of  this 
character  to  the  people  peculiarly  interested  does  not  seem  to  be 
questioned,  and  the  reference  is  by  no  means  unusual.2 

monwealth  v.  Painter,  10  Pa.  St.  214; 
Call  v.  Chadbourne,  46  Me.  206  ;  State  v. 
Scott,  17  Mo.  521 ;  State  r.  Wileox,  45 
.Mo.  458;  Hobart  v.  Supervisors,  &c.,  17 
Cal.  23;  Bank  of  Chenango  v.  Brown,  26 
N.  Y.  467 ;  Steward  v.  Jefferson,  3  Harr. 
335;  Burgess  v.  Pue,  2  Gill,  11;  Lafay- 
ette, &c.  R.  R.  Co.  v.  Geiger,  34  Ind.  185  ; 
Clarke  v.  Rogers,  81  Ky.  43.  As  the 
question  need  not  be  submitted  at  all, 
the  legislature  may  submit  it  to  the  free- 
holders alone.  People  v.  Butte,  4  Mont. 
174,  1  Pac.  414.  The  right  to  refer  to 
the  people  of  several  municipalities  the 
question  of  their  consolidation  was  dis- 
puted in  Smith  v.  McCarthy,  56  Pa.  St. 
359,  but  sustained  by  the  court.  And  see 
Smyth  v.  Titcomb,  31  Me.  272 ;  Erlinger 
v.  Boneau,  51  111.  94 ;  Lammert  v.  Lid- 
well,  62  Mo.  188 ;  State  v.  Wileox,  45  Mo. 
458 ;  Brunswick  v.  Finney,  54  Ga.  317  ; 
Response  to  House  Resolution,  55  Mo. 
295;  People  v.  Fleming,  10  Col.  553,  16 
Pac.  298  ;  Graham  v.  Greenville,  67  Tex. 
62,  2  S.  W.  742.  FJSuch  reference  is 
now  permitted  in  Minnesota.  Hopkins 
v.  Duluth,  81  Minn.  189,  83  N.  W.  536. 
For  a  consideration  of  various  questions 
arising  in  regard  to  such  a  reference,  see 
State  v.  Denny,  4  Wash.  135,  29  Pac. 
991,  16  L.  R.  A.  214-3 


1  City  of  Paterson  v.  Society,  &c.,  24 
N.  J.  385;  Cheany  v.  Hooser,  9  B.  Monr. 
330;  Berlin   v.   Gorham,  34   N.   H.  266; 
State  v.  Holden,  19  Neb.  249.  27  N.  W. 
120 ;    Attorney-General    v.    Weimer,   59 
Mich.  580,  26  N.  W.  773.     The  question 
of  a  levee  tax  may  lawfully  be  referred 
to  the  voters  of  the  district  of  territory 
over  which  it  is  proposed  to  spread  the 
tax,   regardless    of   municipal    divisions. 
Alcorn  v.  Hamer,  38   Miss.  652.     Power 
to  grant  an  exclusive  franchise  in  aid  of 
navigation   may  be   delegated   to   a  vil- 
lage :  Farnum  v.  Johnson,  62  Wis.   620, 
22  N.  W.  751 ;  power  to  determine  the 
penalty  to  be  imposed  for  infraction  of  a 
State  law  may  not :  Montross  v.  State,  61 
Miss.  429 ;  nor  power  to  increase  its  rep- 
resentation on  a  county  board,  when  the 
constitution  ordains  that  the  legislature 
shall  determine  such  representation.   Peo- 
ple v.  Riordan,  73  Mich.  508,  41  N.  W. 
482.     And   see,   in   general,  Angell  and 
Ames  on  Corp.  §  31  and  note  ;  also  post, 
pp.  264-266. 

2  Bull  v.  Read,  13  Gratt.  78;  Corning 
v.  Greene,  23  Barb.  33  ;  Morford  v.  Unger, 
8  Iowa,  82 ;  City  of  Paterson  v.  Society, 
&c.,24  N.  J.385;  Gorham  v.  Springfield, 
21  Me.  58;  Commonwealth  v.  Judges  of 
Quarter   Sessions,   8  Pa.  St.  391;   Com- 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  167 


For  the  like  reasons  the  question  whether  a  county  or  town- 
ship shall  be  divided  and  a  new  one  formed,1  or  two  townships 
or  school  districts  formerly  one  be  reunited,2  or  a  city  charter 
be  revised,3  or  a  county  seat  located  at  a  particular  place,  or  after 
its  location  removed  elsewhere,4  or  the  municipality  contract 
particular  debts,  or  engage  in  a  particular  improvement,5  is 


1  State   v.   Reynolds,   10  111.  1.     See 
State  v.  McNiell,  24  Wis.  149.    Response 
to  House  Resolution,  55  Mo.  205.     For 
other  cases  on  the  same  general  subject, 
see   People  v.  Nally,  49  Cal.  478;  Pike 
County  v.  Barnes,  51  Miss.  305;  Bruns- 
wick v.  Finney,  54  Ga.  317.     The  ques- 
tion whether  a  general  school  law  shall 
be  accepted  in  a  particular  municipality 
may  be  referred  to  its  voters.     State  v. 
Wilcox,  45  Mo.  458.    The  operation  of 
an  act  creating  a  municipal  court  may  be 
made  dependent  on  the  approval  of  the 
municipal  voters.     Rutter  «.  Sullivan,  25 
W.  Va.  427.    A  city  may  be  empowered 
to  decide  by  vote  whether  it  will  take 
control  of  the  public  schools  in  it.     Wer- 
ner v.  Galveston,  72  Tex.  22,  7  S.  W. 
726. 

2  Commonwealth  v.  Judges,  &e.,  8  Pa. 
St.  391 ;  Call  v.  Chadbourne,  46  Me.  206; 
People  v.  Nally,  49  Cal.  478;  Erlinger  v. 
Boneau,  51  111.  94. 

8  Brunswick  v.  Finney,  54  Ga.  317. 

4  Commonwealth  v.  Painter,  10  Pa.  St. 
214;  Clarke  v.  Jack,  60  Ala.  271.     See 
People  v.  Salomon,  51  111.  37  ;  Slinger  v. 
Henneman,  38  Wis.  504  ;  Hall  v.  Marshall, 
80  Ky.  552  ;  post,  pp.  172-174. 

5  There  are  many  cases  in  which  mu- 
nicipal subscriptions  to  works  of  internal 
improvement,  under   statutes    empower- 
ing them   to   be    made,   have   been   sus- 
tained ;  among  others,  Goddin  v.  Crump, 
8  Leigh,  120 ;  Bridgeport  v.  Housatonic 
Railroad   Co.,   15   Conn.  475 ;    Starin  v. 
Genoa,  29  Barb.  442,  and  23  N.  Y.  439 ; 
Bank  of  Rome  v.  Village  of   Rome,  18 
N.  Y.  38 ;  Prettyman  v.  Supervisors,  &c., 
19  111.  406 ;  Robertson  v.  Rockford,  21  111. 
451  ;  Johnson  v.  Stack,  24  111.  75 ;  Bush- 
nell  v.  Beloit,  10  Wis.  195  ;  Clark  v.  Janes- 
ville,  10  Wis.  136;  Stein  v.  Mobile,  24 
Ala.  591 ;  Mayor  of  Wetumpka  v.  Win- 
ter, 29  Ala.  651  ;    Pattison  v.  Yuba,  13 
Cal.  175;  Blanding  v.  Burr,  13  Cal.  343; 
Hobart  v.  Supervisors,  &c.,  17  Cal.  23; 
Taylor  v.  Newberne,  2  Jones  Eq.  141 ; 
Caldwell  v.  Justices  of  Burke,  4  Jones 


Eq.  323  ;  Louisville,  &c.  Railroad  Co.  v. 
Davidson,  1  Sneed,  637  ;  Nichol  v.  Mayor 
of  Nashville,  9  Humph.  252 ;  Railroad 
Co.  v.  Commissioners  of  Clinton  Co.,  1 
Ohio  St.  77  :  Trustees  of  Paris  v.  Cherry, 
8  Ohio  St.  564  ;  Cass  v.  Dillon,  2  Ohio  St. 
607 ;  State  v.  Commissioners  of  Clinton 
Co.,  6  Ohio  St.  280  ;  State  v.  Van  Home, 

7  Ohio  St.  327  ;  State  v.  Trustees  of  Union, 

8  Ohio  St.  394;  Trustees,  &c.  v.  Shoe- 
maker, 12  Ohio  St.  624;  State  v.  Com- 
missioners of  Hancock,  12  Ohio  St.  596 ; 
Powers  v.  Dougherty  Co.,  23  Ga  65;  San 
Antonio  v.  Jones,  28  Tex.  19;  Common- 
wealth v.   McWilliams,   11   Pa.   St.   61  ; 
Sliarpless  v.  Mayor,  &c.,  21  Pa.  St.  147; 
Moers  v.  Reading,  21  Pa.  St.  188;  Talhot 
v.  Dent,  9  B.  Monr.  526;  Slack  v.  Rail- 
road Co.,  13  B.  Monr.  1  ;  City  of  St.  Louis 
v.  Alexander,  23  Mo.  483 ;  City  of  Aurora 
v.  West,  9  Ind.   74;  Cotton  v.  Commis- 
sioners  of  Leon,  6   Fla.  610;    Copes  v. 
Charleston,  10  Rich.  491 ;  Commissioners 
of  Knox  Count}'  v.  Aspinwall,  21  How. 
639,  and  24  How.  326;  Same  v.  Wallace, 
21  How.  547;  Zabriskie  v.  Railroad  Co., 
23  How.  381;   Amey  v.  Mayor,  &c.,  24 
How.  364;  Gelpcke  v.  Dubuque,  1  Wall. 
175;  Thomson  v.  Lee  County,  3  Wall. 
327 ;  Rogers  v.  Burlington.  3  Wall.  654 ; 
Gibbons  v.  Mobile  &  Great  Northern  Rail- 
road Co.,  36  Ala.  410;  St.  Joseph,  &c., 
Railroad  Co.  r.  Buchanan  Co.  Court,  39 
Mo.  485 ;  State  v.  Linn  Co.  Court,  44  Mo. 
504  ;  Stewart  v.  Supervisors  of  Polk  Co., 
30  Iowa,  9 ;  John  v.  C.  R.  &  F.  W.  R.  R. 
Co.,  35  Ind.  539  ;  Leavenworth  County  r. 
Miller,  7  Kan.  479;  Walkers.  Cincinnati, 
21  Ohio  St.  14  ;  Ex  parte  Selma,  &c.  R.  R. 
Co.,  45  Ala.  696 ;  S.  &  V.  R.  R.  Co.  v. 
Stockton,  41  Cal.  149.    In  several  of  them 
the  power  to  authorize  the  municipalities 
to   decide   upon   such   subscriptions   has 
been  contested  as  a  delegation  of  legisla- 
tive  authority,  but    the    courts  —  even 
those  which  hold  the  subscriptions  void 
on   other  grounds  —  do   not   look   upon 
these  cases   as  being  obnoxious   to  the 
constitutional  principle  referred  to  in  tl.e 


168  CONSTITUTIONAL  LIMITATIONS.  [CH.  V. 

always  a  question  which  may  with  propriety  be  referred  to  the 
voters  of  the  municipality  for  decision.1 

The  question  then  arises,  whether  that  which  may  be  done  in 
reference  to  any  municipal  organization  within  the  State  may 
not  also  be  done  in  reference  to  the  State  at  large.  May  not  any 
law  framed  for  the  State  at  large  be  made  conditional  on  an 
acceptance  by  the  people  at  large,  declared  through  the  ballot- 
box?  If  it  is  not  unconstitutional  to  delegate  to  a  single  locality 
the  power  to  decide  whether  it  will  be  governed  by  a  particular 
charter,  must  it  not  quite  as  clearly  be  within  the  power  of  the 
legislature  to  refer  to  the  people  at  large,  from  whom  all  power 
is  derived,  the  decision  upon  any  proposed  statute  affecting  the 
whole  State?  And  can  that  be  called  a  delegation  of  power 
which  consists  only  in  the  agent  or  trustee  referring  back  to  the 
principal  the  final  decision  in  a  case  where  the  principal  is  the 
party  concerned,  and  where  perhaps  there  are  questions  of  policy 
and  propriety  involved  which  no  authority  can  decide  so  satis- 
factorily and  so  conclusively  as  the  principal  to  whom  they  are 
referred? 

If  the  decision  of  these  questions  is  to  depend  upon  the  weight 
of  judicial  authority  up  to  the  present  time,  it  must  be  held  that 
there  is  no  power  to  refer  the  adoption  or  rejection  of  a  general 
law  to  the  people  of  the  State,  any  more  than  there  is  to  refer  it 
to  any  other  authority.  The  prevailing  doctrine  in  the  courts 
appears  to  be,  that,  except  in  those  cases  where,  by  the  consti- 
tution, the  people  have  expressly  reserved  to  themselves  a  power 
of  decision,  the  function  of  legislation  cannot  be  exercised  by 
them,  even  to  the  extent  of  accepting  or  rejecting  a  law  which 
has  been  framed  for  their  consideration.  "The  exercise  of  this 
power  by  the  people  in  other  cases  is  not  expressly  and  in  terms 
prohibited  by  the  constitution,  but  it  is  forbidden  by  necessary 

text.     £In  any  event  the  power  must  be  the  exception  of  those  cases  in    which 

exercised  strictly  in  accordance  with  the  the   constitution    of    the    State   requires 

conditions  attached  to  the  legislative  per-  local   matters    to  be  regulated  by  local 

mission.     Barnum  v.  Okolona,  148  U.  S.  authority.     {[County  commissioners  may 

393,  13  Sup.  Ct.  Rep.  638.]  be  authorized  to  provide  additional  jus- 

1  Whatever    powers    the    legislature  tices    of    the    peace    for    any    precinct 

may  delegate  to  any  public  agency  for  above  20,000  inhabitants  if   "the  needs 

exercise,  it  may  itself  resume  and  exer-  of    the   precinct  .  .  .  require."      Pueblo 

cise.     Dyer   v.  Tuscaloosa    Bridge    Co.,  Co.   Com'rs  v.   Smith,   22   Col.   534,   45 

2  Port.  296,  27  Am.  Dec.  655 ;  Attorney-  Pac.  357,  33  L.  R.  A.  465.     Where  local 

General  v.  Marr,  55  Mich.  445,  21  N.  W.  matters  are  required  to  be  submitted  to 

883;  Chicago  &  N.  W.  Ry.  Co.  v.  Lan-  popular  vote,  if  two   or  more   proposi- 

glade  Co.,  56    Wis.  614,  14  N.  W.  844;  tions  are  submitted  at  one  election,  they 

QBrand  v.  Multnomah  Co.,  38  Oreg.  79,  must  be  so  submitted  that  they  may  be 

60  Pac.  390,  50  L.  R.  A.  389,  84  Am   St.  voted  on  separately.     Denver  v.  Hayes, 

772J     But  this  must  be  understood  with  28  Col.  110,  63  Pac.  311.] 


CH.  Y.]      POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  169 

and  unavoidable  implication.  The  Senate  and  Assembly  are  the 
only  bodies  of  men  clothed  with  the  power  of  general  legislation. 
They  possess  the  entire  power,  with  the  exception  above  stated. 
The  people  reserved  no  part  of  it  to  themselves  [with  that  excep- 
tion], and  can  therefore  exercise  it  in  no  other  case."  It  is 
therefore  held  that  the  legislature  have  no  power  to  submit  a 
proposed  law  to  the  people,  nor  have  the  people  power  to  bind 
each  other  by  acting  upon  it.  They  voluntarily  surrendered 
that  power  when  they  adopted  the  constitution.  The  government 
of  the  State  is  democratic,  but  it  is  a  representative  democracy, 
and  in  passing  general  laws  the  people  act  only  through  their 
representatives  in  the  legislature.1 

Nor,  it  seems,  can  such  legislation  be  sustained  as  legislation 
of  a  conditional  character,  whose  force  is  to  depend  upon  the 
happening  of  some  future  event,  or  upon  some  future  change  of 
circumstances,  "The  event  or  change  of  circumstances  on 
which  a  law  may  be  made  to  take  effect  must  be  such  as,  in  the 
judgment  of  the  legislature,  affects  the  question  of  the  expedi- 
ency of  the  law ;  an  event  on  which  the  expediency  of  the  law 
in  the  opinion  of  the  law-makers  depends.  On  this  question  of 
expediency  the  legislature  must  exercise  its  own  judgment  defi- 
nitely and  finally.  When  a  law  is  made  to  take  effect  upon  the 
happening  of  such  an  event,  the  legislature  in  effect  declare  the 
law  inexpedient  if  the  event  should  not  happen,  but  expedient  if 
it  should  happen.  They  appeal  to  no  other  man  or  men  to  judge 
for  them  in  relation  to  its  present  or  future  expediency.  They 
exercise  that  power  themselves,  and  then  perform  the  duty  which 
the  Constitution  imposes  upon  them."  But  it  was  held  that  in 
the  case  of  the  submission  of  a  proposed  free-school  law  to  the 

1  Per  Ruggles,  Ch.  J.,  in  Barto  v.  Him-  cases  has  fulfilled  precisely  those  functions 
rod,  8  N.  Y.  483.  It  is  worthy  of  consid-  which  the  people  as  a  democracy  could 
eration,  however,  whether  there  is  any-  not  fulfil ;  and  where  the  case  has  reached 
thing  in  the  reference  of  a  statute  to  the  a  stage  when  the  body  of  the  people  can 
people  for  acceptance  or  rejection  which  act  without  confusion,  the  representative 
is  inconsistent  with  the  representative  has  stepped  aside  to  allow  their  opinion  to 
system  of  government.  To  refer  it  to  the  he  expressed.  The  legislature  is  not  at- 
people to  frame  and  agree  upon  a  statute  tempting  in  such  a  case  to  delegate  its 
for  themselves  would  be  equally  imprac-  authority  to  a  new  agency,  but  the  trus- 
ticable  and  inconsistent  with  the  repre-  tee,  vested  with  a  large  discrettonary 
sentative  system  ;  but  to  take  the  opinion  authority,  is  taking  the  opinion  of  the 
of  the  people  upon  a  bill  already  framed  principal  upon  the  necessity,  policy,  or 
by  representatives  and  submitted  to  them,  propriety  of  an  act  which  is  to  govern  the 
is  not  only  practicable,  but  is  in  precise  principal  himself.  See  Smith  v.  Janes- 
accordance  with  the  mode  in  which  the  ville,  26  Wis.  291 ;  Fell  v.  State,  42  Md.  71, 
constitution  of  the  State  is  adopted,  and  20  Am.  Rep.  83 ;  King  v.  Reed,  43  N.  J. 
with  the  action  which  is  taken  in  many  186. 
other  cases.  The  representative  in  these 


]70 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


people,  no  such  event  or  change  of  circumstances  affecting  the 
expediency  of  the  law  was  expected  to  happen.  The  wisdom  or 
expediency  of  the  School  Act,  abstractly  considered,  did  not 
depend  on  the  vote  of  the  people.  If  it  was  unwise  or  inexpe- 
dient before  that  vote  was  taken,  it  was  equally  so  afterwards. 
The  event  on  which  the  act  was  to  take  effect  was  nothing  else 
than  the  vote  of  the  people  on  the  identical  question  which  the 
constitution  makes  it  the  duty  of  the  legislature  itself  to  decide. 
The  legislature  has  no  power  to  make  a  statute  dependent  on 
such  a  contingency,  because  it  would  be  confiding  to  others  that 
legislative  discretion  which  they  are  bound  to  exercise  them- 
selves, and  which  they  cannot  delegate  or  commit  to  any  other 
man  or  men  to  be  exercised.1 


1  Per  Rttggles,  Ch.  J.,  in  Barto  v.  Him* 
roil,  8  N.  Y.  483.  And  see  State  v.  Hayes, 
61  N.  H.  264  ;  Sauto  v.  State,  2  Iowa,  165  ; 
State  v.  Bencke,  9  Iowa,  203 ;  State  v. 
S  wisher,  17  Tex.  441  ;  State  v.  Field,  17 
Mo.  529;  Bank  of  Chenango  v.  Brown, 
•26  N.  Y.  467 ;  People  v.  Stout,  23  Barb- 
349;  State  v.  Wilcox,  45  Mo.  458;  Ex 
parte  Wall,  48  Cal.  279,  313;  Brown  v. 
Fleiscliner,  4  Greg  132.  The  power  to  tax 
cannot  be  delegated  except  as  by  the  Con- 
stitution is  permitted.  Where  the  Con- 
stitution provided  that  the  General  As- 
sembly shall  have  power  to  authorize  the 
several  counties  and  incorporated  towns 
to  impose  taxes  tor  county  and  corpora- 
tion purposes  respectively,  it  was  held 
not  competent  to  delegate  the  power  to 
a  school  board.  Waterhouse  v.  Public 
Schools,  9  Bax.  398.  But  upon  this  point 
there  is  great  force  in  what  is  said  by 
Redfield,  Ch.  J.,  in  State  v.  Parker,  26  Vt. 
357 :  "  If  the  operation  of  a  law  may 
fairly  be  made  to  depend  upon  a  future 
contingency,  then,  in  my  apprehension, 
it  makes  no  essential  difference  what  is 
the  nature  of  the  contingency,  so  it  be  an 
equal  and  fair  one,  a  moral  and  legal  one, 
not  opposed  to  sound  policy,  and  so  far 
connected  with  the  object  and  purpose  of 
the  statute  as  not  to  be  a  mere  idle  and 
arbitrary  one.  And  to  us  the  contingency, 
upon  which  the  present  statute  was  to  be 
suspended  until  another  legislature  should 
meet  and  have  opportunity  of  reconsider- 
ing it,  was  not  only  proper  and  legal,  and 
just  and  moral,  but  highly  commendable 
and  creditable  to  the  legislature  who 
passed  the  statute ;  for  at  the  very  thresh- 
old of  inquiry  into  the  expediency  of 


such  a  law  lies  the  other  and  more  im- 
portant inquiry,  Are  the  people  prepared 
for  such  a  law  ?  Can  it  be  successfully 
enforced  ?  These  questions  being  an- 
swered in  the  affirmative,  he  must  be  a 
bold  man  who  would  even  vote  against 
the  law  ;  and  something  more  must  he  be 
who  would,  after  it  had  been  passed  with 
that  assurance,  be  willing  to  embarrass  its 
operation  or  rejoice  at  its  defeat. 

"  After  a  full  examination  of  the  ar- 
guments by  which  it  is  attempted  to  be 
sustained  that  statutes  made  dependent 
upon  such  contingencies  are  not  valid 
laws,  and  a  good  deal  of  study  and  reflec- 
tion, I  must  declare  that  I  am  fully  con- 
vinced—  although  at  first,  without  much 
examination,  somewhat  inclined  to  the 
same  opinion  —  that  the  opinion  is  there- 
suit  of  false  analogies,  and  so  founded 
upon  a  latent  fallacy.  It  seems  to  me 
that  the  distinction  attempted  between 
the  contingency  of  a  popular  vote  and 
other  future  contingencies  is  without  all 
just  foundation  in  sound  policy  or  sound 
reasoning,  and  that  it  lias  too  often  been 
made  more  from  necessity  than  choice, — 
rather  to  escape  from  an  overwhelming 
analogy  than  from  any  obvious  difference 
in  principle  in  the  two  classes  of  cases ; 
for  .  .  .  one  may  find  any  number  of 
cases  in  the  legislation  of  Congress,  where 
statutes  have  been  made  dependent  upon 
the  shifting  character  of  the  revenue  laws, 
or  the  navigation  laws,  or  commercial 
rules,  edicts,  or  restrictions  of  otiier  coun- 
tries. In  some,  perhaps,  these  laws  are 
made  by  representative  bodies,  or,  it  may 
be,  by  the  people  of  these  States,  and  in 
others  by  the  lords  of  the  treasury,  or  the 


CH.  V.]        POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  171 

The  same  reasons  which  preclude  the  original  enactment  of  a 
law  from  being  referred  to  the  people  would  render  it  equally 
incompetent  to  refer  to  their  decision  the  question  whether  an 
existing  law  should  be  repealed.  If  the  one  is  "  a  plain  sur- 
render to  the  people  of  the  law-making  power,"  so  also  is  the 
other.1  It  would  seem,  however,  that  if  a  legislative  act  is,  by 
its  terms,  to  take  effect  in  any  contingency,  it  is  not  unconsti- 
tutional to  make  the  time  when  it  shall  take  effect  depend  upon 


boards  of  trade,  or  by  the  proclamation 
of  the  sovereign ;  and  in  all  these  cases 
no  question  can  be  made  of  the  perfect 
legality  of  our  acts  of  Congress  being  made 
dependent  upon  such  contingencies.  It 
is,  in  fact,  the  only  possible  mode  of  meet- 
ing them,'  unless  Congress  is  kept  con- 
stantly in  session.  The  same  is  true  of  acts 
of  Congress  by  which  power  is  vested  in  the 
President  to  levy  troops  or  draw  money 
from  the  public  treasury,  upon  the  con- 
tingency of  a  declaration  or  an  act  of  war 
committed  by  some  foreign  state,  empire, 
kingdom,  prince,  or  potentate.  If  these 
illustrations  are  not  sufficient  to  show  the 
fallacy  of  the  argument,  more  would  not 
avail."  See  also  State  v.  Noyes,  10  Fost. 
279;  Bull  v.  Read,  13  Gratt.  78;  Johnson 
v.  Rich,  9  Barb.  680;  State  v.  Reynolds, 
10  111.  1 ;  Robinson  v.  Bidwell,  22  Cal. 
379.  In  the  case  of  Smith  c.  Janesville, 
26  VVis.  291,  Chief  Justice  Dixon  discusses 
this  subject  in  the  following  language: 
"  But  it  is  said  that  the  act  is  void,  or  at 
least  so  much  of  it  as  pertains  to  the  tax- 
ation of  shares  in  national  banks,  because 
it  was  submitted  to  a  vote  of  the  people, 
or  provided  that  it  should  take  effect  only 
after  approval  by  a  majority  of  the  elec- 
tors voting  on  the  subject  at  the  next 
general  election.  This  was  no  more  than 
providing  that  the  act  should  take  ef- 
fect on  the  happening  of  a  certain  future 
contingency,  that  contingency  being  a 
popular  vote  in  its  favor.  No  one  doubts 
the  general  power  of  the  legislature  to 
make  such  regulations  and  conditions  as 
it  pleases  with  regard  to  the  taking  effect 
or  operation  of  laws.  They  may  be  ab- 
solute, or  conditional  and  contingent ;  and 
if  the  latter,  they  may  take  effect  on  the 
happening  of  any  event  which  is  future 
and  uncertain.  Instances  of  this  kind  of 
legislation  are  not  unfrequent.  The  law 
of  Congress  suspending  the  writ  of  habeas 
corpus  during  the  late  rebellion  is  one,  and 


several  others  are  referred  to  in  the  case 
In  re  Richard  Oliver,  17  Wis.  681.  It 
being  conceded  that  the  legislature  pos- 
sesses this  general  power,  the  only  ques- 
tion here  would  seem  to  be,  whether  a 
vote  of  the  people  in  favor  of  a  law  is  to 
be  excluded  from  the  number  of  those 
future  contingent  events  upon  which  it 
may  be  provided  that  it  shall  take  effect. 
A  similar  question  was  before  this  court 
in  a  late  case  (State  ex  rel.  Attorney-Gen- 
eral v.  O'Neill,  Mayor,  &c.,  24  Wis.  149), 
and  was  very  elaborately  discussed.  We 
came  unanimously  to  the  conclusion  in 
that  case  that  a  provision  for  a  vote  of 
the  electors  of  the  city  of  Milwaukee  in 
favor  of  an  act  of  the  legislature,  before 
it  should  take  effect,  was  a  lawful  contin- 
gency, and  that  the  act  was  valid.  That 
was  a  law  affecting  the  people  of  Mil- 
waukee particularly,  while  this  was  one 
affecting  the  people  of  the  whole  State. 
There  the  law  was  submitted  to  the 
voters  of  that  city,  and  here  it  was  sub- 
mitted to  those  of  the  State  at  large. 
What  is  the  difference  between  the  two 
cases  !  It  is  manifest,  on  principle,  that 
there  cannot  be  any.  The  whole  reason- 
ing of  that  case  goes  to  show  that  this  act 
must  be  valid,  and  so  it  has  been  held  in 
the  best-considered  cases,  as  will  be  seen 
by  reference  to  that  opinion.  We  are 
constrained  to  hold,  therefore,  that  this 
act  is  and  was  in  all  respects  valid  from 
the  time  it  took  effect,  in  November, 
1866 ;  and  consequently  that  there  was 
no  want  of  authority  for  the  levy  and 
collection  of  the  taxes  in  question."  This 
decision,  though  opposed  to  many  others, 
appears  to  us  entirely  sound  and  reason- 
able. 

1  Geebrick  v.  State,  5  Iowa,  491 ;  Rice 
v.  Foster,  4  Harr.  479;  Parker  v.  Com- 
monwealth, 6  Pa.  St.  507  The  case  in 
5  Iowa  was  followed  in  State  v.  Weir,  33 
Iowa,  134,  11  Am.  Rep.  115. 


172  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

the  event  of  a  popular  vote  being  for  or  against  it,  —  the  time  of 
its  going  into  operation  being  postponed  to  a  later  da)7  in  the 
latter  contingency.1  It  would  also  seem  that  if  the  question  of 
the  acceptance  or  rejection  of  a  municipal  charter  can  be  referred 
to  the  voters  of  the  locality  specially  interested,  it  would  be 
equally  competent  to  refer  to  them  the  question  whether  a  State 
law  establishing  a  particular  police  regulation  should  be  of  force 
in  such  locality  or  not.  Municipal  charters  refer  most  questions 
of  local  government,  including  police  regulations,  to  the  local 
authorities ;  on  the  supposition  that  they  are  better  able  to 
decide  for  themselves  upon  the  needs,  as  well  as  the  sentiments, 
of  their  constituents,  than  the  legislature  possibly  can  be,  and 
are  therefore  more  competent  to  judge  what  local  regulations 
are  important,  and  also  how  far  the  local  sentiment  will  assist 
in  their  enforcement.  The  same  reasons  would  apply  in  favor 
of  permitting  the  people  of  the  locality  to  accept  or  reject  for 
themselves  a  particular  police  regulation,  since  this  is  only 
allowing  them  less  extensive  powers  of  local  government  than 
a  municipal  charter  would  confer ;  and  the  fact  that  the  rule  of 
law  on  that  subject  might  be  different  in  different  localities, 
according  as  the  people  accepted  or  rejected  the  regulation, 
would  not  seem  to  affect  the  principle,  when  the  same  result  is 
brought  about  by  the  different  regulations  which  municipal 
corporations  establish  for  themselves  in  the  exercise  of  an 
undisputed  authority.2  It  is  not  to  be  denied,  however,  that 

1  State  v.   Parker,  26   Vt.  357.     The  it  should  be  adopted  in  town  meeting, 
act  under  consideration  in  that  case  was,  In   State  i\  Noyes,  10  Fost.  279,  this  act 
by  its  terms,  to  take  effect  on  the  second  was  held  to  be  constitutional.     "  Assum- 
Tuesday  of  March  after  its  passage,  un-  ing,"  say  the  court,  "  that  the  legislature 
less  the  people  to  whose  votes  it  was  sub-  has  the  right  to  confer  the  power  of  local 
mitted  should  declare  against  it,  in  which  regulation  upon  cities  and  towns,  that  is, 
case  it  should  take  effect  in  the  following  the  power  to  pass  ordinances  and  by-laws, 
December.     The  case  was  distinguished  in  such  terms  and  with  such  provisions, 
from  Barto  r.  Himrod,  8  N.  Y.  483,  and  in  the  classes  of  cases  to  which  the  power 
the  act  sustained.     At  the  same  time  the  extends,   as    they    may    think    proper,  it 
court  express  their  dissent  from  the  rea-  seems  to  us  hardly  possible  seriously  to 
soning  upon  which  the  New  York  case  contend    that  the    legislature    may  not 
rests.     In  People  v.  Collins,  3  Mich.  343,  confer  the    power  to   adopt  within  such 
the  court  was  equally  divided  in  a  case  municipality  a  law  drawn  up  and  framed 
similar  to  that  in  Vermont,  except  that  by  themselves.     If  they  may  pass  a  law 
in  the  Michigan  case  the  law  which  was  authorizing  towns  to  make  ordinances  to 
passed  and  submitted  to  the   people   in  punish    the    keeping    of    billiard-rooms, 
1853  was  not  to  go  into  effect  until  1870,  bowling-alleys,  and  other  places  of  gam- 
if  the  vote  of  the  people  was  against  it.  bling,  they  may  surely  pass  laws  to  punish 

2  In   New    Hampshire     an     act    was  the  same  acts,  subject  to  be  adopted  by 
passed  declaring  bowling-alleys,   situate  the  town    before  they  can   be  of   force 
within  twenty-five    rods    of   a   dwelling-  in   it."     And  it  seems  to   us    difficult  to 
house,  nuisances,  but  the  statute  was  to  answer  this  reasoning,  if  it  be  confined 
be  in  force  only  in  those  towns  in  which  to  such  laws  as   fall  within  the   proper 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  173 

there  is  considerable  authority  against  the  right  of  legislative 
delegation  in  these  cases. 

The  legislature  of  Delaware,  in  1847,  passed  an  act  to  author- 
ize the  citizens  of  the  several  counties  of  the  State  to  decide  by 
ballot  whether  the  license  to  retail  intoxicating  liquors  should 
be  permitted.  By  this  act  a  general  election  was  to  be  held; 
and  if  a  majority  of  votes  in  any  county  should  be  cast  against 
license,  it  should  not  thereafter  be  lawful  for  any  person  to  retail 
intoxicating  liquors  within  such  county;  but  if  the  majority 
should  be  cast  in  favor  of  license,  then  licenses  might  be  granted 
in  the  county  so  voting,  in  the  manner  and  under  the  regulations 
in  said  act  prescribed.  The  Court  of  Errors  and  Appeals  of  that 
State  held  this  act  void,  as  an  attempted  delegation  of  the  trust 
to  make  laws,  and  upon  the  same  reasons  which  support  the  cases 
before  cited,  where  acts  have  been  held  void  which  referred  to 
the  people  of  the  State  for  approval  a  law  of  general  application.1 
A  like  decision  was  made  near  the  same  time  by  the  Supreme 
Court  of  Pennsylvania,2  followed  afterwards  by  others  in  Iowa,3 
Indiana,4  and  California.5  But  the  decision  in  Pennsylvania 
was  afterwards  overruled  on  full  discussion  and  consideration,6 
and  that  in  Indiana  must,  as  we  think,  be  deemed  overruled 
also.7  In  other  States  a  like  delegation  of  authority  to  the  local 
electors  has  generally  been  sustained.  Such  laws  are  known,  in 

province  of  local  government,  and  which  of  officers.     Johnson  v.  Martin,  75  Tex. 

are    therefore    usually    referred   to    the  33,  12  S.  W.  321.     See,  further,  People 

judgment  of  the   municipal    authorities  v.  Salomon,  51  111.  37  ;  Burgess  v.  Pue, 

or  their  constituency.     A  similar  question  2  Gill,  11;  Hammond  v.  Haines,  25  Md. 

arose  in  Smith  v.  Village  of  Adrian,  1  541. 

Mich.    495,    but   was   not    decided.    In          1  Rice  v.  Foster,  4  Hair.  479. 

Bank  of  Chenango  v.  Brown,  26  N.  Y.          2  Parker  v.  Commonwealth,  6  Pa.  St. 

467,  it  was  held  competent  to  authorize  507.    See  Commonwealth  »>.  Me  Williams, 

the  electors  of  an  incorporated  village  to  11  Pa.  St.  61. 

determine  for  themselves  what  sections          8  Geebrick  v.  State,  5  Iowa.  491.     See 

of  the  general  act  for  the  incorporation  of  State  v.   Weir,   33   Iowa,   134,   11    Am. 

villages  should   apply   to    their    village.  Rep.  115. 

An  act  empowering  a  city,   where  the          *  Maize  v.  State,  4  Ind.  342  ;   Mesh- 

le^.-il  voters  authorize  it,  to  allow  Sunday  meier  v.  State,  11  Ind.  482.    See  also  State 

sales  of  refreshments,  is  valid.     State  v.  v.  Field,  17  Mo.  529;  Lammert  v.  Lidwell, 

Francis,  95  Mo.  44,  8  S.  W.  1.     The  oper-  62  Mo.  188 ;  State  v.  Copeland,  3  R.  I.  33. 

ation  of  a  park  act  may  be  left  to  the  vote          5  Ex  parte  Wall,  48  Cal.  279,  17  Am. 

of  a  city.     State   v.   District   Court,   33  Rep.  425. 

Minn.  235,  22  N.  W.  625.     So,  of  a  law          6  Locke's  Appeal,  72  Pa.  St.  491,  13 

vesting   control   of  streets   in   aldermen  Am.  Rep.  716. 

instead  of  street  commissioners.     State          7  Groesch  v.  State,  42  Ind.  547.     QA 

v.  Hoagland,   61   N.  J.   L.   62,    16   Atl.  majority  of  voters  in  a  ward  or  township 

166.     So,  of  a  law  creating  a  new  county,  may  be  allowed  by  formal  remonstrance 

People  v.  McFadden,  81  Cal.  489,  22  Pac.  to  prevent  the  issuance  of  license  to  a 

851.     Whether  an  election  to  determine  particular  applicant  for  the  sale  of  liquors 

upon  putting  a  law  in  operation   shall  therein.     State  v.  Gerhardt,  145  Ind.  439, 

be  called,  may  be  left  to  the  discretion  44  N.  E.  469,  33  L.  R.  A.  313-3 


174  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

common  parlance,  as  Local  Option  Laws.  They  relate  to  sub- 
jects which,  like  the  retailing  of  intoxicating  drinks,  or  the 
running  at  large  of  cattle  in  the  highways,  may  be  differently 
regarded  in  different  localities,  and  they  are  sustained  on  what 
seems  to  us  the  impregnable  ground,  that  the  subject,  though 
not  embraced  within  the  ordinary  power  of  the  municipalities  to 
make  by-laws  and  ordinances,  is  nevertheless  within  the  class 
of  police  regulations,  in  respect  to  which  it  is  proper  that  the 
local  judgment  should  control.1 

Irrepealable  Laws. 

Similar  reasons  to  those  which  forbid  the  legislative  depart- 
ment of  the  State  from  delegating  its  authority  will  also  forbid 
its  passing  any  irrepealable  law.  The  constitution,  in  confer- 
ring the  legislative  authority,  has  prescribed  to  its  exercise  any 
limitations  which  the  people  saw  fit  to  impose ;  and  no  other 
power  than  the  people  can  superadd  other  limitations.  To  say 
that  the  legislature  may  pass  irrepealable  laws,  is  to  say  that  it 
may  alter  the  very  constitution  from  which  it  derives  its  author- 
ity ;  since,  in  so  far  as  one  legislature  could  bind  a  subsequent 
one  by  its  enactments,  it  could  in  the  same  degree  reduce  the 
legislative  power  of  its  successors ;  and  the  process  might  be 
repeated,  until,  one  by  one,  the  subjects  of  legislation  would  be 
excluded  altogether  from  their  control,  and  the  constitutional 
provision  that  the  legislative  power  shall  be  vested  in  two  houses 
would  be  to  a  greater  or  less  degree  rendered  ineffectual.2 

1  Commonwealth  v,  Bennett,  108  Mass,  dale,  82  Mich.  893,  47  N.  W.  37,  10  L.  R. 
27;  Commonwealth  v.  Dean,  110  Mass.  A.  69.]  Local  option,  as  applied  to  the 
357 ;  Commonwealth  v.  Fredericks,  119  sale  of  liquors,  has  also  been  sustained 
Mass.  199 ;  Bancroft  v.  Dumas,  21  Vt.  in  Canada.  Mayor,  &c.  v.  The  Queen, 
450;  Slinger  v.  Hennemnn,  38  Wis.  504;  3  Can.  Sup.  Ct.  505.  But  the  matter 
Erlinger  v.  Boneau,  51  111.  94  ;  Gunnars-  cannot  be  left  to  an  election  precinct.  It 
sohn  v.  Sterling,  92  111.  669;  State  v.  must  be  submitted  to  a  municipal  corpora- 
Morris  County,  36  N.  J.  72,  13  Am.  Rep.  tion.  Thornton  v.  Territory,  3  Wash. 
422 ;  State  v.  Circuit  Court,  15  Atl.  274  Ter.  482,  17  Pac.  896. 
(N.  J.) ;  State  v.  Wilcox,  42  Conn.  864,  a  "Unlike  the  decision  of  a  court,  a 
19  Am.  Rep.  536;  Fell  v.  State,  42  Md.  legislative  act  does  not  bind  a  subsequent 
71,  20  Am.  Rep.  83;  State  v.  Cooke,  legislature.  Each  body  possesses  the  same 
24  Minn.  247,  31  Am.  Rep.  344  ;  Cain  v.  power,  and  has  the  right  to  exercise  the 
Commissioners,  86  N.  C.  8;  Boyd  v.  Bry-  same  discretion.  Measures,  though  often 
ant,  35  Ark.  69,  37  Am.  Rep.  6;  Savage  rejected,  may  receive  legislative  sanction. 
v.  Com.,  84  Va.  619,  5  S.  E.  565;  Cald-  There  is  no  mode  by  which  a  legislative 
well  v.  Barrett,  73  Ga.  604 ;  Ex  parte  act  can  he  made  irrepealable,  except  it 
Kennedy,  23  Tex.  App.  77,  3  S.  W.  114;  assume  the  form  and  substance  of  a  con- 
Schulherr  v.  Bordeaux.  64  Miss.  59,  8  tract.  If  in  any  line  of  legislation  a  per- 
So.  201 ;  State  v.  Pond,  93  Mo.  606.  6  manent  character  could  be  given  to  acts, 
S.  W.  469 ;  Terr.  v.  O'Connor,  5  Dak.  the  most  injurious  consequences  would 
397,  41  N.  W.  746 ;  [Teek  v.  Blooming,  result  to  the  country.  Its  policy  would 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  175 

"Acts  of  Parliament,"  says  Blackstone,  "derogatory  from  the 
power  of  subsequent  Parliaments,  bind  not;  so  the  statute  11 
Henry  VII.  c.  1,  which  directs  that  no  person  for  assisting  a 
king  de  facto  shall  be  attainted  of  treason  by  act  of  Parliament 
or  otherwise,  is  held  to  be  good  only  as  to  common  prosecution 
for  high  treason,  but  it  will  not  restrain  nor  clog  any  parlia- 
mentary attainder.  Because  the  legislature,  being  in  truth  the 
sovereign  power,  is  always  of  equal,  always  of  absolute  authority; 
it  acknowledges  no  superior  upon  earth,  which  the  prior  legis- 
lature must  have  been  if  its  ordinances  could  bind  a  subsequent 
Parliament.  And  upon  the  same  principle,  Cicero,  in  his  letters 
to  Atticus,  treats  with  a  proper  contempt  these  restraining 
clauses  which  endeavor  to  tie  up  the  hands  of  succeeding  legis- 
latures. '  When  you  repeal  the  law  itself,'  says  he,  'you  at  the 
same  time  repeal  the  prohibitory  clause  which  guards  against 
such  repeal. '  " l 

Although  this  reasoning  does  not  in  all  its  particulars  apply 
to  the  American  legislatures,  the  principle  applicable  in  each 
case  is  the  same.  There  is  a  modification  of  the  principle, 
however,  by  an  important  provision  of  the  Constitution  of  the 
United  States,  forbidding  the  States  passing  any  laws  impairing 
the  obligation  of  contracts.  Legislative  acts  are  sometimes  in 
substance  contracts  between  the  State  and  the  party  who  is  to 
derive  some  right  under  them,  and  they  are  not  the  less  under 
the  protection  of  the  clause  quoted  because  of  having  assumed 
this  form.  Charters  of  incorporation,  except  those  of  a  munic- 
ipal character,  —  and  which,  as  we  have  already  seen,  create 
mere  agencies  of  government, —  are  held  to  be  contracts  between 
the  State  and  the  corporators,  and  not  subject  to  modification  or 
change  by  the  act  of  the  State  alone,  except  as  may  be  authorized 
by  the  terms  of  the  charters  themselves.2  And  it  now  seems  to 
be  settled,  by  the  decisions  of  the  Supreme  Court  of  the  United 
States,  that  a  State,  by  contract  to  that  effect,  based  upon  a 
consideration,  may  exempt  the  property  of  an  individual  or 
corporation  from  taxation  for  any  specified  period,  or  even 


become  fixed  and  unchangeable  on  great  Oskins,  28  Ind.  364 ;  Oleson  v.  Green  Bay, 

national  interests,  which  might  retard,  if  &c.  R.  R.  Co.,  36  Wis.  383.     In  Kellogg 

not  destroy,  the  public  prosperity.    Every  v.  Oshkosh,  14  Wis.  6*23,  it  was  held  that 

legislative  body,  unless  restricted  by  the  one  legislature   could  not  bind  a  future 

constitution,  may  modify  or  abolish  the  one  to  a  particular  mode  of  appeal, 
acts  of  its  predecessors  ;  whether  it  would          1  1  Bl.  Com.  90. 

be  wise  to  do  so  is  a  matter  for  legislative          *  Dartmouth  College  v.  Woodward,  4 

discretion  "    Bloomer  i>.  Stolley,  5  Me-  Wheat.  618 ;  Planters'  Bank  v.  Sharp,  6 

Lean,   168.     See  this  subject  considered  How.  301. 
in  Wall  v.  State,  23  Ind.  160,  and  State  v. 


176 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


permanently.  And  it  is  also  settled  by  the  same  decisions,  that 
where  a  charter,  containing  an  exemption  from  taxes,  or  an 
agreement  that  the  taxes  shall  be  to  a  specified  amount  only,  is 
accepted  by  the  corporators,  the  exemption  is  presumed  to  be 
upon  sufficient  consideration,  and  consequently  binding  upon  the 
State.1 


Territorial  Limitation  to  State  Legislative  Authority. 

The  legislative  authority  of  every  State  must  spend  its  force 
within  the  territorial  limits  of  the  State.  The  legislature  of  one 
State  cannot  make  laws  by  which  people  outside  the  State  must 
govern  their  actions,  except  as  they  may  have  occasion  to  resort 
to  the  remedies  which  the  State  provides,  or  to  deal  with  property 
situated  within  the  State.  It  can  have  no  authority  upon  the 
high  seas  beyond  State  lines,  because  there  is  the  point  of  con- 


1  Gordon  v.  Appeal  Tax  Court,  3  How. 
133 ;  New  Jersey  v.  Wilson,  7  Cranch, 
164 ;  Piqua  Branch  Bank  v.  Knoop,  16 
How.  369  ;  Ohio  Life  Ins.  and  Trust  Co. 
v.  Debolt,  16  How.  416,  432;  Dodge  v. 
Woolsey,  18  How.  331 ;  Mechanics'  and 
Traders'  Bank  v.  Debolt,  18  How.  381 ; 
Jefferson  Branch  Bank  i>.  Skelly,  1  Black, 
436 ;  Erie  R.  R.  Co.  v.  Pennsylvania,  21 
Wall.  492.  See  also  Hunsaker  v.  Wright, 
30  111.  140;  Morgan  v.  Cree,  46  Vt.  773; 
Spooner  r.  McConnell,  1  McLean,  347  ; 
post,  p.  395.  The  right  of  a  State  legisla- 
ture to  grant  away  the  right  of  taxation, 
which  is  one  of  the  essential  attributes  of 
sovereignty,  has  been  strenuously  denied. 
See  Debolt  v.  Ohio  Life  Ins.  and  Trust 
Co.,  1  Ohio  St.  563;  Mechanics'  and 
Traders'  Bank  v.  Debolt,  1  Ohio  St.  591 ; 
Brewster  r.  Hough,  10  N.  H.  188;  Mott 
v.  Pennsylvania  Railroad  Co.,  30  Pa.  St.  9. 
And  see  Thorpe  v.  Rutland  and  B.  Rail- 
road Co.,  27  Vt.  140;  post,  p.  395  and 
note.  In  Brick  Presbyterian  Church  v. 
Mayor,  &c.  of  New  York,  6  Cow.  638, 
it  was  held  that  a  municipal  corporation 
had  no  power,  as  a  party,  to  make  a  con- 
tract which  should  control  or  embarrass 
its  discharge  of  legislative  duties.  And 
see  post,  p.  295.  In  Coats  v.  Mayor,  &c. 
of  New  York,  7  Cow.  685.  it  was  decided 
that  though  a  municipal  corporation  grant 
lands  for  cemetery  purposes,  and  cove- 
nant for  their  quiet  enjoyment,  it  will  not 
thereby  be  estopped  afterwards  to  forbid 
by  by-law  the  use  of  the  land  for  that 


purpose,  when  such  use  becomes  or  is 
likely  to  become  a  nuisance.  In  Stone 
v.  Mississippi,  101  U.  S.  814,  820,  Chief 
Justice  Waite  says  :  "  The  power  of  gov- 
erning is  a  trust  committed  by  the  people 
to  the  government,  no  part  of  which 
can  be  granted  away.  The  people,  in 
their  sovereign  capacity,  have  established 
their  agencies  for  the  preservation  of 
tl'e  public  health  and  the  public  morals, 
and  the  protection  of  public  and  private 
rights.  These  several  agencies  can  gov- 
ern according  to  their  discretion,  if  within 
the  scope  of  their  general  authority, 
while  in  power ;  but  they  cannot  give 
away  nor  sell  the  discretion  of  those  that 
are  to  come  after  them,  in  respect  to  mat- 
ters the  government  of  which,  from  the 
very  nature  of  things,  must  vary  with 
varying  circumstances."  See  also,  on 
the  same  subject,  Morgan  v.  Smith,  4 
Minn.  104 ;  Kincaid's  Appeal,  66  Pa.  St. 
411 ;  6  Am.  Rep.  377;  Hamrick  v.  Rousv, 
17  Ga.  66,  where  it  was  held  that  the 
legislature  could  not  bind  its  successors 
not  to  remove  a  county  seat.  Bass  i: 
Fontleroy,  11  Tex.  698;  Shaw  v.  Macon, 
21  Ga.  280 ;  Regents  of  University  v.  Wil- 
liams, 9  G.  &  J.  365;  Mott  v  Pennsylva- 
nia Railroad  Co.,  30  Pa.  St.  9.  In  Bank 
of  Republic  v.  Hamilton,  21  111.  53,  it  was 
held  that,  in  construing  a  statute,  it  will 
not  be  intended  that  the  legislature  de- 
signed to  abandon  its  right  as  to  taxation. 
This  subject  is  considered  further,  post, 
pp.  395-401. 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  177 


tact  with  other  nations,  and  all  international  questions  belong 
to  the  national  government.1  It  cannot  provide  for  the  punish- 
ment as  crimes  of  acts  committed  beyond  the  State  boundary, 
because  such  acts,  if  offences  at  all,  must  be  offences  against  the 
sovereignty  within  whose  limits  they  have  been  done.2  But  if 
the  consequences  of  an  unlawful  act  committed  outside  the  State 
have  reached  their  ultimate  and  injurious  result  within  it,  it 
seems  that  the  perpetrator  may  be  punished  as  an  offender  against 
such  State.3 


1  1  Bish.  Cr.  Law,  §  120. 

2  State  v.  Knight,  2  Hayw.  109;  Peo- 
ple r.  Merrill,  2  Park.  Cr.  R.  590 ;  Adams 
v.  People,  1  N.  Y.  173 ;  Tyler  v.  People, 
8   Mich.   320;    Morrissey   v.   People,    11 
Mich.  327 ;  Bromley  v.  People,  7  Mich. 
472;    State  r.  Main,  16  Wis.  398;  Wat- 
son's Case,  86  Miss.  593 ;  In  re  Carr,  28 
Kan.  1.     See  In  re  Rosdeitscher,  33  Fed. 
Rep.  657.    [The  territorial  jurisdiction  of 
a  State  bordering  upon  the  high  seas  ex- 
tends one  marine  league  from  shore  and 
is  subject  over  that  space  only  to  the 
federal   power  over    navigation.      State 
has  full  control  of  the  fisheries  therein. 
Manchester  v.  Massachusetts,  139  U.  S. 
240,  11  Sup.  Ct.  Rep.  559.]     The  Consti- 
tution   of   the    United    States   empowers 
Congress    to  exercise  exclusive  jurisdic- 
tion over  places  purchased  by  consent  of 
the  legislature  of  the  State  in  which  the 
same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other 
needful   buildings.      When    the    United 
States  acquire  lands  without  such    con- 
sent, the  State  jurisdiction  is  as  complete 
as  if  the  lands  were  owned  by  private 
citizens.     But  the   State,  in   giving  con- 
sent, may  reserve  the  right  to  serve  State 
process  within   the    territory :    State   v. 
Dimick,  12  N.  H.  194;   Commonwealth 
v.  Clary,  8  Mass.   72;   United   States   v. 
Cornell,  2  Mass.  60;  Opinion  of  Judges, 
1  Met.  580 ;  or  to  tax  railroads  in  it :  Fort 
Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S. 
525,  5  Sup.  Ct.  Rep.  995;  and  its  railroad 
fencing  statutes  remain  in  force.     Chica- 
go, R.  I.,  &c.  Co.  v.  McGlinn,  114  U.  S. 
542,    5   Sup.   Ct.   Rep.   1005.      Offences 
within  the  purchased  territory  can  only 
be  punished  by  the  United  States  :  United 
States  v.  Ames,  1  Wood.  &  M.  76  ;  Mitch- 
ell v.  Tibbetts,  17  Pick.  298  ;  even  though 
death  ensues  out  of  the  territory  :  Kelly 
v.  United  States,  27  Fed.  Rep.  616  ;  State 


v.  Kelly,  76  Me.  331 ;  and  residents 
within  such  territory  are  not  citizens  of 
the  State.  Commonwealth  v.  Clary,  8 
Mass.  72;  Sinks  v.  Roese,  19  Ohio  St. 
306.  As  to  jurisdiction  over  military 
camps  within  a  State,  for  military  pur- 
poses, see  United  States  v.  Tierney,  1 
Bond,  571 ;  and  as  to  crimes  on  Indian 
reservations,  United  States  v.  Kngama, 
118  U.  S.  375,  6  Sup.  Ct.  Rep.  110!) ;  Ex 
parte  Cross,  20  Neb.  417,  30  N.  W.  428 ; 
Marion  v.  State,  id.  233,  20  N.  W.  911. 

8  Tyler  v.  People,  8  Mich.  320.  Mur- 
der is  committed  in  the  District  of  Co- 
lumbia if  the  fatal  blow  is  struck  there, 
though  the  death  occurs  elsewhere. 
United  States  v.  Guiteau,  1  Mackey, 
498.  See  Hatfield  v.  Com.,  12  S.  W.  309 
(Ky.).  That  where  a  larceny  is  committed 
in  one  State  and  the  property  carried  by 
the  thief  into  another,  this  may  be  treated 
as  a  continuous  larceny  wherever  the 
property  is  taken,  see  Commonwealth  v. 
Cullins,  1  Mass.  116;  Commonwealth  v. 
Andrews,  2  Mass.  14,  3  Am.  Dec.  17; 
Commonwealth  v.  Holder,  9  Gray,  7; 
Commonwealth  v.  White,  123  Mass.  430; 
State  v.  Ellis,  3  Conn.  185,  8  Am.  Dec. 
175;  State  v.  Cummings,  33  Conn.  260; 
State  v.  Bartlett,  11  Vt.  650;  State  v. 
Bennett,  14  Iowa,  479;  People  v.  Wil- 
liams, 24  Mich.  156;  State  v.  Main,  16 
Wis.  398;  Hamilton  v.  State,  11  Ohio, 
435;  State  v.  Seay,  3  Stew.  123,  20  Am. 
Dec.  66;  State  v.  Johnson,  2  Oreg.  115; 
Myers  v.  People,  26  111.  173;  Watson 
v.  State,  36  Miss.  593 ;  State  v.  Under- 
wood, 49  Me.  181 ;  Ferrell  v.  Common- 
wealth, 1  Duv.  153;  Regina  v.  Hennessy, 
35  Up.  Can.  R.  603.  Contra,  State  v. 
Brown,  1  Hayw.  100,  1  Am.  Dec.  548; 
People  v.  Gardner,  2  Johns.  477;  Sim- 
mons v.  Commonwealth,  5  Binn.  617; 
Simpson  v.  State,  4  Humph.  456;  Beal  v. 
State,  15  Ind.  378 ;  State  v.  LeBlanch,  31 


12 


178  CONSTITUTIONAL   LIMITATIONS.  [OIL  V. 

Upon  the  principle  of  comity,  however,  which  is  a  part  of  the 
law  of  nations,  recognized  as  such  by  every  civilized  people, 
effect  is  given  in  one  State  or  country  to  the  laws  of  another  in 
a  great  variety  of  ways,  especially  upon  questions  of  contract 
rights  to  property,  and  rights  of  action  connected  with  and 
dependent  upon  such  foreign  laws;  without  which  commercial 
and  business  intercourse  between  the  people  of  different  States 
and  countries  could  scarcely  exist.1  In  the  making  of  contracts, 
the  local  law  enters  into  and  forms  a  part  of  the  obligation;  and 
if  the  contract  is  valid  in  the  State  where  it  is  made,  (a)  any 
other  State  will  give  remedies  for  its  enforcement,  unless, 
according  to  the  standard  of  such  latter  State,  it  is  bad  for 
immorality,  or  is  opposed  in  its  provisions  to  some  accepted 
principle  of  public  policy,  or  unless  its  enforcement  would  be 
prejudicial  to  the  State  or  its  people.2  So,  though  a  corporation 
created  by  or  under  the  laws  of  one  State  has,  in  strictness,  no 
extra-territorial  life  or  authority,  and  cannot  of  right  insist  upon 
extending  its  operations  within  the  limits  of  another,  yet  this 

N.  J.  82;  and  where   the  larceny   took  ond  by  an  agreement  for  an  incestuous 

place   in  a  foreign  country:   Stanley   v.  marriage.   Another  illustration  under  the 

State,  24  Ohio  St.  166,  15  Am.  Rep.  604;  first  head  is,  where  enforcing  the  foreign 

Commonwealth    v.   Uprichard,   3    Gray,  contract  would  deprive  a  home  creditor 

434.  of  a  lien.     Ingraham  v.  Geyer,  13  Mass. 

1  Thompson  v.  Waters,  25  Mich.  214,  146.      Compare   Oliver  'v.   Steiglitz,  27 
225;  Bank  of  Augusta  v.  Earle,  13  Pet.  Ohio  St.  355,  22  Am.  Rep.  312;  Arayo 
619.  v.  Currell,  1  La.  528,  20  Am.  Dec.  2S6. 

2  Runyon  v.  Coster's  Lessee,  14  Pet.  If  a  sale  of  goods  is  valid  where  made 
122;  Merrick  r.  Van  Santvoord,  34  N.  Y.  though  it  would  not  be  where  the  buyer 
208;  Saul  v.  His  Creditors,  5  Mart.  N.  8.  lives  and  where  it  is  sought  to  be  en- 
569,   16   Am.   Dec.   212;    Greenwood   v.  forced,  it  will  be   upheld   in   the  latter 
Curtis,    6   Mass.   258,  4  Am.  Dec.   145.  State,  unless  the  seller  participates  in  the 
In  tliis  last  case,  Parsons,  Ch.  J.,   says  reselling  there:  Feineman   v.   Sachs,  33 
the  rule  that    foreign  contracts  will   be  Kan.  621 ;  Parsons  Oil  Co.  v.  Boyett,  44 
enforced   in    our  own   courts   is  subject  Ark.  230;  not  if  the  order  was  unlaw- 
to   two  exceptions.      One   is   when   the  fully  solicited  in  the  buyer's  State.  Jones 
Commonwealth  or  its  citizens  may  be  in-  v.  Surprise,  64  N.  H.  243.    Gambling  con- 
jured by  giving  legal  effect  to  the  con-  tracts  as  to  stocks  valid  in  New  York  will 
tract  by  a  judgment  in  our  courts;  and  not  be  enforced  in  New  Jersey.     Flagg  v. 
the  other  is,  when  the  giving  of  legal  ef-  Baldwin,  38  N.  J.  Eq.  219.     But  a  con- 
feet  to  the  contract  would  exhibit  to  the  tract  limiting  a  carrier's  liability,  valid  in 
citizens  of  the  State  an  example  perni-  New  York  where,  made,  will  be  enforced 
ciotis  and  detestable.     The  first  he  illus-  in  Pennsylvania,  though  invalid  if  made 
tnues  by  a  contract  for  an  importation  there.     Forepaugh  v.  Del.  L.  &  W.  R.  R. 
forbidden  by  the  local  law,  and  the  sec-  Co.,  128  Pa.  St.  217,  18  Atl.  503. 

(a)  £The  contract  is  made  in  the  State  in  which  the  offer  is  accepted.  Holder  v. 
Aultman,  Miller  &  Co.,  169  U.  S.  81,  18  Sup.  Ct.  Rep.  269,  aff.  68,  Fed.  Rep.  467. 
Upon  validity  of  contracts  made  by  foreign  corporations  which  have  not  complied 
with  statutory  conditions  prescribed  as  precedent  to  their  right  to  do  business  in  the 
State,  see  Edison  Gen.  Electric  Co.  v.  Canadian  Pac.  Nav.  Co.,  8  Wash.  370,  36  Pac. 
260,  24  L.  R.  A.  315  and  note,  40  Am.  St.  910J 


CH.  V.]      POWERS   EXERCISED   BY  LEGISLATIVE   DEPARTMENT.  179 

will  be  suffered  without  objection  where  no  local  policy  for- 
bids ;  (a)  and  the  corporation  may  make  contracts,  and  acquire, 

(a)  £A  State  may  prescribe  conditions  upon  which  a  foreign  corporation  may  do 
business  within  its  borders,  and  for  breach  of  such  conditions  may  exclude  the  cor- 
poration, except  where  it  is  doing  business  of  a  federal  nature.  Waters-Pierce  Oil 
Co.  t>.'Texas,  177  U.  S.  28,  20  Sup.  Ct.  Rep.  618,  aff.  19  Tex.  Civ.  App.  1,  44  S.  W. 
930.  Upon  admission  or  exclusion  of  foreign  corporations,  see  Cone  Export  and 
Commission  Co.  v.  Poole,  41  S.  C.  70,  19  S.  E.  203,  24  L.  R.  A.  289  and  note;  exclu- 
sion of  foreign  corporation  as  regulation  of  interstate  commerce,  note  to  24  L.  R.  A. 
311;  exclusion,  regulation,  and  taxation  of  foreign  corporations,  note  to  24  C.  C.  A. 
13;  regulation  of  business  of  a  foreign  corporation  by  State,  Boulware  v.  Davis, 
90  Ala.  207,  8  So.  84,  9  L.  R.  A.  601  and  note;  and  that  foreign  corporations  are 
amenable  to  local  law,  see  Talbot  v.  Fidelity,  &c.  Co.,  74  Md.  536,  22  Atl.  396,  13  L. 
R.  A.  684.  A  foreign  life  insurance  company  which  enters  a  State  and  does  business 
therein  is  bound  to  observe  the  laws  of  that  State,  and  its  contracts  thus  made  will 
be  interpreted  according  to  the  laws  of  that  State  even  though  the  parties  expressly 
stipulate  that  the  contract  shall  be  interpreted  according  to  the  laws  of  another 
State.  N.  Y.  Life  Ins.  Co.  v.  Cravens,  178  U.  S.  389,  20  Sup.  Ct.  Rep.  962,  aff.  148 
Mo.  583,  50  S.  W.  519,  71  Am.  St.  628.  A  State  has  power  to  prescribe  the  conditions 
under  which  a  foreign  insurance  corporation  may  do  business  within  its  borders,  and 
to  provide  and  enforce  penalties  for  breach  of  those  conditions.  Noble  v.  Mitchell, 
164  U.  S.  367,  17  Sup.  Ct.  Rep.  110.  And  the  State  may  penalize  any  act  done  within 
its  borders  looking  toward  the  formation  of  contract  relations  with  a  foreign  corpo- 
ration which  it  has  forbidden  to  do  business  within  its  borders.  Hooper  v.  California, 
155  U.  S.  648,  15  Sup.  Ct.  Rep.  207  ;  but  it  cannot  prevent  the  doing  within  its  bor- 
ders by  its  citizens  of  acts  otherwise  lawful  which  are  reasonably  necessary  to  the 
enjoyment  of  contracts  which  such  citizens  have  made  without  its  borders,  even 
though  they  be  made  with  foreign  corporations  which  the  State  has  forbidden  to  do 
business  within  its  borders.  Allgeyer  v.  Louisiana,  165  U.  S.  578,  17  Sup.  Ct.  Rep. 
427.  And  a  requirement  that  before  doing  business  within  the  State  the  foreign  cor- 
poration shall  surrender  a  right  which  it  derives  from  the  Constitution  and  laws  of 
the  United  States  is  void.  Southern  Pac.  Co.  v.  Denton,  146  U.  S.  202,  13  Sup.  Ct. 
Rep.  44.  If  State  taxes  its  own  corporations  upon  their  entire  capital,  the  foreign 
corporation  doing  business  in  the  State  cannot  object  to  being  taxed  upon  its  entire 
capital,  even  though  it  uses  only  a  very  small  fraction  of  its  capital  within  the  State. 
Horn  Silver  Mining  Co.  v.  New  York,  143  U.  S.  305,  12  Sup.  Ct.  Rep.  403,  aff.  105 
N.  Y.  76,  UN.  E.  155.  A  foreign  corporation  does  business  in  a  particular  State  not 
by  right  but  by  comity,  and  its  license  to  do  so  may  be  revoked  at  pleasure.  State 
v.  Standard  Oil  Co.,  61  Neb.  28,  84  N.  W.  413,  87  Am.  St.  449.  A  railroad  corporation 
whose  road  lies  entirely  within  one  State,  but  is  a  link  in  a  through  route  traversing 
several  States,  over  which  through  route  interstate  commerce  is  carried  on,  is  engaged 
in  interstate  commerce,  and  no  State  can  exact  of  it  a  license  before  permitting  it  to 
open  an  office  within  the  borders  of  the  State,  in  which  office  it  transacts  only  busi- 
ness relating  to  its  interstate  commerce.  McCall  c.  California,  136  U.  S.  104,  10  Sup. 
Ct.  Rep.  881;  Norfolk  &  W.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114,  10  Sup.  Ct.  Rep. 
958.  For  note  upon  exclusion  of  foreign  corporations  as  an  interference  witli  inter- 
state commerce,  see  24  L.  R.  A.  311.  License  for  current  year  may  be  revoked  for 
refusal  to  pay  unpaid  license  fees  for  previous  years.  Travelers'  Ins.  Co.  v.  Fricke, 
99  Wis.  367,  74  N.  W.  372,  78  N.  W.  407,  41  L.  R.  A.  657.  The  exclusion  of  a 
foreign  corporation  cannot  operate  to  prevent  the  performance  of  contracts  lawfully 
entered  into  before  the  order  of  exclusion  was  passed,  nor  impair  the  right  to  enforce 
the  obligations  arising  through  such  performance.  Bedford  v.  E.  B'ld'g  &  Loan 
Ass'n,  181  U.  S.  227,  21  Sup.  Ct.  Rep.  597.  Upon  right  to  sue  in  foreign  Siate,  see 
Cone  E.  &  C.  Co.  v.  Poole,  41  S.  C.  70,  19  S.  E.  203,  24  L.  R.  A.  289,  and  note 
therein  on  recognition  or  exclusion  of  foreign  corporations.  On  power  of  a  State 
to  prevent  foreign  corporations  operating  within  its  borders  from  violating  its 


180 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  V. 


hold,  and  convey  property  as  it  would  have  a  right  to  do  in  the 
State  of  its  origin.1  Real  estate,  however,  it  can  only  take, 
hold,  and  transmit  in  accordance  with  the  rules  prescribed  by 


1  Silver  Lake  Bank  v.  North,  4  Jolins. 
Oh.  370 ;  Jessup  v.  Carnegie,  80  N.  Y.  441 ; 
Lumbard  v.  Aldrich,  8  N.  H.  31 ;  Lothrop 
v.  Commercial  Bank,  8  Dana,  114;  Na- 
tional Trust  Co.  v.  Murpliy,  30  N.  J.  Eq. 
408 ;  Elston  v.  Piggott,  94  Ind.  14  ;  People 
v.  Howard,  50  Mich.  239;  Christian  Union 
v.  Yount,  101  U.  S.  352.  Taking  an  order 
in  one  State  for  the  delivery  of  goods  in 
another  is  not  such  a  doing  of  business  as 
to  require  compliance  with  a  statute  for 
filing  certificate,  &c.,  before  transacting 
of  business  by  a  foreign  corporation. 
Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S. 
727,  5  Sup.  Ct.  Rep.  739.  FJUpon  what  is 
doing  business  within  a  State,  and  under 
what  circumstances  an  agent  doing  busi- 
ness within  the  State  may  be  served  with 
process  against  the  corporation,  see  Con- 
necticut Life  Ins.  Co.  v.  Spratley,  172 
U.  S.  602,  19  Sup.  Ct.  Rep.  308,  aff.  99 
Tenn.  322,  42  S.  W.  145.  Where  corpora- 
tion is  foreign  and  does  no  business  in 
the  State,  nor  has  any  agent  or  property 
therein,  service  of  summons  upon  the 
president  temporarily  within  the  State  is 
ineffective  to  give  jurisdiction  to  a  federal 
circuit  court  sitting  therein,  and  appear- 
ance specially  and  solely  for  purpose  of 
petitioning  for  removal  of  cause  to  an- 
other federal  court  does  not  waive  the 
objection  to  insufficiency  of  summons  and 
service.  Goldey  v.  Morning  News,  156 
U.  S.  518, 15  Sup.  (ft.  Rep.  559.  Foreign 
corporation  doing  business  within  a  State 
thereby  subjects  itself  to  the  local  regula- 
tions concerning  suits  against  non-resi- 
dents. N.  Y.,  L.  E.  &  W.  R.  Co.  v.  Estill, 
147  U.  S.  591, 13  Sup.  Ct.  Rep.  444.  And 
to  local  tax  laws,  Horn  Silver  Mining  Co. 
v.  New  York,  143  U.  S.  305,  12  Sup.  Ct. 
Hep.  403.  But  after  the  corporation  has 


completely  withdrawn  from  the  State  and 
no  longer  does  any  business  there,  it  is  not 
subject  to  state  process.  Mutual  R.  F. 
Life  Assn.  v.  Boyer,  62  Kan.  31,  61  Pac. 
387,  50  L.  R.  A.  538.  Discounting  a  note 
sent  from  another  State  is  not  doing  busi- 
ness in  the  State  from  which  the  note  is 
sent.  Bamberger  &  Co.  v.  Schoolfield,  160 
U.  S.  149,  16  Sup.  Ct.  Rep.  225.  Nor  is 
filling  an  order  for  coal,  order  being  sent 
from  another  State,  a  doing  of  business  in 
that  other  State.  Delaware  &  H.  Canal 
Co.  v.  Mahlenbrock,  63  N.  J.  L.  281,  43 
Atl.  978, 45  L.  R.  A.  538.  Being  interested 
as  silent  partner  in  a  limited  partnership 
in  the  State  is  doing  business  within  it. 
People  r.  Roberts,  152  N.  Y.  59,  46  N.  E. 
161,  36  L.  R.  A.  756.  But  prosecuting  a 
suit  is  not.  St.  Louis,  A.  &  T.  R.  Co.  v. 
Fire  Assn.  of  Phila.,  60  Ark.  325,  30  S.  W. 
350,  28  L.  R.  A.  83.  Nor  is  taking  a  single 
mortgage  for  past-due  indebtedness  for 
goods  sold  at  its  domicil.  Florsheim,  &c. 
Co.  v.  Lester,  60  Ark.  120,  29  S.  W.  34,  27 
L.  R.  A.  505,  46  Am.  St.  162.  Where  the 
foreign  corporation  has  no  office  or  agency 
within  the  State,  its  sale  of  machinery  to 
a  resident  and  its  subsequent  coming  into 
the  State  and  erecting  the  machinery  is 
only  interstate  commerce  and  not  a  doing 
business  within  the  State  which  the  State 
can  control.  Milan  M.  &  M.  Co.  v.  Gorton, 
93  Tenn.  590,  27  S.  W.  971.  26  L.  R.  A. 
135.]  But  a  State  may  by  penalties  enforce 
compliance  with  its  laws  by  a  foreign 
corporation.  Moses  v.  State,  65  Miss.  56. 
Powers  not  allowed  to  such  corporation  in 
the  State  where  created,  it  will  not  be  suf- 
fered to  exercise  elsewhere.  Starkweather 
v.  Bible  Society,  72  111.  50,  22  Am.  Rep. 
133;  Kerr  v.  Dougherty,  79  N.  Y.  327; 
Thompson  v.  Waters,  25  Mich.  214. 


exemption  laws  by  garnishment  proceedings  in  other  States,  see  Singer  M'fg  Co.  ». 
Fleming,  39  Neb.  679,  58  N.  W.  226,  23  L.  R.  A.  210,  42  Am.  St.  613.  An  action  to 
exclude  a  foreign  corporation  from  the  State  is  a  civil  action,  and  the  defendant 
corporation  may  be  compelled  to  give  evidence  against  itself.  State  v.  Standard 
Oil  Co.,  61  Neb.  28,  84  N.  W.  413.  For  other  cases  upon  foreign  corporations,  see 
Southern  B.  &  L.  Ass'n  v.  Norman,  98  Ky.  294,  32  S.  W.  952,  31  L.  R.  A.  41,  56  Am. 
St.  367;  Kindel  r.  Beck  &  P.  Lith.  Co.,  19  Col.  310,  35  Pac.  538,  24  L.  R.  A.  311; 
Gunn  v.  White  S  M.  Co.,  57  Ark.  24,  20  S.  W.  591,  18  L.  R.  A.  206,  38  Am.  St.  223; 
State  v.  Phipps,  50  Kan.  609,  31  Pac.  1097,  18  L.  R.  A.  657,  34  Am.  St.  152-3 


CH.  V.]       POWERS   EXERCISED    BY   LEGISLATIVE    DEPARTMENT.  181 

the  law  of  the  State  in  which  the  estate  is  situate;1  and  the 
principle  of  comity  is  never  so  far  extended  as  to  give  force  and 
effect  to  the  penal  laws  of  one  political  society  within  the  terri- 
tory of  another,  even  though  both  belong  to  one  political  system.2 
The  question  whether  a  statute  giving  a  right  of  action  for  a 
death  occurring  within  a  State  can  be  enforced  in  another  State 
has  given  rise  to  much  discussion.  In  several  States  it  is  held 
that  the  remedy  is  purely  local,  and  that  the  action  can  only  be 
brought  in  the  State  where  the  killing  takes  place.  But  in  sev- 
eral the  rule  is  that  an  action  will  lie  in  another  State,  if  the 
statutes  of  the  latter  are  substantially  like  those  of  the  State 
where  the  death  is  caused.3 


Other  Limitations  of  Legislative  Authority. 

Besides  the  limitations  of  legislative  authority  to  which  we 
have  referred,  others  exist  which  do  not  seem  to  call  for  special 
remark.  Some  of  these  are  prescribed  by  constitutions,4  but 


1  A  rule  which  applies  even   to   the 
government  itself.     United  States  v.  Fox, 
94  U.  S.  315.     See  State  v.  Scott,  22  Neb. 
628,  36  N.  W.  121. 

Only  a  State  can  raise  the  question 
whether  a  foreign  corporation  can  right- 
fully acquire  land  for  its  business  pur- 
poses. Barnes  v.  Suddard,  117  111.  237, 
7  N.  E.  477.  Failure  of  such  corporation 
to  comply  with  statutory  conditions  prec- 
edent to  doing  business  does  not  avoid 
a  conveyance  to  it  so  that  a  private  per- 
son can  attack  it  collaterally.  Fritts  r. 
Palmer,  132  U.  S.  382,  10  Sup.  Ct.  Rep. 
93.  Compare  Koening  v.  Chicago,  B.  & 
Q.  R.  R.  Co.,  27  Neb.  699,  43  N.  W.  423. 

2  Dickson  v.  Dickson,  1  Yerg.  110,  24 
Am.   Dec.   444;   Scoville  v.  Canfield,  14 
Johns.   338,  7  Am.  Dec.  467;  First  Na- 
tional Bank  v.  Price,  33  Md.  487,  3  Am. 
Rep.  204 ;   Lindsey  v.  Hill,  66   Me.  212, 
22  Am.  Rep.  564.     The  federal  courts  will 
not  enforce  at  the  suit  of  a  State  its  penal 
laws  against  a  foreign  corporation.     Wis- 
consin v.  Pelican  Ins.  Co.,  127  U.  S  2(55. 

8  See  Taylor  v.  Penn.  Co.,  78  Ky.  348 ; 
Debevoise  v.  New  York,  L.  E.  &  W.  R.  U. 
Co.,  98  N.  Y.  377 ;  St.  Louis,  I.  M.  &c. 
Co.  v.  McCormick,  71  Tex.  660,  9  S.  W. 
Rep.  540 ;  Dennick  v.  Railroad  Co.,  103 
U.  S.  11,  and  cases  collected  in  Cooley 
on  Torts,  pp.  311-313. 

*  The  restrictions  upon  State  legisla- 


tive authority  are  much  more  extensive 
in  some  constitutions  than  in  others.  The 
Constitution  of  Missouri  of  1865  had  the 
following  provision  :  "  The  General  As- 
sembly shall  not  pass  special  laws  divorc- 
ing any  named  parties,  or  declaring  any 
named  person  of  age,  or  authorizing  any 
named  minor  to  sell,  lease,  or  encumber 
his  or  her  property,  or  providing  for  the 
sale  of  the  real  estate  of  any  named 
minor  or  other  person  laboring  under 
legal  disability,  by  any  executor,  admin- 
istrator, guardian,  trustee,  or  other  per- 
son, or  establishing,'*  locating,  altering 
the  course,  or  affecting  the  construction 
of  roads,  or  the  building  or  repairing  of 
bridges,  or  establishing,  altering,  or  vacat- 
ing any  street,  avenue,  or  alley  in  any 
city  or  town,  or  extending  the  time  for  the 
assessment  or  collection  of  taxes,  or  other- 
wise relieving  any  assessor  or  collector 
of  taxes  from  the  due  performance  of 
his  official  duties,  or  giving  effect  to  in- 
formal or  invalid  wills  or  deeds,  or  legal- 
izing, except  as  against  the  State,  the  un- 
authorized or  invalid  acts  of  any  officer, 
or  granting  to  any  individual  or  company 
the  right  to  lay  down  railroad  tracks  in 
the  streets  of  any  city  or  town,  or  ex- 
empting any  property  of  any  named  per- 
son or  corporation  from  taxation.  The 
General  Assembly  shall  pass  no  special 
law  for  any  case  for  which  provision  can 


182  CONSTITUTIONAL   LIMITATIONS.  [CH.  V. 

others  spring  from  the  very  nature  of  free   government.     The 

V>o  mada  Viv  a   ironpral  law.  hilt  shall    nass      fit.  23  L.  Ti.  A.  fi2n.~l      Wherp  flip  Ip.crisla- 


be  made  by  a  general  law,  but  shall  pass 
general  laws  providing,  so  far  as  it  may 
deem  necessary,  for  the  cases  enumerated 
in  this  section,  and  for  all  other  cases 
where  a  general  law  can  be  made  appli- 
cable." Art.  4,  §  27.  We  should  suppose 
that  so  stringent  a  provision  would,  in 
some  of  these  cases,  lead  to  the  passage 
of  general  laws  of  doubtful  utility  in  or- 
der to  remedy  the  hardships  of  particular 
cases ;  but  the  constitution  adopted  in 
1875  is  still  more  restrictive.  Aft.  4,  §  53. 
As  to  when  a  general  law  can  be  made 
applicable,  see  Thomas  v.  Board  of  Com- 
missioners, 5  Ind.  4  ;  State  v.  Squires,  26 
Iowa,  340;  Johnson  v.  Railroad  Co.,  23 
III.  202.  In  State  v.  Hitchcock,  1  Kan. 
178,  it  was  held  that  the  constitutional 
provision,  that  "  in  all  cases  where  a  gen- 
eral law  can  be  made  applicable,  no  spe- 
cial law  shall  be  enacted,"  left  a  discretion 
with  the  legislature  to  determine  the  cases 
in  which  special  laws  should  be  passed. 
See,  to  the  same  effect,  Marks  v.  Trustees 
of  Purdue  University,  37  Ind.  155 ;  State 
t;.  Tucker,  46  Ind.  355,  overruling  Thomas 
v.  Board  of  Commissioners,  supra ;  John- 
son v.  Com'rs  Wells  Co.,  107  Ind.  15 ; 
State  v.  County  Court  of  Boone,  50  Mo. 
317,  11  Am.  Rep.  415;  State  v.  Robbins, 
51  Mo.  82;  Hall  v.  Bray,  51  Mo.  288; 
St.  Louis  v.  Shields,  62  Mo.  247 ;  Carpen- 
ter v.  People,  8  Col.  116,  5  Pac.  825; 
Richman  v.  Supervisors,  77  Iowa,  513, 
42  N.  W.  Rep.  422;  Davis  v.  Gaines,  48 
Ark.  370.  Compare  Hess  t;.  Pegg,  7  Nev. 
23 ;  Darling  v.  Rogers,  7  Kan.  592 ;  Ex 
parte  Pritz,  9  Iowa,  30 ;  QBank  of  Com- 
merce v.  Wiltsie,  153  Ind.  460,  53  N.  E. 
950,  55  N.  E.  224,  47  L.  R.  A.  489 ;  State 
v.  Kolsem,  130  Ind.  434,  29  N.  E.  595,  14 
L.  R.  A.  56(5,  and  note ;  Richman  v.  Mus- 
catine  County,  77  Iowa,  513, 42  N.  W.  422, 
4  L.  R.  A.  445,  14  Am.  St.  308 ;  People  v. 
Levee  Dist.  No.  6,  131  Cal.  30,  63  Pac. 
342.  But  see  Silberman  v.  Hay,  59  Ohio 
St.  582,  53  N.  E.  258,  44  L.  R.  A.  264, 
holding  that  right  of  trial  by  jury  is  gen- 
eral, and  that  a  law  relating  thereto  and 
expressly  made  applicable  to  a  single 
county  is  void.  Gambling  cannot  be 
made  a  crime  everywhere  except  "  within 
the  limits  or  enclosure  of  a  regular  race- 
course." State  v.  Walsh,  136  Mo.  400,  37 
S.  W.  1112,  35  L.  R.  A.  231 ;  see  also 
State  v.  Elizabeth,  66  N.  J.  L.  71,  28  Atl. 


61,  23  L.  R.  A.  525.]  Where  the  legisla- 
ture is  forbidden  to  pass  special  or  local 
laws  regulating  county  or  township  busi- 
ness, a  special  act  allowing  and  ordering 
payment  of  a  particular  claim  is  void, 
even  though  the  claim,  being  merely  an 
equitable  one,  cannot  be  audited  by  any 
existing  board.  Williams  v.  Bidleman,  7 
Nev.  68.  See  Darling  v.  Rogers,  7  Kan. 
592;  [[Dean  v.  Spartanburg  County,  59 
S.  C.  110,  37  S.  E.  226;  Uffert  r.  Vogt, 
65  N.  J.  App.  377,  621,  47  Atl.  225,  48 
Atl.  674;  Black  v.  Gloucester  City,  — 
N.  J.  L.  — ,  48  Atl.  1112  (April  29,  1901). 
Special  tax  liens  cannot  be  provided  for 
certain  towns  only.  Burnet  v.  Dean,  60 
N.  J.  Eq.  9,  46  Atl.  532.]  Such  a  pro- 
vision does  not  prevent  a  special  act  to 
locate  a  county  seat.  State  v.  Sumter 
Co.,  19  Fla.  618.  [But  one  arbitrarily 
classifying  counties  is  special.  Edmunds 
v.  Herbrandson,  2  N.  1).  270,  50  N.  W. 
970,  14  L.  R.  A.  725.  So  is  one  changing 
ward  boundaries  in  a  single  city.  State 
v.  Newark,  53  N.  J.  L.  4,  20  Atl.  886,  10 
L.  R.  A.  700.]  A  statute  is  not  special 
because  it  is  not  universal  in  operation 
by  reason  of  earlier  special  laws  not  af- 
fected by  the  constitutional  provision. 
Evans  v.  Phillipi,  117  Pa.  St.  226,  11  Atl. 
630.  ("And  a  law  which  gives  to  any  city 
having  a  special  charter  the  option  to 
adopt  the  provisions  of  a  general  act  is 
not  special.  Adams  v.  Beloit,  105  Wis. 
363,  81  N.  W.  869,  47  L.  R.  A.  441.]  An 
act  creating  a  criminal  court  for  a  partic- 
ular county  is  not  in  conflict  with  the 
constitutional  prohibition  of  special  legis- 
lation. Eitel  v.  State,  33  Ind.  201.  See 
Matter  of  Boyle,  9  Wis.  264.  Nor  one  al- 
lowing recovery  from  railroad  of  $5,000 
in  case  of  death.  Carroll  v.  Missouri  P. 
Ry.  Co.,  88  Mo.  239.  fjBut  one  provid- 
ing for  interchange  of  judges  in  a  single 
county  is.  Ashbrook  j».  Scliaub,  160  Mo. 
87,  60  S.  W.  1085  ]  A  Sunday  law  mak- 
ing it  a  misdemeanor  for  a  baker  to  en- 
gage in  the  business  of  baking  on  Sunday 
is  a  special  law,  and  unconstitutional  in 
California.  Ex  parte  Westerfield,  55  Cal. 
550,  36  Am.  Rep.  47.  Where  special  acts 
conferring  corporate  powers  are  prohib- 
ited, the  State  cannot  specially  authorize 
a  school  district  to  issue  bonds  to  erect 
a  school-house.  School  District  v.  Insur- 
ance Co.,  103  U.  S.  707.  CSee,  for  an- 


CH.  V.]       POWERS   EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  183 


latter  must  depend  for  their  enforcement  upon  legislative  wis- 

suhject,  see  further,  Bourland  v.  Hil- 
dreth,  26  Cal.  161 ;  Brooks  v.  Hyde,  37 
Cal.  866;  McAunich  v.  Mississippi,  &c. 
R.  R.  Co.,  20  Iowa,  338;  Rice  v.  State,  3 
Kan.  141 ;  Jackson  v.  Shaw,  29  Cal.  267 ; 
Gentile  r.  State,  29  Ind.  409;  State  v. 
Parkinson,  5  Nev.  15;  Ensworth  i>.  Albin, 

46  Mo.  450 ;  People  r.  Wallace,  70  111.  680 ; 
State  v.  Camden  Common  Pleas,  41  N.  J. 
495;  O'Kane  v.  Treat,  25  111.  557;  Com- 
monwealth v.  Patton,  88  Pa.  St.  258;  Cox 
v.  State,  8  Tex.  App.  254 ;  State  v.  Mona- 
han,  69  Mo.  556;  State  v.  Clark,  23  Minn. 
422  ;  Speight  v.  People,  87  111.  595;  QMor- 
ris  v.  Stout,  110  Iowa,  659,  78  N.  W.  843, 
50  L.   R.  A.  97;    Re  Henneberger,   155 
N.  Y.  420,  50  N.  E.  61,  42  L.  R.  A.  132; 
West  Chicago   Park  Com'rs  v.  McMul- 
len,  134  111.  170,  25  N.  E.  676,  10  L.  R,  A. 
215;  Lodi  Twp.  v.  State,  51  N.  J.  L.  402, 
18  Atl.  749,  6  L.  R.  A.  56 ;   State  v.  Som- 
ers'  Point,  52  N.  J.  L.  32,  18  Atl.  694, 
6  L.  R.  A.  57 ;  Terr.  v.  School  Dist,  10 
Okla.  556,  64  Pac.  241 ;  State  v.  Thomas, 
25  Mont.  226,  64  Pac.  503;   Lougher  v. 
Soto,  129  Cal.  610,  62  Pac.  184;  Fox  v. 
Mohawk  &  H.  R.  H.  Society,  165  N.  Y. 
517,  59  N.  E.  353.     Where  the  legislation 
shows   the  legislative   intent   to  be   the 
substitution  of  isolation  for  classification, 
it  is  invalid.    State  v.  Jones,  66  Ohio,  453, 
64  N.  E.  424 ;  State  ?;.  Beacom,  66  Ohio, 
491,  64  N.  E.  427.     See  also  upon  the 
general  question,  Com.  v.  Moir,  199  Pa. 
534,  49  Atl.  351,  85  Am.  St.  801.] 

Qlnsane  persons  having  no  dependents 
nor  persons  who  could  take  from  them 
under  the  law  of  succession  may  have 
their  expenses  while  in  the  asylum 
charged  upon  their  estates,  while  the 
expenses  of  other  insane  persons  in 
the  same  asylum  are  paid  out  of  the 
public  funds.  Bon  Homme  Co.  v.  Berndt, 
13  S.  D.  309,  83  N.  W.  333,  50  L.  R.  A. 
351.  Where  the  Constitution  provides 
that  "corporations  other  than  banking 
shall  not  be  created  by  special  act,"  the 
extension  of  an  old  special  charter  of 
such  other  corporation  is  equally  pro- 
hibited. Bank  of  Commerce  v.  Wiltsie, 
153  Ind.  460,  53  N.  E.  950,  55  N.  E.  224, 

47  L.  R.  A.  489.     And  where  the  grant 
of  any  special  privileges,  immunities,  or 
franchises  whatever  is  prohibited,  certain 
named  societies  cannot  be  empowered  to 
appoint  designated    State    officers,  e.g. 


other  example,  Grey  v.  Newark  Plank- 
Road  Co.,  65  N.  J.  L.  51,  608,  46  Atl.  606, 
48  Atl.  557-3  The  provision  does  not 
forbid  legalizing  bonds  of  a  city  void 
from  want  of  power  to  issue  them  :  Read 
v.  Plattsmouth,  107  U.  S.  568,  2  Sup.  Ct. 
Rep.  208 ;  nor  in  Tennessee  does  it  cover 
municipal  corporations  :  State  v.  Wilson, 
12  Lea,  246;  QBurnett  v.  Maloney,  97 
Tenn.  697,  37  S.  W.  689,  34  L.  R.  A. 
541  ;3  nor  in  Wisconsin  a  commission  cre- 
ated under  the  police  power  to  establish 
drains.  State  v.  Stewart,  74  Wis.  620,  43 
N.  W.  947 ;  Qipplies  to  counties  in  Ne- 
vada: Schweiss  v.  First  Judicial  Pistr. 
Ct.,  23  Nev.  226,  45  Pac.  289,  34  L.  R.  A. 
602.]  A  constitutional  provision  that 
requires  all  laws  of  a  general  nature  to 
have  uniform  operation  throughout  the 
State  is  complied  with  in  a  statute  appli- 
cable to  all  cities  of  a  certain  class  hav- 
ing less  than  one  hundred  thousand  in- 
habitants, though  in  fact  there  be  but 
one  city  in  the  State  of  that  class.  Wel- 
ker  v.  Potter,  18  Ohio  St.  85 ;  Wheeler  v. 
Philadelphia,  77  Pa.  St.  338;  Kilgore  v. 
Magee,  85  Pa.  St.  401.  Contra,  Divine 
v.  Commissioners,  84  111.  690.  And  see 
Desmond  v.  Dunn,  55  Cal.  24 ;  Earle  v. 
Board  of  Education,  55  Cal.  489;  Van 
Riper  v.  Parsons,  40  N.  J.  123,  29  Am. 
Rep.  210;  State  v.  Trenton,  42  N.  J. 
486;  State  v.  Hammer,  42  N.  J.  435; 
Worthley  v.  Steen,  43  N.  J.  L.  542;  Bum- 
sted  v.  Govern,  47  N.  J.  L.  3(58,  1  Atl. 
835;  Van  Giesen  v.  Bloomfield,  id.  442,  2 
Atl.  249;  Hightstown  v.  Glenn,  id.  105; 
New  Brunswick  i:  Fitzgerald,  48  N.  J.  L. 
457,  8  Atl.  729;  State  v.  Hoagland,  51 
N.  J.  L.  62,  16  Atl.  166;  McCarthy  v. 
Com.,  110  Pa.  St.  243,  2  Atl.  423;  App. 
of  Scranton  Sch.  Dist.,  113  Pa.  St.  176, 
6  Atl.  158 ;  Wilkes-Barre  v.  Meyers,  id. 
395 ;  Reading  v.  Savage,  124  Pa.  St.  328, 
16  Atl.  788;  Ex  parte  Falk,  42  Ohio  St. 
638;  State  v.  Pugh,  43  Ohio  St.  98,  1 
N.  E.  439;  State  v.  Hawkins,  44  Ohio  St. 
98,  5  N.  E.  225 ;  State  v.  Anderson,  id. 
247,  6  N.  E.  671 ;  Ewing  ».  Hoblitzelle, 
85  Mo.  64;  Kelly  v.  Meeks,  87  Mo.  396; 
State  v.  Co.  Court,  89  Mo.  237,  1  S.  W. 
307 ;  State  v.  Pond,  93  Mo.  606,  6  S.  W. 
469;  State  v.  Donovan,  20  Nev.  75,  15 
Pac.  783 ;  Darrow  v.  People,  8  Col.  417, 
8  Pac.  661 ;  People  v.  Henshaw,  76  Cal. 
436,  18  Pac.  413.  And  on  the  general 


184 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  V. 


dom,  discretion,  and  conscience.1  The  legislature  is  to  make 
laws  for  the  public  good,  and  not  for  the  benefit  of  individuals. 
It  has  control  of  the  public  moneys,  and  should  provide  for  dis- 
bursing them  only  for  public  purposes.  Taxes  should  only  be 
levied  for  those  purposes  which  properly  constitute  a  public 
burden.  But  what  is  for  the  public  good,  and  what  are  public 
purposes,  and  what  does  properly  constitute  a  public  burden, 
are  questions  which  the  legislature  must  decide  upon  its  own 
judgment,  and  in  respect  to  which  it  is  vested  with  a  large 
discretion  which  cannot  be  controlled  by  the  courts,  except, 
perhaps,  where  its  action  is  clearly  evasive,  and  where,  under 
pretence  of  a  lawful  authority,  it  has  assumed  to  exercise  one 
that  is  unlawful.  Where  the  power  which  is  exercised  is 
legislative  in  its  character,  the  courts  can  enforce  only  those 
limitations  which  the  constitution  imposes;  not  those  implied 
restrictions  which,  resting  in  theory  only,  the  people  have  been 


members  of  a  State  board  of  inspectors 
of  the  business  of  licensed  commission 
merchants.  Lasher  v.  People,  183  III. 
226,  55  N.  E.  663,  47  L.  R.  A.  802,  75  Am. 
St.  103.  Nor  can  the  number  of  deputies 
for  certain  county  officers  be  prescribed 
for  some  counties  and  left  to  the  dis- 
cretion of  the  county  court  in  others. 
Weaver  v.  Davidson  County,  104  Tenn. 
315,  59  S.  W.  1105.  Where  classification 
of  cities  is  permitted,  it  must  be  for  city 
purposes  only.  Re  Washington  St.,  132 
Pa.  257,  19  Atl.  219,  7  L.  R.  A.  193  and 
note.  Statute  providing  for  cure  of  inebri- 
ates at  public  expense  in  counties  having 
fifty  thousand  population  or  more  is  void 
for  arbitrariness.  Murray  v.  Ramsey 
County  Com'rs,  81  Minn.  359,  84  N.  W. 
103,  51  L.  R.  A.  828.  Bicycle  tax  levied  in 
certain  counties  only  is  void,  although 
proceeds  form  a  special  fund  for  con- 
struction of  bicycle  paths.  Ellis  v.  Fra- 
zier,  38  Oreg.  462,  63  Pac.  642.]  As  to 
what  differences  should  underlie  a  classi- 
fication, see  Cobb  v.  Bord,  40  Minn.  479, 
42  N.  W.  396.  fJAll  classification  must  be 
reasonable.  An  exemption  of  ex-soldiers 
and  marines,  honorably  dismissed  from 
the  service  of  the  United  States,  from  a 
pedler's  license  tax  is  void.  State  v. 
Garbroski,  111  Iowa,  496,  82  N.  W.  959, 
82  Am.  St.  524.  If  special  legislation  is 
prohibited,  a  classification  such  that  one 
class  has  but  one  member  and,  because 
the  classification  is  based  upon  a  past  fact, 


can  never  have  more,  is  void.  Campbell 
v.  Indianapolis,  155  Ind.  186,  57  N.  E. 
920.  And  see  Knopf  v.  People,  185  111. 
20,  57  N.  E.  22.  An  arbitrary  exemption 
from  a  license  tax  of  all  dealers  whose 
business  is  less  than  a  thousand  dollars  a 
year,  others  having  no  equal  exemption, 
is  void  as  class  legislation.  Com.  v,  Clark, 
195  Pa.  634,  46  Atl.  286,  86  Am.  St.  694. 
See  also  Burnet  ?;.  Dean,  —  N.  J.  App. 
— ,  49  Atl.  503  (June  17,  1901).]  Where 
the  legislature,  for  urgent  reasons,  may 
suspend  the  rules  and  allow  a  bill  to  be 
read  twice  on  the  same  day,  what  con- 
stitutes a  case  of  urgency  is  a  question 
for  the  legislative  discretion.  Hull  v. 
Miller,  4  Neb.  503.  The  legislature's 
power  over  its  own  proceedings  cannot 
be  controlled  by  a  statute  requiring  notice 
in  advance  of  the  session,  in  case  of  peti- 
tion affecting  private  interests.  Opinion 
of  Court,  63  N.  H.  625.  [Where  the 
Constitution  provides  that  no  county  seat 
shall  be  changed  except  by  approval  of 
two-thirds  of  voters  voting  thereon,  the 
legislature  may  intensify  the  require- 
ment, and  require  the  approval  of  two- 
thirds  of  all  the  voters  in  the  county. 
State  ».  White,  162  Mo.  533,  63  S.  W. 
104.] 

i  Walker  v.  Cincinnati,  21  Ohio  St 
14,  41.  [But  see  The  Stratton  Claim- 
ants v.  The  Morris  Claimants,  89  Tenn. 
497,  15  S.  W.  87,  12  L.  R.  A.  70.] 


CH.  V.]       POWERS    EXERCISED   BY   LEGISLATIVE   DEPARTMENT.  185 


satisfied  to  leave  to  the  judgment,  patriotism,  and  sense  of  justice 
of  their  representatives.1 


i  State  v.  McCann,  21  Ohio  St.  198, 
212;  Adams  v.  Howe,  14  Mass.  340,  7 
Am.  Dec.  216;  State  v.  Smith,  44  Ohio 
St.  348,  7  N.  E.  447,  12  N.  E.  829 ;  Mount 
r.  Richey,  90  Ind.  29.  See  cases,  post, 
pp.  236,  237.  CBut  to  be  legislative  it 
must  possess  the  characteristic  of  gener- 
ality. It  must  be  a  rule  and  not  merely 
an  arbitrary  order.  The  classification 
must  be  real,  and  reasonable  in  its  basis. 
See  Dibrell  v.  Lanier,  89  Tenn.  497,  15 


S.  W.  87,  12  L.  R.  A.  70,  in  which  a 
statute  based  upon  a  flagrantly  arbitrary 
classification  was  declared  void.  The 
decision  of  the  question  of  whether  a 
tax  is  for  a  public  purpose  is  for  the 
courts  when  there  is  a  manifest  attempt 
on  the  part  of  the  legislature  to  authorize 
a  levy  for  a  purpose  not  public.  Dodge 
v.  Mission  Township,  46  C.  C.  A.  661, 
107  Fed.  827-3 


186  CONSTITUTIONAL  LIMITATIONS.  [CH.  VI. 


CHAPTER   VI. 

OP  THE   ENACTMENT   OF   LAWS. 

WHEN  the  supreme  power  of  a  country  is  wielded  by  a  single 
man,  or  by  a  single  body  of  men,  any  discussion,  in  the  courts, 
of  the  rules  which  should  be  observed  in  the  enactment  of  laws 
must  generally  be  without  practical  value,  and  in  fact  imperti- 
nent; for,  whenever  the  unfettered  sovereign  power  of  any 
country  expresses  its  will  in  the  promulgation  of  a  rule  of  law, 
the  expression  must  be  conclusive,  though  proper  and  suitable 
forms  may  have  been  wholly  omitted  in  declaring  it.  It  is  a 
necessary  attribute  of  sovereignty  that  the  expressed  will  of  the 
sovereign  is  law;  and  while  we  may  question  and  cross-question 
the  words  employed,  to  make  certain  of  the  real  meaning,  and 
may  hesitate  and  doubt  concerning  it,  yet,  when  the  intent  is 
made  out,  it  must  govern,  and  it  is  idle  to  talk  of  forms  that 
should  have  surrounded  the  expression,  but*  do  not.  But  when 
the  legislative  power  of  a  State  is  to  be  exercised  by  a  department 
composed  of  two  branches,  or,  as  in  most  of  the  American  States, 
of  three  branches,  and  these  branches  have  their  several  duties 
marked  out  and  prescribed  by  the  law  to  which  they  owe  their 
origin,  and  which  provides  for  the  exercise  of  their  powers  in 
certain  modes  and  under  certain  forms,  there  are  other  questions 
to  arise  than  those  of  the  mere  intent  of  the  law-makers,  and 
sometimes  forms  become  of  the  last  importance.  For  in  such 
case  not  only  is  it  important  that  the  will  of  the  law-makers  be 
clearly  expressed,  but  it  is  also  essential  that  it  be  expressed  in 
due  form  of  law;  since  nothing  becomes  law  simply  and  solely 
because  men  who  possess  the  legislative  power  will  that  it  shall 
be,  unless  they  express  their  determination  to  that  effect,  in  the 
mode  pointed  out  by  the  instrument  which  invests  them  with 
the  power,  and  under  all  the  forms  which  that  instrument  has 
rendered  essential.1  And  if,  when  the  constitution  was  adopted, 

1  A  bill  becomes  a  law  only  when  it  48  Ala.  116,  17  Am.  Rep.  28;  Legg  v. 
has  gone  through  all  the  forms  made  Annapolis,  42  Md.  203;  Walnut  v.  Wade, 
necessary  by  the  constitution  to  give  it  103  U.  S.  683.  QAnd  where  the  con- 
validity.  Jones  v.  Hutchinson,  43  Ala.  stitution  prescribes  an  interval  of  time 
721 ;  State  v.  Platt,  2  S.  C.  150,  16  Am.  to  elapse  after  the  adjournment  of  the 
Rep.  647  ;  People  v.  Commissioners  of  legislature,  the  full  period  of  time  must 
Highways,  64  N.  Y.  276 ;  Moody  u.  State,  intervene  between  the  date  of  adjourn- 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  187 

there  were  known  and  settled  rules  and  usages,  forming  a  part  of 
the  law  of  the  country,  in  reference  to  which  the  constitution  has 
evidently  been  framed,  and  these  rules  and  usages  required  the 
observance  of  particular  forms,  the  constitution  itself  must  also 
be  understood  as  requiring  them,  because  in  assuming  their 
existence,  and  being  framed  with  reference  to  them,  it  has  in 
effect  adopted  them  as  a  part  of  itself,  as  much  as  if  they  were 
expressly  incorporated  in  its  provisions.  Where,  for  an  instance, 
the  legislative  power  is  to  be  exercised  by  two  houses,  and  by 
settled  and  well-understood  parliamentary  law  these  two  houses 
are  to  hold  separate  sessions  for  their  deliberations,  and  the 
determination  of  the  one  upon  a  proposed  law  is  to  be  submitted 
to  the  separate  determination  of  the  other,  the  constitution,  in 
providing  for  two  houses,  has  evidently  spoken  in  reference  to 
this  settled  custom,  incorporating  it  as  a  rule  of  constitutional 
interpretation;  so  that  it  would  require  no  prohibitory  clause 
to  forbid  the  two  houses  from  combining  in  one,  and  jointly 
enacting  laws  by  the  vote  of  a  majority  of  all.  All  those  rules 
which  are  of  the  essentials  of  law-making  must  be  observed  and 
followed  ;  and  it  is  only  the  customary  rules  of  order  and  routine, 
such  as  in  every  deliberative  body  are  always  understood  to  be 
under  its  control,  and  subject  to  constant  change  at  its  will,  that 
the  constitution  can  be  understood  to  have  left  as  matters  of 
discretion,  to  be  established,  modified,  or  abolished  by  the  bodies 
for  whose  government  in  non-essential  matters  they  exist. 

Of  the  two  Houses  of  the  Legislature.1 

In  the  enactment  of  laws  the  two  houses  of  the  legislature  are 
of  equal  importance,  dignity,   and  power,  and  the  steps  which 

ment  and   that  on   which    the  law   be-  Ind.  153,  42  N.  E.  528,  35  L.  R.  A.  50J 

comes   effective.     Halbert  v.  San   Saba  The  power  to  declare  whether  an  act  has 

Springs  L.  &  L.  S.  Ass'n,  89  Tex.  230,  34  become  a    law    is   judicial.      Wolfe    v. 

S.  W.  639,  49  L.  R.  A.  193.    Upon  what  McCaull,  76  Va.  876.     [State  v.  Powell, 

constitutes   presentation  of  bill  to   gov-  77  Miss.  543,  27  So.  927.] 
ernor  after  it  has  duly  passed  the  legisla-          *  The  wisdom  of  a  division  of  the  legis- 

ture,   and   the   interval   of   time    within  lative  department  has  been  demonstrated 

which  he  must  sign  it,  see  State  v.  Michel,  by  the  leading  writers  on  constitutional 

52  La.  Ann.  936,  27  So.  565,  49  L.  R.  A.  law,  as   well  as  by    general   experience. 

218,  78  Am.  St.  364.     Where  act  is  void  See  De  Lolme,   Const,  of  England,  b.  2, 

for  lack  of  uniformity  of  operation,  the  c.  3 ;    Federalist,  No.  22 ;   1  Kent,  208 ; 

defect  may  be  corrected  by  subsequent  Story  on  Const.  §§  545-570.     The  early 

amendment  making  non-uniform  portion  experiments  in  Pennsylvania  and  Georgia, 

uniform   with   rest  of  original  act,  and  based  on  Franklin's  views,  for  which  see 

the   whole   will  then  be  good.      Walsh  his  Works,  Vol.  V.  p.  165,  were  the  only 

v.  State,  142  Ind.  357,  41  N.  E.  65>  33  ones  made  by  any  of  the  original  States 

L.  R.  A.  392.     For  other  cases  upon  ne-  with  a  single  house.     The  first  Constitu- 

cessity  of  recognizing  prescribed  forms  tion  of  Vermont  also  provided  for  a  single 

of  enactment,  see  Swindell  v.  State,  143  legislative  body. 


188  CONSTITUTIONAL  LIMITATIONS.  [CH.  VI. 

result  in  laws  may  originate  indifferently  in  either.  This  is 
the  general  rule;  but  as  one  body  is  more  numerous  than  the 
other,  and  more  directly  represents  the  people,  and  in  many  of 
the  States  is  renewed  by  more  frequent  elections,  the  power  to 
originate  all  money  bills,  or  bills  for  the  raising  of  revenue,  is 
left  exclusively,  by  the  constitutions  of  some  of  the  Stales,  with 
this  body,  in  accordance  with  the  custom  in  England,  which 
does  not  permit  bills  of  this  character  to  originate  with  the 
House  of  Lords.1  To  these  bills,  however,  the  other  house  may 
propose  alterations,  and  they  require  the  assent  of  that  house 
to  their  passage,  the  same  as  other  bills.  The  time  for  the 
meeting  of  the  legislature  will  be  such  time  as  is  fixed  by  the 
constitution  or  by  statute;  but  it  may  be  called  together  by 
the  executive  in  special  session  as  the  constitution  may  pre- 
scribe, and  the  two  houses  may  also  adjourn  any  general  session 
to  a  time  fixed  by  them  for  the  holding  of  a  special  session,  if 
any  agreement  to  that  effect  can  be  arrived  at;  and  if  not, 
power  is  conferred  by  a  majority  of  the  constitutions  upon  the 
executive  to  prorogue  and  adjourn  them.  And  if  the  executive 
in  any  case  undertake  to  exercise  this  power  to  prorogue  and 
adjourn,  on  the  assumption  that  a  disagreement  exists  between 
the  two  houses  which  warrants  his  interference,  and  his  action 
is  acquiesced  in  by  those  bodies,  who  thereupon  cease  to  hold 
their  regular  sessions,  the  legislature  must  be  held  in  law  to 
have  adjourned,  and  no  inquiry  can  be  entered  upon  as  to  the 
rightfulness  of  the  governor's  assumption  that  such  a  disagree- 
ment existed.2 

1  There  are  provisions  in  the  Consti-  taxes ;  but  the  Senate  did  not  assent  to 
tutions  of  Massachusetts,  Delaware,  Min-  this  conclusion.  In  England  the  Lords 
nesota,  Mississippi,  New  Hampshire,  New  are  not  allowed  to  amend  money  bills, 
Jersey,  Pennsylvania,  South  Carolina,  and  by  resolutions  of  5th  and  6th  July, 
Vermont,  Indiana,  Oregon,  Kentucky,  1860,  the  Commons  deny  their  right  even 
Louisiana,  Alabama,  Arkansas,  Georgia,  to  reject  them.  FJLaw  directing  pay- 
Virginia,  Maine,  and  Colorado,  requiring  ment  of  bounties  by  county  treasurer, 
revenue  bills  to  originate  in  the  more  such  payments  to  be  credited  to  him  by 
popular  branch  of  the  legislature,  but  state  treasurer,  is  void  under  constitu- 
allowing  the  Senate  the  power  of  amend-  tional  provision  that  "  no  money  shall  be 
ment  usual  in  other  cases.  A  bill  to  paid  out  of  the  treasury  except  upon  ap- 
license  saloons  is  a  police  regulation,  not  propriations  made  by  law  and  on  warrant 
a  revenue  law.  State  v  Wright,  14  drawn  by  the  proper  officer."  Institution 
Oreg  365,  12  Pac.  708  Money  cannot  for  Edu.  Mute  &  Blind  v.  Henderson,  18 
be  appropriated  by  joint  resolution  in  Col.  98,  31  Pac.  714,  18  L.  R.  A.  398.] 
Indiana.  May  v  Rice,  91  Ind.  546.  Dur-  2  This  question  became  important,  and 
ing  the  second  session  of  the  forty-first  was  passed  upon  in  People  v.  Hatch,  33 
Congress,  the  House  of  Representatives  111.9.  The  Senate  had  passed  a  resolution 
by  tneir  vote  denied  the  right  of  the  for  an  adjournment  of  the  session  sine  die 
Senate  under  the  Constitution  to  origi-  on  a  day  named,  which  was  amended  by 
nate  a  bill  repealing  a  law  imposing  the  House  by  fixing  a  different  day.  The 


CH.  VI.] 


OF   THE   ENACTMENT   OF  LAWS. 


189 


There  are  certain  matters  which  each  house  determines  for 
itself,  and  in  respect  to  which  its  decision  is  conclusive.  It 
chooses  its  own  officers,  except  where,  by  constitution  or  statute, 
other  provision  is  made;  it  determines  its  own  rules  of  proceed- 
ing; it  decides  upon  the  election  and  qualification  of  its  own 
members.1  These  powers  it  is  obviously  proper  should  rest  with 


Senate  refused  to  concur,  and  the  House 
then  passed  a  resolution  expressing  a 
desire  to  recede  from  its  action  in  amend- 
ing the  resolution  and  requesting  a  re- 
turn of  the  resolution  by  the  Senate. 
While  matters  stood  thus,  the  governor, 
assuming  that  such  a  disagreement  ex- 
isted as  empowered  him  to  interfere,  sent 
in  his  proclamation,  declaring  the  legis- 
lature adjourned  to  a  day  named,  and 
which  was  at  the  very  end  of  the  official 
term  of  the  members.  The  message 
created  excitement ;  it  does  not  seem  to 
have  been  at  once  acquiesced  in,  and  a 
protest  against  the  governor's  authority 
was  entered  upon  the  journal ;  but  for 
eleven  days  in  one  house  and  twelve  in  tlie 
other  no  entries  were  made  upon  their 
journals,  and  it  was  unquestionable  that 
practically  they  had  acquiesced  in  the 
action  of  the  governor,  and  adjourned. 
At  the  expiration  of  the  twelve  days,  a 
portion  of  the  members  came  together 
again,  and  it  was  claimed  by  them  that 
the  message  of  the  governor  was  without 
authority,  and  the  two  houses  must  be 
considered  as  having  been,  in  point  of 
law,  in  session  during  the  intervening 
period,  and  that  consequently  any  bills 
which  had  before  been  passed  by  them 
and  sent  to  the  governor  for  his  approval, 
and  which  he  had  not  returned  within  ten 
days,  Sundays  excepted,  had  become  laws 
under  the  constitution.  The  Supreme 
Court  held  that,  as  the  two  houses  had 
practically  acquiesced  in  the  action  of  the 
governor,  the  session  had  come  to  an  end, 
and  that  the  members  had  no  power  to 
reconvene  on  their  own  motion,  as  had 
been  attempted.  The  case  is  a  very  full 
and  valuable  one  on  several  points  per- 
taining to  legislative  proceedings  and 
authority.  As  to  the  governor's 'discretion 
in  calling  an  extra  session  and  revoking 
the  call,  see  ante,  p.  160,  note.  [^Govern- 
or's decision  that  disagreement  exists 
declared  conclusive  in  lie  Legislative 
Adjournment,  18  R.  I.  824,  27  Atl.  324, 
22  L.  R.  A.  716,  and  see  note  in 


L.  R.  A.  upon  power  as  to  adjournment 
of  legislature.] 

1  In  People  v.  Mahaney,  13  Mich.  481, 
it  was  held  that  the  correctness  of  a  deci- 
sion by  oue  of  the  houses,  that  certain 
persons  had  been  chosen  members,  could 
not  be  inquired  into  by  the  courts.  In 
that  case  a  law  was  assailed  as  void,  on 
the  ground  that  a  portion  of  the  mem- 
bers who  voted  for  it,  and  without  whose 
votes  it  would  not  have  had  the  requisite 
majority,  had  been  given  their  seats  in 
the  house  in  defiance  of  law,  and  to  the 
exclusion  of  others  who  had  a  majority 
of  legal  votes.  '  See  the  same  principle  in 
State  v.  Jarrett,  17  Md.  309.  See  also 
Lamb  v.  Lynd,  44  Pa.  St.  336;  Opinion  of 
Justices,  56  N.  H.  570.  QThe  persons  who 
are  to  constitute  the  prima  facie  house, 
and  to  organize  and  examine  into  the 
qualifications  of  the  members,  to  deter- 
mine contests,  &c.,  are  those  who  bring 
certificates  of  election  from  the  proper 
officers.  Re  Gunn,  50  Kan.  155,  32  Pac. 
470,  948,  19  L.  R.  A.  519,  a  case  where 
two  rival  bodies  each  claimed  to  be  the 
true  house  of  representatives/]  In  Kan- 
sas a  question  having  some  resemblance 
was  disposed  of  differently.  The  legis- 
lature gave  seats  to  several  persons  as 
representatives  of  districts  not  entitled  to 
representation  at  all.  By  the  concurrent 
vote  of  four  of  these  a  certain  bill  was 
passed.  Held,  that  it  was  illegally  passed, 
and  did  not  become  a  law.  State  v.  Fran- 
cis, 26  Kan.  724.  The  legislature  cannot 
transfer  its  power  to  judge  of  the  election 
of  its  members,  to  the  courts.  State  v. 
Gilman,  20  Kan.  551,  27  Am.  Rep.  189. 
See  Dalton  v.  State,  43  Ohio  St.  652. 
But  courts  may  procure  and  present  evi- 
dence to  the  legislature.  In  re  McNeill, 
111  Pa.  St.  235,  2  Atl.  341.  The  legisla- 
tive power  to  judge  of  the  election  of 
members  is  not  possessed  by  municipal 
bodies:  People  v.  Hall,  80  N/Y.  117;  nor 
by  hoards  of  supervisors:  Robinson  v. 
Cheboygan  Supervisors,  49  Mich.  321,  13 
N.  W.  622;  except  when  conferred  by 


190  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

the  body  immediately  interested,  as  essential  to  enable  it  to 
enter  upon  and  proceed  with  its  legislative  functions  without 
liability  to  interruption  and  confusion.  In  determining  ques- 
tions concerning  contested  seats,  the  house  will  exercise  judicial 
power,  but  generally  in  accordance  with  a  course  of  practice 
which  has  sprung  from  precedents  in  similar  cases,  and  no  other 
authority  is  at  liberty  to  interfere. 

Each  house  has  also  the  power  to  punish  members  for  dis- 
orderly behavior,  and  other  contempts  of  its  authority,  as  well 
as  to  expel  a  member  for  any  cause  which  seems  to  the  body  to 
render  it  unfit  that  he  continue  to  occupy  one  of  its  seats.  This 
power  is  generally  enumerated  in  the  constitution  among  those 
which  the  two  houses  may  exercise,  but  it  need  not  be  specified 
in  tnat  instrument,  since  it  would  exist  /whether  expressly  con- 
ferred or  not.  It  is  "a  necessary  and  incidental  power,  to  enable 
the  house  to  perform  its  high  functions,  and  is  necessary  to  the 
safety  of  the  State.  It  is  a  power  of  protection.  A  member 
may  be  physically,  mentally,  or  morally  wholly  unfit;  he  may  be 
affected  with  a  contagious  disease,  or  insane,  or  noisy,  violent, 
and  disorderly,  or  in  the  habit  of  using  profane,  obscene,  and 
abusive  language."  And,  "independently  of  parliamentary  cus- 
toms and  usages,  our  legislative  houses  have  the  power  to  protect 
themselves  by  the  punishment  and  expulsion  of  a  member; "  and 
the  courts  cannot  inquire  into  the  justice  of  the  decision,  or  even 
so  much  as  examine  the  proceedings  to  see  whether  or  not  the 
proper  opportunity  for  defence  was  furnished.1 

law.     Mayor  v.  Morgan,  7  Mart.  N.  8.  1,  clearly    ineligible    candidate    by   issuing 

18   Am.    Dec.   232;    Peabody   v.   School  mandamus  to  the  board  of  canvassers  to 

Committee,    115   Mass.    383  ;    Cooley   v.  give  the  candidate  a  certificate  of  elec- 

Fitzgerald,  41  Mich.  2,2  N.  W.  179.     See  tion,  even  though  it  is  admitted  that  he 

Commonwealth  v.  Leech,  44  Pa.  St.  332;  received   the   plurality   vote.     People  v. 

Doran    v.    De   Long,   48    Mich.   552,    12  State  Bd.  of  Canvassers,  129  N.  Y.  360, 

N.  W.  848.     To  exclude  the  jurisdiction  29  N.  E.  345,  14  L.  R.  A.  640.    But  it  will 

of  the  courts,  the  council's  power  must  correct  a  fraud  through  which  the  candi- 

be  unequivocal.     State  v.  Kempf,  69  Wis.  date  rightfully  entitled  is  deprived  of  his 

470,  34   N.    W.  226;  State  i».   Gates,  35  certificate,  as  that  makes  him  prima  facie 

Minn.  385,  28  N.  W.  927.     [The  power  a  member.     Ellison  v.  Barnes,  23  Utah, 

of  the  court  to  call  a  new  election  to  elect  183,  63  Pac.  899.     House,  by  a  majority 

a  member  of  a  general  assembly  is  not  vote  of  all  members  elected,  may  retire 

precluded  by  the  power  of  the  house  to  its  speaker  and  elect  another.    Re  Speak- 

pass  upon  the  election  of  its  members,  ership,  15  Col.  520,  25  Pac.  707, 11  L.  R.  A. 

even  though  the  calling  the  election  is  a  241.] 

passing  upon  the  validity  of  a  prior  elec-          l  Hiss  v.  Bartlett,  3  Gray,  468.     And 

tion.     State  v.  South  Kingstown,  18  It.  I.  see   Anderson  v.   Dunn,  6   Wheat.   204. 

258,  27  Atl.  599,  22  L.  R.  A.  65.     While  [The  authority  of  the  house  is  equally 

each  house   judges   of   the  election   and  absolute   in   regard  to   the  rule  usually 

qualifications  of  its  members,  and  while  prescribed  in  the  Constitution  that  any 

the  duties  of  canvassing  boards  are  purely  member  may  have   his   protest   entered 

ministerial,  yet  the  court  will  not  aid  a  upon  the  journal.     If  the  house  neglect 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  191 

Each  house  may  also  punish  contempts  of  its  authority  by 
other  persons,  where  they  are  committed  in  its  presence,  or 
where  they  tend  directly  to  embarrass  or  obstruct  its  legislative 
proceedings ;  and  it  requires  for  the  purpose  no  express  provi- 
sion of  the  constitution  conferring  the  authority.1  It  is  not 
very  well  settled  what  are  the  limits  to  this  power;  and  in  the 
leading  case  in  this  country  the  speaker's  warrant  for  the  arrest 
of  the  person  adjudged  guilty  of  contempt  was  sustained,  though 
it  did  not  show  in  what  the  alleged  contempt  consisted.2  In  the 
leading  English  case  a  libellous  publication  concerning  the  house 
was  treated  as  a  contempt;3  and  punishment  has  sometimes 
been  inflicted  for  assaults  upon  members  of  the  house,  not  com- 
mitted in  or  near  the  place  of  sitting,  and  for  the  arrest  of 
members  in  disregard  of  their  constitutional  privilege.4 

But  in  America  the  authority  of  legislative  bodies  in  this 
regard  is  much  less  extensive  than  in  England,  and  we  are  in 
danger,  perhaps,  of  being  misled  by  English  precedents.  The 
Parliament,  before  its  separation  into  two  bodies,  was  a  high 
court  of  judicature,  possessed  of  the  general  power,  incident  to 
such  a  court,  of  punishing  contempts,  and  after  the  separation 
the  power  remained  with  each  body,  because  each  was  considered 
to  be  a  court  of  judicature  and  exercised  the  functions  of  such- a 
court.  American  legislative  bodies  have  not  been  clothed  with 
the  judicial  function,  and  they  do  not  therefore  possess  the  gen- 
eral power  to  punish  for  contempt;  but,  as  incidental  to  their 
legislative  authority,  they  have  the  power  to  punish  as  contempts 
those  acts  of  members  or  others  which  tend  to  obstruct  the  per- 
formance of  legislative  duty,  or  to  defeat,  impede,  or  embarrass 
the  exercise  of  legislative  power.6 

When  imprisonment  is  imposed  as  a  punishment,  it  must 
terminate  with  the  final  adjournment  of  the  house,  and  if  the 
prisoner  be  not  then  discharged  by  its  order,  he  may  be  released 
on  habeas  corpus.^ 

to  recognize  this  rule,  no  outside  power          8  Burdett  v.  Abbott,  14  East,  1. 

can  compel  it.     Turnlmll  v.  Giddings,  95          4  Mr.  Potter  discusses  such  a  case  in 

Mich.  314,  54  N.  W.  887, 19  L.  R.  A.  853.]  his  edition  of  Dwarris  on  Statutes,  c.  18, 

1  Anderson   v.  Dunn,  6  Wheat.   204 ;  and  Mr.  Robinson  deals  with  the  case  of 
Burdett  v.  Abbott,  14  East,  1 ;  Burnham  an   arrest  for  a  criminal   act,  not  com- 
v.  Morrissey,  14  Gray,  226;  State  v.  Mat-  mitted  in  the  presence  of  the  house,  in 
thews,  37  N.  H.  450.     See  post,  p.  651,  the  preface  to  the  sixth   volume  of  his 
note.  Practice.      As   to  the   general   right   of 

2  Anderson  v.  Dunn.  6  Wheat.  204 ;  Parliament  to  punish   for  contempt,  see 
questioned  and  rejected  as  to  some  of  its  Gosset  v.  Howard,  10  Q.  B.  411. 
reasoning  in  Kilbourn  v.  Thompson,  103          5  See  the  subject  considered  fully  and 
U.  S.  168.     And    see  Gosset  v.  Howard,  learnedly  in  Kilbourn  v.  Thompson,  103 
10  Q.  B.  451  ;  Stewart  v.  Elaine,  1  Me-  U.  S.  168. 

Arthur,  453.  6  Jefferson's  Manual,  §  18 ;  Prichard's 


192 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VI. 


By  common  parliamentary  law,  the  members  of  the  legislature 
are  privileged  from  arrest  on  civil  process  during  the  session  of 
that  body,  and  for  a  reasonable  time  before  and  after,  to  enable 
them  to  go  to  and  return  from  the  same.  By  the  constitutions 
of  some  of  the  States  this  privilege  has  been  enlarged,  so  as  to 
exempt  the  persons  of  legislators  from  any  service  of  civil 
process,1  and  in  others  their  estates  are  exempt  from  attachment 
for  some  prescribed  period.2  For  any  arrest  contrary  to  the 
parliamentary  law  or  to  these  provisions,  the  house  of  which  the 
person  arrested  is  a  member  may  give  summary  relief  by  order- 
ing his  discharge,  and  if  the  order  is  not  complied  with,  by 
punishing  the  persons  concerned  in  the  arrest  as  for  a  contempt 
of  its  authority.  The  remedy  of  the  member,  however,  is  not 
confined  to  this  mode  of  relief.  His  privilege  is  not  the  privi- 
lege of  the  house  merely,  but  of  the  people,  and  is  conferred  to 
enable  him  to  discharge  the  trust  confided  to  him  by  his  consti- 
tuents;3 and  if  the  house  neglect  to  interfere,  the  court  from 
which  the  process  issued  should  set  it  aside  on  the  facts  being 
represented,4  and  any  court  or  officer  having  authority  to  issue 
writs  of  habeas  corpus  may  also  inquire  into  the  case,  and  release 
the  party  from  the  unlawful  imprisonment.5 


Case,  1  Lev.  165 ;  1  Sid.  245,  T.  Raym. 
120. 

1  "  Senators  and  representatives  shall, 
in   all  cases   except  treason,  felony,   or 
breach  of  the  peace,  be  privileged  from 
arrest.    They  shall  not  be  subject  to  any 
civil  process  during  the  session  of  the  leg- 
islature, or  for  fifteen  days  next  before 
the  commencement  and  after  the  termina- 
tion  of  each   session."     Const,  of  Mich, 
art.  4,  §  7.     A  like  exemption  from  civil 
process  is  found  in  the  Constitutions  of 
Kansas,   Nebraska,  Alabama,  Arkansas, 
California,  Missouri,  Mississippi,  Wiscon- 
sin, Indiana,  Oregon,  and  Colorado.     Ex- 
emption from   arrest  is  not  violated  by 
the  service  of  citations  or  declarations  in 
civil  cases.     Gentry   v.  Griffith,  27  Tex. 
461 ;  Case  v.  Rorabacher,  15  Mich.  537. 
So,  of  a  member  of  Congress  during  the 
session.     Merrick  v.  Giddings,  MacAr.  & 
Mack.  55 ;  rjWorth  v.  Norton,  56  S.  C.  56, 
479,  33  S.  E.  792.  35  S.  E.  135,  45  L.  R. 
A.  563  ;  76  Am.  St.  524.]     But  in  Miner 
v.  Markham,  28  Fed.  Rep.  387,  a  California 
member  tn  route  to  Washington  was  held 
exempt  from  service  of  summons  in  Wis- 
consin. 

2  The  Constitution   of   Rhode  Island 


provides  that  "  the  person  of  every  mem- 
ber of  the  General  Assembly  shall  be 
exempt  from  arrest,  and  his  estate  from 
attachment,  in  any  civil  action,  during  the 
session  of  the  General  Assembly,  and 
two  days  before  the  commencement  and 
two  days  after  the  termination  thereof, 
and  all  process  served  contrary  hereto 
shall  be  void."  Art.  4,  §  5. 

8  Coffin  v.  Coffin,  4  Mass.  27,  3  Am. 
Dec.  189. 

*  Courts  do  not,  however,  ex  officio 
notice  the  privileges  of  members;  they 
must  be  brought  to  their  attention  by 
some  proper  motion.  Prentis  v.  Com- 
monwealth, 5  Rand.  697,  16  Am.  Dec. 
782,  and  note. 

6  On  this  subject,  Gushing  on  Law  and 
Practice  of  Parliamentary  Assemblies, 
§§  546-597,  will  be  consulted  with  profit. 
It  is  not  a  trespass  to  arrest  a  person  privi- 
leged from  arrest,  even  though  the  officer 
may  be  aware  of  the  fact.  The  arrest  is 
only  voidable ;  and  in  general  the  party 
will  waive  the  privilege  unless  he  applies 
for  discharge  by  motion  or  on  habeas 
corpus.  Tarlton  v.  Fisher,  Doug.  671 ; 
Fletcher  v.  Baxter,  2  Aik.  224 ;  Fox  v. 
Wood,  1  Rawle,  143;  Sperry  v.  Wiliard, 


CH.  VI.] 


OF   THE   ENACTMENT   OF   LAWS. 


193 


Each  house  must  also  be  allowed  to  proceed  in  its  own  way  in 
the  collection  of  such  information  as  may  seem  important  to  a 
proper  discharge  of  its  functions,1  and  whenever  it  is  deemed 
desirable  that  witnesses  should  be  examined,  the  power  and 
authority  to  do  so  is  very  properly  referred  to  a  committee,  with 
any  such  powers  short  of  final  legislative  or  judicial  action  as 
may  seem  necessary  or  expedient  in  the  particular  case.  Such 
a  committee  has  no  authority  to  sit  during  a  recess  of  the  house 
which  has  appointed  it,  without  its  permission  to  that  effect; 
but  the  house  is  at  liberty  to  confer  such  authority  if  it  see  fit.2 
A  refusal  to  appear  or  to  testify  before  such  committee,  or  to 
produce  books  or  papers,  would  be  a  contempt  of  the  house;3  but 
the  committee  cannot  punish  for  contempts;  it  can  only  report 
the  conduct  of  the  offending  party  to  the  house  for  its  action. 
The  power  of  the  committee  will  terminate  with  the  final  disso- 
lution of  the  house  appointing  it. 

Each  house  keeps  a  journal  of  its  proceedings,  which  is  a 
public  record,  and  of  which  the  courts  are  at  liberty  to  take 
judicial  notice.4  If  it  should  appear  from  these  journals  that 


1  Wend.  32  ;  Wilraarth  v.  Burt,  7  Met. 
257;  Aldrich  v.  Aldrich,  8  Met.  102; 
Chase  v.  Fish,  16  Me.  132.  But  where 
the  privilege  is  given  on  public  grounds, 
or  for  the  benefit  of  others,  discharge  may 
be  obtained  on  the  motion  of  any  party 
concerned,  or  made  by  the  court  sua 
sponte. 

1  See  Tillinghast  v.  Carr,  4  McCord, 
152. 

2  Branham    v.    Lange,    16   Ind.   407 ; 
Marshall  v.  Harwood,  7  Md.  466.     See 
also  parliamentary  cases,  5  Grey,  374 ;  9 
Grey,  350;  1  Chandler,  50. 

8  In  re  Falvey,  7  Wis.  630 ;  Burnham 
v.  Morrissey,  14  Gray,  226  ;  People  r. 
Keeler,  99  N.  Y.  463.  In  the  last  case  a 
statute  expressly  permitted  the  house  to 
punish  for  such  contempt.  But  the  priv- 
ilege of  a  witness  to  be  exempt  from  a 
compulsory  disclosure  of  his  own  criminal 
conduct  is  the  same  when  examined  by  a 
legislative  body  or  committee  as  when 
sworn  in  court.  Emery's  Case,  107  Mass. 
172.  In  the  Matter  of  Kilbourn  (May, 
1876),  Chief  Justice  Carter,  of  the  Su- 
preme Court  of  the  District  of  Columbia, 
discharged  on  habeas  corpus  a  person  com- 
mitted by  the  House  of  Representatives 
for  a  contempt  in  refusing  to  testify; 
holding  that  as  the  refusal  was  an  indict- 
able offence  by  statute,  a  trial  therefor 


must  be  in  the  courts,  and  not  elsewhere. 
If  this  is  correct,  the  necessities  of  legis- 
lation will  require  a  repeal  of  the  statute  ; 
for  if,  in  political  cases,  the  question  of 
punishment  for  failure  to  give  informa- 
tion must  be  left  to  a  jury,  few  convic- 
tions are  to  be  expected, and  no  wholesome 
fear  of  the  consequences  of  a  refusal. 
The  legality  of  the  same  arrest  was  consid- 
ered afterwards  by  the  Federal  Supreme 
Court,  and  was  not  sustained,  the  court 
holding  that  the  house  exceeded  its  au- 
thority in  the  attempted  investigation. 
Kilbourn  v.  Thompson,  103  LT.  S.  168.  On 
questions  of  conflict  between  the  legisla- 
ture and  the  courts  in  matters  of  con- 
tempt, the  great  case  of  Stockdale  v. 
Hansard,  9  Ad.  &  El.  1 ;  8.  c.  3  Per.  & 
Dav.  330,  is  of  the  highest  interest.  See 
May,  Const.  Hist.  c.  7. 

4  Spangler  v  Jacoby,  14  111  297 ;  Tur- 
ley  v.  Logan  Co.,  17  111.  151;  Jones  v. 
Hutchinson,  43  Ala,  721 ;  State  v.  Mofflt, 
6  Ohio,  358 ;  Miller  v.  State,  3  Ohio  St. 
475;  Fordyce  v.  Godman,  20  Ohio  St.  1  ; 
People  v.  Supervisors  of  Chenango,  8 
N.  Y.  317;  People  v.  Mahaney,  13  Mich. 
481  ;  Soutnwark  Bank  v.  Commonwealth, 
2  Pa.  St.  446;  M.Culloeh  v.  State,  11 
Ind.  430;  Osburn  v.  Staley,  5  W.  Va. 
85,  13  Am.  Rep.  640;  State  r.  Platt,  2 
S.  C.  N.  8.  150,  16  Am.  Rep.  647 ;  Moody 


13 


194 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VI. 


any  act  did  not  receive  the  requisite  majority,  or  that  in  respect 
to  it  the  legislature  did  not  follow  any  requirement  of  the  con- 
stitution, or  that  in  any  other  respect  the  act  was  not  constitu- 
tionally adopted,  the  courts  may  act  upon  this  evidence,  and 


*.  State,  48  Ala.  115;  Houston,  &c.  R.  R. 
Co.  v.  Odum,  53  Tex.  343;  Gardner  v. 
The  Collector,  6  Wall.  499 ;  South  Ottawa 
v.  Perkins,  94  U.  S.  260.  The  presump- 
tion always  is,  when  the  act,  as  signed 
and  enrolled,  does  not  show  the  contrary, 
that  it  has  gone  through  all  necessary 
formalities :  State  v.  McConnell,  3  Lea, 
341 ;  Blessing  v.  Galveston,  42  Tex.  641 ; 
State  v.  Francis,  26  Kan.  724;  and  some 
cases  hold  that  the  enrolled  statute  is 
conclusive  evidence  of  its  due  passage 
and  validity.  See  Sherman  v.  Story,  30 
Cal.  253;  People  v.  Burt,  43  Cal.  660; 
Louisiana  Lottery  Co.  v.  Richoux,  23  La. 
Ann.  743,  8  Am.  Rep.  602;  Green  r. 
Weller,  32  Miss.  650 ;  Swan  v.  Buck,  40 
Miss.  268 ;  Ex  parte  Wren,  63  Miss.  512 ; 
Pacific  R.  R.  Co.  v.  Governor,  23  Mo.  353; 
State  v.  Swift,  10  Nev.  176;  Pangborn  i?. 
Young,  32  N.  J.  29;  Evans  v.  Brown, 
30  Ind.  514;  Buncombe  v.  Prindle,  12 
Iowa,  1 ;  Terr.  v.  O'Connor,  5  Dak.  397, 
41  N.  W.  746;  [TZeTipton,  28  Tex.  App. 
438,  13  S.  W.  610,  8  L.  R.  A.  326,  and 
note;  Narregang  v.  Brown  County,  14 
S.  D.  357,  85  N.  W.  602 ;  State  v.  Bacon, 
14  S.  D.  394,  85  N.  W.  605;  Yolo  Coun- 
ty v.  Colgan,  132  Cal.  265,  64  Pac.  403.] 
Others  hold  that  the  prima  facie  case  may 
be  overthrown  by  the  journals  :  Spang- 
ler  v.  Jacoby,  14  III.  297  ;  Houston,  &c. 
R.  R.  Co.  v.  Odum,  53  Tex.  343 ;  Burr 
v.  Ross,  19  Ark.  250;  Smithee  v.  Camp- 
bell, 41  Ark.  471 ;  Jones  v.  Hutchinson, 
43  Ala  721;  Moog  v.  Randolph,  77  Ala. 
597 ;  Berry  v.  Baltimore,  &c.  R.  R.  Co., 
41  Md.  446,  20  Am.  Rep.  69;  Green  v. 
Weller,  32  Miss.  650  ;  People  v.  McElroy, 
72  Mich.  446,  40  N.  W.  750;  Brewer  v. 
Mayor,  &c.,  86  Tenn.  732,  9  S.  W.  166 ; 
[State  v.  Frank,  60  Neb.  327,  61  Neb.  679, 
83  N.  W.  74,  85  N.  W.  956 ;  Lambert  v. 
Smith,  98  Va.  268,  38  S.  E.  938  ;  State  v. 
Burlington  &  M.  R.  Co.,  60  Neb.  741,  84 
N.  W.  254 ;]  so,  if  an  act  is  passed  over 
a  veto,  differing  from  an  ordinary  en- 
rolled act.  State  v.  Denny,  118  Ind.  449, 
12  N.  E.  274.  The  journal  entry,  if  in 
compliance  with  a  constitutional  require- 
ment, is  the  best  evidence  of  a  resolution, 
and  cannot  be  contradicted.  Koehler  c. 


Hill,  60  Iowa,  543, 15  N.  W.  609.  So,  as  to 
the  entry  of  the  number  voting.  Wise  v. 
Bigger,  79  Va.  269.  [And  as  to  which 
bill  was  voted  on.  State  v.  Wendler,  94 
Wis.  369,  68  N.  W.  759.]  The  journal 
cannot  be  contradicted  by  parol  to  show 
that  a  mere  title  or  skeleton  was  intro- 
duced as  a  bill.  Attorney-General  v. 
Rice,  64  Mich.  385,  31  N.  W.  203.  If  a 
journal  shows  an  act  passed,  it  cannot 
be  attacked  on  the  ground  that  some 
members  voting  for  it  were  improperly 
seated.  State  v.  Smith,  44  Ohio  St.  348, 
7  N.  E.  447,  12  N.  E.  829.  And  see 
Opinions  of  Justices,  52  N.  II.  622  ;  Hen- 
soldt  v.  Petersburg,  63  111.  157  ;  Larrison 
v.  Peoria,  &c.  R.  R.  Co.,  77  III.  11 ;  People 
v.  Commissioners  of  Highways,  54  N.  Y. 
276;  English  v.  Oliver,  28  Ark.  317 ;  In  re 
Wellman,  20  Vt.  653 ;  Osburn  v.  Staley, 
5  W.  Va.  85;  Moody  v.  State,  48  Ala. 
115,  17  Am.  Rep.  28;  State  v.  Platt,  2 
S.  C.  150,  16  Am.  Rep.  647  ;  Worthen  r. 
Badget,  32  Ark.  496;  South wark  Bank 
v.  Commonwealth,  26  Pa.  St.  446;  For- 
dyce  v.  Godman,  20  Ohio  St.  1 ;  People  v. 
Starne,  35  111.  121  ^Supervisors  v.  Keenan, 
2  Minn.  321 ;  People  v.  Mahaney,  13 
Mich.  481 ;  Berry  v.  Doane  Point  R.  R. 
Co.,  41  Md.  446.  Compare  Brodnax  v. 
Groom,  (54  N.  C.  244  ;  Annapolis  v.  Har- 
wood,  32  Md.  471.  It  has  been  held  that 
where  the  constitution  requires  previous 
notice  of  an  application  for  a  private  act, 
the  courts  cannot  go  behind  the  act  to 
inquire  whether  the  notice  was  given. 
Brodnax  v.  Groom,  64  N.  C.  244.  See 
People  v.  Hurlbut,  24  Mich.  44;  Day  v. 
Stetson,  8  Me.  365  ;  M'Clinch  v.  Sturgis, 
72  Me.  288;  Davis  v.  Gaines,  48  Ark. 
370,  3  S.  W.  184;  [Speer  v.  Athens,  85 
Ga.  49,  11  S.  E.  802,  9  L.  R.  A.  402.  As 
to  what  papers  constitute  the  journal 
and  what  changes  may  be  made  in  them 
and  when,  see  Montgomery  B.  B.  Works 
v.  Gaston,  126  Ala.  425,  28  So.  497,  51 
L.  R.  A.  396,  85  Am.  St.  42.  As  to  use 
to  be  made  of  the  journals  in  determin- 
ing the  true  contents  of  a  bill,  see  Mil- 
waukee County  v.  Isenring,  109  Wis.  9, 
85  N.  W.  131.3 


CH.  VI.] 


OF   THE   ENACTMENT   OF   LAWS. 


195 


adjudge  the  statute  void.1  But  whenever  it  is  acting  in  the 
apparent  performance  of  legal  functions,  every  reasonable  pre- 
sumption is  to  be  made  in  favor  of  the  action  of  a  legislative 
body;  it  will  not  be  presumed  in  any  case,  from  the  mere  silence 
of  the  journals,  that  either  house  has  exceeded  its  authority,  or 
disregarded  a  constitutional  requirement  in  the  passage  of  legis- 
lative acts,  unless  where  the  constitution  has  expressly  required 
the  journals  to  show  the  action  taken,  as,  for  instance,  where  it 
requires  the  yeas  and  nays  to  be  entered.2 


1  See  cases  cited  in  preceding  note ; 
also  Prescott  v.  Trustees,  &c.,  19  111.  324  ; 
Koehler  v.  Hill,  60  Iowa,  543,   549,   14 
N.  W.  738,  15  N.  W.  609. 

2  Miller  v.  State,  3  Ohio  St.  475 ;   Mc- 
Cullooh  t\  State,  11  Ind.  424;  Supervisors 
v.  People,  25  111.  181 ;  Hall  v.  Steele,  82 
Ala.   562 ;  Glidewell  v.  Martin,  11  S.  W. 
882;  People  v.  Dunn,  22  Pac.  140;  State 
v.  Brown,  20  Fla.  407 ;   Matter  of  Van- 
derberg,  28  Kan.  243;  State  v.  Peterson, 
38  Minn.  143,  36  N.  W.   443;   State  v. 
Alpood,   87  Tenn.  163,   10   S.   W.   310; 
Hunt  v.  State,  22  Tex.  App.  396,  3  S.  W. 
233.     But   where  a  statute  can   only  be 
enacted  by  a  certain  majority,  e.  y.  two- 
thirds,  it  must  affirmatively    appear  by 
the   printed   statute    or  the   act  on   file 
that  such   a   vote  was   had.     People   v. 
Commissioners  of  Highways,  54   N.    Y. 
276.     It  seems   that,   in   Illinois,   if  one 
claims  that  a  supposed  law  was   never 
passed,  and  relies   upon   the  records  to 
show  it,  he  must  prove  them.     Illinois 
Cent.  R.  11.  Co.  ».  Wren,  43  111.  77  ;  Grob 
v.  Cushman,  45  111.  119;  Bedard  v.   Hall, 
44  111.  91.     The  court  will  not  act  upon 
the  admission  of  parties  that  an  act  was 
not  passed  in  the  constitutional  manner. 
Happel  v.  Brethauer,  70  111.  166;  Attor- 
ney-General  v.   Rice,  64   Mich.  385,   31 
N.  W.  203. 

The  Constitution  of  Alabama,  art.  4, 
§  27,  requires  the  presiding  officer  of  each 
house,  in  the  presence  of  tlie  house,  to 
sign  acts  "  after  the  titles  have  been  pub- 
licly read  immediately  before  signing,  and 
the  fact  of  signing  shall  be  entered  on  the 
journal."  This  seems  a  very  imperative 
requirement.  But  in  Colorado  a  like  pro- 
vision is  held  directory,  and  the  presump- 
tion in  case  of  silence  of  journal  is  in 
favor  of  the  act.  In  re  Roberts,  5  Col. 
525.  QThat  requirement  to  enter  yeas 
and  nays  is  mandatory,  see  Com'rs  of 


Stanly  Co.  v.  Snuggs,  121  N.  C.  394,  28  S. 
E.  539,  39  L.  R.  A.  439.  That  journals 
must  affirmatively  show  full  compliance 
with  constitutional  requirements, seeCohn 
v.  Kingsley,  —  Idaho  — ,  49  Pac.  985,  38 
L.  R.  A.  74,  an  instructive  case ;  contru, 
Lafferty  v.  Huffman,  99  Ky.  80,  35  S.  W. 
123,  32  L.  R.  A.  203 ;  McKinnon  v.  Cot- 
ner,  30  Oreg.  688,  49  Pac.  956.  For 
other  cases  holding  constitutional  require- 
ments mandatory,  see  Union  Bank  v. 
Comr's  of  Oxford",  119  N.  C.  214,  25  S.  E. 
966,  34  L.  R.  A.  487  ;  Mullan  v.  State, 
114  Cal.  578,  46  Pac.  670,  34  L.  R.  A.  262. 
The  court  will  not  declare  a  statute  void 
because  of  fraud  in  procuring  its  enrol- 
ment and  the  signatures  of  the  proper 
officers  thereto.  Such  fraud  must  be  cor- 
rected by  the  legislature.  Carr  v.  Coke, 
116  N.  C.  223,  22  S.  E.  16,  28  L.  R.  A. 
737,  47  Am.  St.  801.  Duly  enrolled  bill 
properly  filed  is  conclusive.  State  v. 
Jones,  6  Wash.  452,  34  Pac.  201,  23  L.  R. 
A.  340,  and  see  note  in  L.  R.  A.  giving 
cases  pro  and  con ;  contra,  Norman  v. 
Kentucky  Bd.  of  Managers,  93  Ky.  537, 
20  S.  W.  901,  18  L.  R.  A.  556.  Parol 
testimony  is  inadmissible  to  impeach 
legislative  records.  White  v.  Hinton, 
3  Wyo.  753,  30  Pac.  953,  17  L.  R,  A.  66. 
Upon  conclusiveness  of  legislative  rec- 
ords, see  Detroit  v.  Rentz,  91  Mich.  78, 
51  N.  W.  787,  16  L.  R.  A.  59.  And  upon 
records  of  Secretary  of  State  in  regard  to 
passage  of  bills  and  submission  to  gov- 
ernor, see  Lankford  v.  Somerset  Co.,  73 
Md.  105, 20  All.  1017,  22  Atl.  412, 11  L.  R. 
A  491.  Matters  of  detail  v»  ill  be  pre- 
sumed properly  performed  where  journal 
records  the  doing  of  the  main  act  and  is 
silent  as  to  the  subsidiary  matters.  Bar- 
ber Asphalt  Co.  v.  Hunt,  100  Mo.  22,  13 
S.  W.  98,  8  L.  R.  A.  110,  18  Am.  St. 
530.3 


196 


CONSTITUTIONAL   LIMITATIONS. 


[OH.  VI. 


The  law  also  seeks  to  cast  its  protection  around  legislative 
sessions,  and  to  shield  them  against  corrupt  and  improper  influ- 
ences, by  making  void  all  contracts  which  have  for  their  object 
to  influence  legislation  in  any  other  manner  than  by  such  open 
and  public  presentation  of  facts,  arguments,  and  appeals  to  rea- 
son as  are  recognized  as  proper  and  legitimate  with  all  public 
bodies.  While  counsel  may  be  properly  employed  to  present  the 
reasons  in  favor  of  any  public  measure  to  the  body  authorized  to 
pass  upon  it,  or  to  any  of  its  committees  empowered  to  collect 
facts  and  hear  arguments,  and  parties  interested  may  lawfully 
contract  to  pay  for  this  service,1  yet  to  secretly  approach  the 
members  of  such  a  body  with  a  view  to  influence  their  action  at 
a  time  and  in  a  manner  that  do  not  allow  the  presentation  of 
opposite  views,  is  improper  and  unfair  to  the  opposing  interest; 
and  a  contract  to  pay  for  this  irregular  and  improper  service 
would  not  be  enforced  by  the  law.2 


1  See  Wildey  v.  Collier,  7   Md.  273; 
Bryan  v.  Reynolds,  5  Wis.  200;  Brown  v. 
Brown,  34  Barb.  533 ;  Russell  v.  Burton, 
66   Barb.   539;    QHoulton   v.   Nichol,  93 
Wis.  393 ;  67  N.  W.  715 ;  33  L.  R.  A. 
166.] 

2  This  whole  subject  was  very  fully 
considered  in  the  case  of  Frost  v.  Inhab- 
itants of  Belmont,  6  Allen,  152,  which  was 
a  bill  filed  to  restrain  the  payment  by  the 
town  of  demands  to  the  amount  of  nearly 
$9,000,  which  the  town  had  voted  to  pay 
as  expenses  in  obtaining  their  act  of  in- 
corporation.    By  the  court,  Chapman,  J. : 
"  It  is  to  be  regretted  that  any  persons 
should  have  attempted  to  procure  an  act 
of  legislation  in  this  Commonwealth,  by 
such  means  as  some  of  these  items  indi- 
cate.    By  the  regular  course  of  legisla- 
tion, organs  are  provided  through  which 
any  parties   may  fairly  and   openly  ap- 
proach the  legislature,  and  be  heard  with 
proofs  and  arguments  respecting  any  legis- 
lative acts  which  they  may  be  interested 
in,  whether  public  or  private.     These  or- 
gans are  the  various  committees  appointed 
to  consider  and  report  upon  the  matters 
to  be   acted  upon  by  the   whole  body. 
When  private  interests  are  to  be  affected, 
notice  is  given  of  the  hearings  before  these 
committees  ;  and  thus  opportunity  is  given 
to  adverse  parties  to  meet  face  to  face  and 
obtain   a  fair  and   open    hearing.     And 
though   these  committees   properly   dis- 
pense with  many  of  the  rules  which  reg- 
ulate hearings  before  judicial  tribunals, 


yet  common  fairness  requires  that  neither 
party  shall  be  permitted  to  have  secret 
consultations,  and  exercise  secret  influ- 
ences that  are  kept  from  the  knowledge 
of  the  other  party.  The  business  of '  lobby 
members  '  is  not  to  go  fairly  and  openly 
before  the  committees,  and  present  state- 
ments, proofs,  and  arguments  that  the 
other  side  has  an  opportunity  to  meet 
and  refute  if  they  are  wrong,  but  to  go 
secretly  to  the  members  and  ply  them  with 
statements  and  arguments  that  the  other 
side  cannot  openly  meet,  however  erro- 
neous they  may  be,  and  to  bring  illegiti- 
mate influence  to  bear  upon  them.  If 
the 'lobby  member  '  is  selocted  because 
of  his  political  or  personal  influence,  it 
aggravates  the  wrong.  If  his  business  is 
to  unite  various  interests  by  means  of 
projects  that  are  called  '  log-rolling,'  it  is 
still  worse.  The  practice  of  procuring 
members  of  the  legislature  to  act  under 
the  influence  of  what  they  have  eaten  and 
drank  at  houses  of  entertainment,  tends  to 
render  those  of  them  who  yield  to  such 
influences  wholly  unfit  to  act  in  such 
cases.  They  are  disqualified  from  act- 
ing fairly  towards  interested  parties  or 
towards  the  public.  The  tendency  and 
object  of  these  influences  are  to  obtain 
by  corruption  what  it  is  supposed  cannot 
be  obtained  fairly. 

"It  is  a  well-established  principle,  that 
all  contracts  which  are  opposed  to  public 
policy,  and  to  open,  upright,  and  fair 
dealing,  are  illegal  and  void.  The  prin- 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


197 


The  Introduction  and  Passage  of  Sills,  (a) 

Any  member  may  introduce  a  bill  in  the  house  to  which  he 
belongs,  in  accordance  with  its  rules;  and  this  he  may  do  at  any 

of  the  legislature  by  using  personal  influ- 
ence with  the  members,  or  by  any  sinister 
means,  was  void,  as  being  inconsistent 
with  public  policy  and  the  integrity  of 
our  political  institutions.  And  an  agree- 
ment for  a  contingent  fee  to  be  paid  on 
the  passage  of  a  legislative  act  was  held 
to  be  illegal  and  void,  because  it  would 
be  a  strong  incentive  to  the  exercise  of 
personal  and  sinister  influences  to  effect 
the  object. 

"  The  subject  has  been  twice  adjudi- 
cated upon  in  New  York.  In  Harris  v. 
Roof,  10  Barb.  489,  the  Supreme  Court 
held  that  one  could  not  recover  for  ser- 
vices performed  in  going  to  see  individ- 
ual members  of  the  house,  to  get  them  to 
aid  in  voting  for  a  private  claim,  the  ser- 
vices not  being  performed  before  the 
house  as  a  body  nor  before  its  authorized 
committees.  In  Sedgwick  v.  Stanton,  4 
Kernan,  28!),  the  Court  of  Appeals  held 
the  same  doctrine,  and  stated  its  proper 
limits.  Selden,  J.,  makes  the  following 
comments  on  the  case  of  Harris  v.  Roof: 
'  Now,  the  court  did  not  mean  by  this  de- 
cision to  hold  that  one  who  has  a  claim 
against  the  State  may  not  employ  com- 
petent persons  to  aid  him  in  properly 
presenting  such  claim  to  the  legislature, 
and  in  supporting  it  with  the  necessary 
proofs  and  arguments.  Mr.  Justice 
Hand,  who  delivered  the  opinion  of  the 
court,  very  justly  distinguishes  between 
services  of  the  nature  of  those  rendered 
in  that  case,  and  the  procuring  and  pre- 
paring the  necessary  documents  in  sup- 
port of  a  claim,  or  acting  as  counsel 
before  the  legislature  or  some  committee 
appointed  by  that  body.  Persons  may, 
no  doubt,  be  employed  to  conduct  an  ap- 
plication to  the  legislature,  as  well  as  to 
conduct  a  suit  at  law  ;  and  may  contract 
for  and  receive  pay  for  their  services  in 
preparing  documents,  collecting  evidence, 
making  statements  of  facts,  or  preparing 
and  making  oral  or  written  arguments, 
provided  all  these  are  used  or  designed  to 
be  used  before  the  legislature  or  some 
committee  thereof  as  a  body ;  but  they 


ciple  was  fully  discussed  in  Fuller  v. 
Dame,  18  Pick.  472.  In  several  other 
States  it  has  been  applied  to  cases  quite 
analogous  to  the  present  case. 

"  In  Pingrey  v.  Washburn,  1  Aik.  264, 
it  was  held  in  Vermont  that  an  agree- 
ment, on  the  part  of  a  corporation,  to 
grant  to  individuals  certain  privileges  in 
consideration  that  they  would  withdraw 
their  opposition  to  the  passage  of  a  legis- 
lative act  touching  the  interests  of  the 
corporation,  is  against  sound  policy,  pre- 
judicial to  correct  and  just  legislation, 
and  void.  In  Gulick  v.  Ward,  5  Halst.  87, 
it  was  decided  in  New  Jersey  that  a  con- 
tract which  contravenes  an  act  of  Con- 
gress, and  tends  to  defraud  the  United 
States,  is  void.  A.  had  agreed  to  give  B. 
$100,  on  condition  that  B.  would  forbear 
to  propose  or  offer  himself  to  the  Post- 
master-General to  carry  the  mail  on  a 
certain  mail  route,  and  it  was  held  that 
the  contract  was  against  public  policy 
and  void.  The  general  principle  as  to 
contracts  contravening  public  policy  was 
discussed  in  that  case  at  much  length.  In 
Wood  v.  McCann,  6  Dana,  366,  the  de- 
fendant had  employed  the  plaintiff  to 
assist  him  in  obtaining  a  legislative  act  in 
Kentucky,  legalizing  his  divorce  from  a 
former  wife,  and  his  marriage  with  his 
present  wife.  The  court  say  :  '  A  lawyer 
may  be  entitled  to  compensation  for  writ- 
ing a  petition,  or  even  for  making  a  pub- 
lic argument  before  the  legislature  or  a 
committee  thereof;  but  the  law  should 
not  help  him  or  any  other  person  to  a 
recompense  for  exercising  any  personal 
influence,  in  any  way,  in  any  act  of  legis- 
lation. It  is  certainly  important  to  just 
and  wise  legislation,  and  therefore  to  the 
most  essential  interests  of  the  public,  that 
the  legislature  should  be  perfectly  free 
from  any  extraneous  influence  which  may 
either  corrupt  or  deceive  the  members,  or 
any  of  them.' 

"  In  Clippinger  v.  Hepbaugh,  5  Watts 
and  S.  315,  it  was  decided  in  Pennsyl- 
vania that  a  contract  to  procure  or  en- 
deavor to  procure  the  passage  of  an  act 


(a)   fJUpon  this  subject,  see  note  to  11  L.  R.  A.  491 .] 


198 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VL 


time  when  the  house  is  in  session,  unless  the  constitution,  the 
law,   or   the   rules  of  the   house  forbid.     The   constitution   of 


cannot,  with  propriety,  be  employed  to 
exert  their  personal  influence  with  indi- 
vidual members,  or  to  labor  in  any  form 
privately  with  such  members  out  of  the 
legislative  halls.  Whatever  is  laid  before 
the  legislature  in  writing,  or  spoken 
openly  or  publicly  in  its  presence  or  that 
of  a  committee,  if  false  in  fact,  may  be 
disproved,  or  if  wrong  in  argument  may 
be  refuted  ;  but  that  which  is  whispered 
into  the  private  ear  of  individual  mem- 
bers is  frequently  beyond  the  reach  of 
correction.  The  point  of  objection  in 
this  class  of  cases,  then,  is,  the  personal 
and  private  nature  of  the  services  to  be 
rendered.' 

"In  Fuller  v.  Dame,  cited  above,  Shaw, 
Ch.  J.,  recognizes  the  well-established 
right  to  contract  and  pay  for  professional 
services  when  the  promisee  is  to  act  as  at- 
torney and  counsel,  but  remarks  that 
'  the  fact  appearing  that  persons  do  so  act 
prevents  any  injurious  effects  from  such 
proceeding.  Such  counsel  is  considered 
as  standing  in  the  place  of  his  principal, 
and  his  arguments  and  representations 
are  weighed  and  considered  accordingly.' 
He  also  admits  the  right  of  disinterested 
persons  to  volunteer  advice ;  as  when  a 
person  is  about  to  make  a  will,  one  may 
represent  to  him  the  propriety  and  expe- 
diency of  making  a  bequest  to  a  particu- 
lar person  ;  and  so  may  one  volunteer  ad- 
vice to  another  to  marry  another  person  ; 
but  a  promise  to  pay  for  such  service  is 
void. 

"  Applying  the  principles  stated  in 
these  cases  to  the  bills  which  the  town 
voted  to  pay,  it  is  manifest  that  some  of 
the  money  was  expended  for  objects  that 
are  contrary  to  public  policy,  and  of  a 
most  reprehensible  character,  and  which 
could  not,  therefore,  form  a  legal  consid- 
eration for  a  contract." 

See,  further,  a  full  discussion  of  the 
game  subject,  and  reaching  the  same  con- 
clusion, by  Mr.  Justice  Grier,  in  Marshall 
v.  Baltimore  &  Ohio  R.  R.  Co.,  16  How. 
314  [Jin  Richardson  v.  Scott's  Bluff  Co., 
69  Neb.  400,  81  N.  W.  309,  80  Am.  St.  682, 
A  contract  to  render  services  in  securing 
the  passage  of  an  appropriation  for  a 
specified  compensation  in  case  the  bill 
should  be  passed,  no  compensation  to  be 


paid  if  bill  not  passed,  is  against  public 
policy  and  void.]  A  sale  of  a  town 
office,  though  by  the  town  itself,  can- 
not be  the  consideration  for  a  contract. 
Meredith  v.  Ladd,  2  N.  H.  517.  See 
Carleton  v.  Whitcher,5  N.  H.  196;  Eddy 
v.  Capron,  4  R.  I.  394.  A  town  cannot 
incur  expenses  in  opposing  before  a  legis- 
lative committee  a  division  of  the  terri- 
torial limits :  Westbrook  v.  Deering,  63 
Me.  231 ;  or  to  pay  the  expenses  of  a 
committee  to  procure  the  annexation  of 
the  town  to  another.  Minot  v.  West 
Roxbury,  112  Mass.  1,  17  Am.  Rep.  52. 
That  contracts  for  lobby  services  in  pro- 
curing or  preventing  legislation  are  void, 
see  Usher  v.  McBratney,  3  Dill.  385; 
Trist  v.  Child,  21  Wall.  441 ;  McKee  v. 
Cheney,  52  How.  (N.  Y.)  144;  Weed 
v.  Black,  2  MacArthur,  268  ;  Sweeney  v. 
McLeod,  15  Oreg.  330,  15  Pac.  275;  Cary 
v.  Western  U.  Tel.  Co.,  47  Hun,  610. 
Or  for  influence  in  procuring  contracts. 
Tool  Co.  v.  Norris,  2  Wall.  45.  And  any 
contract  the  purpose  of  which  is  to  influ- 
ence a  public  officer  or  body  to  favor  per- 
sons in  the  performance  of  his  public 
duty  is  void,  on  grounds  of  public  policy. 
Ordineal  v.  Barry,  24  Miss.  9.  The  same 
general  principle  will  be  found  applied 
in  the  following  cases  :  Swayze  v  Hull, 
8  N.  J.  54,  14  Am.  Dec.- 399;  Wood 
v.  McCann,  6  Dana,  366;  Hatzfield  v. 
Gulden,  7  Watts,  152 ;  Gill  v.  Davis,  12 
La.  Ann.  219;  Powers  >-.  Skinner,  34  Vt. 
274 ;  Frankfort  v.  Winterport.  54  Me. 
250;  Rose  v.  Truax,  21  Barb.  361;  Dev- 
lin v.  Brady,  32  Barb.  518;  Oscanyan  i>. 
Arms  Company,  103  U.  S.  261 ;  Meguire 
v.  Corwin,  3  MacArthur,  81.  See  further, 
post,  924,  note.  [^Contract  of  employment 
in  which  employee  is  assured  of  only  a 
nominal  salary  and  a  large  addition 
thereto  is  made  contingent  upon  the 
adoption  by  a  city  council  of  a  certain 
ordinance  is  void.  Criehfield  v.  Ber- 
mudez  Asphalt  Paving  Co.,  174  III.  466, 
51  N.  E.  552,  42  L.  R.  A.  347.  But  the 
fact  that  the  manager  of  a  corporation 
was  a  member  of  the  legislature  which 
authorized  the  letting  of  a  certain  con- 
tract will  not  prevent  the  corporation's 
bidding  for  it  if  the  manager  is  not  a 
stockholder,  and  his  pay  is  in  no  way 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


199 


Michigan  provides  that  no  new  bill  shall  be  introduced  into 
either  house  of  the  legislature  after  the  first  fifty  days  of  the 
session  shall  have  expired;1  and  the  Constitution  of  Maryland 
provides  that  no  bill  shall  originate  in  either  house  within  the 
last  ten  days  of  the  session.2  The  purpose  of  these  clauses  is 
to  prevent  hasty  and  improvident  legislation,  and  to  compel,  so 
far  as  any  previous  law  can  accomplish  that  result,  the  careful 
examination  of  proposed  laws,  or  at  least  the  affording  of  oppor- 
tunity for  that  purpose;  which  will  not  always  be  done  when 
bills  may  be  introduced  up  to  the  very  hour  of  adjournment, 
and,  with  the  concurrence  of  the  proper  majority,  put  immedi- 
ately upon  their  passage.3 

For  the  same  reason  it  is  required  by  the  constitutions  of 
several  of  the  States,  that  no  bill  shall  have  the  force  of  law 
until  on  three  several  days  it  be  read  in  each  house,  and  free  dis- 
cussion allowed  thereon ;  unless,  in  case  of  urgency,  four-fifths 
or  some  other  specified  majority  of  the  house  shall  deem  it 


affected  by  the  success  or  failure  of  the 
bid.  State  v.  Rickards,  16  Mont.  145,  40 
Pac.  210,  28  L.  R.  A.  298,  50  Am.  St.  476. 
An  agreement  upon  a  pecuniary  con- 
sideration to  withdraw  opposition  to 
granting  of  a  pardon  and  to  give  assist- 
ance by  solicitation  and  personal  influence 
in  procuring  the  same  is  against  public 
policy  and  void.  Deering  &  Co.  v.  Cun- 
ningham, 63  Kan.  174,  65  Pac.  263,  54 
L.  R.  A.  410.3' 

1  Art.  4,  §  28. 

2  Art.  3,  §  26.      In  Arkansas  there  is 
a  similar  provision,  limiting  the  time  to 
three  days.     Art.  5,  §  24. 

8  A  practice  has  sprung  up  of  evading 
these  constitutional  provisions  by  intro- 
ducing a  new  bill  after  the  time  has  ex- 
pired when  it  may  constitutionally  be 
done,  as  an  amendment  to  some  pending 
bill,  the  whole  of  which,  except  the  enact- 
ing clause,  is  struck  out  to  make  way  for 
it.  Thus,  the  member  who  thinks  he 
may  possibly  have  occasion  for  the  intro- 
duction of  a  new  bill  after  the  constitu- 
tional period  has  expired,  takes  care  to 
introduce  sham  bills  in  due  season  which 
he  can  use  as  stocks  to  graft  upon,  and 
which  he  uses  irrespective  of  their  char- 
acter or  contents.  The  sham  bill  is  per- 
haps a  bill  to  incorporate  the  city  of  Siam. 
One  of  the  member's  constituents  applies 
to  him  for  legislative  permission  to  con- 
struct a  dam  across  the  Wild  Cat  River. 


Forthwith,  by  amendment,  the  bill  entitled 
a  bill  to  incorporate  the  city  of  Siam  has 
all  after  the  enacting  clause  stricken  out, 
and  it  is  made  to  provide,  as  its  sole 
object,  that  John  Doe  may  construct  a 
dam  across  the  Wild  Cat.  With  this 
title  and  in  this  form  it  is  passed;  but 
the  house  then  considerately  amends  the 
title  to  correspond  with  the  purpose  of 
the  bill,  and  the  law  is  passed,  and  the 
constitution  at  the  same  time  saved ! 
This  trick  is  so  transparent,  and  so  clearly 
in  violation  of  the  constitution,  and  the 
evidence  at  the  same  time  is  so  fully 
spread  upon  the  record,  that  it  is  a  mat- 
ter of  surprise  to  find  it  so  often  resorted 
to.  A  bill  to  create  a  township  may  be 
amended  after  fifty  days  so  as  to  make 
the  same  territory  a  county.  Pack  v. 
Barton,  47  Mich.  520,  11  N.  W.  367.  For 
a  bill  to  create  a  township  from  certain 
territory  may  be  substituted  one  to  incor- 
porate a  city  in  the  same  county.  People 
v.  McElroy,  72  Mich.  446,  40  N.  W.  750. 
But  a  bill  to  create  the  County  of  L.  out 
of  the  County  of  W.  cannot  be  amended 
so  as  to  make  M  County  out  of  X.  Coun- 
ty. Re  Creation  of  New  Counties,  9  Col. 
624,  21  Pac.  472.  See,  also,  Hall  v.  Steele, 
82  Ala.  562, 2  So.  650.  pf  hill  is  amended 
in  second  house,  it  must  be  returned  to 
first  to  be  acted  upon.  It  must  finally 
pass  both  houses  in  same  form.  State  v. 
Laiche,  105  La.  84,  29  So.  700.] 


200 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VI. 


expedient  to  dispense  with  this  rule.  The  journals  which  each 
house  keeps  of  its  proceedings  ought  to  show  whether  this  rule  is 
complied  with  or  not;  but  in  case  they  do  not,  the  passage  in 
the  manner  provided  by  the  constitution  must  be  presumed,  in 
accordance  with  the  general  rule  which  presumes  the  proper 
discharge  of  official  duty.1  In  the  reading  of  a  bill,  it  seems  to 
be  sufficient  to  read  the  written  document  that  is  adopted  by 
the  two  houses;  even  though  something  else  becomes  law  in 
consequence  of  its  passage,  and  by  reason  of  being  referred  to 
in  it.2  Thus,  a  statute  which  incorporated  a  military  company 
by  reference  to  its  constitution  and  by-laws,  was  held  valid  not- 
withstanding the  constitution  and  by-laws,  which  would  acquire 
the  force  of  law  by  its  passage,  were  not  read  in  the  two  houses 
as  a  part  of  it.3  But  there  cannot  be  many  cases,  we  should 
suppose,  to  which  this  ruling  would  be  applicable. 


1  Supervisors  of  Schuyler  Co.  v.  Peo- 
ple, 25  111.  181 ;  Miller  v.  State,  3  Ohio  St. 
475.  In  People  v.  Starne,  35  111.  121 ,  it  is 
said  the  courts  should  not  enforce  a  legis- 
lative act  unless  there  is  record  evidence, 
from  the  journals  of  the  two  houses, 
that  every  material  requirement  of  the 
constitution  has  been  satisfied.  And  see 
Ryan  v.  Lynch,  68  111.  160.  Contra,  State 
v.  McConnell,  3  Lea,  341 ;  Blessing  v. 
Galveston,  42  Tex.  641.  The  clause  in 
the  Constitution  of  Ohio  is  :  "  Every  bill 
shall  be  fully  and  distinctly  read  on  three 
different  days,  unless,  in  case  of  urgency, 
three-fourths  of  the  house  in  which  it 
shall  be  pending  shall  dispense  with  this 
rule  ;  "  and  in  Miller  v.  State,  3  Ohio  St. 
475,  and  Pirn  v.  Nicholson,  6  Ohio  St. 
176,  this  provision  was  held  to  be  merely 
directory.  The  distinctness  with  which 
any  bill  must  be  read  cannot  possibly  be 
defined  by  any  law ;  and  it  must  always, 
from  the  necessity  of  the  case,  rest  with 
the  house  to  determine  finally  whether  in 
this  particular  the  constitution  has  been 
complied  with  or  not;  but  the  rule  re- 
specting three  several  readings  on  differ- 
ent days  is  specific,  and  capable  of  being 
precisely  complied  with,  and  we  do  not 
see  how,  even  under  the  rules  applied  to 
statutes,  it  can  be  regarded  as  directory 
merely,  provided  it  has  a  purpose  beyond 
the  mere  regular  and  orderly  transaction 
of  business.  That  it  has  such  a  purpose, 
that  it  is  designed  to  prevent  hasty  and 
improvident  legislation,  and  is  therefore 
not  a  mere  rule  of  order,  but  one  of  pro- 


tection to  the  public  interests  and  to  the 
citizens  at  large,  is  very  clear  ;  and  inde- 
pendent of  the  question  whether  definite 
constitutional  principles  can  be  dispensed 
with  in  any  case  on  the  ground  of  their 
being  merely  directory,  we  cannot  see 
how  this  can  be  treated  as  anything  but 
mandatory.  See  People  v.  Campbell,  8 
111.  406;  McCulloch  v.  State,  11  Ind.424; 
Weill  v.  Kenfield,  54  Cal.  Ill ;  Chicot 
Co.  c.  Davies.  40  Ark.  200;  QStockton  v. 
Powell,  29  Fla.  1,  10  So.  688,  15  L.  R.  A. 
42.]  Reading  twice  by  title  and  once  at 
length  is  sufficient.  People  v.  McElroy, 
72  Mich.  44(5,  49  N.  W.  750.  One  read- 
ing may  be  in  committee  of  the  whole. 
Re  Reading  of  Bills,  9  Col.  641,  21  Pac. 
477.  FJ  After  bill  is  amended  and  passed 
as  amended  in  the  second  house,  it  need 
not  be  read  three  times  in  first  house 
before  amendments  are  concurred  in  by 
that  house.  State  v.  Dillon,  —  Fla.  — ,  28 
So.  781  (June  5,  1900)  ~\ 

2  Dew  v.  Cunningham,  28  Ala.  466. 
Congress  may  adopt  a  law  by  reference. 
District  of  Columbia  c.  Washington  Gas 
Light  Co.,  3  Mackey,  343.  See,  further, 
Baird  v.  State,  52  "Ark.  326,  12  S.  W. 
656;  Beard  v.  Wilson,  id.  567;  Titusville 
Iron  Works  v.  Keystone  Oil  Co.,  122  Pa. 
St.  627,  15  Atl.  917. 

8  Bibb  County  Loan  Association  v. 
Richards,  21  Ga.  592.  And  see  Pulford  v. 
Fire  Department,  31  Mich.  458.  [[Where 
the  laws  of  the  State  have  been  codified, 
and  certain  new  provisions  introduced, 
the  code  may  be  enacted  as  a  whole  by  a 


CH.  VI.]          OF  THE  ENACTMENT  OF  LAWS.  201 

It  is  also  provided  in  the  constitutions  of  some  of  the  States 
that,  on  the  final  passage  of  every  bill,  the  yeas  and  nays  shall 
be  entered  on  the  journal.  Such  a  provision  is  designed  to 
serve  an  important  purpose  in  compelling  each  member  present 
to  assume  as  well  as  to  feel  his  due  share  of  responsibility  in 
legislation ;  and  also  in  furnishing  definite  and  conclusive  evi- 
dence whether  the  bill  has  been  passed  by  the  requisite  majority 
or  not.  "The  constitution  prescribes  this  as  the  test  by  which 
to  determine  whether  the  requisite  number  of  members  vote  in 
the  affirmative.  The  office  of  the  journal  is  to  record  the  pro- 
ceedings of  the  house,  and  authenticate  and  preserve  the  same. 
It  must  appear  on  the  face  of  the  journal  that  the  bill  passed  by 
a  constitutional  majority.  These  directions  are  all  clearly 
imperative.  They  are  expressly  enjoined  by  the  fundamental 
law  as  matters  of  substance,  and  cannot  be  dispensed  with  by 
the  legislature."1 

For  the  vote  required  in  the  passage  of  any  particular  law  the 
reader  is  referred  to  the  constitution  of  his  State.  A  simple 
majority  of  a  quorum  is  sufficient,  unless  the  constitution  estab- 
lishes some  other  rule ;  and  where,  by  the  constitution,  a  two- 
thirds  or  three -fourths  vote  is  made  essential  to  the  passage  of 
any  particular  class  of  bills,  two-thirds  or  three-fourths  of  a 
quorum  will  be  understood,  unless  the  terms  employed  clearly 
indicate  that  this  proportion  of  all  the  members,  or  of  all  those 
elected,  is  intended.2 

single  statute,  and  when  so  done  it  issuf-  called  for  them  all,  though  the  journal  is 
ficient  to  read  the  enacting  statute.  The  made  to  state  falsely  a  separate  vote  on 
code  need  not  be  read  at  length.  Central  each.  We  need  hardly  say  that  this  is 
of  Georgia  It.  Co.  v.  State,  104  Ga.  831,  a  manifest  violation  of  the  constitution, 
31  S.  E.  631,  42  L  R.  A.  518-3  which  requires  separate  action  in  every 
1  Spangler  v.  Jacoby,  14  111.  297 ;  Su-  case ;  and  that,  when  resorted  to,  it  is 
pervisors  of  Schuyler  Co.  v.  People,  25  usually  for  the  purpose  of  avoiding  another 
III.  183;  Ryan  v.  Lynch,  68  111.  160;  provision  of  the  constitution,  which  seeks 
Steckert  v.  East  Saginaw,  22  Mich.  104 ;  to  preclude  "  log-rolling  legislation,"  by 
People  v.  Commissioners  of  Highways,  forbidding  the  incorporation  of  distinct 
64  N.  Y.  276  ;  Post  v.  Supervisors,  105  measures  in  one  and  the  same  statute. 
U.  S.  667.  For  a  peculiar  case,  see  Divi-  2  Southworth  v.  Palmyra  &  Jackson- 
sion  of  Howard  County,  16  Kan.  194.  As  burg  R.  R.  Co.,  2  Mich.  287  ;  State  v. 
to  what  is  sufficient  evidence  in  a  journal  McBride,  4  Mo.  303;  29  Am.  Dec.  636. 
of  such  vote.  In  re  Roberts,  5  Col.  525.  An  By  most  of  the  constitutions  either  all 
act  which  is  invalid  because  not  passed  the  laws,  or  laws  on  some  particular 
by  the  requisite  number  of  votes  may  be  subjects,  are  required  to  be  adopted  by 
validated  indirectly  by  subsequent  legis-  a  majority  vote,  or  some  other  proportion 
lative  action  recognizing  it  as  valid,  of  "  all  the  members  elected,"  or  of "  the 
Attorney-General  v.  Joy,  65  Mich.  94,  whole  representation."  These  and  similar 
20  N.  W.  806.  There  have  been  cases,  phrases  require  all  the  members  to  be 
as  we  happen  to  know,  in  which  several  taken  into  account  whether  present  or 
hills  have  been  put  on  their  passage  not.  Where  a  majority  of  all  the  mem- 
together,  the  yeas  and  nays  being  once  bers  elected  is  required  in  the  passage  of 


202  CONSTITUTIONAL  LIMITATIONS.  [CH.  VI. 

The  Title  of  a  Statute. 

The  title  of  an  act  was  formerly  considered  no  part  of  it;  and 
although  it  might  be  looked  to  as  a  guide  to  the  intent  of  the 
law-makers  when  the  body  of  the  statute  appeared  to  be  in 
any  respect  ambiguous  or  doubtful,1  yet  it  could  not  enlarge  or 
restrain  the  provisions  of  the  act  itself,2  and  the  latter  might 
therefore  be  good  when  it  and  the  title  were  in  conflict.  The 
reason  for  this  was  that  anciently  titles  were  not  prefixed  at 
all,  and  when  afterwards  they  came  to  be  introduced,  they  were 
usually  prepared  by  the  clerk  of  the  house  in  which  the  bill  first 
passed,  and  attracted  but  little  attention  from  the  members. 
They  indicated  the  clerk's  understanding  of  the  contents  or 
purpose  of  the  bills,  rather  than  that  of  the  house ;  and  they 
therefore  were  justly  regarded  as  furnishing  very  little  insight 
into  the  legislative  intention.  Titles  to  legislative  acts,  how- 
ever, have  recently,  in  some  States,  come  to  possess  very  great 
importance,  by  reason  of  constitutional  provisions,  which  not 
only  require  that  they  shall  correctly  indicate  the  purpose  of  the 
law,  but  which  absolutely  make  the  title  to  control,  and  exclude 
everything  from  effect  and  operation  as  law  which  is  incorporated 
in  the  body  of  the  act,  but  is  not  within  the  purpose  indicated  by 
the  title.  These  provisions  are  given  in  the  note,  and  it  will 
readily  be  perceived  that  they  make  a  very  great  change  in  the 
law.3 

a  law,  an  ineligible  person  is  not  on  that  is  present,  a  majority  of  those  voting  on 
account  to  be  excluded  in  the  count,  the  proposition  is  sufficient  to  carry  it. 
Satterlee  v.  San  Francisco,  22  Cal.  314.  Kushville  Gas  Co.  i;.  Rushville,  121  Ind. 
[Where  a  proposition  to  incur  bonded  206,  23  N.  E.  72,  6  L.  R.  A.  315,  16  Am. 
indebtedness  is  voted  on  at  a  general  St.  388;  contra,  a  majority  of  those  pres- 
election, and  to  be  approved  must*  be  ent  necessary  :  Lawrence  v.  Ingersoll,  88 
voted  for  by  "  two-thirds  of  the  voters  Tenn.  52, 12  S.  W.  422,  6  L.  K.  A.  308,  17 
.  .  .  voting  at  an  election  to  be  held  for  Am.  St.  870,  and  note.] 
that  purpose,"  this  means  two-thirds  of  1  United  States  v.  Palmer,  3  Wheat, 
those  voting  on  the  particular  proposition.  610;  Burgett  v.  Burgett,  1  Ohio,  409; 
Montgomery  Co.  Fiscal  Ct.  v.  Trimble,  Mundt  v.  Sheboygan,  &c.  R.  R.  Co.,  31 
20  Ky.,  Law  Rep.  827,  47  S.  W.  773,  42  Wis.  451 ;  Eastman  v.  McAlpin,  1  Ga.  157 ; 
L.  R.  A.  738.  But  see  State  i>.  Foraker,  Cohen  v.  Barrett,  5  Call,  195;  Garrigas  v. 
46  Ohio  St.  677,  23  N.  E.  491,  6  L.  R.  A.  Board  of  Com'rs,  39  Ind.  66 ;  Matter  of 
422 ;  Re  Denny,  156  Ind.  104,  59  N.  E.  Middletown,  82  N.  Y.  196 ;  Tripp  v.  Goff, 
359,51  L.  R.  A.  722;  State  v.  Clark,  59  15  R.I.  299,  3  Atl.  591;  Evernham  v. 
Neb.  702,  82  N.  W.  8.  Where  a  speci-  Hulit,  45  N.  J.  L.  53.  See  Dwarris  on 
fied  time  must  elapse  after  the  passage  of  Statutes,  502. 

a  bill  before  the  law  becomes  operative,  2  Hadden  v.  The  Collector,  5  Wall.  107. 
the  time  runs  from  the  time  of  adoption  Compare  United  States  v.  Union  Pacific 
by  the  final  house  and  not  from  that  of  R.  R.  Co.,  91  U  S  72. 
approval  by  the  governor.  State  v.  s  The  Constitutions  of  Minnesota,  Kan- 
Mounts,  36  W.  Va.  179,  14  S.  E.  407,  16  sas,  Maryland,  Kentucky,  Nebraska,  and 
L.  R.  A.  243,  and  note.  When  a  quorum  Ohio  provide  that  "  no  law  shall  embrace 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


203 


In  considering  these  provisions  it  is  important  to  regard,  — 
1.  The  evils  designed  to  be  remedied.  The  Constitution  of  New 
Jersey  refers  to  these  as  "the  improper  influences  which  may 
result  from  intermixing  in  one  and  the  same  act  such  things  as 
have  no  proper  relation  to  each  other."  In  the  language  of  the 
Supreme  Court  of  Louisiana,  speaking  of  the  former  practice : 
"  The  title  of  an  act  often  afforded  no  clue  to  its  contents.  Im- 
portant general  principles  were  found  placed  in  acts  private  or 
local  in  their  operation;  provisions  concerning  matters  of  prac- 
tice or  judicial  proceedings  were  sometimes  included  in  the  same 


more  than  one  subject,  which  shall  be  ex- 
pressed in  its  title."  Those  of  Michigan, 
New  Jersey,  and  Louisiana  are  similar, 
substituting  the  word  object  for  subject. 
The  Constitutions  of  South  Carolina, 
Alabama,  Tennessee,  Arkansas,  and  Cali- 
fornia contain  similar  provisions.  The 
Constitution  of  New  Jersey  provides  that, 
"  to  avoid  improper  influences  which  may 
result  from  intermixing  in  one  and  the 
same  act  such  things  as  have  no  proper 
relation  to  each  other,  every  law  shall 
embrace  but  one  object,  and  that  shall  be 
expressed  in  the  title."  The  Constitution 
of  Missouri  contains  the  following  pro- 
vision :  "  No  bill  (except  general  approria- 
tion  bills,  which  may  embrace  the  various 
subjects  and  accounts  for  and  on  account 
of  which  moneys  are  appropriated,  and 
except  bills  passed  under  the  third  sub- 
division of  section  44  of  this  article)  shall 
contain  more  than  one  subject,  which  shall 
be  clearly  expressed  in  its  title."  The 
exception  secondly  referred  to  is  to  bills 
for  free  public-school  purposes.  The  Con- 
stitutions of  Indiana,  Oregon,  and  Iowa 
provide  that  "every  act  shall  embrace  but 
one  subject,  and  matters  properly  con- 
nected therewith,  which  subject  shall  be 
expressed  in  the  title.  But  if  any  subject 
shall  be  embraced  in  an  act  which  shall 
not  be  expressed  in  the  title,  such  act  shall 
be  void  only  as  to  so  much  thereof  as 
shall  not  be  expressed  in  the  title."  The 
Constitution  of  Nevada  provides  that 
"every  law  enacted  by  the  legislature 
shall  embrace  but  one  subject,  and  mat- 
ters properly  connected  therewith,  which 
subject  shall  be  briefly  expressed  in  the 
title."  Tlie  Constitutions  of  New  York 
and  Wisconsin  provide  that  "  no  private 
or  local  bill  which  may  be  passed  by  the 
legislature  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed  in 


the  title."  The  Constitution  of  Illinois 
is  similar  to  that  of  Ohio,  with  the  addi- 
tion of  the  saving  clause  found  in  the  Con- 
stitution of  Indiana.  The  provision  in 
the  Constitution  of  Colorado  is  similar  to 
that  of  Missouri.  In  Pennsylvania  the 
provision  is  that  "  no  bill  except  general 
appropriation  bills  shall  be  passed  contain- 
ing more  than  one  subject,  which  shall  be 
clearly  expressed  in  its  title."  Const,  of 
1853.  Whether  the  word  object  is  to  have 
any  different  construction  from  tlie  word 
subject,  as  used  in  these  provisions,  is  a 
question  which  may  some  time  require 
discussion ;  but  as  it  is  evidently  em- 
ployed for  precisely  the  same  purpose,  it 
would  seem  that  it  ought  not  to  have. 
Compare  Hingle 'v.  State,  24  Ind.  28,  and 
People  v.  Lawrence,  36  Barb.  177.  The 
present  Texas  Constitution  substitutes 
subject  for  object,  which  was  in  the  earlier 
one,  and  it  is  held  that  the  word  is  less 
restrictive,  and  that  an  act  whose  subject 
is  the  regulation  of  the  liquor  traffic  is 
good  though  several  distinct  objects  are 
covered,  for  instance,  regulation.of  liquor 
shops,  collection  of  revenue,  &c.  Fahey 
v.  State,  27  Tex.  App.  146,  11  S.  W.  108. 
In  Michigan  this  provision  does  not 
apply  to  city  ordinances.  People  v.  Han- 
rahan,  76  Mich.  611,  42  N.  W.  1124. 
QThe  Michigan  Constitution  requires  an 
enacting  clause ;  when  this  is  omitted 
from  the  bill  as  it  comes  from  the  first 
house,  the  clerk  of  the  next  cannot  insert 
it,  but  the  bill  must  be  sent  back  for  the 
first  house,  to  correct  it.  People  v.  Det- 
tenthaler,  118  Mich.  595,  77  N.  W.  450, 
44  L.  R.  A.  164.  Any  material  change 
in  title  of  an  act  after  passing  legislature 
and  before  presentation  to  the  governor, 
renders  the  act  void.  Weis  v.  Ashley, 
69  Neb.  494,  81  N.  W.  318,  80  Am.  St 
704.3 


204  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

statute  with  matters  entirely  foreign  to  them,  the  result  of  which 
was  that  on  many  important  subjects  the  statute  law  had  become 
almost  unintelligible,  as  they  whose  duty  it  has  been  to  examine 
or  act  under  it  can  well  testify.  To  prevent  any  further  accumu- 
lation to  this  chaotic  mass  was  the  object  of  the  constitutional 
provision  under  consideration."1  The  Supreme  Court  of  Michi- 
gan say :  "  The  history  and  purpose  of  this  constitutional  provi- 
sion are  too  well  understood  to  require  any  elucidation  at  our 
hands.  The  practice  of  bringing  together  into  one  bill  subjects 
diverse  in  their  nature  and  having  no  necessary  connection,  with 
a  view  to  combine  in  their  favor  the  advocates  of  all,  and  thus 
secure  the  passage  of  several  measures,  no  one  of  which  could 
succeed  upon  its  own  merits,  was  one  both  corruptive  of  the 
legislator  and  dangerous  to  the  State.  It  was  scarcely  more  so, 
however,  than  another  practice,  also  intended  to  be  remedied 
by  this  provision,  by  which,  through  dexterous  management, 
clauses  were  inserted  in  bills  of  which  the  titles  gave  no  intima- 
tion, and  their  passage  secured  through  legislative  bodies  whose 
members  were  not  generally  aware  of  their  intention  and  effect. 
There  was  no  design  by  this  clause  to  embarrass  legislation  by 
making  laws  unnecessarily  restrictive  in  their  scope  and  opera- 
tion, and  thus  multiplying  their  number;  but  the  framers  of  the 
constitution  meant  to  put  an  end  to  legislation  of  the  vicious 
character  referred  to,  which  was  little  less  than  a  fraud  upon  the 
public,  and  to  require  that  in  every  case  the  proposed  measure 
should  stand  upon  its  own  merits,  and  that  the  legislature  should 
be  fairly  satisfied  of  its  design  when  required  to  pass  upon  it."2 
The  Court  of  Appeals  of  New  York  declare  the  object  of  this 
provision  to  be  "that  neither  the  members  of  the  legislature  nor 
the  people  should  be  misled  by  the  title."3  The  Supreme  Court 

1  Walker  r.  Caldwell,  4  La.  Ann.  298.  of  General  James  Jackson,  and  that  its 
See  Fletcher  v.  Oliver,  25  Ark.  298;  Al-  necessity  was  suggested  by  the  Yazoo  act. 
brecht  ».  State,  8  Tex.  App.  216,  34  Am.  That  memorable  measure  of  the  17th  of 
Rep.  737.  January,    1795,   as    is   well   known,  was 

2  People  v.  Mahaney,  13  Mich.   481.  smuggled  through  the  legislature  under 
And  see  Board  of  Supervisors  v.  Heenan,  the  caption  of  an  act  'for  the  payment 
2  Mich.  336;  Davis  v.  Bank  of  Fulton,  31  of  the  late  State  troops,'  and  a  declara- 
Ga.  69  ;  St.  Louis  v.  Tiefel,  42  Mo.  578 ;  tion  in  its  title  of  the  right  of  the  State 
State  v.  Losatee,  9  Baxt.  584.    The  Con-  to  the  unappropriated   territory  thereof 
stitution  of  Georgia   provided  that  "  no  '  for  the  protection   and  support  of   the 
law  or  ordinance  shall  pass  containing  any  frontier   settlements.'"     The  Ya*,oo  act 
matter  different  from  what  is  expressed  in  made  a  large  grant  of  lands  to  a  company 
the  title  thereof."  In  Mayor,  &c.  of  Savan-  of  speculators.     It  constituted   a  prom- 
nah  v.  State,  4  Ga.  38,  Lumpkin,  J.,  says :  inent  subject  of    controversy   in    State 
"  I  would  observe  that  the  traditionary  his-  politics  for  many  years. 

tory  of  this  clause  is  that  it  was  inserted          8  Sun  Mutual  Insurance  Co.  v.  Mayor, 
in  the  Constitution  of  1798  at  the  instance     &c.  of  New  York,  8  N.  Y.  239. 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


205 


of  Iowa  say:  "The  intent  of  this  provision  of  the  constitution 
was,  to  prevent  the  union,  in  the  same  act,  of  incongruous 
matters,  and  of  objects  having  no  connection,  no  relation.  And 
with  this  it  was  designed  to  prevent  surprise  in  legislation,  by 
having  matter  of  one  nature  embraced  in  a  bill  whose  title 
expressed  another."1  And  similar  expressions  will  be  found 
in  many  other  reported  cases.2  It  may  therefore  be  assumed  as 
settled  that  the  purpose  of  these  provisions  was :  first,  to  prevent 
hodge-podge  or  "  log-rolling  "  legislation  ;  second,  to  prevent  sur- 
prise or  fraud  upon  the  legislature  by  means  of  provisions  in  bills 
of  which  the  titles  gave  no  intimation,  and  which  might  there- 
fore be  overlooked  and  carelessly  and  unintentionally  adopted; 
and,  third,  to  fairly  apprise  the  people,  through  such  publication 
of  legislative  proceedings  as  is  usually  made,  of  the  subjects  of 
legislation  that  are  being  considered,  in  order  that  they  may 
have  opportunity  of  being  heard  thereon,  by  petition  or  other- 
wise, if  they  shall  so  desire. 

2.  The  particularity  required  in  stating  the  object.  The  general 
purpose  of  these  provisions  is  accomplished  when  a  law  has  but 
one  general  object,  which  is  fairly  indicated  by  its  title.  To 
require  every  end  and  means  necessary  or  convenient  for  the 


1  State  v.  County  Judge  of  Davis  Co , 
2  Iowa,  280.     See  State  v.  Silver,  9  Nev. 
227. 

2  See  Conner  v.  Mayor,  &c.  of  New 
York,  5  N.  Y.  293 ;  Davis  v.  State,  7  Md. 
151.     The  Supreme  Court  of  Indiana  also 
understand  the  provision  in  the  Constitu- 
tion of  that  State  to  be  designed,  among 
other  tilings,  to  assist  in  the  codification 
of  the  laws.      Indiana  Central  Railroad 
Co.  v.  Potts,  7  Ind.  681  ;   Hingle  v.  State, 
24  Ind.  28.     See  People  v.  Institution,  &c., 
71   111.  229;   State  v.  Ah  Sam,  15  Nev. 
27,  37  Am.  Rep.  454 ;  Harrison  v.  Super- 
visors, 51  Wis.  645,  8  N.   W.  731  ;  Al- 
brecht  v.  State,  8  Tex.  App.  216,  34  Am. 
Rep.   737;  Hope  v.  Mayor,  &c.,  72  Ga. 
246 ;  State  v.  Ranson,  73  Mo.  78 ;  Bum- 
sted  v.  Govern,  47  N.  J.  L.  368,  1  All.  135. 

The  form  of  the  title  during  any  stage 
of  the  legislation  before  it  becomes  a  law 
is  immaterial.  Attorney-General  v.  Rice, 
64  Mich  385,  31  N.  W.  203;  State  v.  111. 
Centr.  R.  R.  Co.,  33  Fed.  Rep.  730. 

These  provisions  do  not  apply  to  a 
revision  of  the  statutes  required  by  the 
constitution  :  State  v.  McDaniel,  19  S.  C. 
114 ;  nor  to  an  act  antedating  the  consti- 
tution and  appearing  in  a  later  compila- 


tion. Stewart  v.  Riopelle,  48  Mich.  177, 
12  N.  W.  36.  [>nd  see  also  Parks  v. 
State,  110  Ga.  760,  36  S.  E.  73,  that  defect 
in  title  is  cured  by  later  inclusion  of  the 
regulation  in  the  code.]  It  is  enough 
if  the  title  of  the  chapter  in  an  author- 
ized compilation  is  referred  to  in  an 
amendatory  act.  People  v.  Howard,  73 
Mich.  10,  40  N.  W.  789 ;  State  v.  Berka, 
20  Neb.  375,  30  N.  W.  267;  but  see 
Feibleman  v.  State,  98  Ind.  516.  If  the 
title  of  an  original  act  is  good,  whether 
that  of  an  amendatory  act  is  in  itself  suffi- 
cient is  unimportant.  State  v.  Ranson, 
73  Mo.  78;  State  v.  Algood,  87  Tenn. 
163,  10  S.  W.  310.  An  amendment  of 
an  amended  act  may  be  upheld  if  the 
intention  is  plain,  though  there  is  confu- 
sion in  the  numbering  of  sections.  Fen- 
ton  v.  Yule,  27  Neb.  758,  43  N.  W.  1140. 
Under  an  amendatory  title  nothing  can 
be  enacted  but  what  amends  the  old  law. 
Matter  which  might  have  come  under  the 
original  title,  but  did  not,  cannot  be  intro. 
duced.  State  v.  Smith,  35  Minn.  257,  28 
N.  W.  241.  See  Tingue  v.  Port  Chester, 
101  N.  Y.  294.  nSee  also  State  v-  Walker, 
105  La.  492;  29  So.  973  ;  Armstrong  v. 
Mayer,  60  Neb.  423,  83  N.  W.  401.] 


206  CONSTITUTIONAL  LIMITATIONS.  [CH.  VI. 

accomplishment  of  this  general  object  to  be  provided  for  by  a 
separate  act  relating  to  that  alone,  would  not  only  be  unreason- 
able, but  would  actually  render  legislation  impossible.  It  has 
accordingly  been  held  that  the  title  of  "an  act  to  establish  a 
police  government  for  the  city  of  Detroit,"  was  not  objectionable 
for  its  generality,  and  that  all  matters  properly  connected  with 
the  establishment  and  efficiency  of  such  a  government,  including 
taxation  for  its  support,  and  courts  for  the  examination  and  trial 
of  offenders,  might  constitutionally  be  included  in  the  bill  under 
this  general  title.  Under  any  different  ruling  it  was  said,  "the 
police  government  of  a  city  could  not  be  organized  without  a 
distinct  act  for  each  specific  duty  to  be  devolved  upon  it,  and 
these  could  not  be  passed  until  a  multitude  of  other  statutes  had 
taken  the  same  duties  from  other  officers  before  performing  them. 
And  these  several  statutes,  fragmentary  as  they  must  necessarily 
be,  would  often  fail  of  the  intended  object,  from  the  inherent 
difficulty  in  expressing  the  legislative  will  when  restricted  to 
such  narrow  bounds."1  The  generality  of  a  title  is  therefore 
no  objection  to  it,  so  long  as  it  is  not  made  a  cover  to  legislation 
incongruous  in  itself,  and  which  by  no  fair  intendment  can  be 
considered  as  having  a  necessary  or  proper  connection.2  The 
legislature  must  determine  for  itself  how  broad  and  comprehen- 
sive shall  be  the  object  of  a  statute,  and  how  much  particularity 
shall  be  employed  in  the  title  in  defining  it.3  One  thing,  how- 

1  People  v.  Mahaney,  13  Mich.  481,  113  U.  S.  135,  5  Sup.  Ct.  Rep.  371 ;  Carter 
495.     See  also  Powell  v.  Jackson  Com.  Co.  v.  Sinton,  120  U.  S.  617,  7  Sup.  Ct. 
Council,   61   Mich.   129,  16  N.  W.   369;  Rep.  650;  Daubman  v.  Smith,  47  N.  J.  L. 
Morforcl  v.  Unger,  8  Iowa,  82 ;  Whiting  200 ;  Clare  v.  People,  9  Col.  122,  10  Pac. 
v.  Mount  Pleasant,  11  Iowa,  482  ;  Bright  799;  Ewing  v.  Hoblitzelle,  85  Mo.  64. 

r.  McCulloch,  27  Ind.  223  ;  Mayor,  &c.  of  *  Woodson  v.  Murdock,  22  Wall.  351. 

Annapolis  v.  State,  30  Md.  112;  Stater.  In   State  v.  Bowers,  14  Ind.  195,  an  act 

Union,  33  N.  J.  360;  Humboldt  County  came    under   consideration,  the  title  to 

v.  Churchill  Co.   Commissioners,  6  Nev.  which  was,  "An  act  to  amend   the  first 

30 ;  State  v.  Silver,  9  Nev.  227  ;  State  v.  section  of  an  act  entitled  '  An  act  con- 

Ranson,  73  Mo.  78.  cerning  licenses  to  vend  foreign  merchan- 

2  Indiana  Central  Railroad  Co.  v.  Potts,  dise,  to  exhibit  any  caravan,  menagerie, 
7  Ind.  681 ;    People  v.  Briggs,  60  N.  Y.  circus,   rope    and    wire  dancing  puppet 
653 ;   People   v.  Wands,   23   Mich.  385 ;  shows,  and  legerdemain,'  approved  June 
Washington  Co.  v.  Franklin  R.  R.  Co.,  34  16,  1852,  and  for  the  encouragement  of 
Md.  159;    Benz  v.   Weber,  81  III.   288;  agriculture,  and  concerning  the  licensing 
Johnson  v.  People,  83  111.  431  ;  Fuller  v.  of  stock  and  exchange  brokers."    It  was 
People,   92   III.  182 ;    Donnersberger    v.  held   that   the   subject  of   the   act   was 
Prendergast,  128  111.  229,   21   N.   E.   1 ;  licenses,  and  that  it  was  not  unconstitu- 
Kurtz  v.  People,  33  Mich.  279 ;  People  tional  as  containing  more  than  one  sub- 
v.   Haug,  68   Mich.  649,  37   N.    W.  21 ;  ject.     But  it  was  held  also  that,  as  the 
Montclair  v.  Ramsdell,   107   U.   S.   147,  licenses  which  it  authorized  and  required 
2  Sup.  Ct.  Rep.  391;  Jonesboro  v.  Cairo,  were  specified  in  the  title,  the  act  could 
&c.  R.  R.  Co.,  110  U.  S.  192,  4  Sup.  Ct.  embrace  no  others,  and  consequently  a 
Rep.  67 ;  Ackley  School  Dist.  r.  Hall,  provision  in  the  act  requiring  concerts 


CH.  VI.] 


OF   THE   ENACTMENT   OF  LAWS. 


207 


ever,  is  very  plain;  that  the  use  of  the  words  "other  purposes," 
which  has  heretofore  been  so  common  in  the  title  to  acts,  with 
a  view  to  cover  any  and  every  thing,  whether  connected  with 
the  main  purpose  indicated  by  the  title  or  not.  can  no  longer  be 
of  any  avail  where  these  provisions  exist.  As  was  said  by  the 
Supreme  Court  of  New  York  in  a  case  where  these  words  had 
been  made  use  of  in  the  title  to  a  local  bill :  "  The  words  '  for 
other  purposes  '  must  be  laid  out  of  consideration.  They  express 
nothing,  r.nd  amount  to  nothing  as  a  compliance  with  this  con- 
stitutional requirement.  Nothing  which  the  act  could  not 
embrace  without  them  can  be  brought  in  by  their  aid. " 1 


to  be  licensed  was  void.  In  State  v. 
County  Judge  of  Davis  County,  2  Iowa, 
280,  '284,  the  act  in  question  was  entitled 
"  An  act  in  relation  to  certain  State  roads 
therein  named."  It  contained  sixty-six 
sections,  in  which  it  established  some 
forty-six  roads,  vacated  some,  and  pro- 
vided for  the  re-location  of  others.  The 
court  sustained  the  act.  "  The  object  of 
an  act  may  be  broader  or  narrower,  more 
or  less  extensive ;  and  the  broader  it  is, 
the  more  particulars  will  it  embrace.  .  .  . 
There  is  undoubtedly  great  objection  to 
uniting  so  many  particulars  in  one  act, 
but  so  long  as  they  are  of  the  same 
nature,  and  come  legitimately  under  one 
general  determination  or  object,  we  can- 
not say  that  the  act  is  unconstitutional." 
Upon  this  subject  see  Indiana  Central 
Railroad  Co.  v.  Potts,  7  Ind.  681,  where 
it  is  considered  at  length.  Also  Brew- 
ster  c.  Syracuse,  19  N.  Y.  116;  Hall  v. 
Bunte,  20  Ind.  304  ;  People  v.  McCallum, 
1  Neb.  182;  Mauch  Chunk  v.  McGee, 
81  Pa.  St.  433.  But  a  title  and  act  cov- 
ering four  separate  objects  is  bad.  State 
r.  Heywood,  38  La.  Ann.  689.  An  act 
entitled  "  An  act  fixing  the  time  and  mode 
of  electing  State  printer,  defining  his 
duties,  fixing  compensation,  and  repeal- 
ing all  laws  coming  in  conflict  with  this 
act,"  was  sustained  in  Walker  v,  Dun- 
ham, 17  Ind.  483.  In  State  r.  Young,  47 
Ind.  450,  the  somewhat  strict  ruling  was 
made,  that  provisions  punishing  intoxi- 
cation could  not  be  embraced  in  an  act 
entitled  "  To  regulate  the  sale  of  intoxi- 
cating liquors."  In  Kurtz  v.  People,  33 
Mich.  279,  the  constitutional  provision  is 
said  to  be  "a  very  wise  and  wholesome 
provision,  intended  to  prevent  legislators 
from  being  entrapped  into  the  careless 
passage  of  bills  ou  matters  foreign  to  the 


ostensible  purpose  of  the  statute  as  enti- 
tled. But  it  is  not  designed  to  require 
the  body  of  the  bill  to  be  a  mere  repeti- 
tion of  the  title.  Neither  is  it  intended 
to  prevent  including  in  the  bill  such 
means  as  are  reasonably  adapted  to  se- 
cure the  objects  indicated  by  the  title." 
And  see  Morton  v.  The  Controller,  4  S.  C. 
430.  No  provision  in  a  statute  having 
natural  connection  with  the  subject  ex- 
pressed in  the  title  and  not  foreign  to  it. 
is  to  be  deemed  within  the  constitutional 
inhibition.  Johnson  v.  Higgins,  3  Met. 
(Ky.)  566 ;  McReynolds  v.  Smallhouse, 
8  Bush,  477 ;  Annapolis  v.  State,  30  Md. 
112;  Tuttle  v.  Strout,  7  Minn.  465;  Gun- 
ter  v.  Dale  Co.,  44  Ala.  639 ;  Ex  parte 
Upshaw,  45  Ala.  234 ;  State  v.  Price,  50 
Ala.  568;  Commonwealth  v.  Drewry,  15 
Gratt.  1 ;  People  v.  Hurlbut,  24  Mich.  44; 
State  v.  Union,  33  N.  J.  350 ;  State  v.  Sil- 
ver, 9  Nev.  227  ;  Burke  v.  Monroe  Co., 
77  111.  610 ;  Blood  v.  Mercelliott,  63  Pa. 
St.  391 ;  Commonwealth  v.  Green,  58  Pa. 
St.  226 ;  Walker  v.  Dunham,  17  Ind.  483. 
i  Town  of  Fishkill  v.  Fishkill  &  Beek- 
man  Plank  Road  Co.,  22  Barb.  634.  See, 
to  the  same  effect,  Johnson  v.  Spicer,  107 
N.  Y.  185;  Ryeraon  v.  Utley,  16  Mich. 
269 ;  St.  Louia  ».  Tiefel,  42  Mo.  578.  In 
a  title  to  punish  keepers  of  games  of 
faro,  etc.,  "  el  J.-'- does  not  mean  "other 
purposes,"  but  "and  other  games."  Gar- 
vin  v.  State,  13  Lea,  162.  An  act  entitled 
"An  act  to  repeal  certain  acts  therein 
named,"  is  void.  People  v.  Mellen,  32 
111.  181.  An  act,  having  for  its  sole  ob- 
ject to  legalize  certain  proceedings  of  the 
Common  Council  of  Janesville,  but  en- 
titled merely  "An  act  to  legalize  and 
authorize  the  assessment  of  street  im- 
provements and  assessments,"  was  held 
not  to  express  the  subject,  because  fail- 


208  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

3.  What  is  embraced  by  the  title.  The  repeal  of  a  statute  on  a 
given  subject,  it  is  held,  is  properly  connected  with  the  subject- 
matter  of  a  new  statute  on  the  same  subject;  and  therefore  a 
repealing  section  in  the  new  statute  is  valid,  notwithstanding 
the  title  is  silent  on  that  subject.1  So  an  act  to  incorporate  a 
railroad  company,  it  has  been  held,  may  authorize  counties  to 
subscribe  to  its  stock,  or  otherwise  aid  the  construction  of  the 
road.2  So  an  act  to  incorporate  the  Firemen's  Benevolent 
Association  may  lawfully  include  under  this  title  provisions  for 
levying  a  tax  upon  the  income  of  foreign  insurance  companies 
at  the  place  of  its  location,  for  the  benefit  of  the  corporation.3 
So  an  act  to  provide  a  homestead  for  widows  and  children  was 
held  valid,  though  what  it  provided  for  was  the  pecuniary  means 
sufficient  to  purchase  a  homestead.4  So  an  act  "to  regulate  pro- 
ceedings in  the  county  court "  was  held  to  properly  embrace  a 
provision  giving  an  appeal  to  the  District  Court,  and  regulating 
the  proceedings  therein  on  the  appeal.5  So  an  act  entitled  "An 
act  for  the  more  uniform  doing  of  township  business  "  may 
properly  provide  for  the  organization  of  townships.6  So  it  is 
held  that  the  changing  of  the  boundaries  of  existing  counties  is 
a  matter  properly  connected  with  the  subject  of  forming  new 
counties  out  of  those  existing.7  So  a  provision  for  the  organiza- 
tion and  sitting  of  courts  in  new  counties  is  properly  connected 
with  the  subject  of  the  formation  of  such  counties,  and  may  be 
included  in  "  an  act  to  authorize  the  formation  of  new  counties, 

ing  to  specify  the   locality.     Durkee  v.  tion  and  qualification  of  justices  of  the 

Janesville,  26  Wis.  697.  peace,   and   defining    their   jurisdiction, 

1  Gabbertw.  Railroad  Co.,  11  Ind.  365;  powers,  and  duties  in  civil  cases."     Rob- 
Timm  v.  Harrison,  109  III.  693.     The  con-  inson  v.  Skipworth,  23  Ind.  311. 
stitution  under  which  this   decision  was          8  Firemen's  Association  v.  Lounsbury, 
made  required  the  law  to  contain  but  one  21  111.  611.    Power  to  tax  for  school  pur- 
subject,    and  matters    properly    connected  poses  may  be  given   under  an  act   "to 
therewith ;    but    the    same   decision    was  regulate  public  instruction."      Smith  v. 
made  under  the  New  York  Constitution,  Bohler,  72  Ga.  546. 

which  omits   the   words  here  italicized ;  4  Succession  of  Lanzetti,  9  La.  Ann. 

and  it  may  well  be  doubted  whether  the  329. 

legal  effect  of  the  provision  is  varied  by  5  Murphey  v.  Menard,   11   Tex.   673. 

the  addition  of  those  words.     See  Guil-  See  State  v.  Ah  Sam,  15  Ner.  27,  37  Am. 

ford  v.  Cornell,  18  Barb.  615;  People  v.  464. 

Father  Matthew  Society,  41  Mich.  67,  1  fl  Clinton  v.  Draper,  14  Ind.  295.     An 

N.  W.  931.  act  to  consolidate  the  acts  as  to  a  city 

2  Supervisors,   &c.   v.   People,   25  111.  and  to  define  the  duty  of  the  mayor  will 
181 ;  Mahomet  v.  Quackenbush,  117  U.  S.  not  allow  conferring  judicial  power  on 
608,  6  Sup.  Ct.  Rep.  858  ;  Hope  v.  Mayor,  him.    Brown  v.  State,  79  Ga.  324,  4  S.  E. 
&c.,  72  Ga.  246;  Connor  v.  Green  Pond,  861. 

&c.  R.  R.  Co.,  23  S.  C.  427.     So  a  pro-          7  Haggard  n.  Hawkins,  14  Ind.   299. 

vision   for  the  costs   on   appeal  from   a  And  see  Puncombe  >\  Prindle,  12  Iowa, 

justice   is  properly   connected   with   the  1;  State  v.  Hoagland,  51  N.  J.  L.  62,  16 

subject  of  an  act  entitled  "  of  the  elec-  Atl.  166. 


CH.  VI.] 


OF   THE   ENACTMENT    OF   LAWS. 


and  to  change  county  boundaries.  "J  Many  other  cases  are 
referred  to  in  the  note,  which  will  further  illustrate  the  views 
of  the  courts  upon  this  subject.  There  has  been  a  general  dis- 
position to  construe  the  constitutional  provision  liberally,  rather 
than  to  embarrass  legislation  by  a  construction  whose  strictness 
is  unnecessary  to  the  accomplishment  of  the  beneficial  purposes 
for  which  it  has  been  adopted.2 


1  Brandon  v.  State,   16  Ind.  197.     In 
this  case,  and  also  in  State  v.  Bowers,  14 
Ind.  195,  it  was  held  that  if  the  title  to 
an  original  act  is  sufficient  to  embrace 
the  matters  covered  by  the  provisions  of 
sin  act  amendatory  thereof,  it  is  unneces- 
sary to  inquire  whether  the  title  of  an 
amendatory  act  would,  of  itself,  be  suffi- 
cient.    And  see  Morford  v.  Unger,  8  Iowa, 
82. 

2  Green  v.  Mayor,  &c-.,  R.  M.  Charlt. 
368;  Martin  v.  Broach,  6  Ga.  21 ;  Protho 
v.  Orr,  12  Ga.  36 ;  Wheeler  v.  State,  23 
Ga.  9  ;  Hill  ?.-.  Commissioners,  22  Ga.  203; 
Jones  v.  Columbus,  25  Ga.  610;  Denham 
v.  Holeman,  26  Ga.  182 ;  Allen  v.  Tison, 
50  Ga.  374  ;  Ex  parte  Conner,  51  Ga.  571 ; 
Briesvvick  v.  Mayor,  &c.  of  Brunswick,  51 
Ga.  639;  Howell  v.    State,  71   Ga.  224; 
People  r.  McCann,  16  N.  Y.  58  ;  Williams 
v.  People,  24  N.  Y.  405 ;  People  v.  Allen, 
42  N.  Y.  404  ;  Huber  v.  People,  49  N.  Y. 
132 ;  People  v.  Rochester,  50  N.  Y.  525 ; 
Wenzler  v.  People,  58  N.  Y.  516  ;  People 
v.  Dudley,  58  N.  Y.  323  ;  People  v.  Quigg, 
59  N.  Y.  83 ;  Harris  v.  People,  59  N.  Y. 
599  ;  In  re  Flatbush,  60  N.  Y.  398  ;  People 
v.  Willsea,  60  N.  Y.  507  ;  Matter  of  Met. 
Gas  Light  Co.,  85  N.  Y.  526 ;  People  v. 
Whitloek,  92  N.  Y.  191 ;  Ensign  v.  Barse, 
107  N.  Y.  329,  14  N.  E.  400,  15   N.  E. 
401;  Railroad  Co.  v.  Whiteneck,  8  Ind. 
217  ;  Wilkins  v.  Miller,  9  Ind.  100;  Foley 
r.  State,  9  Ind.  363;   Gillespie   v.  State, 
9  Ind.  380;  Mewherter  v.  Price,  11  Ind. 
199;  Reed  v.  State,  12  Ind.  641;  Henry 
n.  Henry,  13  Ind.  250;  Igoe  v.  State,  14 
Ind.  239;  Sturgeon  r.  Kitchens,  22  Ind. 
107 ;  Lauer  c.  State,  22  Ind.  461 ;  Central 
Plank  Road  Co.  v.   Hannaman,  22  Ind. 
484;  Garrigus  v.  Board  of  Commission- 
ers, 39  Ind.   66;   McCaslin   v.  State,  44 
Ind.  151 ;  Williams  v.  State,  48  Ind.  306 ; 
Jackson  r.  Reeves,  53  Ind.  231 ;  Railroad 
Co.   v.   Gregory,   15   111.   20;    Firemen's 
Association   v.   Ixmnsbury,   21    111.   511 ; 
Ottawa  r.   People,  48  III.  233;  Prescott 
v.  City  of  Chit-ago,  60  111.  121 ;  People  v. 


Brislin,  80  111.  423 ;  McAunich  v.  Missis- 
sippi, &c.  R.  R.  Co.,  20  Iowa,  338  ;  Slate 
v.  Squires,  26  Iowa,  340 ;  Chiles  v.  Drake, 
2  Met.  (Ky.)  146;  Phillips  v.  Bridge  Co., 
2  Met  (Ky.)  219;  Louisville,  &c.  Co.  v. 
Ballard,  2  Met.  (Ky.)  177;  Phillips  v. 
Covington,  &c.  Co.,  2  Met.  (Ky.)  219; 
Chiles  v.  Monroe,  4  Met.  (Ky.)  72 ;  Hind 
v.  Rice,  10  Bush,  528 ;  Cannon  v.  Hemp- 
hill,  7  Tex.  184;  Battle  v.  Howard,  13 
Tex.  345;  Robinson  v.  State,  15  Tex. 
311;  Antonio  v.  Gould,  34  Tex.  49;  Ex 
parte  Hogg,  36  Tex.  14 ;  State  v.  Shadle, 
41  Tex.  404;  State  v.  McCracken,  42 
Tex.  383;  Laefon  v.  Dufoe,  9  La.  Ann. 
329;  State  v.  Harrison,  11  La.  Ann.  722; 
Bossier  v.  Steele,  13  La.  Ann.  433 ;  Wil- 
liams v.  Payson,  14  La.  Ann.  7  ;  Wisners 
v.  Monroe,  25  La.  Ann.  598 ;  Whited  v. 
Lewis,  25  La.  Ann.  568 ;  State  v.  Lafayette 
County  Court,  41  Mo.  221 ;  State  v.  Mil- 
ler, 45  Mo.  495 ;  State  v.  Gut,  13  Minn. 
341;  Stuart  v.  Kinsella,  14  Minn.  524; 
Mills  v.  Charleton,  29  Wis.  400  ;  Evans  v. 
Sharpe,  29  Wis.  564;  Single  v.  Super- 
visors of  Marathon,  38  Wis.  363  ;  Harri- 
son v.  Supervisors,  51  Wis.  645,  8  N.  W. 
731;  People  v.  McCallum,  1  Neb.  182; 
Smails  v.  White,  4  Neb.  353;  Cutlip  v. 
The  Sheriff,  3  W.  Va.  588 ;  Shields  v. 
Bennett,  8  W.  Va.  74 ;  Tuscaloosa  Bridge 
Co.  v.  Olmstead,  41  Ala.  9;  Weaver  v. 
Lapsely,  43  Ala.  224;  Ex  parte  Upshaw, 
45  Ala.  234 ;  Lockhart  v.  Troy,  48  Ala. 
579;  Walker  v.  State,  49  Ala.  329; 
Simpson  v.  Bailey,  JJ  Oreg.  515;  Pope  v. 
Phifer,  3  Heisk.  682 ;  Cannon  v.  Mathes, 
8  Heisk.  504 ;  State  v.  Newark,  34  N.  J. 
264;  Gifford  v.  R.  R.  Co.,  10  N.  J.  Eq. 
171;  Keller  v.  State,  11  Md.  525;  Park- 
inson v.  State,  14  Md.  184 ;  Ryerson  v. 
Utley,  16  Mich.  269;  People  v.  Denahy, 
20  Mich.  319;  People  v.  Hurlbut,  24 
Mich.  44 ;  Kurtz  v.  People,  33  Mich. 
279;  Hathaway  v.  New  Baltimore,  48 
Mich.  251,  12  N.  W.  186;  Attorney-Ger- 
eral  v.  Joy,  55  Mich.  94,  20  N.  W.  806 ; 
Dorsey's  Appeal,  72  Pa.  St.  192;  Alle- 


14 


210 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VI. 


4.    The  effect  if  the  title  embrace  more  than  one  object.     Perhaps 
in  those  States  where  this  constitutional  provision  is  limited  in 


gheny  County  Home's  Case,  77  Pa.  St. 
77 ;  Morton  v.  Comptroller-General,  4 
S.  C.  430;  State  v.  Gurney,  4  S.  C.  520; 
Norman  v.  Curry,  27  Ark.  440 ;  Division 
of  Howard  County,  15  Kan.  194 ;  Simp- 
son' v.  Bailey,  3  Oreg.  515 ;  Ex  parte 
Wells,  21  Fla.  280 ;  Bead  v.  Plattsmouth, 
107  U.  S.  568,  2  Sup.  Ct,  Rep.  208 ;  Otoe 
Co.  v.  Baldwin,  111  U.  S.  1,  4  Sup.  Ct. 
Rep.  265. 

In  Davis  v.  Woolnough,  9  Iowa,  104, 
an  act  entitled  "  An  act  for  revising  and 
consolidating  the  laws  incorporating  the 
city  of  Dubuque,  and  to  establish  a  city 
court  therein,"  was  held  to  express  by  its 
title  but  one  object,  which  was,  the  revis- 
ing and  consolidating  the  laws  incorpo- 
rating the  city  ;  and  the  city  court,  not 
being  an  unusual  tribunal  in  such  a  mu- 
nicipality, might  be  provided  for  by  the 
act,  whether  mentioned  in  the  title  or  not. 
"An  act  to  enable  the  supervisors  of  the 
city  and  county  of  New  York  to  raise 
money  by  tax,"  provided  for  raising 
money  to  pay  judgments  then  existing, 
and  also  any  thereafter  to  be  recovered  ; 
and  it  also  contained  the  further  provi- 
sion, that  whenever  the  comptroller  of  the 
city  should  have  reason  to  believe  that 
any  judgment  then  of  record  or  there- 
after obtained  had  been  obtained  by  col- 
lusion, or  was  founded  in  fraud,  he  should 
take  the  proper  and  necessary  means  to 
open  and  reverse  the  same,  &c.  This 
provision  was  held  constitutional,  as  prop- 
erly connected  with  the  subject  indicated 
by  the  title,  and  necessary  to  confine  the 
payments  of  the  tax  to  the  objects  for 
which  the  moneys  were  intended  to  be 
raised.  Sharp  v.  Mayor,  &c.  of  New  York, 
31  Barb.  572.  In  O'Leary  v.  Cook  Co., 
28  111.  534,  it  was  held  that  a  clause  in  an 
act  incorporating  a  college,  prohibiting 
the  sale  of  ardent  spirits  within  a  dis- 
tance of  four  miles,  was  so  germaine  to 
the  primary  object  of  the  charter  as 
to  be  properly  included  within  it.  By 
the  first  section  of  "  an  act  for  the  relief 
of  the  creditors  of  the  Lockport  and 
Niagara  Falls  Railroad  Company,"  it  was 
made  the  duty  of  the  president  of  the 
corporation,  or  one  of  the  directors  to  be 
appointed  by  the  president,  to  advertise 
and  sell  the  real  and  personal  estate,  in- 


cluding the  franchise  of  the  company,  at 
public  auction,  to  the  highest  bidder.  It 
was  then  declared  that  the  sale  should  be 
absolute,  and  that  it  should  vest  in  the 
purchaser  or  purchasers  of  tlie  property, 
real  or  personal,  of  the  company,  all  the 
franchise,  rights,  and  privileges  of  the 
corporation,  as  fully  and  as  absolutely  as 
the  same  were  then  possessed  by  the 
company.  The  money  arising  from  the 
sale,  after  paying  costs,  was  to  be  applied, 
first,  to  the  payment  of  a  certain  judg- 
ment, and  then  to  other  liens  according  to 
priority;  and  the  surplus,  if  any,  was  to 
be  divided  ratably  among  the  other  cred- 
itors, and  then,  if  there  should  be  an  over- 
plus, it  was  to  be  divided  ratably  among 
the  then  stockholders.  By  the  second 
section  of  the  act,  it  was  declared  that 
the  purchaser  or  purchasers  should  have 
the  right  to  sell  and  distribute  stock  to  the 
full  amount  which  was  authorized  by  the 
act  of  incorporation,  and  the  several 
amendments  thereto;  and  to  appoint  an 
election,  choose  directors,  and  organize  a 
corporation  anew,  with  the  same  powers 
as  the  existing  company.  There  was 
then  a  proviso,  that  nothing  in  the  act 
should  impair  or  affect  the  subscriptions 
for  new  stock,  or  the  obligations  or  liabil- 
ities of  the  company,  which  had  been 
made  or  incurred  in  the  extension  of  the 
road  from  Lockport  to  Rochester,  &c. 
The  whole  act  was  held  to  be  constitu- 
tional. Hosier  v.  Hilton,  15  Barb.  657. 
An  act  for  the  relief  of  the  village  of 
Clinton  covers  curative  provisions  rel- 
ative to  the  action  of  commissioners 
for  village  water-supply.  Board  Water 
Commissioners  v.  Dwight,  101  N.  Y.  9. 
An  act  to  regulate  foreclosure  of  real 
estate  covers  provisions  for  sales  on 
execution  as  well  as  mortgage.  Gillitt 
v.  McCarthy,  34  Minn.  318,  25  N.  W.  637. 
One  to  prohibit  sale  of  liquor  covers  civil 
damage  provisions.  Durein  v.  Pontious, 
34  Kan.  353,  8  Pac.  428.  And  see  Mills 
v.  Charleton,  29  Wis.  400,  —  a  very  lib- 
eral case  ;  Erlinger  v.  Boneau,  51  111.  94 ; 
State  r.  Newark,  34  N.  J.  236;  Smith  v. 
Commonwealth,  8  Bush,  108;  State  v. 
St.  Louis  Cathedral,  23  La.  Ann.  730; 
Simpson  v.  Bailey,  3  Oreg.  515;  Neifing 
v.  Pontiac,  56  111.  172.  QA  title, "  An  Act 


CH.  VI.]  OF  THE   ENACTMENT   OF  LAWS.  211 

its  operation  to  private  and  local  bills,  it  might  be  held  that  an 
act  was  not  void  for  embracing  two  or  more  objects  which  were 
indicated  by  its  title,  provided  one  of  them  only  was  of  a  private 
and  local  nature.  It  has  been  held  in  New  York  that  a  local 
bill  was  not  void  because  embracing  general  provisions  also;1 
and  if  they  may  constitutionally  be  embraced  in  the  act,  it  is 
presumed  they  may  also  be  constitutionally  embraced  in  the 
title.  But  if  the  title  to  the  act  actually  indicates,  and  the  act 
itself  actually  embraces,  two  distinct  objects,  when  the  constitu- 
tion says  it  shall  embrace  but  one,  the  whole  act  must  be  treated 
as  void,  from,  the  manifest  impossibility  in  the  court  choosing 
between  the  two,  and  holding  the  act  valid  as  to  the  one  and  void 
as  to  the  other.2 

5.  The  effect  where  the  act  is  broader  than  the  title.  But  if  the 
act  is  broader  than  the  title,  it  may  happen  that  one  part  of  it 
can  stand  because  indicated  by  the  title,  while  as  to  the  object 
not  indicated  by  the  title  it  must  fail.  Some  of  the  State  con- 
stitutions, it  will  be  perceived,  have  declared  that  this  shall  be 
the  rule;  but  the  declaration  was  unnecessary;  as  the  general 
rule,  that  so  much  of  the  act  as  is  not  in  conflict  with  the  con- 
stitution must  be  sustained,  would  have  required  the  same 
declaration  from  the  courts.  If,  by  striking  from  the  act  all 
that  relates  to  the  object  not  indicated  by  the  title,  that  which 
is  left  is  complete  in  itself,  sensible,  capable  of  being  executed, 
and  wholly  independent  of  that  which  is  rejected,  it  must  be 
sustained  as  constitutional.  The  principal  questions  in  each 
case  will  therefore  be,  whether  the  act  is  in  truth  broader  than 

to  Facilitate  the  Carriage  of  Passengers  shall  be  expressed  in  the  title,"  where 
and  Property  by  Railroad  Companies  "  is  the  act  deals  with  a  vast  variety  of  sub- 
insufficient  to  cover  a  restriction  upon  jects,  many  of  which  are  totally  distinct 
the  powers  of  eminent  domain  possessed  from  each  other,  and  some  of  which  have 
by  certain  railroad  companies.  Thomas  no  relation  to  civil  procedure.  Lewis 
v.  Wabash,  St.  L.  &  P.  R.  Co.,  40  Fed.  Adm'x  of  Lewis  v.  Dunne,  134  Cal.  291, 
Rep.  126,  7  L.  R.  A.  145.  And  an  66  Pac.  478,  55  Lv  R.  A/833,  86  Am.  St. 
amendment  to  "An  Act  for  the  Incor-  257-3 

poration  of  Manufacturing  Companies,"  l  People  v.  McCann,  16  N.  Y.  58.  An 
which  makes  it  include  mercantile  com-  act  as  to  paving  Eighth  Avenue  cannot 
panies  without  changing  the  title,  is  provide  for  changing  the  grade  of  inter- 
void.  Eaton  v.  Walker,  76  Mich.  579,  secting  streets.  In  re  Blodgett,  89  N.  Y. 
43  N.  W.  638,  6  L.  R.  A.  102.  Word  392. 

"  purchase  "  does  not  include  expropria-         2  Antonio  v.  Gould,  34  Tex.  49  ;  State 

tion  by  eminent  domain.     Enterprise  r.  v.  McCracken,  42  Tex.  383.    All  the  cases 

Smith,  62  Kan.  815,  62  Pac.  324.]  recognize  this  doctrine.     fJState  v.  Fergu- 

O  title,  "An  Act  to  Revise  the  Code  son,  104  La.  249,  28  So.  917,  81  Am.  St. 

of  Civil  Procedure  of  the  State  of  Cali-  123,  furnishes  a  recent  instance.     For  a 

fornia  "  does  not  comply  with  the  consti-  valuable  discussion  and  collection  of  cases 

tutional  provision  that  "  every  act  shall  upon  questions  growing  out  of  titles  to 

embrace  but  one  subject,  which  subject  enactments,  see  79  Am.  St.  456-4&6.J 


212 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VI. 


the  title ;  and  if  so,  then  whether  the  other  objects  in  the  act 
are  so  intimately  connected  with  the  one  indicated  by  the  title 
that  the  portion  of  the  act  relating  to  them  cannot  be  rejected, 
and  leave  a  complete  and  sensible  enactment  which  is  capable 
of  being  executed.1 

As  the  legislature  may  make  the  title  to  an  act  as  restrictive 
as  they  please,  it  is  obvious  that  they  may  sometimes  so  frame 
it  as  to  preclude  many  matters  being  included  in  the  act  which 
might  with  entire  propriety  have  been  embraced  in  one  enact- 
ment with  the  matters  indicated  by  the  title,  but  which  must 
now  be  excluded  because  the  title  has  been  made  .unnecessarily 
restrictive.  The  courts  cannot  enlarge  the  scope  of  the  title; 
they  are  vested  with  no  dispensing  power;  the  constitution  has 
made  the  title  the  conclusive  index  to  the  legislative  intent  as 
to  what  shall  have  operation;  it  is  no  answer  to  say  that  the 
title  might  have  been  made  more  comprehensive,  if  in  fact  the 
legislature  have  not  seen  fit  to  make  it  so.  Thus,  "an  act 
concerning  promissory  notes  and  bills  of  exchange  "  provided 
that  all  promissory  notes,  bills  of  exchange,  or  other  instruments 
in  writing,  for  the  payment  of  money,  or  for  the  delivery  of 
specific  articles,  or  to  convey  property,  or  to  perform  any  other 


1  People  v.  Briggs,  50  N.  Y.  553.  See 
Van  Riper  v.  North  Plainfield,  43  N.  J. 
349;  Central,  &c.  R.  R.  Co.  i>.  People,  5 
Col  39 ;  Foley  v.  State,  9  Ind.  363 ;  Kuhns 
?•.  Kramis,  20  Ind.  490  ;  Grubbs  v.  State, 

24  Ind.  295;  State  v.  Young,  47  Ind.  150; 
Robinson  v.  Bank  of  Darien,  18  Ga.  65  ; 
Williams  v.  Payson,  14  La.  Ann.  7 ;  Wea- 
ver v.  Lapsley,  43  Ala.  224;  Walker  v. 
State,  49  Ala.  329 ;  Boyd  v.  State,  53  Ala. 
601 ;  Ex  parte  Moore,  62  Ala.  471 ;  State 
v.  Miller,  45  Mo  495 ;  Wisners  v.  Monroe, . 

25  La.  Ann.  598 ;  Dorsey's  Appeal,  72  Pa. 
St.  192;  Allegheny  County  Home's  Case, 
77   Pa.  St.  77;  Tecumseh  v.  Phillips,  5 
Neb.  305;  State  v.  Lancaster  Co.,  17  Neb. 
85,  22  N.  W.  228;  Matter  of  Van  Ant- 
werp, 66  N.  Y.  261 ;  People  v.  O'Brien, 
38   N.   Y.  193;   Matter  of  Metropolitan 
Gas.  Co.,  85  N.  Y.  526;  Lockport  v.  Gay- 
lord,  61  111.  276 ;  Middleport  v.  Insurance 
Co.,  82  111.  562 ;  Welch  v.  Post,  99    111. 
471 ;  Donnersberger  v.  Prendergast,  128 
III.  229,  21  N.  E.  1 ;  Davis  v.  State,  7  Md. 
151 ;    Stiefel  v.   Maryland  Inst,  61  Md. 
144;    State   v.    Banker's,   &c.   Assn.,   23 
Kan.  499  ;  Rader  v.  Union,  39  N.  J.  509; 
Evernliam  v.  Hulit,  45  N.  J.  L.  53;  Miss., 
&c.  Boom  Co.  v.  Prince,  34  Minn.  79,  24 


N.  W.  344;  State  v.  Palmes,  23  Fla.  620, 

3  So.  171;  Jones  v.  Thompson,  12  Bush, 
394  ;  QEquit.  G.  Trust  Co.  v.  Donahoe,  — 
Del.—,  49  Atl.  372  (May  16,  1901) ;  Har- 
ris i>.  State,  110  Ga.  887,  36  S.  E.  232; 
State  v.  McDonald,  25  Wash.  122,  64  Pac. 
912 ;  Re  Werner,  129  Cal.  567, 62  Pac.  97 ; 
Howard  v.  Schneider,  10  Kan.  App.  137, 
62  Pac.  435;  People  v.  Curry,  130  Cal.  82, 
62  Pac.  516 ;  State  v.  Cornell,  60  Neb.  276, 
694,  83  N.  W.  72.]     In  Tennessee  it  is 
held  that  if  an  act  contains  more  than 
one  subject,  it  is  void.     State  v.  McCann, 

4  Lea,  1.     "  None  of  the  provisions  of  a 
statute  should  be  regarded  as  unconstitu- 
tional where  they  all  relate,  directly  or 
indirectly,  to  the  same  subject,  have  a 
natural  connection,  and  are  not  foreign 
to  the  subject  expressed   in   the   title." 
Phillips  w.  Bridge  Co.,  2  Met.  (Ky.)  219, 
approved,    Smith    v.    Commonwealth,   8 
Bush,   112.     See   Ex  parte   Upshaw,   4~> 
Ala.   234;    Stewart  v.  Father  Mattliew 
Society,  41  Mich.  67, 1  N.  W.  931.    QThat 
title  is  broader  than  the  act  is  no  objec- 
tion.    State  v.  Burgdoerfer,  107  Mo.  1, 1 T 
S.  W.  646,  14  L.  R.  A.  846 ;    Dover   /-. 
Grand  Rapids  Fire  Ins.  Co.,   124  Mic'.i. 
455,  83  N.  W.  124,  83  Am.  St.  338.] 


CH.  VI.]  OF  THE  ENACTMENT  OF  LAWS.  213 

stipulation  therein  mentioned,  should  be  negotiable,  and  as- 
signees of  the  same  might  sue  thereon  in  their  own  names.  It 
was  held  that  this  act  was  void,  as  to  all  the  instruments  men- 
tioned therein  except  promissory  notes  and  bills  of  exchange:1 
though  it  is  obvious  that  it  would  have  been  easy  to  frame  a  title 
to  the  act  which  would  have  embraced  them  all,  and  which  would 
have  been  unobjectionable.  It  has  also  been  held  that  an  act 
for  the  preservation  cf  the  Muskegon  River  Improvement  could 
not  lawfully  provide  for  the  levy  and  collection  of  tolls  for  the 
payment  of  the  expense  of  constructing  the  improvement,  as 
the  operation  of  the  act  was  carefully  limited  by  its  title  to 
the  future.2  So  also  it  has  been  held  that  "an  act  to  limit  the 
numbers  of  grand  jurors,  and  to  point  out  the  mode  of  their 
selection,  defining  their  jurisdiction,  and  repealing  all  laws 
inconsistent  therewith,"  could  not  constitutionally  contain  pro- 
visions which  should  authorize  a  defendant  in  a  criminal  case, 
on  a  trial  for  any  offence,  to  be  found  guilty  of  any  lesser  offence 
necessarily  included  therein.3  These  cases  must  suffice  upon 
this  point;  though  the  cases  before  referred  to  will  furnish  many 
similar  illustrations. 

In  all  we  have  said  upon  this  subject  we  have  assumed  the 
constitutional  provision  to  be  mandatory.  Such  has  been  the 
view  of  the  courts  almost  without  exception.  In  California, 
however,  a  different  view  has  been  taken,  the  court  saying: 
"  We  regard  this  section  of  the  constitution  as  merely  directory ; 

1  Mewherterv  Price,  11  Ind.  199.  See  Miller  v.  Jones,  80  Ala.  80;   People  v. 
also  State  v.  Young,  47  Ind.  150;  Jones  Garlway,   61    Mich.  285,  28  N.  W.  101  ; 
r.  Thompson,  12  Bush,  394;  Rushing  v.  People  v.  Hauck,  70  Mich.  396,  38  N.  W. 
Sebree,   12  Bush,  198;  State  v.  Kinsella,  269;    Cantril  v.  Sainer,  59  Iowa,  26,  12 
14  Minn.  624  ;  Grover  v.  Trustees  Ocean  N.  W.  753.     See  State  v.  Circuit  Court,  50 
Grove,  45  N.  J.  L.  399.  N.  J.  L.  585,  15  All.  272. 

2  Ryerson  v.  Utley,  16  Mich.  269.  See  For  further  illustration  of  provisions 
further  Weaver  v.  Lapsley,  43  Ala.  224 ;  held  bad  because  not  within  the  title,  see 
Tuscaloosa  Bridge  Co.  v.  Olmstead,  41  Ala.  Ragio  v.  State,  86  Teon/272,  6  S.  W.  401 ; 
9;    Stuart    v.   Kinsella,    14    Minn.    524;  In  re  Paul,  94  N.  Y^497,  20  N.  W.  549; 
Rogers  r.  Manuf.  Imp.  Co.,  109  Pa.  St.  109.  Anderson  v.   Hill,  54  Mich.  477;  North- 
In  Cutlip  v.  Sheriff,  3  W.  Va.  588,  it  was  western  Mfg.  Co.  r.  Wayne  Cir.  Judge, 
held  that  if  an  act  embraces  two  objects,  £8  Mich.  381,  25  N.  W.  371  ;  Sewickley 
only  01  e  of  which  is  specified  in  the  title,  v.   Sholes,  118  Pa.  St.  165,  12  Atl.  302; 
the  whole  is  void ;  but  this  is  opposed  to  Jersey   City  v.   Elmendorf,  47   N.  J.   L. 
the  authorities  generally.  283;  Savannah,  F.  &  W.  Ry.  Co.  v.  Geigor, 

3  Foley  v.  State,  9  Ind.  363 ;  Gillespie  22  Fla.  669.     ([Addition  of  words  "  and  so 
r.  State,  9  Ind.  380.     See  also   Indiana  forth"   to    title   is   worthless.     Ex  pnrte 
Cent.  Railroad  Co.  v.  Potts,  7  Ind.  681 ;  Lacy,  93  Va.  159,  24  S.  E.  930,  31  L.  R.  A. 
State  v.  Squires,  26  Iowa,  840;  State  v.  822.     Provision  for  building  a  court  house 
Lafaj-et'e  Co.  Court,  41  Mo.  39;  People  cannot  be  included  in  "an  act  to  incor- 
v.  Denahy,  20  Mich.  349.  porate  the  town  of  Luverne."     Thompson 

Prohibitory  enactments  are  not  covered     v.  Luverne,  128  Ala.  507,  29  So.  326-3 
by  a  title   to  "regulate"  liquor  selling. 


214  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

and,  if  we  were  inclined  to  a  different  opinion,  would  be  careful 
how  we  lent  ourselves  to  a  construction  which  must  in  effect 
obliterate  almost  every  law  from  the  statute-book,  unhinge  the 
business  and  destroy  the  labor  of  the  last  three  years.  The  first 
legislature  that  met  under  the  constitution  seems  to  have  con- 
sidered this  section  as  directory;  and  almost  every  act  of  that 
and  the  subsequent  sessions  would  be  obnoxious  to  this  objec- 
tion. The  contemporaneous  exposition  of  the  first  legislature, 
adopted  or  acquiesced  in  by  every  subsequent  legislature,  and 
tacitly  assented  to  by  the  courts,  taken  in  connection  with  the 
fact  that  rights  have  grown  up  under  it,  so  that  it  has  become  a 
rule  of  property,  must  govern  our  decision."1  Similar  views 
have  also  been  expressed  in  the  State  of  Ohio.2  These  cases, 
and  especially  what  is  said  by  the  California  court,  bring 
forcibly  before  our  minds  a  fact,  which  cannot  be  kept  out  of 
view  in  considering  this  subject,  and  which  has  a  very  important 
bearing  upon  the  precise  point  which  these  decisions  cover. 
The  fact  is  this:  that  whatever  constitutional  provision  can  be 
looked  upon  as  directory  merely  is  very  likely  to  be  treated  by 
the  legislature  as  if  it  was  devoid  even  of  moral  obligation,  and 
to  be  therefore  habitually  disregarded.  To  say  that  a  provision 
is  directory,  seems,  with  many  persons,  to  be  equivalent  to  say- 
ing that  it  is  not  law  at  all.  That  this  ought  not  to  be  so  must 
be  conceded;  that  it  is  so  we  have  abundant  reason  and  good 
authority  for  saying.  If  therefore,  a  constitutional  provision 
is  to  be  enforced  at  all,  it  must  be  treated  as  mandatory.  And 
if  the  legislature  habitually  disregard  it,  it  seems  to  us  that 
there  is  all  the  more  urgent  necessity  that  the  courts  should 
enforce  it.  And  it  also  seems  to  us  that  there  are  few  evils 
which  can  be  inflicted  by  a  strict  adherence  to  the  law,  so  great 
as  that  which  is  done  by  the  habitual  disregard,  by  any  depart- 
ment of  the  government,  of  a  plain  requirement  of  that  instru- 
ment from  which  it  derives  its  authority,  and  which  ought, 
therefore,  to  be  scrupulously  observed  and  obeyed.  Upon  this 
subject  we  need  only  refer  here  to  what  we  have  said  concerning 
it  in  another  place.3 

Amendatory  Statutes. 

It  has  also  been  deemed  important,  in  some  of  the  States,  to 
provide  by  their  constitutions,  that  "  no  act  shall  ever  be  revised 

1  Washington  v.  Page,  4  Cal.  388.    See    v.  Nicholson,  6   Ohio   St.  177  ;   State  v. 
Pierpont  v.  Crouch,  10  Cal.  315;  Matter    Covington,  29  Ohio  St.  102. 

of  Boston  Mining,  &c.  Co.,  51  Cal.  624;          3  Ante,p.  106 et  seq.  See  State  v.  Tufly, 
Weill  v.  Kenfield,  54  Cal.  111.  19  Nev.  391. 

2  Miller  v.  State,  3  Ohio  St.  475;  Pirn 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


215 


or  amended  by  mere  reference  to  its  title ;  but  the  act  revised  or 
section  amended  shall  be  set  forth  and  published  at  full  length." 1 
Upon  this  provision  an  important  query  arises.  Does  it  mean 
that  the  act  or  section  revised  or  amended  shall  be  set  forth  and 
published  at  full  length  as  it  stood  before,  or  does  it  mean  only 
that  it  shall  be  set  forth  and  published  at  full  length  as  amended 
or  revised?  Upon  this  question  perhaps  a  consideration  of  the 
purpose  of  the  provision  may  throw  some  light.  "The  mischief 
designed  to  be  remedied  was  the  enactment  of  amendatory 
statutes  in  terms  so  blind  that  legislators  themselves  were 
sometimes  deceived  in  regard  to  their  effects,  and  the  public, 
from  the  difficulty  in  making  the  necessary  examination  and 
comparison,  failed  to  become  apprised  of  the  changes  made  in 
the  laws.  An  amendatory  act  which  purported  only  to  insert 
certain  words,  or  to  substitute  one  phrase  for  another  in  an  act 
or  section  which  was  only  referred  to,  but  not  published,  was 
well  calculated  to  mislead  the  careless  as  to  its  effect,  and  was, 
perhaps,  sometimes  drawn  in  that  form  for  the  express  purpose. 


1  This  is  the  provision  as  it  is  found  in 
the  Constitutions  of  Indiana,  Nevada,Ore- 
gon,  Texas,  and  Virginia.  In  Kansas, 
New  Jersey,  Ohio,  Michigan,  Louisiana, 
Wisconsin,  [[Utah,]  Missouri,  and  Mary- 
land there  are  provisions  of  similar  im- 
port. In  Tennessee  the  provision  is : 
"  All  acts  which  revive,  repeal,  or  amend 
former  laws,  shall  recite,  in  their  caption 
or  otherwise,  the  title  or  substance  of 
the  law  repealed,  revived,  or  amended." 
Art.  1,  §  17.  See  State  v.  Gaines,  1  Lea, 
734 ;  McGhee  v.  State,  2  Lea,  622.  The 
provision  in  Nebraska  (Const,  of  1875)  is 
peculiar.  "  No  law  shall  be  amended 
unless  the  new  act  contains  the  section 
or  sections  so  amended,  and  the  section 
or  sections  so  amended  shall  be  repealed." 
Art.  3,  §  11.  Under  a  like  provision  that 
any  section  amended  is  thereby  repealed, 
it  is  held  in  Alabama  that  an  amend- 
ment to  an  amended  .statute  is  valid. 
State  v.  Warford,  84  Ala.  15,  3  So.  911. 
So  where  the  amendment  impliedly  re- 
pealed the  original  act,  an  amendment  to 
the  amended  act  was  held  valid,  as  the 
mistake  in  referring  to  a  repealed  stat- 
ute should  not  defeat  the  intention  of 
the  legislature.  Com.  r.  Kenneson,  143 
Mass.  418,  9  N.  E.  761.  Under  provisions 
forbidding  enactments  by  reference  a  law 
complete  in  itself  may  provide  for  carry- 
ing out  its  purposes  by  reference  to  pro- 


cedure established  by  other  acts.  Camp- 
bell v.  Board,  &c.,  47  N.  J.  L.  347  ;  Be 
Camp  v.  Hibernia  R.  R.  Co.,  id.  43.  But 
the  act  must  be  complete  in  all  essentials. 
Christie  v.  Bayonne,  48  N.  J.  L.  407, 5  All. 
805;  Donohugh  v.  Roberts,  15  Phila.  144. 
In  Texas  it  appears  to  beheld  that  the 
legislature  may  repeal  a  definite  portion 
of  a  section  without  the  re-enactment  of 
the  section  with  such  portion  omitted. 
Chambers  v.  State,  25  Tex.  307.  But 
quaere  of  this.  Any  portion  of  a  section 
amended  which  is  not  contained  in  the 
amendatory  section  as  set  forth  and  pub- 
lished is  repealed.  State  v.  Ingersoll,  17 
Wis.  631.  [[But  where  the  provisions  of 
an  act  applying  to  a  certain  city  are 
made  to  apply  to  another,  this  is  not  an 
amendment  of  the  original  act.  Phrenix 
Fire  Assurance  Co.  v.  Montgomery  Fire 
Dept.,  117  Ala.  631,  23  So.  843,  42  L.  R. 
A.  468.]  Further  on  this  subject  see 
Blakemore  v.  Dolan,  50  Ind.  194 ;  People 
v.  Wright,  70  111.  388 ;  Jones  v.  Davis,  6 
Neb.  33  ;  Sovereign  v.  State,  7  Neb.  409 ; 
Gordon  v.  People,  44  Mich.  485,  7  N.  W. 
69;  State  v.  Gerger,  65  Mo.  306;  Van 
Riper  v.  Parsons,  40  N.  J.  123,  29  Am. 
Rep.  210;  Fleishnerr.  Chad  wick,  5  Oreg. 
152;  State  v.  Cain,  8  W.  Va.  720;  State 
v.  Henderson,  32  La.  Ann.  779;  Colwell 
v.  Chamberlin,  43  N.  J.  387;  [[State  v. 
Beddo,  22  Utah,  432,  63  Pac.  96  J 


216  CONSTITUTIONAL   LIMITATIONS.  [CFI.  VI. 

Endless  confusion  was  thus  introduced  into  the  law,  and  the 
constitution  wisely  prohibited  such  legislation."1  If  this  is  a 
correct  view  of  the  purpose  of  the  provision,  it  does  not  seem  to 
be  at  all  important  to  its  accomplishment  that  the  old  law 
should  be  republished,  if  the  law  as  amended  is  given  in  full, 
with  such  reference  to  the  old  law  as  will  show  for  what  the 
new  law  is  substituted.  Nevertheless,  it  has  been  decided  in 
Louisiana  that  the  constitution  requires  the  old  law  to  be  set 
forth  and  published;2  and  the  courts  of  Indiana,  assuming  the 
provision  in  their  own  constitution  to  be  taken  from  that  of 
Louisiana  after  the  decisions  referred  to  had  been  made,  at  one 
time  adopted  and  followed  them  as  precedents.3  It  is  believed, 
however,  that  the  general  understanding  of  the  provision  in 
question  is  different,  and  that  it  is  fully  complied  with  in  letter 
and  spirit,  if  the  act  or  section  revised  or  amended  is  set  forth 
and  published  as  revised  or  amended,  and  that  anything  more 
only  tends  to  render  the  statute  unnecessarily  cumbrous.4  It 
should  be  observed  that  statutes  which  amend  others  by  impli- 
cation are  not  within  this  provision ;  and  it  is  not  essential  that 
they  even  refer  to  the  acts  or  sections  which  by  implication  they 
amend.5  But  repeals  by  implication  are  not  favored;  and  the 
repugnancy  between  two  statutes  should  be  very  clear  to  warrant 
a  court  in  holding  that  the  later  in  time  repeals  the  other,  when 

1  People  v.  Mahaney,  13   Mich.  497.  66  Pac.  478,  55  L.  R.  A.  833,  86  Am.  St. 
See  Mok  v.  Detroit,  &c.  Association,  30  257,  an  act  for  the  revision  of  the  code 
Mich.  511;  Bush  v.  Indianapolis,  120  Ind.  of  Civil  Procedure  of  the  State  was  held 
476,  22  N.  E.  422.  unconstitutional    which  did   not   provide 

2  Walker  v.  Caldwell,  4  La.  Ann.  297  ;  for  republication  where  the  act  amended 
Heirs  of  Duverge  v.  Salter,  5  La.  Ann.  over  400  sections,  repealed   nearly   100, 
94.     Contra,  Shields  v.  Bennett,  8  W.  Va.  and  added  many  new  ones.     There  is  a 
74.  valuable  note  to  this  case  upon  the  power 

8  Langdon  v.  Applegate,  5  Ind.  327 ;  of  the  legislature  to  enact  a  code  or 

Rogers  v.  State,  6  Ind.  31.  These  cases  compilation  of  laws  or  make  extended 

were  overruled  in  Greencastle,  &c.  Co.  v.  amendments  to  a  system  of  laws  by  a 

State,  28  Ind.  382.  single  statute.  55  L.  R.  A.  833.] 

4  See  Tuscaloosa  Bridge  Co.  v.  Olm-  5  Spencer  v.  State,  5  Ind.  41;  Bran- 
stead,  41  Ala.  9  ;  People  v.  Pritchard,  21  ham  v.  Lange,  16  Ind.  497 ;  People  v. 
Mich.  236;  People  v.  McCallum,  1  Neb.  Mahaney,  13  Mich.  481;  Lehman  v.  Mc- 
182;  State  v.  Draper,  47  Mo.  29;  Boon-  Bride,  15  Ohio  St.  573;  Shields  v.  Ben- 
ville  v.  Trigg,  46  Mo.  288 ;  State  v.  Pow-  nett,  8  W.  Va.  74 ;  Baum  v.  Raphael,  67 
der  Mfg.  Co.,  50  N.  J.  L.  75,  11  Atl.  127.  Cal.  361 ,  Home  Ins.  Co.  v.  Taxing  Dis- 
A  whole  act  need  be  set  out  only  when  trict,  4  Lea,  644;  Swartwout  v.  Railroad 
all  its  sections  are  amended.  State  v.  Co.,  24  Mich.  389 ;  Scales  v.  State,  47 
Thruston,  92  Mo.  325, 4  S.  W.  930.  Under  Ark.  476,  1  S.  W.  769;  Denver  Circle  R. 
such  a  constitutional  provision  where  a  Co.  v.  Nestor,  10  Col.  403,  15  Pac.  714; 
statute  simply  repeals  others  it  is  not  Stater.  Cross,  38  Kan.  696,  17  Pac.  190; 
necessary  to  set  them  out.  Falconer  v.  Evernham  v.  Hulit,  45  N.  J.  L.  53;  Sher- 
Robinson,  46  Ala.  340.  Compare  Bird  ?•.  idan  v.  Salem,  14  Oreg.  328,  12  Pac.  925. 
Wasco  County,  3  Oreg.  282.  FJIn  Lewis,  Compare  State  v.  Wright,  id.  365, 12  Pac. 
Atlm'x  of  Lewis,  v.  Dunne,  134  Cal.  291,  708. 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


217 


it  does  not  in  terms  purport  to  do  so.1  This  rule  has  peculiar 
force  in  the  case  of  laws  of  special  and  local  application,  which 
are  never  to  be  deemed  repealed  by  general  legislation  except 
upon  the  most  unequivocal  manifestation  of  intent  to  that  effect.2 
It  was  a  parliamentary  rule  that  a  statute  should  not  be 
repealed 'at  the  same  session  of  its  enactment,  unless  a  clause 
permitting  it  was  inserted  in  the  statute  itself;3  but  this  rule 
did  not  apply  to  repeals  by  implication,4  and  it  is  possibly  not 
recognized  in  this  country  at  all,  except  where  it  is  incorporated 
in  the  State  constitution.6 


1  See  cases  cited  in  last  note ;  also 
Towle  v.  Marrett,  3  Me.  22,  14  Am.  Dec. 
206  ;  Naylor  v.  Field,  29  N.  J.  287  ;  State 
v.  Berry,  12  Iowa,  58;  Attorney-General 
v.  Brown,  1  Wis.  613 ;  Dodge  v.  Gridley, 
10  Ohio,  173;  Him  v.  State,  1  Ohio  St. 
20 ;  Saul  v.  Creditors,  5  Mart.  N.  s.  669, 16 
Am.  Dec.  212;  New  Orleans  v.  Southern 
Bank,  15  La.  Ann.  89;  Blain  v.  Bailey,  25 
Ind.  165;  Water  Works  Co.  v.  Burkhart, 
41  Ind.  364  ;  Swann  v.  Buck,  40  Miss.  268  ; 
Davis  v.  State,  7  Md.  151 ;  State  c.  The 
Treasurer,  41  Mo.  16;  Somerset  &  Stoys- 
town  Road,  74  Pa.  St.  61 ;  Kilgore  v. 
Commonwealth,  94  Pa.  St.  495;  McCool 
i'.  Smith,  1  Black,  459;  State  v.  Cain,  8 
W.  Va.  720;  Fleischner  v.  Chad  wick,  5 
Oreg.  152;  Covington  v.  East  St.  Louis, 
78  111.  518;  East  St.  Louis  i;.  Maxwell,  99 
111.  439 ;  In  re  Ryan,  45  Mich.  173,  7  N.  W. 
819;  Connors  r.  Carp  River  Iron  Co.,  64 
Mich.  168,  19  N.  W.  938;  Parker  v.  Hub- 
bard,  64  Ala.  203;  Iverson  v.  State,  52 
Ala.  170;  Gohen  v.  Texas  Pacific  R.  R. 
Co.,  2  Woods,  346 ;  State  v.  Commis- 
sioners, 37  N.  J.  240;  Attorney-General 
i:.  Railroad  Companies,  35  Wis.  425 ; 
Rounds  v.  Waymart,  81  Pa.  St.  395, 
Greeley  r.  Jacksonville,  17  Fla.  174; 
State  v.  Smith,  44  Tex.  443 ;  Henderson's 
Tobacco,  11  Wall.  652;  Cape  Girardeau 
Co.  Ct.  v.  Hill,  118  U.  S.  68,  6  Sup.  Ct. 
Rep.  951.  If  the  two  are  repugnant  in 
part,  the  earlier  is  pro  tanto  repealed. 
Hearn  v.  Brogan,  64  Miss.  334  ;  Jefferson- 
ville,  &c.  R.  R.  Co.  v.  Dunlap,  112  Ind.  93, 
13  N.  E.  403.  A  law  which  merely  re- 
enacts  a  former  one  does  not  repeal  an 
intermediate  act  qualifying  such  former 
act.  The  new  is  qualified  like  the  old. 
Gaston  v.  Merriam,  33  Minn.  271,  22  N.  W. 
614.  It  is  a  familiar  rule,  however,  that 
when  a  new  statute  is  evidently  intended 


to  cover  the  whole  subject  to  which  it 
relates,  it  will  by  implication  repeal  all 
prior  stntutes  on  that  subject.  See  United 
States  v.  Barr,  4  Sawyer,  254;  United 
States  v.  Claflin,  97  U.  S.  546 ;  Red  Rock 
v.  Henry,  106  U.  S.  596,  1  Sup.  Ct.  Rep. 
434 ;  Dowdell  v.  State,  58  Ind.  333 ;  State 
v.  Rogers,  10  Nev.  319;  Tafoya  v.  Garcia, 
1  New  Mex.  480;  Campbell's  Case,  1  Dak. 
17,  46  N.  W.  504;  Andrews  v.  People,  75 
111.  605;  Clay  Co.  v.  Chickasaw  Co.,  64 
Miss.  534, 1  So.  753 ;  Lyddy  r.  Long  Island 
City,  104  N.  Y.  218;  Stingle  r.  Nevel,  9 
Oreg.  62;  State  v.  Studt,  31  Kan.  245,  I 
Pac.  635.  But  a  local  option  law  merely 
suspends,  does  not  repeal  a  former  liquor 
law,  and  after  its  adoption  offences  against 
the  latter  while  in  force  may  be  prose- 
cuted. Winterton  v.  State,  65  Miss.  238, 
3  So.  735.  A  statute  cannot  be  repealed 
by  non-user.  Homer  r.  Com.,  106  Pa.  St. 
221 ;  Pearson  v.  Int.  Distill.  Co.,  72  Iowa, 
348,  34  N.  W.  1. 

2  Cass  v.  Dillon,  2  Ohio  St.  607;  Fos- 
dick  r.  Perrysburg,  14  Ohio  St.  472  ;  Peo- 
ple v.  Quigg,  69  N.  Y.  83;  McKenna  v. 
Edmundstone,  91  N.  Y.  231;  Clark  v. 
Davenport,  14  Iowa,  494 ;  Oleson  v.  Green 
Bay,  &c.  R.  R.  Co.,  36  Wis.  383 ;  Coving- 
ton  v.  East  St.  Louis,  78  III.  548 ;  Chesa- 
peake, &c.  Co.  v.  Hoard,  16  W.  Va.  270; 
Rounds  v.  Waymart,  81  Pa.  St.  395;  E.c 
parte  Schmidt,  24  S.  C.  363 ;  New  Bruns- 
wick v.  Williamson,  44  N.  J.  L.  165;  Mc- 
Gruder  v.  State,  83  Ga.  616,  10  S.  E.  281. 

8  Dwarris  on  Statutes,  Vol.  I.  p.  269 ; 
Sedgw  on  Stat.  and  Const.  Law,  122; 
Smith  on  Stat.  and  Const.  Construction, 
908. 

*  Ibid.  And  see  Spencer  v.  State,  5 
Ind.  41. 

6  Spencer  v.  State,  5  Ind.  41;  Attor- 
ney-General v.  Brown,  1  Wis.  C13;  Smith 


218 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VI. 


Signing  of  Bills. 

When  a  bill  has  passed  the  two  houses,  it  is  engrossed  for  the 
signatures  of  the  presiding  officers.  This  is  a  constitutional 
requirement  in  most  of  the  States,  and  therefore  cannot  be  dis- 
pensed with;1  though,  in  the  absence  of  any  such  requirement, 
it  would  seem  not  to  be  essential.2  And  if,  by  the  constitution 
of  the  State,  the  governor  is  a  component  part  of  the  legislature, 
the  bill  is  then  presented  to  him  for  his  approval,  (a) 

Approval  of  Laws. 

The  qualified  veto  power  (6)  of  the  governor  is  regulated  by 
the  constitutions  of  those  States  which  allow  it,  and  little  need 


on  Stat.  and  Const.  Construction,  908; 
Mobile  &  Ohio  Railroad  Co.  v.  State,  29 
Ala.  573;  Strauss  r.  Heiss,  48  Md.  292. 
The  later  of  two  acts  passed  at  the  same 
session  controls  when  they  are  incon- 
sistent. Thomas  v.  Collins,  58  Mich.  64, 
24  N.  W.  553 ;  Watson  v.  Kent,  78  Ala. 
602.  But  the  fact  of  later  publication 
when  action  is  taken  at  the  same  time 
will  not  work  a  repeal.  In  re  Hall,  38 
Kan.  670,  17  Pac.  649.  Where  acts 
passed  on  different  days  are  approved  on 
the  same  day,  the  presumption  is  that 
the  one  passed  last  was  signed  last.  State 
v.  Davis,  70  Md.  237,  16  All.  529. 

1  Moody  v.  State,  48  Ala.  115,  17  Am. 
Rep.  28;  State  v.  Mead,  71  Mo.  266; 
Burritt  v.  Com'rs,  120  111.  322,  11  N.  E. 
180;  State  v.  Kiesewetter,  45  Ohio  St. 
254, 12  N.  E.  807  ;  Hunt  v.  State,  22  Tex. 
App.  396,  3  S.  W.  233.  Signature  by 
presiding  officers  and  assistant  secretary 
is  enough.  State  v.  Glenn,  18  Nev.  34,  • 
1  Pac.  186.  But  if  the  journal  shows 
the  passage  of  an  act  and  the  governor 
signs  it,  absence  of  signature  of  the  presi- 
dent of  the  Senate  will  not  invalidate 
it.  Taylor  v.  Wilson,  17  Neb.  88,  22 
N.  W.  119.  After  an  act  has  been  passed 
over  a  veto,  it  need  not  be  again  cer- 
tified. State  v.  Denny,  118  Ind.  449,  21 
N.  E.  274  The  bill  as  signed  must  be 


the  same  as  it  passed  the  two  houses. 
People  o.  Platt,  2  S.  C.  N.  s.  150;  Legg 
v.  Annapolis,  42  Md.  203 ;  Brady  c.  West 
50  Miss.  68.  But  a  clerical  error  that 
would  not  mislead  is  to  be  overlooked. 
People  v.  Supervisor  of  Onondaga,  16 
Mich.  254.  Compare  Smith  v.  Hoyt,  14 
Wis.  252,  where  the  error  was  in  publi- 
cation. And  so  should  accidental  and 
immaterial  changes  in  the  transmission 
of  the  bill  from  one  house  to  the  other. 
Larrison  v.  Railroad  Co.,  77  111.  11 ;  Wal- 
nut v.  Wade,  103  U.  S.  683.  See  Wen- 
ner  v.  Thornton,  98  111.  156.  When  a 
mistake  in  enrolment  made  an  approval 
void,  signatures  and  approval  on  a  cor- 
rect roll  after  the  adjournment  were  held 
to  make  the  act  valid.  Dow  v.  Beidel- 
man,  49  Ark.  325,  6  S.  W.  297.  In  Mary- 
land the  governor  may  refuse  to  consider 
any  bill  sent  him  not  authenticated  by 
the  Great  Seal.  Hamilton  v.  State,  61 
Md.  14.  Qln  Nevada  where  the  governor 
vetoes  an  act  after  the  adjournment  of 
the  legislature,  the  next  legislature  may 
pass  it  over  his  veto.  Upon  such  pas- 
sage, the  presiding  officers  of  the  two 
houses  must  thereupon  sign  it.  State  v. 
Howell,  —  Nev.  — ,  64  Pac.  466  (April  8, 
1901).] 

2  Speer  v.  Plank  Road  Co.,  22  Pa.  St. 
376. 


(a)  £Upon  power  to  withdraw  the  bill  from  the  governor  before  he  has  acted  on  it 
and  before  the  expiration  of  the  time  given  him  in  which  to  act  upon  it,  see  McKenzie 
v.  Moore,  92  Ky.  216,  17  S.  W.  483,  14  L.  R.  A.  251,  and  note.  The  bill  presented 
must  be  that  which  passed  the  legislature.  Any  change  after  passage  and  before 
signature  by  the  governor  prevents  the  bill's  becoming  a  law.  State  v.  Wendler,  94 
Wis.  369,  68  N.  W.  759.] 

(l>)  QWhere  the  statute  provides  that  the  mayor  "shall  have  a  negative  upon  the 
action  of  the  aldermen  in  laying  out  highways  and  in  all  other  matters,"  such  pro- 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


219 


be  said  here  beyond  referring  to  the  constitutional  provisions 
for  information  concerning  them.  It  has  been  held  that  if  the 
governor,  by  statute,  was  entitled  to  one  day,  previous  to  the 
adjournment  of  the  legislature,  for  the  examination  and  approval 
of  laws,  this  is  to  be  understood  as  a  full  day  of  twenty-four 
hours,  before  the  hour  of  the  final  adjournment.1  It  has  also 
been  held  that,  in  the  approval  of  laws,  the  governor  is  a  com- 
ponent part  of  the  legislature,  and  that  unless  the  constitution 
allows  further  time  for  the  purpose,  he  must  exercise  his  power 
of  approval  before  the  two  houses  adjourn,  or  his  act  will  be 
void.2  But  under  a  provision  of  the  Constitution  of  Minnesota, 
that  the  governor  may  approve  and  sign  "within  three  days  of 


i  Hyde  v.  White,  24  Tex.  137.  The 
five  days  allowed  in  New  Hampshire  for 
the  governor  to  return  bills  which  have 
not  received  his  assent,  include  days  on 
which  the  legislature  is  not  in  session,  if 
it  has  not  finally  adjourned.  Opinions  of 
Judges,  45  N.  H.  607.  But  the  day  of 
presenting  the  bill  to  the  governor  should 
be  excluded.  Opinions  of  Judges,  45 
N.  H.  607 ;  Iron  Mountain  Co.  v.  Haight, 
39  Cal.  540;  In  re  Senate  Resolution, 
9  Col.  632,  21  Pac.  475.  And  if  the  last 
day  falls  on  Sunday  he  may  return  the 
bill  on  Monday,  id.  As  to  the  power  of 
the  governor,  derived  from  long  usage, 
to  approve  and  sign  bills  after  the  ad- 
journment of  the  legislature,  see  Solomon 
v.  Cartersville,  41  Ga.  157. 

Neither  house  can,  without  the  con- 
sent of  the  other,  recall  a  bill  after  its 
transmission  to  the  governor.  People  v. 
Devlin,  S3  N.  Y.  269.  In  Colorado  the 
legislature  may  request  the  return  of  a 
bill  in  the  governor's  hands,  but  he  may 
respond  or  not  as  he  likes.  If  he  sends 
back  the  bill,  it  may  be  reconsidered  and 
amended.  Re  Recalling  Bills,  9  Col.  630, 
21  Pac.  474.  But  in  Virginia  no  such 
recall  is  authorized.  Wolfe  v.  McCaull, 
76  Va.  876. 

The  delivery  of  a  bill  passed  by  the 
two  houses  to  the  secretary  of  the  com- 
monwealth according  to  custom,  is  not  a 
presentation  to  the  governor  for  his  ap- 
proval, within  the  meaning  of  the  con- 
stitutional clause  which  limits  him  to  a 
certain  number  of  days  after  the  presen- 


tation of  the  bill  to  veto  it.     Opinions  of 
the  Justices,  99  Mass.  636. 

2  Fowler  v.  Peirce,  2  Cal.  165.  The 
court  also  held  in  this  case  that,  notwith- 
standing an  act  purported  to  have  been 
approved  before  the  actual  adjournment, 
it  was  competent  to  show  by  parol  evi- 
dence that  the  actual  approval  was  not 
until  the  next  day.  In  support  of  this 
ruling,  People  v.  Purdy,  2  Hill,  31,  was 
cited,  where  it  was  held  that  the  court 
might  go  behind  the  statute-book  and 
inquire  whether  an  act  to  which  a  two- 
thirds  vote  was  essential  had  constitution- 
ally passed.  That,  however,  would  not 
be  in  direct  contradiction  of  the  record, 
but  it  would  be  inquiring  into  a  fact  con- 
cerning which  the  statute  was  silent,  and 
other  records  supplied  the  needed  infor- 
mation. In  Indiana  it  is  held  that  the 
courts  cannot  look  beyond  the  enrolled 
act  to  ascertain  whether  there  has  been 
compliance  with  the  requirement  of  the 
constitution  that  no  bill  shall  be  pre- 
sented to  the  governor  within  two  days 
next  previous  to  the  final  adjournment. 
Bender  r.  State,  53  Ind.  254.  [In  Mary- 
land a  bill  may  be  signed  within  six  days 
after  it  is  submitted,  although  the  legisla- 
ture may  have  adjourned.  The  bill  may 
even  be  presented  after  the  adjournment. 
Lankford  v.  Somerset  Co.,  73  Md.  105,  20 
Atl.  1017,  22  Atl.  412,  11  L.  R.  A.  491. 
See  upon  this  question,  paper  of  E.  D. 
Renick  and  cases  cited  in  it,  32  Am.  Law 
Rev.  208.] 


vision  applies  only  to  the  legislative  action  of  the  aldermen.  It  does  not  apply  to 
their  determination  of  a  contest  as  to  membership.  Gate  v.  Martin,  70  N.  H.  135,  46 
Atl.  54,  48  L.  R.  A.  613-3 


220 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VI. 


the  adjournment  of  the  legislature  any  act  passed  during  the  last 
three  days  of  the  session,"  it  has  been  held  that  Sundays  were 
not  to  be  included  as  a  part  of  the  prescribed  time ; 1  and  under 
the  Constitution  of  New  York,  which  provided  that,  "if  any  bill 
shall  not  be  returned  by  the  governor  within  ten  days,  Sundays 
excepted,  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
legislature  shall,  by  their  adjournment,  prevent  its  return,  in 
which  case  it  shall  not  be  a  law, "  2  it  was  held  that  the  governor 
might  sign  a  bill  after  the  adjournment,  at  any  time  within  the 
ten  days.3  The  governor's  approval  is  not  complete  until  the 
bill  has  passed  beyond  his  control  by  the  constitutional  and 
customary  mode  of  legislation ;  and  at  any  time  prior  to  that  he 
may  reconsider  and  retract  any  approval  previously  made.4  His 


1  Stinson  v.  Smith,  8  Minn.  366.     See 
also  Corwin  v  Comptroller,  6  Rich.  390. 
In  South  Carolina  a  bill  sent  to  the  gov- 
ernor on  the  last  day  of  the  first  session 
may  be  signed  by  him  on  the  first  day  of 
the  next  regular  session,  notwithstanding 
an  adjourned  session  has  intervened.    Ar- 
nold v.  McKellur,  9  S.  C.  335.     In  Miss- 
issippi if  a  bill   is  presented  within  ten 
days  of  the  adjournment,  it  may  be  ap- 
proved at  any  time  before  the  third  day 
of  the  next  session.     State  v.  Coahoma 
Co  .  64  Miss.  358,  11  So.  601.     nThe  Con- 
stitution of  Michigan   contains   a  provi- 
sion similar  to  that  of  Minnesota  above 
quoted,  except  that  it  provides  five  days 
instead  of  three.     Held,  that  such  provi- 
sion makes  a  signature  good  that  is  at- 
tached within  the  required  ten  days  after 
passage  of    bill  and  not  later  than  five 
days  after  adjournment.     The  question 
arose  in  regard  to  a  bill  passed  less  than 
ten  days  and  more  than  five  days  before 
adjournment,  and  signed   after  adjourn- 
ment, but  within  ten  days  after  passage 
of  bill.     Detroit  v.  Chapin,  108  Mich.  136, 
66  N.  W.  587,  37  L.  R.  A.  391 ;  and  upon 
right  of  executive  to  sign  bills  after  ad- 
journment of  legislature,  see  note  to  this 
case  in  L.  R.  A.     In  Nevada,  upon  bills 
sent  to  him  during  last  five  days  of  ses- 
sion, governor  may  act  within  ten  days 
after  adjournment.     State  v.  Howell,  — 
Nev.  — ,  64  Pac.  466  (April  8,  1901)."] 

2  See   McNeil   v.   Commonwealth,   12 
Bush,  727.     In  computing  the  ten  days, 
the  first  day  should  be  excluded.     Beau- 
Heau  v.  Cape  Girardeau,  71  Mo.  392. 


8  People  v.  Bowen,  30  Barb.  24,  and 

21  N.  Y.  517.     See  also  State  v.  Fagnn, 

22  La.  Ann.  645 ;   Solomon  K.  Commis- 
sioners, 41  Ga.  157;  Darling  v.  Boesch,  67 
Iowa,  702,  25  N.  W.  887 ;  Seven  Hickory 
v.  Ellery,  103  U.  S.  423.     It  seems  that 
in  Nebraska,  in  a  similar  provision,  by 
"adjournment"   is   meant   the  final  ad- 
journment ;   and  if  the  same  session   is 
adjourned  for  a  time  —  in  this  case  two 
months  —  the   governor  must  act  upon 
the  bill  within  the  specified  number  of 
days.     Miller  v.  Hurford,    11   Neb.  377, 
9  N.  W.  477.     Where  on  the  tenth  day 
the  governor  sent  a  bill  with  his  objec- 
tions to  the  house  with  which  it  origin- 
ated,   but    the    messenger,   finding    the 
house   had   adjourned    for  the   day,   re- 
turned it  to  the  governor,  who  retained 
it,  it  was  held  that  to  prevent  the  bill  be- 
coming a  law  it  should  have  been   left 
with  the  proper  officer  of  the  house  in- 
stead of  being  retained  by  the  governor. 
Harpending  v.  Haight,  39  Cal.  189.     In 
response  to  an  unauthorized  request,  the 
governor  returned  a  bill  without  objec- 
tions.    The  constitution  provided  that  a 
bill,  if  not  returned  in  five  days,  became 
law  without  his  signature.    Held,  that  his 
return  was  not  covered  by  the  provision, 
and  that  the  bill  became  a  law  notwith- 
standing.    Wolfe  v.  McCaull,  76  Va.  876. 

*  People  P.  Hatch,  19  III.  283.  An 
act  apportioning  the  representatives  was 
passed  by  the  legislature  and  transmitted 
to  the  governor,  who  signed  his  approval 
thereon  by  mistake,  supposing  at  the 
time  that  he  was  subscribing  one  of  sev- 


CH.  VI.] 


OF  THE  ENACTMENT  OF  LAWS. 


221 


disapproval  of  a  bill  is  communicated  to  the  house  in  which  it 
originated,  with  his  reasons;  and  it  is  there  reconsidered,  and 
may  be  again  passed  over  the  veto  by  such  vote  as  the  constitu- 
tion prescribes.1 


eral  other  bills  tlien  lying  before  him,  and 
claiming  his  official  attention ;  his  private 
secretary  thereupon  reported  the  bill  to 
the  legislature  as  approved,  not  by  the 
special  direction  of  the  governor,  nor 
with  his  knowledge  or  special  assent,  but 
merely  in  his  usual  routine  of  customary 
duty,  the  governor  not  being  conscious 
that  he  had  placed  his  signature  to  the 
bill  until  after  information  was  brought 
to  him  of  its  having  been  reported  ap- 
proved ;  whereupon  he  sent  a  message  to 
the  speaker  of  the  house  to  which  it  was 
reported,  stating  that  it  had  been  inad- 
vertently signed  and  not  approved,  and 
on  the  same  day  completed  a  veto  message 
of  the  bill,  which  was  partially  written 
at  the  time  of  signing  his  approval,  and 
transmitted  it  to  the  house  where  the  bill 
originated,  having  first  erased  his  signa- 
ture and  approval.  It  was  held  that  the 
bill  had  not  become  a  law.  It  had  never 
passed  out  of  the  governor's  possession 
after  it  was  received  by  him  until  after  he 
had  erased  his  signature  and  approval ; 
and  the  court  was  of  opinion  that  it  did 
not  pass  from  his  control  until  it  had  be- 
come a  law  by  the  lapse  of  ten  days  under 
the  constitution,  or  by  his  depositing  it 
with  his  approval  in  the  office  of  the  sec- 
retary of  state.  It  had  long  been  the 
practice  of  the  governor  to  report,  for- 
merly througli  the  secretary  of  state,  but 
recently  through  his  private  secretary, 
to  the  house  where  bills  originated,  his 
approval  of  them ;  but  this  was  only  a 
matter  of  formal  courtesy,  and  not  a 
proceeding  necessary  to  the  making  or 
imparting  vitality  to  the  law.  By  it  no 
act  could  become  a  law  which  without  it 
would  not  be  a  law.  Had  the  governor 
returned  the  bill  itself  to  the  house,  with 
his  message  of  approval,  it  would  have 
passed  beyond  his  control,  and  the  ap- 
proval cou'd  not  have  been  retracted, 
unless  the  bill  had  been  withdrawn  by 
consent  of  the  house ;  and  the  same  re- 
sult would  have  followed  his  filing  the 
bill  with  the  secretary  of  state  with  his 
approval  subscribed. 

The  Constitution  of  Indiana  provides 
(art.  5,  §  14)  that,  "  if  any  bill  shall  not 


be  returned  by  the  governor  within  three 
days,  Sundays  excepted,  after  it  shall 
have  been  presented  to  him,  it  shall  be  a 
law  without  his  signature,  unless  the  gen- 
eral adjournment  shall  prevent  its  return ; 
in  which  case  it  shall  be  a  law  unless  the 
governor,  within  five  days  next  after  the 
adjournment,  shall  file  such  bill,  with  his 
objections  thereto,  in  the  office  of  the 
secretary  of  state,"  &c.  Under  this  pro- 
vision it  was  held  that  where  the  gover- 
nor, on  the  day  of  the  final  adjournment 
of  the  legislature,  and  after  the  adjourn- 
ment, filed  a  bill  received  that  day,  in  the 
office  of  the  secretary  of  state,  without 
approval  or  objections  thereto,  it  thereby 
became  a  law,  and  he  could  not  file  ob- 
jections afterwards.  Tarlton  v.  Peggs,  18 
Ind.  24.  See  State  v.  Whisner,  35  Kan. 
271,  10  Pac.  852.  If  in  approving  a  bill 
the  governor  signs  in  the  wrong  place, 
he  may  sign  again  after  adjournment. 
Nat.  Land  and  Loan  Co.  v.  Mead,  60  Vt. 
257,  14  Atl.  689. 

An  act  of  the  legislature  takes  effect 
when  the  governor  signs  it,  unless  the 
constitution  contains  some  different  pro- 
vision. Hill  v.  State,  5  Lea,  725. 

1  A  bill  which,  as  approved  and  signed, 
differs  in  important  particulars  from  the 
one  signed,  is  no  law.  Jones  v.  Hutchin- 
son,  43  Ala.  721. 

If  the  governor  sends  back  a  bill  which 
has  been  submitted  to  him,  stating  that  he 
cannot  act  upon  it  because  of  some  sup- 
posed informality  in  its  passage,  this  is  in 
effect  an  objection  to  the  bill,  and  it  can 
only  become  a  law  by  further  action  of 
the  legislature,  even  though  the  governor 
may  have  been  mistaken  as  to  the  sup- 
posed informality.  Birdsall  v.  Carrick, 
3  Nev.  154.  If  an  act  passed  over  a  veto 
is  duly  authenticated  otherwise,  the  ab- 
sence of  the  governor's  signature  will 
not  vitiate  it.  Hovey  v.  State,  119  Ind. 
395,  21  N.  E.  21. 

In  practice  the  veto  power,  although 
very  great  and  exceedingly  important  in 
this  country,  is  obsolete  in  Great  Britain, 
and  no  king  now  ventures  to  resort  to  it. 
As  the  Ministry  must  at  all  times  be  in 
accord  with  the  House  of  Commons, — 


222 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VI. 


Other  Powers  of  the  Governor. 

The  power  of  the  governor  as  a  branch  of  the  legislative 
department  is  almost  exclusively  confined  to  the  approval  of 
bills.  As  executive,  he  communicates  to  the  two  houses  infor- 
mation concerning  the  condition  of  the  State,  and  may  recom- 
mend measures  to  their  consideration,  but  he  cannot  originate 
or  introduce  bills.  He  may  convene  the  legislature  in  extra 
session  whenever  extraordinary  occasion  seems  to  have  arisen ; 
but  their  powers  when  convened  are  not  confined  to  a  considera- 
tion of  the  subjects  to  which  their  attention  is  called  by  his 
proclamation  or  his  message,  and  they  may  legislate  on  any 
subject  as  at  the  regular  sessions.1  An  exception  to  this  state- 
ment exists  in  those  States  where,  by  the  express  terms  of  the 
constitution,  it  is  provided  that  when  convened  in  extra  session 
the  legislature  shall  consider  no  subject  except  that  for  which 
they  were  specially  called  together,  or  which  may  have  been 
submitted  to  them  by  special  message  of  the  governor.2 

When  Acts  are  to  take  Effect. 

The  old  rule  was  that  statutes,  unless  otherwise  ordered,  took 
effect  from  the  first  day  of  the  session  on  which  they  were  passed ; 3 

except  where  the  responsibility  is  taken 
of  dissolving  the  Parliament  and  appeal- 
ing to  the  people,  —  it  must  follow  that 
any  bill  which  the  two  houses  have  passed 
must  be  approved  by  the  monarch.  The 
approval  has  become  a  matter  of  course, 
and  the  governing  power  in  Great  Britain 
is  substantially  in  the  House  of  Com- 
mons. 1  Bl.  Com.  184-185,  and  notes. 
Q After  the  bill  has  been  vetoed  it  is  dead 
unless  repassed  by  the  constitutional 
majorities,  even  though  it  received  those 
majorities  on  its  first  passage.  State  v. 
Crounse,  36  Neb.  835,  55  N.  W.  246,  20 
L.  R.  A.  265.] 

1  The  Constitution  of  Iowa,  art.  4, 
§  11,  provides  that  the  governor  "  may, 
on  extraordinary  occasions,  convene  the 
General  Assembly  by  proclamation,  and 
shall  state  to  both  houses,  when  assem- 
bled, the  purpose  for  which  they  have 
been  convened."  It  was  held  in  Morford 
v.  Unger,  8  Iowa,  82,  that  the  General 
Assembly,  when  thus  convened,  were  not 
confined  in  their  legislation  to  the  pur- 
poses specified  in  the  message.  "  When 
lawfully  convened,  whether  in  virtue  of 
the  provision  in  the  constitution  or  the 
governor's  proclamation,  it  is  the '  General 


Assembly  '  of  the  State,  in  which  the  full 
and  exclusive  legislative  authority  of  the 
State  is  vested.  Where  its  business  at 
such  session  is  not  restricted  by  some 
constitutional  provision,  the  General  As- 
sembly may  enact  any  law  at  a  special 
or  extra  session  that  it  might  at  a  reg- 
ular session.  Its  powers,  not  being  de- 
rived from  the  governor's  proclamation, 
are  not  confined  to  the  special  purpose 
for  which  it  may  have  been  convened  by 
him." 

2  Provisions  to  this  effect  will  be  found 
in  the  Constitutions  of  Illinois,  Michigan, 
Missouri,  and  Nevada ;  perhaps  in  some 
others.  As  to  what  matters  are  held  em- 
braced in  such  call,  see  State  v.  Shores,  31 
W.  Va.  491,  7  S.  E.  413 ;  Baldwin  v.  State, 
21  Tex.  App.  591,  3  S.  W.  109 ;  [Wells  v. 
Mo.  Pac.  R.  Co.,  110  Mo.  286,  19  S.  W. 
530,  15  L.  R.  A.  847 ;  Chicago,  B.  &  Q.  R. 
Co.  v.  Wolfe,  61  Neb.  502,  86  N.  W.  441 ; 
People  v.  Curry,  130  Cal.  82,  62  Pac.  516.] 
Confirmation  of  appointment  by  the  Sen- 
ate may  be  made.  The  limitation  is  upon 
legislation.  People  v.  Blanding,  63  Cal. 
333. 

8  1  Lev.  91 ;  Latless  v.  Holmes,  4  T. 
R.  660  ;  Smith  v.  Smith,  Mart.  (N.  C.)  26 ; 


CH.  VI.]          OF  THE  ENACTMENT  OF  LAWS.  223 

but  this  rule  was  purely  arbitrary,  based  upon  no  good  reason, 
and  frequently  working  very  serious  injustice.  The  present  rule 
is  that  an  act  takes  effect  from  the  time  when  the  formalities  of 
enactment  are  actually  complete  under  the  constitution,  unless 
it  is  otherwise  ordered,  or  unless  there  is  some  constitutional  or 
statutory  rule  on  the  subject  which  prescribes  otherwise.1  By 
the  Constitution  of  Mississippi,2  "no  law  of  a  general  nature, 
unless  otherwise  provided,  shall  be  enforced  until  sixty  days 
after  the  passage  thereof."  By  the  Constitution  of  Illinois,3  no 
act  of  the  General  Assembly  shall  take  effect  until  the  first  day 
of  July  next  after  its  passage,  unless  in  case  of  emergency  (which 
emergency  shall  be  expressed  in  the  preamble  or  body  of  the  act) 
the  General  Assembly  shall,  by  a  vote  of  two-thirds  of  all  the 
members  elected  to  each  house,  otherwise  direct.  By  the  Con- 
stitution of  Michigan,4  no  public  act  shall  take  effect,  or  be  in 
force,  until  the  expiration  of  ninety  days  from  the  end  of  the 
session  at  which  the  same  is  passed,  unless  the  legislature  shall 
otherwise  direct  by  a  two-thirds  vote  of  the  members  elected  to 
each  house.  These  and  similar  provisions  are  designed  to  secure, 
as  far  as  possible,  the  public  promulgation  of  the  law  before 
parties  are  bound  to  take  notice  of  and  act  under  it,  and  to 
obviate  the  injustice  of  a  rule  which  should  compel  parties  at 
their  peril  to  know  and  obey  a  law  of  which,  in  the  nature  of 
things,  they  could  not  possibly  have  heard;  they  give  to  all 
parties  the  full  constitutional  period  in  which  to  become  ac- 

Hamlet  v.  Taylor,  5  Jones  L.  36.     This  725.     Others  hold  that  it  has  effect  from 

is  changed  by  33  Geo.  III.  c.  13,  by  which  the  moment  of  its  approval  by  the  gov- 

statutes  since  passed  take  effect  from  the  ernor.     People  v.  Clark,  1  Cal.  406.     See 

day  when  they  receive  the  royal  assent,  In  re  Wynne,  Chase  Dec.  227. 

unless  otherwise  ordered  therein.  2  Art.  7,  §  6.     See  State  v.  Coahoma 

J  Matthews   v.  Zane,   7  Wheat.  164 ;  Co.,  64  Miss.  358. 

Rathbone  v.  Bradford,  1  Ala.  312;  Branch  8  Art.  3,  §  23.  The  intention  that  an 
Bank  of  Mobile  v.  Murpliy,  8  Ala.  119;  act  shall  take  effect  sooner  must  be  ex- 
Heard  v.  Heard,  8  Ga.  380;  Goodsell  v.  pressed  clearly  and  unequivocally;  it  is 
Boynton,  2  111.  555;  Dyer  v.  State,  Meigs,  not  to  be  gathered  by  intendment  and  in- 
237;  Parkinson  v.  State,  14  Md.  184;  ference.  Wheeler  v.  Chubbuck,  16  111. 
Freeman  v.  Gaither,  76  Ga.  741.  An  361.  See  Hendrickson  v.  Hendrickson,  7 
early  Virginia  case  decides  that  "  from  Ind.  13. 

and  after  the  passing  of  this  act "  -would  Where  an  act  is  by  its  express  terms  to 

exclude  the  day  on  which  it  was  passed,  take  effect  after  publication  in  a  specified 

King  v.  Moore,  Jefferson,  9.     Same  ruling  newspaper,  every  one   is  bound  to  take 

in  Parkinson  v.   Brandenberg,  35  Minn,  notice  of  this  fact ;   and  if  before  such 

294,  28  N.  W.  919.     On  the  other  hand,  publication   negotiable    paper    is   issued 

it  is  held  in   some  cases   that  a  statute  under  it,  the   purchasers  of  such  paper 

which  takes  effect  from  and  after  its  pas-  can  acquire  no  rights  thereby.     McClure 

sage,  has  relation  to  the  first  moment  of  v.  Oxford,  94  U.  S.  429  ;  following  George 

that   day.     In  re  Welman,   20   Vt.   653;  v.  Oxford,  16  Kan.  72. 

Mallory  v.  Hiles,  4  Met.  (Ky.)  53 ;  Wood  *  Art.  4,  §  20. 
v.  Fort,  42  Ala.  641 ;  Hill  v.  State,  5  Lea, 


224  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

quainted  with  the  terms  of  the  statutes  which  are  passed,  except 
when  the  legislature  has  otherwise  directed;  and  no  one  is  bound 
to  govern  his  conduct  by  the  new  law  until  that  period  has 
elapsed.1  And  the  fact  that,  hy  the  terms  of  the  statute, 
something  is  to  be  done  under  it  before  the  expiration  of  the 
constitutional  period  for  it  to  take  effect,  will  not  amount  to  a 
legislative  direction  that  the  act  shall  take  effect  at  that  time, 
if  the  act  itself  is  silent  as  to  the  period  when  it  shall  go  into 
operation.2 

The  Constitution  of  Indiana  provides3  that  "no  act  shall  take 
effect  until  the  same  shall  have  been  published  and  circulated 
in  the  several  counties  of  this  State,  by  authority,  except  in  case 
of  emergency ;  which  emergency  shall  be  declared  in  the  pream- 
ble, or  in  the  body  of  the  law."  Unless  the  emergency  is  thus 
declared,  it  is  plain  that  the  act  cannot  take  earlier  effect.4 
But  the  courts  will  not  inquire  too  nicely  into  the  mode  of  pub- 
lication. If  the  laws  are  distributed  in  bound  volumes,  in  a 
manner  and  shape  not  substantially  contrary  to  the  statute  on 
that  subject,  and  by  the  proper  authority,  it  will  be  held  suffi- 
cient, notwithstanding  a  failure  to  comply  with  some  of  the 
directory  provisions  of  the  statute  on  the  subject  of  publication.5 

The  Constitution  of  Wisconsin,  on  the  other  hand,  provides6 
that  "no  general  law  shall  be  in  force  until  published;"  thus 

1  Price  v.  Hopkin,  13  Mich.  318.     A  also  held  in  the  case  first  named,  and  in 
provision  that   "  subsequent  to  the  pas-  Wheeler  v.  Chubbuck,  16   111.  361,   that 
sage  of  this  act "  the  law  should   be  as  "  the  direction  must  be  made  in  a  clear, 
declared,  does  not    come    into  force  till  distinct,  and  unequivocal  provision,  and 
after  ninety  days.     Andrews  v.  St.  Louis  could  not  be  helped  out  by  any  sort  of 
Tunnel  Co.,  16  Mo.  App.  299.     See,  how-  intendment  or  implication,"  and  that  the 
ever,  Smith  v.  Morrison,  22  Pick.  430 ;  act  must  all  take  effect  at  once,  and  not 
Stine  v.  Bennett,  13  Minn.  153.     Compare  by  piecemeal. 

State  v.  Bond,  4  Jones  (N.  C.),  9.    Where          8  Art.  4,  §  28. 

a  law  lias  failed  to  take  effect  for  want         4  Carpenter  v.  Montgomery,  7  Blackf. 

of  publication,  all  parties  are  chargeable  415;  Hendrickson  v.  Hendrickson,  7  Ind. 

with  notice  of  that  fact.     Clark  v.  Janes-  13 ;  Mark  v.  State,  15  Ind.  98.     The  leg- 

ville,  10  Wis.  136.  islature  must  necessarily  in  these  cases 

2  Supervisors  of  Iroquois  Co.  v.  Ready,  be  judge  of  the  existence  of  the  emer- 
34  111.  293.     An  act  for  the  removal  of  a  gency.     Carpenter  v.  Montgomery,  supra. 
county  seat  provided  for  taking  the  vote  The  Constitution  of  Tennessee  provides 
of  the  electors  of  the  county  upon  it  on  that  "'No  law  of  a  general  nature  shall 
the  17th  of  March,   1863,  at  which  time  take  effect  until  forty  days  after  its  pas- 
the  legislature  had  not  adjourned.     It  was  sage,   unless   the   same,   or  the  caption, 
not  expressly  declared  in  the  act  at  what  shall  state  that  the  public  welfare  requires 
time  it    should  take  effect,   and  it   was  that  it  should  take  effect  sooner."    Art. 
therefore  held   that  it   would   not    take  1,  §  20. 

effect  until  sixty  days  from  the   end  of         6  State   v.    Bailey,   16    Ind.   46.     See 

the  session,   and  a  vote  of  the  electors  further,  as  to  this   constitutional  provi- 

taken  on  the   17th   of  March  was  void,  sion,  Jones  v.  Gavins,  4  Ind.  305. 
See  also  Rice  r.  Ruddiman,  10  Mich.  125  ;          «  Art.  7,  §  21. 
Rogers  v.  Vass,  6  Iowa,  405.    And  it  was 


CH.  VI.]  OF   THE    ENACTMENT   OF   LAWS.  225 

leaving  the  time  when  it  should  take  effect  to  depend,  not  alone 
upon  the  legislative  direction,  but  upon  the  further  fact  of  publi- 
cation. But  what  shall  be  the  mode  of  publication  seems  to  be 
left  to  the  legislative  determination.  It  has  been  held,  however, 
that  a  general  law  was  to  be  regarded  as  published  although 
printed  in  the  volume  of  private  laws,  instead  of  the  volume  of 
public  laws,  as  the  statute  of  the  State  would  require.1  But  an 
unauchorized  publication  —  as,  for  example,  of  an  act  for  the 
incorporation  of  a  city,  in  two  local  papers  instead  of  the  State 
paper  —  is  no  publication  in  the  constitutional  sense.2  The 
Constitution  of  Louisiana  provides  that  "No  law  passed  by  the 
General  Assembly,  except  the  general  appropriation  act,  or  act 
appropriating  money  for  the  expenses  of  the  General  Assembly, 
shall  take  effect  until  promulgated.  A  law  shall  be  considered 
promulgated  at  the  place  where  the  State  journal  is  published, 
the  day  after  the  publication  of  such  law  in  the  State  journal, 
and  in  all  other  parts  of  the  State  twenty  days  after  such  publi- 
cation." Under  similar  provisions  in  the  Civil  Code,  before  the 
adoption  of  this  constitution,  it  was  held  that  "the  promulgation 
of  laws  is  an  executive  function.  The  mode  of  promulgation 
may  be  prescribed  by  the  legislature,  and  differs  in  different 
countries  and  at  different  times.  .  .  .  Promulgation  is  the 
extrinsic  act  which  gives  a  law,  perfect  in  itself,  executory 
force.  Unless  the  law  prescribes  that  it  shall  be  executory, 
from  its  passage,  or  from  a  certain  date,  it  is  presumed  to  be 
executory  only  from  its  promulgation."3  But  it  is  competent 
for  the  legislature  to  provide  in  an  act  that  it  shall  take  effect 
from  and  after  its  passage ;  and  the  act  will  have  operation 
accordingly,  though  not  published  in  the  official  gazette.4  In 
Pennsylvania,  whose  constitution  then  in  force  also  failed  to 
require  publication  of  laws,  the  publication  was  nevertheless  held 
to  be  necessary  before  the  act  could  come  into  operation;  but 
as  the  doings  of  the  legislature  were  public,  and  the  journals 
published  regularly,  it  was  held  that  every  enactment  must  be 

1  Matter  of  Boyle,  9  Wis.  264.   Under  statute,  which  does  not  change  its  sub- 

this  provision  it  has  been  decided  that  a  stance  or  legal  effect,  will  not  invalidate 

law  establishing  a   municipal  court  in  a  the  publication.     Smith  v.  Hoyt,  14  Wis. 

city  is  a  general  law.     Matter  of  Boyle,  252. 

supra.     See  Eitel   v.   State,  33  Ind.  201.          2  Clark    v.    Janesville,    10   Wis.    136. 

Also  a  statute  for  the  removal  of  a  county  See,  further,  Mills  v.  Jefferson,  20  Wis. 

seat.     State  v.  Lean,  9  Wis.  279.     Also  a  60. 

statute  incorporating  a  municipality,  or         8  State  v.  Ellis,  17  La.  Ann.  390,  392. 
authorizing  it  to  issue  bonds  in  aid  of  a         *  State  v.   Judge,  14  La.   Ann.  486; 

railroad.     Clark    v.    Janesville,   10  Wis.  Thomas  v.  Scott,  23  La.  Ann.  689.     In 

136.     And  see  Scott  v.  Clark,  1  Iowa,  70.  Maryland  a  similar  conclusion  is  reached. 

An  inaccuracy   in  the  publication  of  a  Parkinson  v.  State,  14  Md.  184. 

15 


226  CONSTITUTIONAL   LIMITATIONS.  [CH.  VI. 

deemed  to  be  published  in  the  sense  necessary,  and  the  neglect 
to  publish  one  in  the  pamphlet  edition  of  the  laws  would  not 
destroy  its  validity.1 

The  Constitution  of  Iowa  provides  that  "no  law  of  the  General 
Assembly,  passed  at  a  regular  session,  of  a  public  nature,  shall 
take  effect  until  the  fourth  day  of  July  next  after  the  passage 
thereof.  Laws  passed  at  a  special  session  shall  take  effect 
ninety  days  after  the  adjournment  of  the  General  Assembly  by 
which  they  were  passed.  If  the  General  Assembly  shall  deem 
any  law  of  immediate  importance,  they  may  provide  that  the 
same  shall  take  effect  by  publication  in  newspapers  in  the  State. "  2 
Under  this  section  it  is  not  competent  for  the  legislature  to  con- 
fer upon  the  governor  the  discretionary  power  which  the  consti- 
tution gives  to  that  body,  to  fix  an  earlier  day  for  the  law  to 
take  effect.3 

1  Peterman  v.  Huling,  31  Pa.  St.  432.  2  Art.  3,  §  26.     See  Hunt  v.  Murray, 

A  joint  resolution  of   a  general  nature  17  Iowa,  313. 

requires   the  same    publication    as   any  3  Scott  v.  Clark,  1  Iowa,  70 ;  Pilkey  v. 

other  law.     State  v.  School  Board  Fund,  Gleason,  1  Iowa,  522. 
4  Kan.  261. 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  227 


CHAPTER  VII. 

OF   THE   CIRCUMSTANCES   UNDER   WHICH    A    LEGISLATIVE   ENACTMENT 
MAY    BE   DECLARED    UNCONSTITUTIONAL. 

IN  the  preceding  chapters  we  have  examined  somewhat  briefly 
the  legislative  power  of  the  State,  and  the  bounds  which  expressly 
or  by  implication  are  set  to  it,  and  also  some  of  the  conditions 
necessary  to  its  proper  and  valid  exercise.  In  so  doing  it  has 
been  made  apparent  that,  under  some  circumstances,  it  may  be- 
come the  duty  of  the  courts  to  declare  that  what  the  legislature 
has  assumed  to  enact  is  void,  either  from  want  of  constitutional 
power  to  enact  it,  or  because  the  constitutional  forms  or  condi- 
tions have  not  been  observed.  In  the  further  examination  of 
our  subject,  it  will  be  important  to  consider  what  the  circum- 
stances are  under  which  the  courts  will  feel  impelled  to  exercise 
this  high  prerogative,  and  what  precautions  should  be  observed 
before  assuming  to  do  so.  (a) 

It  must  be  evident  to  any  one  that  the  power  to  declare  a 
legislative  enactment  void  is  one  which  the  judge,  conscious  of 
the  fallibility  of  the  human  judgment,  will  shrink  from  exercising 
in  any  case  where  he  can  conscientiously  and  with  due  regard  to 
duty  and  official  oath  decline  the  responsibility.  The  legislative 
and  judicial  are  co-ordinate  departments  of  the  government,  of 
equal  dignity;  each  is  alike  supreme  in  the  exercise  of  its  proper 
functions,  and  cannot  directly  or  indirectly,  while  acting  within 
the  limits  of  its  authority,  be  subjected  to  the  control  or  super- 
vision of  the  other,  without  an  unwarrantable  assumption  by 
that  other  of  power  which,  by  the  constitution,  is  not  conferred 
upon  it.  The  constitution  apportions  the  powers  of  government, 
but  it  does  not  make  any  one  of  the  three  departments  subordi- 

(a)  [Tor  a  very  learned  discussion  of  the  origin  and  scope  of  the  American  doc- 
trine of  constitutional  law  treating  of  the  power  of  the  courts  to  declare  statutes 
void  because  in  conflict  with  the  constitution,  see  a  paper  by  the  late  Professor  James 
B.  Thayer  read  before  the  Congress  on  Jurisprudence  and  Law  Reform,  and  pub- 
lished in  the  October,  1893,  number  of  the  "  Harvard  Law  Review."  7  Harv.  L.  Rev. 
129.  Other  views  of  this  suliject  are  presented  by  Mr.  Richard  C.  McMurtrie  in 
83  Am  Law  Register,  N.  8.  506 ;  by  Governor  Pennoyer  in  29  Am.  Law  Review, 
550  and  856,  and  by  Mr.  Allen  in  the  same  volume  at  page  847.] 


228  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

nate  to  another,  when  exercising  the  trust  committed  to  it.1  The 
courts  may  declare  legislative  enactments  unconstitutional  and 
void  in  some  cases,  but  not  because  the  judicial  power  is  superior 
in  degree  or  dignity  to  the  legislative.  Being  required  to  declare 
what  the  law  is  in  the  cases  which  come  before  them,  they  must 
enforce  the  constitution  as  the  paramount  law,  whenever  a  legis- 
lative enactment  comes  in  conflict  with  it.2  But  the  courts  sit, 
not  to  review  or  revise  the  legislative  action,  but  to  enforce  the 
legislative  will;  and  it  is  only  where  they  find  that  the  legisla- 
ture has  failed  to  keep  within  its  constitutional  limits,  that  they 
are  at  liberty  to  disregard  its  action;  and  in  doing  so,  they  only 
do  what  every  private  citizen  may  do  in  respect  to  the  mandates 
of  the  courts  when  the  judges  assume  to  act  and  to  render  judg- 
ments or  decrees  without  jurisdiction.  "In  exercising  this  high 
authority,  the  judges  claim  no  judicial  supremacy;  they  are  only 
the  administrators  of  the  public  will.  If  an  act  of  the  legisla- 
ture is  held  void,  it  is  not  because  the  judges  have  any  control 
over  the  legislative  power,  but  because  the  act  is  forbidden  by 
the  constitution,  and  because  the  will  of  the  people,  which  is 
therein  declared,  is  paramount  to  that  of  their  representatives 
expressed  in  any  law."  3 

Nevertheless,  in  declaring  a  law  unconstitutional,  a  court 
must  necessarily  cover  the  same  ground  which  has  already  been 
covered  by  the  legislative  department  in  deciding  upon  the  pro- 
priety of  enacting  the  law,  and  they  must  indirectly  overrule  the 
decision  of  that  co-ordinate  department.  The  task  is  therefore 
a  delicate  one,  and  only  to  be  entered  upon  with  reluctance  and 
hesitation.  It  is  a  solemn  act  in  any  case  to  declare  that  that 
body  of  men  to  whom  the  people  have  committed  the  sovereign 
function  of  making  the  laws  for  the  commonwealth  have  deliber- 
ately disregarded  the  limitations  imposed  upon  this  delegated 
authority,  and  usurped  power  which  the  people  have  been  careful 
to  withhold ;  and  it  is  almost  equally  so  when  the  act  which  is 
adjudged  to  be  unconstitutional  appears  to  be  chargeable  rather 
to  careless  and  improvident  action,  or  error  in  judgment,  than 
to  intentional  disregard  of  obligation.  But  the  duty  to  do  this 
in  a  proper  case,  though  at  one  time  doubted,  and  by  some  per- 
sons persistently  denied,  it  is  now  generally  agreed  that  the 

1  Bates  v.  Kimball,  2  Chip.  77 ;  Bailey  v.  Mohawk  &  Hudson  Railroad  Co.,  18 
v    Philadelphia,   &c.   R.  R.  Co.,  4  Harr.  Wend.  9;  QMulnix  v.  Mutual  Ben.  L.  Ins. 
389;  Whittington  v.  Polk,  1  H.  &  J.  236;  Co.,  23  Col.  71,  46  Pac.  123,  33  L.  R.  A. 
Hawkins  v.  Governor,  1  Ark.  570 ;  People  827.] 

r.  Governor,  29  Mich.  320,  18  Am.  Rep.  8  Lindsay  v.  Commissioners,  &c.,  2 
89.  Bay,  38,  61 ;  People  r.  Rucker,  5  Col.  6. 

2  Rice  v.  State,  7  Ind.  332;  Bloodgood 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


229 


courts  cannot  properly  decline,  and  in  its  performance  they 
seldom  fail  of  proper  support  if  they  proceed  with  due  caution 
and  circumspection,  and  under  a  proper  sense  as  well  of  their 
own  responsibility,  as  of  the  respect  due  to  the  action  and  judg- 
ment of  the  law-makers.1 


1  There  are  at  least  two  cases  in  Amer- 
ican judicial  history  where  judges  have 
been  impeached  as  criminals  for  refusing 
to  enforce  unconstitutional  enactments. 
One  of  these  —  the  case  of  Trevett  v. 
Weedon,  decided  by  the  Superior  Court 
of  Rhode  Island  in  1786  —  is  particu- 
larly interesting  as  being  the  first  well- 
authenticated  case  in  which  a  legislative 
enactment  was  held  to  be  void  because 
of  conflict  with  the  State  constitution. 
Mr.  Arnold,  in  his  history  of  Rhode 
Inland,  Vol.  II.  c.  24,  gives  an  account 
of  this  case;  and  the  printed  brief  in 
opposition  to  the  law,  and  in  defence  of 
the  impeached  judges,  is  in  possession  of 
the  present  writer.  The  act  in  question 
was  one  which  imposed  a  heavy  penalty 
on  any  one  who  should  refuse  to  receive 
on  the  same  terms  as  specie  the  bills  of  a 
bank  chartered  by  the  State,  or  who 
should  in  any  way  discourage  the  circu- 
lation of  such  bills.  The  penalty  was 
made  collectible  on  summary  conviction, 
without  jury  trial;  and  the  act  was  held 
void  on  the  ground  that  jury  trial  was 
expressly  giv£n  by  the  colonial  charter, 
which  then  constituted  the  constitution  of 
the  State.  Although  the  judges  were  not 
removed  on  impeachment,  the  legislature 
refused  to  re-elect  them  when  their  terms 
expired  at  the  end  of  the  year,  and  sup- 
planted them  by  more  pliant  tools,  by 
whose  assistance  the  paper  money  was 
forced  into  circulation,  and  public  and 
private  debts  extinguished  by  means  of 
it.  Concerning  the  other  case,  we  copy 
from  the  Western  Law  Monthly, "  Sketch 
of  Hon.  Calvin  Pease,"  Vol.  V.  p.  3, 
June,  1863:  "The  first  session  of  the 
Supreme  Court  [of  Ohio]  under  the  con- 
stitution was  held  at  Warren,  Trumbull 
County,  on  the  first  Tuesday  of  June, 
1803.  The  State  was  divided  into  three 
circuits.  .  .  .  The  Third  Circuit  of  the 
State  was  composed  of  the  counties  of 
Washington,  Belmont,  Jefferson,  Colum- 
biana,  and  Trumbull.  At  this  session  of 
the  legislature,  Mr.  Pease  was  appointed 
President  Judge  of  the  Third  Circuit  in 


April,  1808,  and  though  nearly  twenty- 
seven  years  old,  he  was  very  youthful  in 
his  appearance.  He  held  the  office  until 
March  4,  1810,  when  he  sent  his  resigna- 
tion to  Governor  Huntingdon.  .  .  .  Dur- 
ing his  term  of  service  upon  the  bench 
many  interesting  questions  were  presented 
for  decision,  and  among  them  the  consti- 
tutionality of  some  portion  of  the  act  of 
1805,  defining  the  duties  of  justices  of  the 
peace ;  and  he  decided  that  so  much  of 
the  fifth  section  as  gave  justices  of  the 
peace  jurisdiction  exceeding  $20,  and  so 
much  of  the  twenty -ninth  section  as  pre- 
vented plaintiffs  from  recovering  costs  in 
actions  commenced  by  original  writs  in 
the  Court  of  Common  Pleas,  for  sums  be- 
tween $20  and  $50,  were  repugnant  to  the 
Constitution  of  tiie  United  States  and  of 
the  State  of  Ohio,  and  therefore  null  and 
void.  .  .  .  The  clamor  and  abuse  to  which 
this  decision  gave  rise  was  not  in  the 
least  mitigated  or  diminished  by  the  cir- 
cumstance that  it  was  concurred  in  by 
a  majority  of  the  judges  of  the  Supreme 
Court,  Messrs.  Huntingdon  and  Tod.  .  .  . 
At  the  session  of  the  legislature  of  1807-8, 
steps  were  taken  to  impeach  him  and  the 
judges  of  the  Supreme  Court  who  con- 
curred with  him ;  but  the  resolutions  in- 
troduced into  the  House  were  not  acted 
upon  during  the  session.  But  the  scheme 
was  not  abandoned.  At  an  early  day  of 
the  next  session,  and  with  almost  inde- 
cent haste,  a  committee  was  appointed 
to  inquire  into  the  conduct  of  the  offend- 
ing judges,  and  with  leave  to  exhibit 
articles  of  impeachment,  or  report  other- 
wise, as  the  facts  might  justify.  The 
committee  without  delay  reported  articles 
of  impeachment  against  Messrs.  I'ease 
and  Tod,  but  not  against  Huntingdon, 
who  in  the  mean  time  had  been  elected 
governor  of  the  State.  .  .  .  The  articles 
of  impeachment  were  preferred  by  the 
House  of  Representatives  on  the  23d  day 
of  December,  1808.  He  was  summoned 
at  once  to  appear  before  the  senate  a8 
a  high  court  of  impeachment,  and  he 
promptly  obeyed  the  summons.  The 


230 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VII, 


I.  In  view  of  the  considerations  which  have  been  suggested, 
the  rule  which  is  adopted  by  some  courts,  that  they  will  not 
decide  a  legislative  act  to  be  unconstitutional  by  a  majority  of 
a  bare  quorum  of  the  judges  only,  —  less  than  a  majority  of  all, 
—  but  will  instead  postpone  the  argument  until  the  bench  is  full, 
seems  a  very  prudent  and  proper  precaution  to  be  observed  before 
entering  upon  questions  so  delicate  and  so  important.  The 
benefit  of  the  wisdom  and  deliberation  of  every  judge  ought  to 
be  had  under  circumstances  so  grave.  Something  more  than 
private  rights  are  involved ;  the  fundamental  law  of  the  State 
is  in  question,  as  well  as  the  correctness  of  legislative  action; 
and  considerations  of  courtesy,  as  well  as  the  importance  of  the 
question  involved,  should  lead  the  court  to  decline  to  act  at  all, 
where  they  cannot  sustain  the  legislative  action,  until  a  full 
bench  has  been  consulted,  and  its  deliberate  opinion  is  found  to 
be  against  it.  But  this  is  a  rule  of  propriety,  not  of  constitu- 
tional obligation;  and  though  generally  adopted  and  observed, 
each  court  will  regulate,  in  its  own  discretion,  its  practice  in 
this  particular.1 


managers  of  the  prosecution  on  the  part 
of  the  House  were  Thomas  Morris,  after- 
wards senator  in  Congress  from  Ohio, 
Joseph  Sharp,  James  Pritchard,  Samuel 
Marrett,  and  Othniel  Tooker.  .  .  .  Sev- 
eral days  were  consumed  in  the  inves- 
tigation, but  the  trial  resulted  in  the 
acquittal  of  the  respondent."  Sketch  of 
Hon.  George  Tod,  August  number  of 
same  volume  :  "  At  the  session  of  the 
legislature  of  1808-9,  he  was  impeached 
for  concurring  in  decisions  made  by  Judge 
Pease,  in  the  counties  of  Trumbull  and 
Jefferson,  that  certain  provisions  of  the 
act  of  the  legislature,  passed  in  1805,  de- 
fining the  duties  of  justices  of  the  peace, 
were  in  conflict  with  the  Constitution  of 
the  United  States  and  of  the  State  of 
Ohio,  and  therefore  void.  These  decis- 
ions of  the  courts  of  Common  Pleas  and 
of  the  Supreme  Court,  it  was  insisted, 
were  not  only  an  assault  upon  the  wis- 
dom and  dignity,  but  also  upon  the  su- 
premacy of  the  legislature,  which  passed 
the  act  in  question.  This  could  not  be 
endured ;  and  the  popular  fury  against 
the  judges  rose  to  a  very  high  pitch,  and 
the  senator  from  the  county  of  Trumbull 
in  the  legislature  at  that  time,  Calvin 
Cone,  Esq.,  took  no  pains  to  soothe 
the  offended  dignity  of  the  members  of 
that  body,  or  their  sympathizing  con- 


stituents, but  pressed  a  contrary  line  of 
conduct.  The  judges  must  be  brought  to 
justice,  he  insisted  vehemently,  and  be 
punished,  so  that  others  might  be  terrified 
by  the  example,  and  deterred  from  com- 
mitting similar  offences  in  the  future. 
The  charges  against  Mr.  Tod  were  sub- 
stantially the  same  as  these  against  Mr. 
Pease.  Mr.  Tod  was  first  tried,  and  ac- 
quitted. The  managers  of  the  impeach- 
ment, as  well  as  the  result,  were  the  same 
in  both  cases." 

1  Briscoe  v.  Commonwealth  Bank  of 
Kentucky,  8  Pet.  118.  It  has  been  in- 
timated that  inferior  courts  should  not 
presume  to  pass  upon  constitutional  ques- 
tions, but  ought  in  all  cases  to  treat  stat- 
utes as  valid.  Ortman  v.  Greenman,  4 
Mich.  291.  But  no  tribunal  can  exercise 
judicial  power  unless  it  is  to  decide  ac- 
cording to  its  judgment ;  and  it  is  difficult 
to  discover  any  principle  of  justice  which 
can  require  a  magistrate  to  enter  upon 
the  execution  of  a  statute  when  he  be- 
lieves it  to  be  invalid,  especially  when  he 
must'thereby  subject  himself  to  prosecu- 
tion, without  any  indemnity  in  the  law  if 
it  proves  to  be  invalid.  Undoubtedly 
when  the  highest  courts  in  the  land  hesi- 
tate to  declare  a  law  unconstitutional,  and 
allow  much  weight  to  the  legislative  judg- 
ment, the  inferior  courts  should  be  still 


CH.  VII.]  DECLARING   STATUTES    UNCONSTITUTIONAL. 


231 


II.  Neither  will  a  court,  as  a  general  rule,  pass  upon  a  con- 
stitutional question,  and  decide  a  statute  to  be  invalid,  unless  a 
decision  upon  that  very  point  becomes  necessary  to  the  determi- 
nation of  the  cause.  "  While  courts  cannot  shun  the  discussion 
of  constitutional  questions  when  fairly  presented,  they  will  not 
go  out  of  their  way  to  find  such  topics.  They  will  not  seek  to 
draw  in  such  weighty  matters  collaterally,  nor  on  trivial  occa- 
sions. It  is  both  more  proper  and  more  respectful  to  a  co- 
ordinate department  to  discuss  constitutional  questions  only 
when  that  is  the  very  Us  mota.  Thus  presented  and  determined, 
the  decision  carries  a  weight  with  it  to  which  no  extra-judicial 
disquisition  is  entitled."1  In  any  case,  therefore,  where  a  con- 
stitutional question  is  raised,  though  it  may  be  legitimately 
presented  by  the  record,  yet  if  the  record  also  presents  some 
other  and  clear  ground  upon  which  the  court  may  rest  its  judg- 
ment, and  thereby  render  the  constitutional  question  immaterial 
to  the  case,  that  course  will  be  adopted,  and  the  question  of 
constitutional  power  will  be  left  for  consideration  until  a  case 
arises  which  cannot  be  disposed  of  without  considering  it,  and 
when  consequently  a  decision  upon  such  question  will  be 
unavoidable.2 


more  reluctant  to  exercise  this  power,  and 
a  becoming  modesty  would  at  least  be 
expected  of  those  judicial  officers  who 
have  not  been  trained  to  the  investigation 
of  legal  and  constitutional  questions.  But 
in  any  case  a  judge  or  justice,  being  free 
from  doubt  in  his  own  mind,  and  unfet- 
tered by  any  judicial  decision  properly 
binding  upon  him,  must  follow  his  own 
sense  of  duty  upon  constitutional  as  well 
as  upon  any  other  questions.  See  Miller 
v.  State,  3  Ohio  St.  475;  Pirn  v.  Nicholson, 
6  Ohio  St.  176  ;  Mayberry  v.  Kelly,  1  Kan. 
116.  In  the  case  last  cited  it  is  said  :  "  It 
is  claimed  by  counsel  for  the  plaintiff  in 
error,  that  the  point  raised  by  the  instruc- 
tion is,  that  inferior  courts  and  ministerial 
officers  have  no  right  to  judge  of  the  con- 
stitutionality of  a  law  passed  by  a  legis- 
lature. But  is  this  law  ?  If  so,  a  court 
created  to  interpret  the  law  must  disre- 
gard the  constitution  in  forming  its  opin- 
ions. The  constitution  is  law,  —  the  fun- 
damental law, — and  must  as  much  be 
taken  into  consideration  by  a  justice  of 
the  peace  as  by  any  other  tribunal.  When 
two  laws  apparently  conflict,  it  is  the 
duty  of  all  courts  to  construe  them.  If 
the  conflict  is  irreconcilable,  they  must 


decide  which  is  to  prevail ;  and  the  con- 
stitution is  not  an  exception  to  this  rule 
of  construction.  If  a  law  were  passed  in 
open,  flagrant  violation  of  the  constitu- 
tion, should  a  justice  of  the  peace  regard 
the  law,  and  pay  no  attention  to  the  con- 
stitutional provision  "?  If  that  is  his  duty 
in  a  plain  case,  is  it  less  so  when  the  con- 
struction becomes  more  difficult  ?  " 

1  Hoover  v.  Wood,  9  Ind.  286, 287 ;  Ire- 
land v.  Turnpike  Co.,  19  Ohio  St.  369; 
Smith  v.  Speed,  50  Ala.   276;   Allor  v. 
Auditors,   43   Mich.   76,   4   N.   W.   492; 
Board  of  Education  v.  Mayor  of  Bruns- 
wick, 72  Ga.  353.     See  People  v.  Kenney, 
96  N.  Y.  294. 

2  Ex  parte   Randolph,  2  Brock.  447 ; 
Frees  v.  Ford,  6  N.  Y.  176,  178  ;  Cumber- 
land, &c.  R.  R.  Co.  v.  County  Court,  10 
Bush,  564;  White  v.   Scott,  4  Barb.  56; 
Mobile  &  Ohio  Railroad  Co.  v.  State,  29 
Ala.  573  ;  [^Kansas  City  v.  Union  P.  Ry. 
Co.,  59  Kan.  427,  53  Pac.  408,  52  L.  R.  A. 
321,  aff.  sub  nom.  Clark  v.  Kansas  City  in 
176  U.  S.  114,  20  Sup.  Ct.  Rep.  284.    The 
constitutional  question  mny  be  first  raised 
in  the  court  of  review.     Monticello  D.  Co. 
v.  Mayor  of  Baltimore,  90  Md.  416,  45 
All.  210.    For  the  contrary  doctrine,  see 


232  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

III.  Nor  will  a  court  listen  to  an  objection  made  to  the  con- 
stitutionality of  an  act  by  a  party  whose  rights  it  does  not  affect, 
and   who  has  therefore  no  interest  in  defeating  it.1     On  this 
ground  it  has  been  held  that  the  objection  that  a  legislative  act 
was  unconstitutional,  because  divesting  the  rights  of  remainder- 
men against  their  will,  could  not  be  successfully  urged  by  the 
owner  of  the  particular  estate,  and  could  only  be  made  on  behalf 
of  the  remainder-men  themselves.2    And  a  party  who  has  assented 
to  his  property  being  taken  under  a  statute  cannot  afterwards 
object  that  the  statute  is  in  violation  of  a  provision  in  the  con- 
stitution designed  for  the  protection  of  private  property.3     The 
statute  is  assumed  to  be  valid,  until  some  one  complains  whose 
rights  it  invades.      "  Prima  facie,  and  upon  the  face  of  the  act 
itself,  nothing  will  generally  appear  to  show  that  the  act  is  not 
valid ;  and  it  is  only  when  some  person  attempts  to  resist  its 
operation,  and  calls  in  the  aid  of  the  judicial  power  to  pronounce 
it  void,  as  to  him,  his  property  or  his  rights,  that  the  objection 
of  unconstitutionality  can  be  presented  and  sustained.     Respect 
for    the    legislature,    therefore,    concurs   with   well-established 
principles  of  law  in  the  conclusion  that  such  an  act  is  not  void, 
but  voidable  only;  and  it  follows,  as  a  necessary  legal  inference 
from  this  position,  that  this  ground  of  avoidance  can  be  taken 
advantage  of  by  those  only  who  have  a  right  to  question  the 
validity  of  the  act,  and  not  by  strangers.     To  this  extent  only 
is  it  necessary  to  go,  in  order  to  secure  and  protect  the  rights 
of  all  persons  against  the  unwarranted  exercise  of  legislative 
power,  and  to  this  extent  only,  therefore,  are  courts  of  justice 
called  on  to  interpose."4 

IV.  Nor  can  a  court  declare  a  statute  unconstitutional  and 


Chimgay  v.  People,  78  III.  570;  Hopper  also  Smith  v.  McCarthy,  56  Pa.  St.  359; 

v.  Chicago,  &c.  Ry.  Co.,  91  Iowa,  639,  60  Antoni  v.  Wright,  22  Gratt.  857  ;  Marshall 

N.  W.487  ;  Delancy  v.  Brett,  71  N.  Y.  78.]  v.  Donovon,  10'Busli,  681. 

1  People  v.  Rensselaer,  &c.  R.  R.  Co.,          8  Embury    v.    Conner,   3   N.  Y.   511 ; 
15  Wend.  113,  30  Am.  Dec.  33;  Smith  Baker  v.  Braman,  6   Hill,  47;  Mobile  &( 
v.  Inge,  80  Ala.  283;   QClark  v.  Kansas  Ohio  Railroad   Co.  v.  State,  29  Ala.  586;' 
City,  176  U.  S.  114,  20  Sup.  Ct.  Rep.  284;  Haskell  v.  New  Bedford,  108  Mass.  208. 
Albany  County  Supers,  v.   Stanley,   105          4  Wellington,  Petitioner,  16  Pick.  87,  96. 
U.  S.  305 ;  Brown  v.  Ohio  Valley  R.  Co.,  And  see  Hingham,  &c.  Turnpike  Co.  v. 
79  Fed.  Rep.  176  ;  Pittsburg,  C.  C.  &  St.  Norfolk  Co.,  6  Allen,  353;  De  Jarnetteu. 
L.  R.  Co.  v.  Montgomery,  152  Ind.  1,  49  Haynes,  23  Miss.   600 ;  Sinclair  v.  Jack- 
N.  E.  582,  71  Am.  St.  301,  and  other  cases  son,  8  Cow.  543,  579 ;  Hey  ward  v.  Mayor, 
cited  in  brief   for   plaintiff    in   error,  in  &c.  of  New  York,  8  Barb.  486 ;  Matter  of 
Tullis  v.  Lake  Erie  and  Western  R.  Co.,  Albany  St.,  11  Wend.  149;  Williamson?'. 
49  L.  ed.  U.  S.  192      Also  Kansas  City  Carlton,  51  Me.   449;  State   »>.  Rich,  20 
v.  Clark.  59  Kan.  427,  53  Pac.  468,  52  L.  Miss.  393;  Jones  v.  Black,  48  Ala.  540; 
R.  A.  321.]  Com.  v.  Wright,  79  Ky.  22  ;  Burnside  v. 

2  Sinclair  v.  Jackson,  8  Cow.  543.    See  Lincoln  Co.  Ct.,  86  Ky.  423, 6  S.  W.  276. 


CH.  VII.]  DECLAKING   STATUTES   UNCONSTITUTIONAL.  233 

void,  solely  on  the  ground  of  unjust  and  oppressive  provisions, 
or  because  it  is  supposed  to  violate  the  natural,  social,  or  political 
rights  of  the  citizen,  unless  it  can  be  shown  that  such  injustice 
is  prohibited  or  such  rights  guaranteed  or  protected  by  the  con- 
stitution, (a)  It  is  true  there  are  some  reported  cases,  in  which 
judges  have  been  understood  to  intimate  a  doctrine  different 
from  what  is  here  asserted;  but  it  will  generally  be  found,  on 
an  examination  of  those  cases,  that  what  is  said  is  rather  by  way 
of  argument  and  illustration,  to  show  the  unreasonableness  of 
putting  upon  constitutions  such  a  construction  as  would  permit 
legislation  of  the  objectionable  character  then  in  question,  and 
to  induce  a  mdre  cautious  and  patient  examination  of  the  statute, 
with  a  view  to  discover  in  it,  if  possible,  some  more  just  and 
reasonable  legislative  intent,  than  as  laying  down  a  rule  by 
which  courts  would  be  at  liberty  to  limit,  according  to  their  own 
judgment  and  sense  of  justice  and  propriety,  the  extent  of  legisla- 
tive power  in  directions  in  which  the  constitution  had  imposed 
no  restraint.  Mr.  Justice  Story,  in  one  case,  in  examining  the 
extent  of  power  granted  by  the  charter  of  Jfchode  Island,  which 
authorized  the  General  Assembly  to  make  laws  in  the  most  ample 
manner,  "so  as  such  laws,  &c.,  be  not  contrary  and  repugnant 
unto,  but  as  near  as  may  be  agreeable  to,  the  laws  of  England, 
considering  the  nature  and  constitution  of  the  place  and  people 
there,"  expresses  himself  thus:  "What  is  the  true  extent  of  the 
power  thus  granted  must  be  open  to  explanation  as  well  by  usage 
as  by  construction  of  the  terms  in  which  it  is  given.  In  a  gov- 
ernment professing  to  regard  the  great  rights  of  personal  liberty 
and  of  property,  and  which  is  required  to  legislate  in  subordi- 
nation to  the  general  laws  of  England,  it  would  not  lightly  be 
presumed  that  the  great  principles  of  Magna  Charta  were  to  be 
disregarded,  or  that  the  estates  of  its  subjects  were  liable  to 
be  taken  away  without  trial,  without  notice,  and  without  offence. 
Even  if  such  authority  could  be  deemed  to  have  been  confided  by 
the  charter  to  the  General  Assembly  of  Rhode  Island,  as  an 
exercise  of  transcendental  sovereignty  before  the  Revolution,  it 
can  scarcely  be  imagined  that  that  great  event  could  have  left 
the  people  of  that  State  subjected  to  its  uncontrolled  and  arbi- 
trary exercise.  That  government  can  scarcely  be  deemed  to  be 
free,  where  the  rights  of  property  are  left  solely  dependent  upon 
the  will  of  a  legislative  body,  without  any  restraint.  The  funda- 
mental maxims  of  a  free  government  seem  to  require  that  the 

(a)  QSee  State  v.  Harrington,  68  Vt.  622,  35  Atl.  515,  34  L.  R.  A.  100;  Com.  v. 
Moir,  199  Pa.  5:)4,  49  Atl.  351,  63  L.  R.  A.  837,  85  Am.  St.  801.  The  motive  which 
inspires  the  passage  of  a  statute  does  not  affect  its  validity,  zW.] 


234  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

rights  of  personal  liberty  and  private  property  should  be  held 
sacred.  At  least  no  court  of  justice  in  this  country  would  be 
warranted  in  assuming  that  the  power  to  violate  and  disregard 
them  —  a  power  so  repugnant  to  the  common  principles  of  justice 
and  civil  liberty  —  lurked  under  any  general  grant  of  legislative 
authority,  or  ought  to  be  implied  from  any  general  expressions 
of  the  will  of  the  people.  The  people  ought  not  to  be  presumed 
to  part  with  rights  so  vital  to  their  security  and  well-being, 
without  very  strong  and  direct  expressions  of  such  an  intention. " 
"  We  know  of  no  case  in  which  a  legislative  act  to  transfer  the 
property  of  A.  to  B.  without  his  consent  has  ever  been  held  a 
constitutional  exercise  of  legislative  power  in  any  State  in  the 
Union.  On  the  contrary,  it  has  been  constantly  resisted,  as 
inconsistent  with  just  principles,  by  every  judicial  tribunal  in 
which  it  has  been  attempted  to  be  enforced."1  The  question 
discussed  by  the  learned  judge  in  this  case  is  perceived  to  have 
been,  What  is  the  scope  of  a  grant  of  legislative  power  to  be 
exercised  in  conformity  with  the  laws  of  England)1  Whatever 
he  says  is  pertinent  to  that  question;  and  the  considerations  he 
suggests  are  by  way  of  argument  to  show  that  the  power  to  do 
certain  unjust  and  oppressive  acts  was  not  covered  by  the  grant 
of  legislative  power.  It  is  not  intimated  that  if  they  were 
within  the  grant,  they  would  be  impliedly  prohibited  because 
unjust  and  oppressive. 

In  another  case,  decided  in  the  Supreme  Court  of  New  York, 
one  of  the  judges,  in  considering  the  rights  of  the  city  of  New 
York  to  certain  corporate  property,  used  this  language :  "  The 
inhabitants  of  the  city"  of  New  York  have,  a  vested  right  in  the 

1  Wilkinson  v.  Leland,  2  Pet.*627,  657.  72,  it  was  said  that  an  act  was  void  as 
See  also  what  is  said  by  the  same  judge  opposed  to  fundamental  principles  of 
in  Terrett  v.  Taylor,  9  Cranch,  43.  "  It  right  and  justice  inherent  in  the  nature 
is  clear  that  statutes  passed  against  plain  and  spirit  of  the  social  compact.  But  the 
and  obvious  principles  of  common  right  court  had  already  decided  that  the  act 
and  common  reason  are  absolutely  null  was  opposed,  not  only  to  the  constitution 
and  void,  so  far  as  they  are  calculated  to  of  the  State,  but  to  that  of  the  United 
operate  against  those  principles."  Ham  States  also.  See  Mayor,  &c.  of  Baltimore 
v.  McClaws,  1  Bay,  98.  But  the  question  v.  State,  15  Md.  376.  In  Godcharles  v. 
in  that  case  was  one  of  construction;  Wigeman,  113  Pa.  St.  431,  6  Atl.  354,  a 
whether  the  court  should  give  to  a  statute  statute  forbidding  payments  in  store  or- 
a  construction  which  would  make  it  oper-  ders  was  held  void  as  preventing  persons 
ate  against  common  right  and  common  sui  juris  from  making  their  own  con- 
reason.  In  Bowman  v.  Middleton,  1  Bay,  tracts.  A  similar  rule  was  laid  down  in 
282,  the  court  held  an  act  which  di-  State  r.  Fire  Creek,  &c.  Co.,  33  W.  \ra. 
vested  a  man  of  his  freehold  and  passea  188,  10  S.  E.  288,  where  mining  compa- 
it  over  to  another,  to  be  void  "  as  against  nies  were  forbidden  to  sell  to  employees 
common  right  as  well  as  against  Magna  merchandise  at  a  higher  rate  than  they 
Charta."  In  Regents  of  University  v.  sold  it  to  others. 
Williams,  9  Gill  &  J.  365,  31  Am.  Dec. 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  235 

City  Hall,  markets,  water-works,  ferries,  and  other  public  prop- 
erty, which  cannot  be  taken  from  them  any  more  than  their 
individual  dwellings  or  storehouses.  Their  rights,  in  this 
respect,  rest  not  merely  upon  the  constitution,  but  upon  the  great 
principles  of  eternal  justice  which  lie  at  the  foundation  of  all 
free  governments."1  The  great  principles  of  eternal  justice 
which  affected  the  particular  case  had  been  incorporated  in  the 
constitution ;  and  it  therefore  became  unnecessary  to  consider 
what  would  otherwise  have  been  the  rule;  nor  do  we  understand 
the  court  as  intimating  any  opinion  upon  that  subject.  It  was 
sufficient  for  the  case,  to  find  that  the  principles  of  right  and 
justice  had  been  recognized  and  protected  by  the  constitution, 
and  that  the  people  had  not  assumed  to  confer  upon  the  legisla- 
ture a  power  to  deprive  the  city  of  rights  which  did  not  come 
from  the  constitution,  but  from  principles  antecedent  to  and 
recognized  by  it. 

So  it  is  said  by  Hosmer,  Ch.  J.,  in  a  Connecticut  case:  "With 
those  judges  who  assert  the  omnipotence  of  the  legislature  in 
all  cases  where  the  constitution  has  not  interposed  an  explicit 
restraint,  I  cannot  agree.  Should  there  exist  —  what  I  know  is 
not  only  an  incredible  supposition,  but  a  most  remote  improba- 
bility—  a  case  of  direct  infraction  of  vested  rights,  too  palpable 
to  be  questioned  and  too  unjust  to  admit  of  vindication,  I  could 
not  avoid  considering  it  as  a  violation  of  the  social  compact,  and 
within  the  control  of  the  judiciary.  If,  for  example,  a  law  were 
made  without  any  cause  to  deprive  a  person  of  his  property,  or 
to  subject  him  to  imprisonment,  who  would  not  question  its 
legality,  and  who  would  aid  in  carrying  it  into  effect?  On  the 
other  hand,  I  cannot  harmonize  with  tttose  who  deny  the  power 
of  the  legislature  to  make  laws,  in  any  case,  which,  with  entire 
justice,  operate  on  antecedent  legal  rights.  A  retrospective  law 
may  be  just  and  reasonable,  and  the  right  of  the  legislature  to 
enact  one  of  this  description  I  am  not  speculatist  enough  to 
question.2'  The  cases  here  supposed  of  unjust  and  tyrannical 
enactments  would'  probably  be  held  not  to  be  within  the  power 
of  any  legislative  body  in  the  Union.  One  of  them  would  be 
clearly  a  bill  of  attainder;  the  other,  unless  it  was  in  the  nature 
of  remedial  legislation,  and  susceptible  of  being  defended  on  that 
theory,  would  be  an  exercise  of  judicial  power,  and  therefore 
in  excess  of  legislative  authority,  because  not  included  in  the 
apportionment  of  power  made  to  that  department.  No  question 
of  implied  prohibition  would  arise  in  either  of  these  cases;  but 

1  Benson  v.  Mayor,  &c.  of  New  York,  2  Goshen  v.  Stonington,  4  Conn.  209, 
10  Barb.  223,  244.  225. 


236  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

if  the  grant  of  power  had  covered  them,  and  there  had  been  no 
express  limitation,  there  would,  as  it  seems  to  us,  be  very  great 
probability  of  unpleasant  and  dangerous  conflict  of  authority,  if 
the  courts  were  to  deny  validity  to  legislative  action  on  subjects 
within  their  control,  on  the  assumption  that  the  legislature  had 
disregarded  justice  or  sound  policy.  The  moment  a  court  ven- 
tures to  substitute  its  own  judgment  for  that  of  the  legislature, 
in  any  case  where  the  constitution  has  vested  the  legislature 
with  power  over  the  subject,  that  moment  it  enters  upon  a  field 
where  it  is  impossible  to  set  limits  to  its  authority,  and  where  its 
discretion  alone  will  measure  the  extent  of  its  interference.1 

The  rule  of  law  upon  this  subject  appears  to  be,  that,  except 
where  the  constitution  has  imposed  limits  upon  the  legislative 
power,  it  must  be  considered  as  practically  absolute,  whether  it 
operate  according  to  natural  justice  or  not  in^aliy  particular  case. 
The  courts  are  not  the  guardians  of  the  rights  of  the  people  of 
the  State,  except  as  those  rights  are  secured  .by  some  constitu- 
tional provision  which  comes  within  the  judicial  cognizance.  The 
protection  against  unwise  or  oppressive  legislation,  within  con- 
stitutional bounds,  is  by  an  appeal  to  the  justice  and  patriotism 
of  the  representatives  of  the  people.  If  this  fail,  the  people  in 
their  sovereign  capacity  can  correct  the  evil ;  but  courts  cannot 
assume  their  rights.2  The  judiciary  can  only  arrest  the  execu- 
tion of  a  statute  when  it  conflicts  with  the  constitution.  It 

cannot  run  a  race  of  opinions  upon  points  of  right,  reason,  and 

i 

1  "  If  the  legislature  should  pass  a  law  wisdom  and  integrity  of  public  servants 
in  plain  and  unequivocal  language,  within  and  their  identity  with  the  people.  Gov- 
the  general  scope  of  their  constitutional  ernments  cannot  be  administered  without 
powers,  I  know  of  no  authority  in  this  committing  powers  in  trust  and  confi- 
government  to  pronounce  such  an  act  dence."  Beebe  v.  State,  6  Ind.  501,  528, 
void,  merely  because,  in  the  opinion  of  per  Stuart,  J.  And  see  Johnston  v.  Com- 
the  judicial  tribunals,  it  was  contrary  to  monwealth,  1  Bibb,  603  ;  Flint  River 
the  principles  of  natural  justice  ;  for  this  Steamboat  Co.  v.  Foster,  5  Ga.  194;  State 
would  be  vesting  in  the  court  a  latitudi-  v.  Kruttschnitt,  4  Nev.  178;  Walker  v. 
narian  authority  which  might  be  abused,  Cincinnati,  21  Ohio  St.  14;  Hills  v.  Chi- 
and  would  necessarily  lead  to  collisions  cago,  60  111.  86;  Ballentine  v.  Mayor, 
between  the  legislative  and  judicial  de-  &c.,  15  Lea,  633  ;  State  v.  Traders'  Bank, 
partments,  dangerous  to  the  well-being  of  41  La.  Ann.  329,  6  So.  582. 
society,  or  at  least  not  in  harmony  with  2  Bennett  v.  Bull,  Bald'w.  74;  Walker 
the  structure  of  our  ideas  of  natural  gov-  v.  Cincinnati,  21  Ohio  St.  14.  "  If  the 
eminent."  Per  Rogers,  J.,  in  Common-  act  itself  is  within  the  scope  of  their  au- 
wealth  v.  McCloskey,  2  Rawle,  374.  "All  thority,  it  must  stand,, and  we  are  bound 
the  courts  can  do  with  odious  statutes  is  to  make  it  stand,  if  it  will  upon  any 
to  chasten  their  hardness  by  construction,  intendment.  It  is  its  effect,  not  its  pur- 
Such  is  the  imperfection  of  the  best  hu-  pose,  which  must  determine  its  validity. 
man  institutions,  that,  mould  them  as  we  Nothing  but  a  'clear  violation  of  the  con- 
may,  a  large  discretion  must  at  last  be  stitution  —  a  clear  usurpation  of  power 
reposed  somewhere.  The  best  and  in  prohibited  —  will  justifyShe  judicial  de- 
many  cases  the  only  security  is  in  the  partment  in  pronouncing  an  act  of  the 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


237 


expediency  with  the  law-making  power.1  Any  legislative  act 
which  does  not  encroach  upon  the  powers  apportioned  to  the 
other  departments  of  the  government,  being  prima  facie  valid, 
must  be  enforced,  unless  restrictions  upon  the  legislative  author- 
ity can  be  pointed  out  in  the  constitution,  and  the  case  shown  to 
come  within  them.2 

V.  If  the  courts  are  not  at  liberty  to  declare  statutes  void 
because  of  their  apparent  injustice  or  impolicy,  neither  can  they 
do  so  because  they  appear  to  the  minds  of  ;the  judges  to  violate 
fundamental  principles  of  republican  government,  unless  it  shall 
be  found  that  those  principles  are  placed  beyond  legislative  en- 


legislative  department  unconstitutional 
and  void."  Pennsylvania  R.  R.  Co.  v. 
Riblet,  66  Pa.  St.  164,  169.  See  Weber 
v.  Reinhard,  73  Pa.  St.  370;  Chicago, 
&c.  R.  R.  Co.  v.  Smith,  62  111.  268 ;  People 
v.  Albertson,  55  N.  Y.  50,  per  Allen,  J. ; 
Martin  v.  Dix,  52  Miss.  52,  64,  per  Chal- 
mers, J.  ;  Bennett  v.  Boggs,  Baldw.  60,  74; 
United  States  v.  Brown,  1  Deady,  566; 
Commonwealth  v.  Moore,  25  Gratt.  951; 
Danville  v.  Pace,  25  Gratt.  1,  8 ;  Reith- 
miller  v.  People,  44  Mich.  280,  6  N.  W. 
6(37  ;  Munn  v.  Illinois,  94  U.  S.  113;  East- 
man v.  State,  109  Ind.  278,  10  N.  E.  97. 

1  Perkins,  J.,  in  Madison  &  Indian- 
apolis Railroad  Co.  v.  Whiteneck,  8  Ind. 
217  ;  Bull  v.  Read,  13  Gratt.  78,  per  Lee, 
J.  £A  stittute  cannot  be  declared  void 
because  against  public  policy.  Julien  v. 
Model  B.  &  L.  I.  Co.,  —  Wis.  — ,  92  N.  W. 
561.]  So  in  Canada  it  is  held  that  an  act 
within  the  scope  of  legislative  power  can- 
not he  objected  to  as  contrary  to  reason 
and  justice.  Re  Goodhue,  19  Ch'y  (Ont.), 
366 ;  Toronto,  &c.  R.  Co.  v.  Crookshank, 
4  Q.  B.  (Ont.)  318. 

a  Sill  v.  Village  of  Corning,  15  N.  Y. 
297;  Varick  v.  Smith,  5  Paige,  136  ;  Coch- 
ran  v.  Van  Surlay,  20  Wend.  365;  Morris 
v.  People,  3  Denio,  381 ;  Wynehamer  v. 
People,  13  N.  Y.  378 ;  People  v.  Supervi- 
sors of  Orange,  17  N.  Y.  235 ;  Dow  v.  Nor- 
ris,  4  N.  H.  16;  Derby  Turnpike  Co.  i). 
Parks,  10  Conn.  522, 543 ;  Hartford  Bridge 
Co.  o.  Union  Ferry  Co.,  29  Conn.  210 ; 
Holden  v.  James,  11  Mass.  396;  Adams 
w.  Howe,  14  Mass.  340 ;  7  Am.  Dec.  216  ; 
Norwich  v.  County  Commissioners,  13 
Pick.  60;  Dawson  v.  Shaver,  1  Blackf. 
206 ;  Beauchamp  v.  State,  6  Blackf.  299  ; 
Doe  v.  Douglass,  8  Blackf.  10 ;  Maize  v. 
State,  4  Ind.  342;  Stocking  v.  State,  7 


Ind.  327 ;  Beebe  v.  State,  6  Ind.  501 ;  New- 
land  v.  Marsh,  19  111.  376,  384;  Chicago, 
&c.  R.  R.  Co.  v.  Smith,  62  111.  268 ;  Gut- 
man  v.  Virginia  Iron  Co.,  5  W.  Va.  22 ; 
Osburn  v.  Staley,  5  W.  Va.  85;  Yancy 
v.  Yancy,  5  Heisk.  353;  Bliss  t;.  Com- 
monwealth, 2  Litt.  90;  State  v.  Ashley, 
1  Ark.  513 ;  Campbell  v.  Union  Bank, 

7  Miss.  625 ;  Tate's  Ex'r  v.  Bell,  4  Yerg. 
202,  26  Am.  Dec.  221 ;  Andrews  v.  State, 

3  Heisk.  165,  8  Am.  Rep.  8 ;  Railroad  v. 
Hicks,  9  Bax.  446;  Whittington  v.  Polk, 
1  Harr.  &  J.  236;   Norris  v.  Abingdon 
Academy,   7   Gill  &  J.   7 ;    Harrison  v. 
State,  22  Md.  468;     State   v.   Lyles,   1 
McCord,  238;  Myers  v.  English,  9  Cal. 
341;  Ex  parte  Newman,  9  Cal.  502;  Ho- 
bart  v.  Supervisors,  17  Cal.  23 ;  Crenshaw 
v.  Slate  River  Co.,  6  Rand.  245  ;  Lewis  v. 
Webb,  3  Me.  §26 ;  Durham  v.  Lewiston, 

4  Me.  140  ;  Lunt's  Case,  6  Me.  412  ;  Scott 
v.  Smart's  Ex'rs,  1  Mich.  295 ;  Williams 
v.  Detroit,  2  Mich.  560 ;  Tyler  v.  People, 

8  Mich.   320;   Weimer  v.   Bunbury,  30 
Mich.  201 ;   Cotton  v.  Commissioners   of 
Leon  County,  6  Fla.  610 ;  State  v.  Robin- 
son, 1  Kan.  17 ;  Santo  v.  State,  2  Iowa, 
165  ;  Morrison  v.  Springer,  15  Iowa,  304; 
Stoddart  v.  Smith,  5  Binn.  355  ;  Moore  v. 
Houston,  3  S.  &  R.  169 ;  Braddee  v.  Brown- 
field,  2  W.  &  S.  271 ;  Harvey  v.  Thomas, 
10  Watts,  63;   Commonwealth   v.  Max- 
well, 27   Pa.   St.   444;   Lewis's  Appeal, 
67  Pa.  St.  153;  Butler's  Appeal,  73  Pa. 
St.  448 ;  Carey  v.  Giles,  9  Ga.  253 ;  Macon 
&  Western  Railroad  Co.  v.  Davis,  13  Ga. 
68;  Franklin  Bridge  Co.  v.  Wood,  14  Ga. 
80;  Boston  v.  Cummins,  16  Ga.  102  ;  Van 
Home  v.  Dorrance,  2  Dall.  309 ;  Calder 
v.  Bull,  8  Dall.  386 ;  Cooper  v.  Telfair,  4 
Dall.  14;  Fletcher  v.  Peck,  6  Cranch,  87. 


238  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

croachment  by  the  constitution.  The  principles  of  republican 
government  are  not  a  set  of  inflexible  rules,  vital  and  active  in  the 
constitution,  though  unexpressed,  but  they  are  subject  to  variation 
and  modification  from  motives  of  policj'  and  public  necessity  ;  and 
it  is  only  in  those  particulars  in  which  experience  has  demon- 
strated any  departure  from  the  settled  practice  to  work  injustice 
or  confusion,  that  we  shall  discover  an  incorporation  of  them  in 
the  constitution  in  such  form  as  to  make  them  definite  rules  of 
action  under  all  circumstances.  It  is  undoubtedly  a  maxim  of 
republican  government,  as  we  understand  it,  that  taxation  and 
representation  should  be  inseparable ;  but  where  the  legislature 
interferes,  as  in  many  cases  it  may  do,  to  compel  taxation  by  a 
municipal  corporation  for  local  purposes,  it  is  evident  that  this 
maxim  is  applied  in  the  case  in  a  much  restricted  and  very  im- 
perfect sense  only,  since  the  representation  of  the  locality  taxed 
is  but  slight  in  the  body  imposing  the  tax,  and  the  burden  may 
be  imposed,  not  only  against  the  protest  of  the  local  representa- 
tive, but  against  the  general  opposition  of  the  municipality.  The 
property  of  women  is  taxable,  notwithstanding  they  are  not  al- 
lowed a  voice  in  choosing  representatives.1  The  maxim  is  not 
entirely  lost  sight  of  in  such  cases,  but  its  application  in  the 
particular  case,  and  the  determination  how  far  it  can  properly 
and  justly  be  made  to  yield  to  considerations  of  policy  and  expe- 
diency, must  rest  exclusively  with  the  law-making  power,  in  the 
absence  of  any  definite  constitutional  provisions  so  embodying 
the  maxim  as  to  make  it  a  limitation  upon  legislative  authority.2 
It  is  also  a  maxim  of  republican  government  that  local  concerns 
shall  be  managed  in  the  local  districts,  which  shall  -choose  their 
own  administrative  and  police  officers,  and  establish  for  them- 
selves police  regulations;  but  this  maxim  is  subject  to  such  ex- 
ceptions as  the  legislative  power  of  the  State  shall  see  fit  to  make  ; 
and  when  made,  it  must  be  presumed  that  the  public  interest, 

1  Wheeler  v.  Wall,  6  Allen,  658;  Smith  inexpedient,  as  politic  or  impolitic.     Con-  j 
v.  Macon,  20  Ark.  17.  siderations  of  that  sort  must  in  general  be 

2  "  There    are    undoubtedly    f  unda-  addressed  to  the  legislature.    Questions  of 
mental  principles  of  morality  and  justice  policy  there  are  concluded  here."    Chase, 
which  no  legislature  is  at  liberty  to  disre-  Ch.  J.,  in   License   Tax   Cases,  5  Wall, 
gard,  but  it  is  equally  undoubted  that  no  462,  469.     "  All  mere  questions  of  expe- 
court,  except  in  the  clearest  cases,  can  diency,  and  all  questions  respecting  the 
properly  impute  the  disregard  of   those  just  operation  of  the  law  within  the  limits 
principles  to  the  legislature. .  . .  This  court  prescribed  by  the  constitution,  were  set- 
can  know  nothing  of  public  policy  except  tied  by  the  legislature  when  it  was  en- 
from  the  constitution  and  the  laws,  and  acted."     Ladd,  J.,  in  Perry  v.  Keene,  56 
the  course  of  administration  and  decision.  N.   H.   614,   630.     And  see  remarks   of 
It  has  no  legislative  powers.     It  cannot  Ryan,  Ch.  J.,  in  Attorney-General  v.  Chi- 
amend  or  modify  any  legislative  acts.    It  oago,  &c.  R.  B.  Co.,  35  Wis.  425,  580. 
cannot  examine  questions  as  expedient  or 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


239 


convenience,  and  protection  are  subserved  thereby.1  The  State 
may  interfere  to  establish  new  regulations  against  the  will  of  the 
local  constituency;  and  if  it  shall  think  proper  in  any  case  to 
assume  to  itself  those  powers  of  local  police  which  should  be 
executed  by  the  people  immediately  concerned,  we  must  suppose 
it  has  been  done  because  the  local  administration  has  proved 
imperfect  and  inefficient,  and  a  regard  to  the  general  well-being 
has  demanded  the  change.  In  these  cases  the  maxims  which 
have  prevailed  in  the  government  address  themselves  to  the  wis- 
dom of  the  legislature,  and  to  adhere  to  them  as  far  as  possible 
is  doubtless  to  keep  in  the  path  of  wisdom ;  but  they  do  not  con- 
stitute restrictions  so  as  to  warrant  the  other  departments  in 
treating  the  exceptions  which  are  made  as  unconstitutional.2 
VI.  Nor  are  the  courts  at  liberty  to  declare  an  act  void,  because 


1  People  v.  Draper,  15  N.  Y.  532.    See 
post,  pp.  261-266. 

2  In  People  v.  Mahaney,  13  Mich.  481, 
500,  where  the  Metropolitan  Police  Act 
of  Detroit  was  claimed  to  be  unconstitu- 
tional on  various  grounds,  the  court  say  : 
"  Besides  the  specific  objections  made  to 
the  act  as  opposed  to  the  provisions  of  the 
constitution,  the  counsel  for  respondent 
attacks  it  on  'general  principles,' and  espe- 
cially because  violating  fundamental  prin- 
ciples of  our  system,  —  that  governments 
exist  by  the   consent  of   the   governed, 
and  that  taxation  and  representation  go 
together.     The  taxation  under  the  act,  it 
is  said,  is  really  in  the  hands  of  a  police 
board,  a  body  in  *the  choice  of  which  the 
people  of  Detroit  have  no  voice.     This 
argument  is  one  which  might  be  pressed 
upon    the    legislative    department    with 
great  force,  if  it  were  true  in   point  of 
fact.    But  as  the  people  of  Detroit  are 
really  represented  throughout,  the  diffi- 
culty suggested  can  hardly  be  regarded 
as  fundamental.     They  were  represented 
in  the  legislature  which  passed  the  act, 
and   had   the   same  proportionate   voice 
there  with  the  other  municipalities  in  the 
State,  all  of  winch  receive  from  that  body 
their  powers   of   local   government,  and 
such  only  as  its  wisdom  shall  prescribe 
within   the   constitutional   limit.      They 
were  represented  in  that  body  when  the 
present  police  board  were  appointed  by 
it,  and  the  governor,  who  is  hereafter  to 
fill  vacancies,  will  be  chosen  by  the  State 
at  large,  including  their  city.    There  is 
nothing  in  the  maxim  that  taxation  and 


representation  go  together  which  requires 
that  the  body  paying  the  tax  shall  alone 
be  consulted  in  its  assessment;  and  if 
there  were,  we  should  find  it  violated  at 
every  turn  in  our  system.  The  State 
legislature  not  only  has  a  control  in  this 
respect  over  inferior  municipalities,  which 
it  exercises  by  general  laws,  but  it  some- 
times finds  it  necessary  to  interpose  its 
power  in  special  cases  to  prevent  unjust 
or  burdensome  taxation,  as  well  as  to 
compel  the  performance  of  a  clear  duty. 
The  constitution  itself,  by  one  of  the 
clauses  referred  to,  requires  the  legis- 
lature to  exercise  its  control  over  the 
taxation  of  municipal  corporations,  by  re- 
stricting it  to  what  that  body  may  regard 
as  proper  bounds.  And  municipal  bodies 
are  frequently  compelled  most  unwillingly 
to  levy  taxes  for  the  payment  of  claims, 
by  the  judgments  or  mandates  of  courts 
in  which  their  representation  is  quite  as 
remote  as  that  of  the  people  of  Detroit  in 
this  police  board.  It  cannot  therefore  be 
said  that  the  maxims  referred  to  have 
been  entirely  disregarded  by  the  legis- 
lature in  the  passage  of  this  act.  But  as 
counsel  do  not  claim  that,  in  so  far  as 
they  have  been  departed  from,  the  consti- 
tution has  been  violated,  we  cannot,  with 
propriety,  be  asked  to  declare  the  act 
void  on  any  such  general  objection." 
And  see  Wynehamer  v.  People,  13  N.  Y. 
378,  per  Selden,  J. ;  Benson  v.  Mayor,  &c. 
of  Albany,  24  Barb.  248  et  seq. ;  Baltimore 
v.  State,  15  Md.  376 ;  People  v.  Draper,  15 
N.  Y.  632;  White  v.  Stamford,  37  Conn. 
578. 


240  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

in  their  opinion  it  is  opposed  to  a  spirit  supposed  to  pervade  the 
constitution,  but  not  expressed  in  words.  "  When  the  funda- 
mental law  has  not  limited,  either  in  terms  or  by  necessary  impli- 
cation, the  general  powers  conferred  upon  the  -legislature,  we 
cannot  declare  a  limitation  under  the  notion  of  having  discovered 
something  in  the  spirit  of  the  constitution  which  is  not  even  men- 
tioned in  the  instrument." J  "  It  is  difficult,"  says  Mr.  Senator 
Yerplanck,  "  upon  any  general  principles,  to  limit  the  omnipotence 
of  the  sovereign  legislative  power  by  judicial  interposition,  except 
so  far  as  the  express  words  of  a  written  constitution  give  that 
authority.  There  are  indeed  many  dicta  and  some  great  authori- 
ties holding  that  acts  contrary  to  the  first  principles  of  right  are 
void.  The  principle  is  unquestionably  sound  as  the  governing 
rule  of  a  legislature  in  relation  to  its  own  acts,  or  even  those  of  a 
preceding  legislature.  It  also  affords  a  safe  rule  of  construction 
for  courts,  in  the  interpretation  of  laws  admitting  of  any  doubtful 
construction,  to  presume  that  the  legislature  could  not  have  in- 
tended an  unequal  and  unjust  operation  of  its  statutes.  Such  a 
construction  ought  never  to  be  given  to  legislative  language  if  it 
be  susceptible  of  any  other  more  conformable*  to  justice ;  but  if 
the  words  be  positive  and  without  ambiguity,  I  can  find  no  author- 
ity for  a  court  to  vacate  or  repeal  a  statute  on  that  ground  alone. 
But  it  is  only  in  express  constitutional  provisions,  limiting  legis- 
lative power  and  controlling  the  temporary  will  of  a  majority,  by 
a  permanent  and  paramount  law,  settled  by  the  deliberate  wisdom 
of  the  nation,  that  I  can  find  a  safe  and  solid  ground  for  the 
authority  of  courts  of  justice  to  declare  void  any  legislative  enact- 
ment. Any  assumption  of  authority  beyond  this  would  be  to 
place  in  the  hands  of  the  judiciary  powers  too  great  and  too  un- 
defined either  for  its  own  security  or  the  protection  of  private 
rights.  It  is  therefore  a  most  gratifying  circumstance  to  the 

1  People  »'.  Fisher,  24  Wend.  215,  220 ;  tion  of  validity  of  statutes  dependent 
State  v.  Staten,  6  Cold.  238 ;  Walker  v.  upon  conformity,  or  want  of  it,  to  the 
Cincinnati,  21  Ohio  St.  14 ;  State  v.  Smith,  "  spirit "  of  the  constitution  is  quoted  and 
44  Ohio  St.  348,  7  N.  E.  447,  12  N.  E.  829  ;  approved.  See  also  Sheppard  v.  Dow- 
People  v.  Rucker,  6  Col.  455;  Whallon  v.  ling,  127  Ala.  1,  28  So.  791,  85  Am.  St. 
Ingham  Circ.  Judge,  51  Mich.  503,  16  68.  For  the  purpose  of  determining  ques- 
N.  VV.  876;  Woolen  v.  State,  24  Fla.  335,  tions  of  constitutionality  courts  will  not 
6  So.  39.  QBut  see  Middleton  v.  Middle-  consider  questions  of  the  justice,  advisa- 
ton,  54  N.  J.  Eq.  692,  35  Atl.  1065,  55  Am.  bility,  or  policy  of  the  act.  State  ex  rd. 
St.  602,  36  L.  R.  A.  221,  'holding  that  an  Smith  v.  McLellan,  138  Ind.  395,  37  N.  E. 
act  which  restricts  a  decree  for  a  divorce  799.  For  a  valuable  discussion  of  the 
to  a  divorce  a  mensa  et  thoro  when  the  power  of  courts  to  declare  a  law  uncon- 
plaintiffhas  conscientious  scruples  against  stitutional  because  opposed  to  the  "  spir- 
divorce  a  vinculo  is  void.  In  Com.  c.  Moir,  it  "of  the  constitution,  see  Lexington  v. 
199  Pa.  534,  49  Atl.  351,  85  Am.  St.  801,  Thompson,  —  Ky.  — ,  68  S.  W.  477,  57 
53  L.  R.  A.  837,  the  text  upon  the  ques-  L.  R.  A.  776  (May  28,  1902).] 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  241 

friends  of  regulated  liberty,  that  in  every  change  in  their  consti- 
tutional polity  which  has  yet  taken  place  here,  whilst  political 
power  has  been  more  widely  diffused  among  the  people,  stronger 
and  better-defined  guards  have  been  given  to  the  rights  of  prop- 
erty." And  after  quoting  certain  express  limitations,  he  pro- 
ceeds :  "  Believing  that  we  are  to  rely  upon  these  and  similar 
provisions  as  the  best  safeguards  of  our  rights,  as  well  as  the 
safest  authorities  for  judicial  direction,  I  cannot  bring  myself  to 
approve  of  the  power  of  courts  to  annul  any  law  solemnly  passed, 
either  on  an  assumed  ground  of  its  being  contrary  to  natural 
equity,  or  from  a  broad,  loose,  and  vague  interpretation  of  a  con- 
stitutional provision  beyond  its  natural  and  obvious  sense."  1 

The  accepted  theory  upon  this  subject  appears  to  be  this :  In 
every  sovereign  State  there  resides  an  absolute  and  uncontrolled 
power  of  legislation.  In  Great  Britain  this  complete  power  rests 
in  the  Parliament;  in  the  American  States  it  resides  in  the  people 
themselves  as  an  organized  body  politic.  But  the  people,  by 
creating  the  Constitution  of  the  United  States,  have  delegated 
this  power  as  to  certain  subjects,  and  under  certain  restrictions, 
to  the  Congress  of  the  Union ;  and  that  portion  they  cannot  re- 
sume, except  as  it  may  be  done  through  amendment  of  the  national 
Constitution.  For  the  exercise  of  the  legislative  power,  subject 
to  this  limitation,  they  create,  by  their  State  constitution,  a  legis- 
lative department  upon  which  they  confer  it ;  and  granting  it  in 
general  terms,  they  must  be  understood  to  grant  the  whole  legis- 
lative power  which  they  possessed,  except  so  far  as  at  the  same 
time  they  saw  fit  to  impose  restrictions.  While,  therefore,  the 
Parliament  of  Britain  possesses  completely  the  absolute  and  un- 
controlled power  of  legislation,  the  legislative  bodies  of  the  Amer- 
ican States  possess  the  same  power,  except,  first,  as  it  may  have 
been  limited  by  the  Constitution  of  the  United  States  ;  and,  second, 
as  it  may  have  been  limited  by  the  constitution  of  the  State.  A 
legislative  act  cannot,  therefore,  be  declared  void,  unless  its  con- 
flict with  one  of  these  two  instruments  can  be  pointed  out.2 

It  is  to  be  borne  in  mind,  however,  that  there  is  a  broad  dif- 
ference between  the  Constitution  of  the  United  States  and  the 
constitutions  of  the  States  as  regards  the  powers  which  may  be 

1  Coeliran  v.  Van    Surlay,  20   Wend.          2  People   «•.  New  York  Central  Rail- 

365,  381,  383.     See  also  People  v.  Galla-  road  Co.,  34  Barb.  123;  Gentry  v.  Grif- 

gher,   4   Mich.   244;   Benson    v.   Mayor,  fith,  27   Tex.  461  ;  Danville  v.  Pace,  25 

&c.  of  Albany,  24  Barb.  248;  Grant  v.  Gratt.  1,  18  Am.  Rep.  633;  Davis  v.  State, 

Courier,    '24    Barb.  232;  Wynehamer  v.  3  Lea,  377.     And  see  the  cases  cited,  ante, 

People,  13  N.  Y.  378,  per  Comstock,  J. ;  p.  237,  note  2. 
13  N.  Y.  453,  per   Selden,  J. ;  13   N.  Y. 
477,  per  Johnson,  J. 

16 


242  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

exercised  under  them.  The  government  of  the  United  States  is 
one  of  enumerated  powers ;  the  governments  of  the  States  are 
possessed  of  all  the  general  powers  of  legislation.  When  a  law 
of  Congress  is  assailed  as  void,  we  look  in  the  national  Constitu- 
tion to  see  if  the  grant  of  specified  powers  is  broad  enough  to  em- 
brace it ;  but  when  a  State  law  is  attacked  on  the  same  ground, 
it  is  presumably  valid  in  any  case,  and  this  presumption  is  a  con- 
clusive one,  unless  in  the  Constitution  of  the  United  States  or  of 
the  State  we  are  able  to  discover  that  it  is  prohibited.  We  look 
in  the  Constitution  of  the  United  States  for  grants  of  legislative 
power,  but  in  the  constitution  of  the  State  to  ascertain  if  any 
limitations  have  been  imposed  upon  the  complete  power  with 
which  the  legislative  department  of  the  State  was  vested  in  its 
creation.  Congress  can  pass  no  laws  but  such  as  the  Constitution 
authorizes  either  expressly  or  by  clear  implication ;  while  the 
State  legislature  has  jurisdiction  of  all  subjects  on  which  its  legis- 
lation is  not  prohibited.1  "  The  law-making  power  of  the  State," 
it  is  said  in  one  case,  "  recognizes  no  restraints,  and  is  bound  by 
none,  except  such  as  are  imposed  by  the  constitution.  That  in- 
strument has  been  aptly  termed  a  legislative  act  by  the  people 
themselves  in  their  sovereign  capacity,  and  is  therefore  the  para- 
mount law.  Its  object  is  not  to  grant  legislative  power,  but  to 
confine  and  restrain  it.  Without  the  constitutional  limitations, 
the  power  to  make  laws  would  be  absolute.  These  limitations 
are  created  and  imposed  by  express  words,  or  arise  by  necessary 
implication.  The  leading  feature  of  the  constitution  is  the  sepa- 
ration and  distribution  of  the  powers  of  the  government.  It  takes 
care  to  separate  the  executive,  legislative,  and  judicial  powers,  and 
to  define  their  limits.  The  executive  can  do  no  legislative  act,  nor 
the  legislature  any  executive  act,  and  neither  can  exercise  judicial 
authority." 2 

It  does  not  follow,  however,  that  in  every  case  the  courts,  be- 
fore they  can  set  aside  a  law  as  invalid,  must  be  able  to  find  in 
the  constitution  some  specific  inhibition  which  has  been  disre- 
garded, or  some  express  command  which  has  been  disobeyed.3 

1  Sill  v.  Village  of  Corning,  15  N.  Y.  Kirby  v.  Shaw,  19  Pa.  St.  258 ;  Weister 

297;  People  v.  Supervisors  of   Orange,  v.  Hade,  52  Pa.  St.  474;  Danville  v.  Pace, 

27  Barb.  575 ;  People  v.  Gallagher,  4  Mich.  25  Gratt.  1,  9, 18  Am.  Hep.  663. 
244  ;  Sears  v.  Cottrell,  5  Mich.  250 ;  Peo-          2  Sill  v.  Corning,  15  N.  Y.  297,  303. 
pie  v.  New  York  Central  Railroad  Co.,          3  A  remarkable  case  of   evasion   to 

24  N.  Y.  497,  504;  People  v.  Toynbee,  2  avoid  the  purpose  of  the  constitution,  and 

Park.  Cr.  R.  490 ;  State  v.  Gutierrez,  15  still  keep  within  its  terms,  was  considered 

La.  Ann.  190;  Walpole  v.  Elliott,  18  Ind.  in  People  v.  Albertson,  55  N.  Y.  50.     In 

258  ;  Smith  v.  Judge,  17  Cal.  547  ;  Com-  Taylor  v  Commissioners  of  Ross  County, 

monwealth  v.  Hartman,  17  Pa.  St.  118;  23  Ohio  St.  22,  the  Supreme  Court  of 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  243 

Prohibitions  are  only  important  where  they  are  in  the  nature  of 
exceptions  to  a  general  grant  of  power ;  and  if  the  authority  to 
do  an  act  has  not  been  granted  by  the  sovereign  to  its  representa- 
tive, it  cannot  be  necessary  to  prohibit  its  being  done.  If  in  one 
department  was  vested  the  whole  power  of  the  government,  it 
might  be  essential  for  the  people,  in  the  instrument  delegating 
this  complete  authority,  to  make  careful  and  particular  exception 
of  all  those  cases  which  it  was  intended  to  exclude  from  its  cog- 
nizance ;  for  without  such  exception  the  government  might  do 
whatever  the  people  themselves,  when  met  in  their  sovereign 
capacity,  would  have  power  to  do.  But  when  only  the  legislative 
power  is  delegated  to  one  department,  and  the  judicial  to  another, 
it  is  not  important  that  the  one  should  be  expressly  forbidden  to 
try  causes,  or  the  other  to  make  laws.  The  assumption  of  judi- 
cial power  by  the  legislature  in  such  a  case  is  unconstitutional, 
because,  though  not  expressly  forbidden,  it  is  nevertheless  incon- 
sistent with  the  provisions  which  have  conferred  upon  another 
department  the  power  the  legislature  is  seeking  to  exercise.1  And 
for  similar  reasons  a  legislative  act  which  should  undertake  to 
make  a  judge  the  arbiter  in  his  own  controversies  would  be  void, 
because,  though  in  form  a  provision  for  the  exercise  of  judicial 
power,  in  substance  it  would  be  the  creation  of  an  arbitrary  and 
irresponsible  authority,  neither  legislative,  executive,  nor  judicial, 
and  wholly  unknown  to  constitutional  government.2  It  could  not 
be  necessary  to  forbid  the  judiciary  to  render  judgment  without 
suffering  the  party  to  make  defence ;  because  it  is  implied  in 
judicial  authority  that  there  shall  be  a  hearing  before  condemna- 
tion.3 Taxation  cannot  be  arbitrary,  because  its  very  definition 
includes  apportionment,  nor  can  it  be  for  a  purpose  not  public, 
because  that  would  be  a  contradiction  in  terms.*  The  right  of 
local  self-government  cannot  be  taken  away,  because  all  our  con- 
stitutions assume  its  continuance  as  the  undoubted  right  of  the 
people,  and  as  an  inseparable  incident  to  republican  government.5 

Ohio  found  itself  under  the  necessity  of  ings,  10  Allen,  570;  Opinions  of  Judges, 

declaring  that  that  which  was  forbidden  58  Me.  590;  People  v.  Batuhellor,  63  N.  Y. 

by   the   constitution   could   no   more   be  128;    Lowell  v.  Boston,  111   Mass.   454. 

done  indirectly  than  directly.  [Re  Page,  60  Kan.  842,  58  Pac.  478,  47 

1  Ante,  pp.  126-157,  and  cases  cited.  L.  R.  A.  68J 

2  Post,  pp.  592-595,  and  cases  cited.  6  People  v.  Mayor,  &c.  of  Chicago,  51 

3  Post,  pp.  502-506.     On  this  subject  111.  17;   Peoples  Hurlbut,  24  Mich.  44; 
in   general,   reference  is   made  to  those  State  v.  Denny,  118  Ind.  449,  21  N.  E. 
very  complete  recent  works,  Bigelow  on  274.     [[But  this   does  not  invalidate  an 
Estoppel,  and  Freeman  on  Judgments.  act  arbitrarily  imposing  upon  a  county 

4  Post,  ch.    14.      And    see    Curtis   v.  the  duty  of  erecting  and  maintaining  a 
Whipple,  24  Wis.  350;  Tyson  v.  School  high  school.     State  v.  Freeman.  61  Kan. 
Directors,  51  Pa.  St.  9;  Freeland  v.  Hast-  90,  58  Pac.  959,  47  L.  R.  A.  67.     Upon 


244  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

The  bills  of  rights  in  the  American  constitutions  forbid  that 
parties  shall  be  deprived  of  property  except  by  the  law  of  the 
land;  but  if  the  prohibition  had  been  omitted,  a  legislative  en- 
actment to  pass  one  man's  property  over  to  another  would  never- 
theless be  void.  If  the  act  proceeded  upon  the  assumption  that 
such  other  person  was  justly  entitled  to  the  estate,  and  therefore 
it  was  transferred,  it  would  be  void,  because  judicial  in  its  nature  ; 
and  if  it  proceeded  without  reasons,  it  would  be  equally  void,  as 
neither  legislative  nor  judicial,  but  a  mere  arbitrary  fiat.1  There 
is  no  difficulty  in  saying  that  any  such  act,  which  uncTer  pretence 
of  exercising  one  power  is  usurping  another,  is  opposed  to  the 
constitution  and  void.  It  is  assuming  a  power  which  the  people, 
if  they  have  not  granted  it  at  all,  have  reserved  to  themselves. 
The  maxims  of  Magna  Charta  and  the  common  law  are  the  in- 
terpreters of  constitutional  grants  of  power,  and  those  acts  which 
by  those  maxims  the  several  departments  of  government  are  for- 
bidden to  do  cannot  be  considered  within  any  grant  or  appor- 
tionment of  power  which  the  people  in  general  terms  have  made 
to  those  departments.  The  Parliament  of  Great  Britain,  indeed, 
as  possessing  the  sovereignty  of  the  country,  has  the  power  to 
disregard  fundamental  principles,  and  pass  arbitrary  and  unjust 
enactments  ;  but  it  cannot  do  this  rightfully,  and  it  has  the  power 
to  do  so  simply  because  there  is  no  written  constitution  from 
which  its  authority  springs  or  on  which  it  depends,  and  by  which 
the  courts  can  test  the  validity  of  its  declared  will.  The  rules 
which  confine  the  discretion  of  Parliament  within  the  ancient 


this  right  to  local  self-government,  see  peal,  16  Pa.  St.  256.  "It  is  now  con- 
State  ex  rel.  Bulkley  v.  Williams,  68  sidered  an  universal  and  fundamental 
Conn.  131,  35  Atl.  24,  421,  48  L.  R.  A.  proposition  in  every  well  regulated 
465 ;  Newport  v.  Horton,  22  R.  I.  196,  47  and  properly  administered  government, 
Atl.  312,  50  L.  R.  A.  330;  Rathbone  ?'.  whether  embodied  in  a  constitutional 
AVirtli,  150  N.  Y.  459,  45  N.  E.  15,  24,  34  form  or  not,  that  private  property  cannot 
L.  R.  A.  408,  419 ;  O'Connor  v.  Fond  du  be  taken  for  strictly  private  purposes  at 
Lac,  109  Wis.  253,  85  N.  W.  327,  63  L.  R.  all,  nor  for  public  uses  without  a  just 
A.  831 ;  Com.  ex  rel.  Elkin  v.  Moir,  199  compensation ;  and  that  the  obligation  of 
Pa.  534,  49  Atl.  351,  53  L.  R.  A.  837,  contracts  cannot  be  abrogated  or  essen- 
85  Am.  St.  801 ;  State  v.  Fox,  —  Ind.  — ,  tially  impaired.  These  and  other  vested 
63  N.  E.  19,  55  L.  R.  A.  893  (Feb.  26,  rights  of  the  citizen  are  held  sacred  and 
1902);  Americus  v.  Perry,  114  Ga.  871,  inviolable,  even  against  the  plenitude  of 
40  S.  E.  1004,  57  L.  R.  A.  280;  State  power  of  the  legislative  department." 
•ex  rel.  White  ».  Barker, — Iowa, — ,89  Nelson,  3.,  in  People  v.  Morris,  13  Wend. 
N.  W.  204,  57  L.  R.  A.  244  (Feb.  13,  325,328.  See  Bank  of  Michigan  v.  Wil- 
1902)  ;  Lexington  v.  Thompson,  —  Ky.  liams,  5  Wend.  478.  [^Property  of  a  pri- 
— ,  68  S.  W.  477,  57  L.  R.  A.  775  (May  vate  eleemosynary  corporation  is  none 
28,  1902).]  See  cases  ]>ost,  pp.  265,  334.  the  less  private  because  it  is  charged 
1  Bowman  r.  Middleton,  1  Bay,  252;  with  the  maintenance  of  a  public  char- 
Wilkinson  v.  Leland,  2  Pet.  627;  Terrett  ity.  State  v.  Neff,  52  Ohio  St.  375,  40 
v.  Taylor,  9  Cranch,  43 ;  Ervine's  Ap-  N.  E.  720,  28  L.  R.  A.  409.] 


CH.  VII  ]  DECLARING   STATUTES    UNCONSTITUTIONAL.  245 

landmarks  are  rules  for  the  construction  of  the  powers  of  the 
American  legislatures ;  and  however  proper  and  prudent  it  may 
be  expressly  to  prohibit  those  things  which  are  not  understood  to 
be  within  the  proper  attributes  of  legislative  power,  such  prohibi- 
tion can  never  be  regarded  as  essential,  when  the  extent  of  the 
power  apportioned  to  the  legislative  department  is  found  upon 
examination  not  to  be  broad  enough  to  cover  the  obnoxious  au- 
thority. The  absence  of  such  prohibition  cannot,  by  implication, 
confer  power. 

Nor,  where  fundamental  rights  are  declared  by  the  constitution, 
is  it  necessary  at  the  same  time  to  prohibit  the  legislature,,  in 
express  terms,  from  taking  them  away.  The  declaration  is  itself 
a  prohibition,  and  is  inserted  in  the  constitution  for  the  express 
purpose  of  operating  as  a  restriction  upon  legislative  power.1 
Many  things,  indeed,  which  are  contained  in  the  bills  of  rights 
to  be  found  in  the  American  constitutions,  are  not,  and  from  the 
very  nature  of  the  case  cannot  be,  so  certain  and  definite  in  char- 
acter as  to  form  rules  for  judicial  decisions  ;  and  they  are  declared 
rather  as  guides  to  the  legislative  judgment  than  as  marking  an 
absolute  limitation  of  power.  The  nature  of  the  declaration  will 
generally  enable  us  to  determine  without  difficulty  whether  it  is 
the  one  thing  or  the  other.  If  it  is  declared  that  all  men  are  free, 
and  no  man  can  be  slave  to  another,  a  definite  and  certain  rule  of 
action  is  laid  down,  which  the  courts  can  administer;  but  if  it  be 
said  that  "  the  blessings  of  a  free  government  can  only  be  main- 
tained by  a  firm  adherence  to  justice,  moderation,  temperance, 
frugality,  and  virtue,"  we  should  not  be  likely  to  commit  the  mis- 
take of  supposing  that  this  declaration  would  authorize  the  courts 
to  substitute  their  own  view  of  justice  for  that  which  may  have 
impelled  the  legislature  to  pass  a  particular  law,  or  to  inquire  into 
the  moderation,  temperance,  frugality,  and  virtue  of  its  members, 
with  a  view  to  set  aside  their  action,  if  it  should  appear  to  have 
been  influenced  by  the  opposite  qualities,  (a)  It  is  plain  that 
what  in  the  one  case  is  a  rule,  in  the  other  is  an  admonition 
addressed  to  the  judgment  and  the  conscience  of  all  persons  in 
authority,  as  well  as  of  the  people  themselves. 

So  the  forms  prescribed  for  legislative  action  are  in  the  nature 
of  limitations  upon  its  authority.  The  constitutional  provisions 

1  Beebe  v.  State,  6  Ind.  501.  This 
principle  is  very  often  acted  upon  when 
not  expressly  declared. 

(a)  []So  a  statute  cannot  authorize  a  board  of  health  to  annul  a  physician's 
license  "for  grossly  unprofessional  conduct  of  a  character  likely  to  deceive  or 
defraud  the  public"  without  in  some  way  defining  what  is  "grossly  unprofessional 
conduct."  Mathews  v.  Murphy,  28  Ky.  L.  Rep.  750,  63  S.  W.  785,  54  L.  R.  A.  415.] 


246  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

which  establish  them  are  equivalent  to  a  declaration  that  the  legis- 
lative power  shall  be  exercised  under  these  forms,  and  shall  not 
be  exercised  under  any  other.  A  statute  which  does  not  observe 
them  will  plainly  be  ineffectual.1 

Statutes   Unconstitutional  in  Part. 

It  will  sometimes  be  found  that  an  act  of  the  legislature  is 
opposed  in  some  of  its  provisions  to  the  constitution,  while 
others,  standing  by  themselves,  would  be  unobjectionable.  So 
the  forms  observed  in  passing  it  may  be  sufficient  for  some  of 
the  purposes  sought  to  be  accomplished  by  it,  but  insufficient  for 
others.  In  any  such  case  the  portion  which  conflicts  with  the 
constitution,  or  in  regard  to  which  the  necessary  conditions  have 
not  been  observed,  must  be  treated  as  a  nullity.  Whether  the 
other  parts  of  the  statute  must  also  be  adjudged  void  because  of 
the  association  must  depend  upon  a  consideration  of  the  object  of 
the  law,  and  in  what  manner  and  to  what  extent  the  unconstitu- 
tional portion  affects  the  remainder.  A  statute,  it  has  been  said, 
is  judicially  held  to  be  unconstitutional,  because  it  is  not  within 
the  scope  of  legislative  authority ;  it  may  either  propose  to  ac- 
complish something  prohibited  by  the  constitution,  or  to  accom- 
plish some  lawful,  and  even  laudable  object,  by  means  repugnant 
to  the  Constitution  of  the  United  States  or  of  the  State.2  A 
statute  may  contain  some  such  provisions,  and  yet  the  same  act, 
having  received  the  sanction  of  all  branches  of  the  legislature,  and 
being  in  the  form  of  law,  may  contain  other  useful  and  salutary 
provisions,  not  obnoxious  to  any  just  constitutional  exception. 
It  would  be  inconsistent  with  all  just  principles  of  constitutional 
law  to  adjudge  these  enactments  void  because  they  are  associated 
in  the  same  act,  but  not  connected  with  or  dependent  on  others 
which  are  unconstitutional.3  Where,  therefore,  a  part  of  a  statute 

1  See  ante,  pp.  186  et  seq.  wealth  v.  Pomeroy,  5  Gray,  486 ;  State  v. 

2  Commonwealth  v.  Clapp,  6  Gray,  97.  Copeland,  3  R.  I.  33 ;   State  v.  Snow,  3 
"  A  law  that  is  unconstitutional  is  so  be-  R.  I.  64 ;  Armstrong  v.  Jackson,  1  Blackf. 
cause  it  is  either  an  assumption  of  power  374 ;  Clark  v.  Ellis,  2  Blackf.  8;  McCul- 
not  legislative  in  its  nature,  or  because  it  loch  v.  State,  11  Ind.  424;  People  v.  Hill, 
is  inconsistent  with  some  provision  of  the  7  Cal.  97  ;  Lathrop  v.  Mills,  19  Cal.  513  ; 
federal  or   State   Constitution."      Wood-  Rood  v.  McCargar,  49  Cal.  117;   Super- 
trorth,  J.,  in  Commonwealth  v.  Maxwell,  visors  of  Knox  Co.  v.  Davis,  63  111.  405; 
27  Pa.  St.  444,  456.  Myers  v.  People,  67  111.  503;  Thomson  v. 

s  Commonwealth  v.  Clapp,  5  Gray,  97.  Grand  Gulf  Railroad  Co.,  3  How.  (Miss.) 

See  to  the  same  effect,  Fisher  v.  McGirr,  240 ;    Campbell  v.  Union  Bank,  7  Miss. 

1    Gray,   1 ;    Warren   v.   Mayor,   &c.   of  625 ;  Mobile  &  Ohio  Railroad  Co.  v.  State, 

Charlestown,   2   Gray,   84;    Wellington,  29  Ala.  573 ;  South  &  N.  Ala.  R.  R.  Co. 

Petitioner,  16  Pick.  87 ;  Commonwealth  v.   Morris,  65  Ala.  193 ;   Santo  v.  State, 

v.   Hitchings,    6    Gray,  482;    Common-  2  Iowa,  165;    State  i;.  Cox,  3  Eng.  436; 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


247 


is  unconstitutional,  that  fact  does  not  authorize  the  courts  to 
declare  the  remainder  void  also,  unless  all  the  provisions  are  con- 
nected in  subject-matter,  depending  on  each  other,  operating 
together  for  the  same  purpose,  or  otherwise  so  connected  together 
in  meaning,  that  it  cannot  be  presumed  the  legislature  would 
have  passed  the  one  without  the  other.1  The  constitutional  and 
unconstitutional  provisions  may  even  be  contained  in  the  same 
section,  and  yet  be  perfectly  distinct  and  separable,  so  that  the 
first  may  stand  though  the  last  fall.  The  point  is  not  whether 
they  are  contained  in  the  same  section  ;  for  the  distribution  into 
sections  is  purely  artificial ;  but  whether  they  are  essentially  and 
inseparably  connected  in  substance.2  If,  when  the  unconstitu- 
tional portion  is  stricken  out,  that  which  remains  is  complete  in 
itself,  and  capable  of  being  executed  in  accordance  with  the 
apparent  legislative  intent,  wholly  independent  of  that  which  was 
rejected,  it  must  be  sustained.  The  difficulty  is  in  determining 
whether  the  good  and  bad  parts  of  the  statute  are  capable  of 
being  separated  within  the  meaning  of  this  rule.  If  a  statute 
attempts  to  accomplish  two  or  more  objects,  and  is  void  as  to  one, 
it  may  still  be  in  every  respect  complete  and  valid  as  to  the 


Mayor,  &c.  of  Savannah  v.  State,  4  Ga. 
26 ;  Exc-hange  Bank  v.  Hines,  3  Ohio  St. 
1 ;  Robinson  v.  Bank  of  Darien,  18  Ga. 
65;  State  v.  Wheeler,  26  Conn.  290; 
People  v.  Lawrence,  36  Barb.  177 ;  Wil- 
liams v.  Payson,  14  La.  Ann.  7 ;  Ely  v. 
Thompson,  3  A.  K.  Marsh.  70;  Davis  r. 
State,  7  Md.  151 ;  State  v.  Commissioners 
of  Baltimore.  29  Md.  521 ;  Hagerstown  v. 
Decliert,  32  Md.  369;  Berry  v.  Balti- 
more, &c.  R.  R.  Co.,  41  Md.  446,  20  Am. 
Rep.  69;  State  v.  Clarke,  54  Mo.  17; 
Lowndes  Co.  v.  Hunter,  49  Ala.  507; 
Isom  v.  Mississippi,  &c.  R.  R.  Co.,  36 
Miss.  300;  Bank  of  Hamilton  v.  Dudley's 
Lessee,  2  Pet.  492;  Turner  v.  Com'rs,  27 
Kan.  314;  In  re  Groffs,  21  Neb.  647, 
33  N.  W.  426 ;  State  v.  Tuttle,  53  Wis. 
45,  9  N.  W.  791 ;  People  v.  Hall,  8  Col. 
485,  9  Pac.  34.  "To  the  extent  of  the 
collision  and  repugnancy,  the  law  of  the 
State  must  yield  ;  and  to  that  extent,  and 
no  further,  it  is  rendered  by  such  repug- 
narcy  inoperative  and  void."  Common- 
weilth  v.  Kimball,  24  Pick.  359,  361,  per 
S/i  itv,  Ch.  J. ;  Norris  v.  Boston,  4  Met. 
28i;  Eckhart  v.  State,  6  W.  Va.  515. 
Where  the  portions  are  separable,  action 
under  the  statute  will  be  presumed  to 
have  been  taken  without  reference  to  the 


invalid  provisions,  and  will  be  upheld  so 
far  as  it  is  within  the  valid  portions. 
Donnersberger  v.  Prendergast,  128  111. 
229,  21  N.  E.  1. 

1  Commonwealth  v.  Hitchings,  5 Gray, 
482.     See  People  v.  Briggs,  50  N.  Y.  553. 
[See  also  Field  v.  Clark,  143  U.  S.  649, 
12  Sup.  Ct.  Rep.  495;  Presser  v.  Illinois, 
116  U.  S.  263,  6  Sup.  Ct.  Rep.  580;  Pen- 
niman's   Case,   103   U.  S.  716;   Keokuk 
N.  L.  Packet  Co.  v.  Keokuk,  95  U.  S.  80; 
Com.  v.  Clark,  195  Pa.  634,  46  Atl.  286, 
57  L.  R.  A.  348,  and  other  cases  cited 
in  brief  for  plaintiff  in  error  in  Tullis  v. 
Lake  Erie  and  Western  R.  Co  ,  44  L.  ed. 
U.  S.  192 ;  Wheeler  v.  N.  Y.,  N.  H.  &  H. 
R.  Co.,  178  U.  S.  321,  20  Sup.  Ct.  Rep. 
949,   aff.   70  Conn.   326,    39    Atl.   443J 
Although  a  proviso  is  ineffectual  because 
unconstitutional,  it  cannot  be  disregarded 
when  the  intention  of  the  legislature  is  in 
question.      Commonwealth   v.  Potts,   79 
Pa.  St.  164. 

2  Commonwealth  v.  Hitchings,  5  Gray, 
482;  Willard  v.  People,  5  111.  461  ;  Eells 
v.  People,  6  111.  498 ;  Robinson  v.  Bidwell, 
22  Cal.  379  ;  State  v.  Easterbrook,  3  Nev. 
173;    Hagerstown   v.   Dechert,   32    Md. 
369  ;  People  v.  Kenney,  96  N.  Y.  294. 


248 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VII. 


other.  But  if  its  purpose  is  to  accomplish  a  single  object  only, 
and  some  of  its  provisions  are  void,  the  whole  must  fail  unless 
sufficient  remains  to  effect  the  object  without  the  aid  of  the 
invalid  portion.1  And  if  they  are  so  mutually  connected  with 
and  dependent  on  each  other,  as  conditions,  considerations,  or 
compensations  for  each  other,  as  to  warrant  the  belief  that  the 
legislature  intended  them  as  a  whole,  and  if  all  could  not  be 
carried  into  effect  the  legislature  would  not  pass  the  residue  inde- 
pendently, then  if  some  parts  are  unconstitutional,  all  the  pro- 
visions which  are  thus  dependent,  conditional,  or  connected  must 
fall  with  them.2 


1  Santo  v.  State,  2  Iowa,  165.  But 
perhaps  the  doctrine  of  sustaining  one 
part  of  a  statute  when  the  other  is  void 
was  carried  to  an  extreme  in  this  case. 
A  prohibitor\'  liquor  law  had  been  passed 
which  was  not  objectionable  on  constitu- 
tional grounds,  except  that  the  last  sec- 
tion provided  that  "  the  question  of  pro- 
hibiting the  sale  and  manufacture  of 
intoxicating  liquor"  should  be  submitted 
to  the  electors  of  the  State,  and  if  it 
should  appear  "  that  a  majority  of  the 
votes  cast  as  aforesaid,  upon  said  ques- 
tion of  prohibition,  shall  be  for  the  pro- 
hibitory liquor  law,  then  this  act  shall 
take  effect  on  the  first  day  of  July,  1855." 
The  court  held  this  to  be  an  attempt  by 
the  legislature  to  shift  the  exercise  of 
legislative  power  from  themselves  to  the 
people,  and  therefore  void ;  but  they  also 
held  that  the  remainder  of  the  act  was 
complete  without  this  section,  and  must 
therefore  be  sustained  on  the  rule  above 
given.  The  reasoning  of  the  court  by 
which  they  are  brought  to  this  conclusion 
is  ingenious;  but  one  cannot  avoid  feel- 
ing, especially  after  reading  the  dissent- 
ing opinion  of  Chief  Justice  Wright,  that 
by  the  decision  the  court  gave  effect  to 
an  act  which  the  legislature  did  not  de- 
sign should  take  effect  unless  the  result 
of  the  unconstitutional  submission  to  the 
people  was  in  its  favor.  See  also  Weir  v. 
Cram,  37  Iowa,  649.  For  a  similar  rul- 
ing, see  Maize  v.  State,  4  Ind.  342 ;  over- 
ruled in  Meshmeier  r.-State,  11  Ind.  482. 
And  see  State  v.  Dombaugh,  20  Ohio  St. 
167,  where  it  was  held  competent  to  con- 
strue a  part  of  an  act  held  to  be  valid  by 
another  part  adjudged  unconstitutional, 
though  the  court  considered  it  "  quite 
probable"  that  if  the  legislature  had  sup- 


posed they  were  without  power  to  adopt 
the  void  part  of  the  act,  they  would  have 
made  an  essentially  different  provision 
by  the  other.  See  also  People  v.  Bull,  46 
N.  Y.  57,  where  part  of  an  act  was  sus- 
tained which  probably  would  not  have 
been  adopted  by  the  legislature  sepa- 
rately. It  must  be  obvious,  in  any  case 
where  part  of  an  act  is  set  aside  as  un- 
constitutional, that  it  is  unsafe  to  indulge 
in  the  same  extreme  presumptions  in 
support  of  the  remainder  that  are  allow- 
able in  support  of  a  complete  act  when 
some  cause  of  invalidity  is  suggested  to 
the  whole  of  it.  In  the  latter  case,  we 
know  the  legislature  designed  the  whole 
act  to  have  effect,  and  we  should  sustain 
it  if  possible ;  in  the  former,  we  do  not 
know  that  the  legislature  would  have 
been  willing  that  a  part  of  the  act  should 
be  sustained  if  the  remainder  were  held 
void,  and  there  is  generally  a  presump- 
tion more  or  less  strong  to  the  contrary. 
While,  therefore,  in  the  one  case  the  act 
should  be  sustained  unless  the  invalidity 
is  clear,  in  the  other  the  whole  should 
fall  unless  it  is  manifest  the  portion  not 
opposed  to  the  constitution  can  stand  by 
itself,  and  that  in  the  legislative  intent  it 
was  not  to  be  controlled  or  modified  in  its 
construction  and  effect  by  the  part  which 
was  void,  ptfoel  v.  People,  187  111.  587, 
68  N.  E.  616,  52  L.  R.  A.  287,  79  Am.  St. 
238 ;  Redell  ».  Moores,  62  Neb.  — ,  88  N. 
W.  243,  55  L.  R.  A.  740.] 

a  Warren  v.  Mayor,  &c.  of  Charles- 
town,  2  Gray,  84  ;  Stater.  CommissioniTS 
of  Perry  County,  5  Ohio  St.  497 ;  State 
v.  Pugh,  43  Ohio  St.  98 ;  Slauson  o.  Ra- 
cine, 13  Wis.  398  ;  Allen  County  Com- 
missioners v.  Silvers,  22  Ind.  491 ;  State 
v.  Denny,  118  Ind.  449,  21  N.  E.  274; 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  249 

It  has  accordingly  been  held,  where  a  statute  submitted  to  the 
voters  of  a  county  the  question  of  the  removal  of  their  county 
seat,  and  one  section  imposed  the  forfeiture  of  certain  vested 
rights  in  case  the  vote  was  against  the  removal,  that  this  portion 
of  the  act  being  void,  the  whole  must  fall,  inasmuch  as  the  whole 
was  submitted  to  the  electors  collectively,  and  the  threatened 
forfeiture  would  naturally  affect  the  result  of  the  vote.1 

And,  where  a  statute  annexed  to  the  city  of  Racine  certain 
lands  previously  in  the  township  of  Racine,  but  contained  an 
express  provision  that  the  lands  so  annexed  should  be  taxed  at  a 
different  and  less  rate  than  other  lands  in  the  city ;  the  latter 
provision  being  held  unconstitutional,  it  was  also  held  that  the 
whole  statute  must  fail,  inasmuch  as  such  provision  was  clearly 
intended  as  a  compensation  for  the  annexation.2 

And  where  a  statute,  in  order  to  obtain  a  jury  of  six  persons, 
provided  for  the  summoning  of  twelve  jurors,  from  whom  six 
were  to  be  chosen  and  sworn,  and  under  the  constitution  the  jury 
must  consist  of  twelve,  it  was  held  that  the  provision  for  reducing 
the  number  to  six  could  not  be  rejected  and  the  statute  sustained, 
inasmuch  as  this  would  be  giving  to  it  a  construction  and  effect  ' 
different  from  that  the  legislature  designed ;  and  would  deprive 
the  parties  of  the  means  of  obtaining  impartial  jurors  which  the 
statute  had  intended  to  give.3 

On  the  other  hand,  —  to  illustrate  how  intimately  the  valid  and 
invalid  portions  of  a  statute  may  be  associated,  —  a  section  of  the 
criminal  code  of  Illinois  provided  that  "  if  any  person  shall  har- 
bor or  secrete  any  negro,  mulatto,  or  person  of  color,  the  same 
being  a  slave  or  servant,  owing  service  or  labor  to  any  other 
persons,  whether  they  reside  in  this  State  or  in  any  other  State, 
or  Territory,  or  district,  within  the  limits  and  under  the  jurisdic- 
tion of  the  United  States,  or  shall  in  any  wise  hinder  or  prevent 
the  lawful  owner  or  owners  of  such  slaves  or  servants  from 
retaking  them  in  a  lawful  manner,  every  person  so  offending 
shall  be  deemed  guilty  of  a  misdemeanor,"  &c.,  and  it  was  held 
that,  although  the  latter  portion  of  the  section  was  void  within 

Eckhart  v.  State,  6  W.  Va.  615 ;  Allen  v.         *  State    v.    Commissioners    of    Perry 
Louisiana,  103  U.  S.  80  ;  Tillman  v.  Cocke,     County,  6  Ohio  St.  497.     And  see-Jones  v. 

9  Bax.  4'20  ;  Jones  v.  Jones,  104  N.  Y.  234,     Robbins,  8  Gray,  329;  Monroe  v.  Collins, 

10  N.  E.  269  ;  Meyer  v.  Berlandi,  39  Minn.     17  Ohio  St.  666,  684 ;  Taylor  v.  Commis- 
438,  40  N.  W.  613.    Where  a  statute  made     sioners  of  Ross  County,  23  Ohio  St.  22, 
the  same  provision  for  taxing  telegraph     84. 

messages   sent  to   points  within   and  to         2  Slauson  v.  Racine,  13  Wis.  398,  fol- 

points  without  the  State,  and  was  void  lowed  in  State  v.  Dousman,  28  Wis.  641. 
as  to  the  latter,  it  was  held  wholly  void.          8  Campau   v.  Detroit,   14  Mich.  268. 

Western  Union  Tel.  Co.  v.  State,  62  Tex.  See  Commonwealth  v.  Potts,  79  Pa.  St. 

630.  164. 


250  CONSTITUTIONAL  LIMITATIONS.  .         [CH.  VII. 

the  decision  in  Prigg  v.  Pennsylvania,1  yet  that  the  first  portion, 
being  a  police  regulation  for  the  preservation  of  order  in  the 
State,  and  important  to  its  well-being,  and  capable  of  being 
enforced  without  reference  to  the  rest,  was  not  affected  by  the 
invalidity  of  the  rest.2 

A  legislative  act  may  be  entirely  valid  as  to  some  classes  of 
cases,  and  clearly  void  as  to  others.3  A  general  law  for  the  pun- 
ishment of  offences,  which  should  endeavor  to  reach,  by  its  retro- 
active operation,  acts  before  committed,  as  well  as  to  prescribe  a 
rule  of  conduct  for  the  citizen  in  the  future,  would  be  void  so  far 
as  it  was  retrospective ;  but  such  invalidity  would  not  affect  the 
operation  of  the  law  in  regard  to  the  cases  which  were  within  the 
legislative  control.  A  law  might  be  void  as  violating  the  obliga- 
tion of  existing  contracts,  but  valid  as  to  all  contracts  which 
should  be  entered  into  subsequent  to  its  passage,  and  which  there- 
fore would  have  no  legal  force  except  such  as  the  law  itself  would 
allow.4  In  any  such  case  the  unconstitutional  law  must  operate 
as  far  as  it  can,6  and  it  will  not  be  held  invalid  on  the  objection 
of  a  party  whose  interests  are  not  affected  by  it  in  a  manner 
which  the  constitution  forbids.  If  there  are  any  exceptions  to 
this  rule,  they  must  be  of  cases  only  where  it  is  evident,  from  a 
contemplation  of  the  statute  and  of  the  purpose  to  be  accom- 
plished by  it,  that  it  would  not  have  been  passed  at  all,  except  as 
an  entirety,  and  that  the  general  purpose  of  the  legislature  will 
be  defeated  if  it  shall  be  held  valid  as  to  some  cases  and  void  as 
others. 

Waiving  a  Constitutional  Objection. 

There  are  cases  where  a  law  in  its  application  to  a  particular 
case  must  be  sustained,  because  the  party  who  makes  objection 
has,  by  prior  action,  precluded  himself  from  being  heard  against 
it.6  Where  a  constitutional  provision  is  designed  for  the  protec- 

1  16  Pet.  539.  provision  for  compensation.     The  com- 

2  Willard  v.  People,  5111.  461 ;  Eellsr.  missioners  elected  to  take  lands  belonging 
People,  5  111.  498.      See  Hagerstown  v.  to  the  city.     Held,  that  the  act  was  not 
Pecltert,  32  Md.  369.  wholly  void  for  the  omission  to  provide 

8  Moore  v.  New  Orleans,  32  La.  Ann.  compensation  in  case  the  lands  of  individ- 
726.     A  law  forbidding  the  sale  of  liquors  uals  had  been  selected, 
may  be  void  as  to  imported  liquors  and  6  Baker  v.  Braman,  6  Hill,  47 ;   Re- 
valid  as  to  all  others.     Tiernan  v.  Rinker,  gents  of  University  v.  Williams,  9  Gill  & 
102  U.  S.  123 ;  State  v.  Amery,  1 2  R.  I.  64.  J.  365,  31  Am.  Dec.  72 ;  Re  Middleto wn, 

*  Mundy  v.  Monroe,  1  Mich.  68  ;  Car-  82  N.  Y.  196.     The   case  of   Sadler   v. 

gill  v.  Power,  1   Mich.  369.     In  People  v.  Langham,   34  Ala.   311,   appears    to   be 

Rochester,  50  N.  Y.  525,  certain  commis-  opposed  to  this  principle,  but  it  also  ap- 

sioners  were  appointed  to  take  for  a  city  pears  to  us  to  be  based  upon  cases  which 

hall  either  lands  belonging  to  the  city  or  are  not  applicable, 

lands  of  individuals.     The  act  made  no  6  One  waives  right  to  object  to  law 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  251 

tion  solely  of  the  property  rights  of  the  citizen,  it  is  competent 
for  him  to  waive  the  protection,  and  to  consent  to  such  action  as 
would  be  invalid  if  taken  against  his  will.  On  this  ground  it  has 
been  held  that  an  act  appropriating  the  private  property  of  one 
person  for  the  private  purposes  of  another,  on  compensation  made, 
was  valid  if  he  whose  property  was  taken  assented  thereto ;  and 
that  he  did  assent  and  waive  the  constitutional  privilege,  if 
he  received  the  compensation  awarded,  or  brought  an  action  to 
recover  it.1  So  if  an  act  providing  for  the  appropriation  of  prop- 
erty for  a  public  use  shall  authorize  more  to  be  taken  than  the 
use  requires,  although  such  act  would  be  void  without  the  owner's 
assent,  yet  with  it  all  objection  on  the  ground  of  unconstitution- 
ality  is  removed.2  'And  where  parties  were  authorized  by  statute 
to  erect  a  dam  across  a  river,  provided  they  should  first  execute 
a  bond  to  the  people  conditioned  to  pay  such  damages  as  each, 
and  every  person  might  sustain  in  consequence  of  the  erection  of 
the  dam,  the  damages  to  be  assessed  by  a  justice  of  the  peace, 
and  the  dam  was  erected  and  damages  assessed  as  provided  by 
the  statute,  it  was  held,  in  an  action  on  the  bond  to  recover  those 
damages,  that  the  party  erecting  the  dam  and  who  had  received 
the  benefit  of  the  statute,  was  precluded  by  his  action  from  con- 
testing its  validity,  and  could  not  insist  upon  his  right  to  a 
common-law  trial  by  jury.8  In  these  and  the  like  cases  the 
statute  must  be  read  with  an  implied  proviso  that  the  party 
to  be  affected  shall  assent  thereto ;  and  such  consent  removes 
all  obstacles,  and  lets  the  statute  in  to  operate  the  same  as  if  it 
had  in  terms  contained  the  condition.4  Under  the  terms  of  the 
statutes  which  exempt  property  from  forced  sale  on  execution,  to 
a  specified  amount  or  value,  it  is  sometimes  necessary  that  the 
debtor,  or  some  one  in  his  behalf,  shall  appear  and  make  selection 
or  otherwise  participate  in  the  setting  off  of  that  to  which  he 

under  which  a  grand  jury  is  made  up,  by  8  Barb.  486 ;  Mobile  &  Ohio  Railroad  Co. 

pleading  in  bar  to  the  indictment.    United  v.  State,  29  Ala.  573 ;  Detmold  v.  Drake, 

States  v.  Gale,  109  U.  S.  65,  3  Sup.  Ct.  46  N.  Y.  318.     For  a  waiver  in  tax  cases 

Rep.  1.     An  officer  who  has  acted  and  resting  on  a  similar  principle,  see  Motzv. 

received    money   under    an   act    cannot  Detroit,  18  Mich.  495;  Rickettsv.  Spraker, 

contest  its   constitutionality.     People   v.  77  Ind.  371. 

Bunker,  70  Cal.  212,  11  Pac.  703.  8  People  v.  Murray,  5  Hill,  468.     See 

1  Baker  v.  Braman,  6  Hill,  47.     So,  if  Lee  v.  Tillotson,  24  Wend.  337. 

one  has  started  the  machinery  to  set  go-  *  Embury  v.  Conner,  3  N.  Y.  511.  And 
ing  a  local  improvement  act.  Dewhurst  see  Matter  of  Albany  St.,  11  Wend.  149; 
v.  Allegheny,  95  Pa.  St.  437.  £One  who  Chamberlain  v.  Lyell,  3  Mich.  448 ;  Beech- 
invokes  the  provisions  of  a  statute  can-  er  v.  Baldy,  7  Mich.  488  ;  Mobile  &  Ohio 
not  attack  its  constitutionality.  Moore  Railroad  Co.  v.  State,  29  Ala.  573 ;  Det- 
v.  Napier,  —  S.  C.  — ,  42  S.  E.  997.]  mold  v.  Drake,  46  N.  Y.  318  ;  Haskell  v. 

2  Embury  t>.  Conner,  3N.  Y.  511.    And  New  Bedford,  108  Mass.  208;  Wanser  v. 
see  Hey  ward  v.  Mayor,  &c.  of  New  York,  Atkinson,  43  N.  J.  671. 


252  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

is  entitled  ;  and  where  this  is  the  case,  the  exemption  cannot  be 
forced  upon  him  if  he  declines  or  neglects  to  claim  it.1  In  Penn- 
sylvania and  Alabama  it  has  been  decided  that  a  party  may, 
by  executory  agreement  entered  into  at  the  time  of  contracting  a 
debt,  and  as  a  part  of  the  contract,  waive  his  rights  under  the 
exemption  laws  and  preclude  himself  from  claiming  them  as 
against  judgments  obtained  for  such  debt;2  but  in  other  States 
it  is  held,  on  what  seems  to  be  the  better  reason,  that,  as  the 
exemption  is  granted  on  grounds  of  general  policy,  an  executory 
agreement  to  waive  it  must  be  deemed  contrary  to  the  policy  of 
the  law,  and  for  that  reason  void.3  In  criminal  cases  the  doctrine 
that  a  constitutional  privilege  may  be  waived  must  be  true  to  a 
very  limited  extent  only.  A  party  may  consent  to  waive  rights 
of  property,  but  the  trial  and  punishment  for  public  offences  are 
not  within  the  provinces  of  individual  consent  or  agreement.* 


Judicial  Doubts  on  Constitutional  Questions. 

It  has  been  said  by  an  eminent  jurist,  that  when  courts  are 
called  upon  to  pronounce  the  invalidity  of  an  act  of  legislation, 
passed  with  all  the  forms  and  ceremonies  requisite  to  give  it  the 
force  of  law,  they  will  approach  the  question  with  great  caution, 
examine  it  in  every  possible  aspect,  and  ponder  upon  it  as  long  as 
deliberation  and  patient  attention  can  throw  any  new  light  upon 
the  subject,  and  never  declare  a  statute  void,  unless  the  nullity 
and  invalidity  of  the  act  are  placed,  in  their  judgment,  beyond 

1  See  Barton  v.  Brown,  68  Cal.  11,  8    261.    And  see  Hoisington  v.  Huff,  24  Kan. 
Pac.  617  ;  Butler  v.  Shiver,  79  Ga.  172,  4     379. 

S.  E.  115.  In  some  States  the  officer  must  8  Maxwell  v.  Reed,  7  Wis.  582 ;  Knee- 
make  the  selection  when  the  debtor  fails  tie  v.  Newcomb,  22  N.  Y.  249 ;  Recht  v. 
to  do  so,  and  in  some  the  debtor,  if  a  mar-  Kelly,  82  111.  147,  25  Am.  Rep.  301 ;  Mox- 
ried  man,  is  precluded  from  waiving  the  ley  v.  Ragan,  10  Bush,  156,  19  Am.  Rep. 
privilege  except  with  the  consent  of  his  61;  Denny  v.  White,  2  Cold.  283;  Branch 
wife,  given  in  writing.  See  Denny  v.  v.  Tomlinson,  77  N.  C.  388 ;  Carter's 
White,  2  Cold.  283 ;  Ross  v.  Lister,  14  Adm'r  v.  Carter,  20  Fla.  658 ;  Cleghorn 
Tex.  469;  Vanderlmrst  v.  Bacon,  38  v.  Greeson,  77  Ga.  343.  A  woman  cannot 
Mich.  669,  31  Am.  Rep.  328 ;  Oilman  by  ante-nuptial  agreement  release  the 
v.  Williams,  7  Wia.  329.  She  need  not  special  allowance  made  to  her  as  widow 
assent  as  to  exemption  of  stock  in  trade,  by  statute ;  it  being  against  public  policy. 
Charpentier  v.  Bresnahan,  62  Mich.  360,  Phelps  v.  Phelps,  72  111.  546. 
28  N.  W.  916.  *  See  post,  p.  458.  And  as  to  the  waiver 

2  Case   v.   Dunmore,  23  Pa.   St.  93;  of  the  right  to  jury  trial  in  civil  cases, 
Bowman   v.    Smiley,    81    Pa.    St.    225;  post,  pp.  590,  591.     fJAn  unconstitutional 
Sheliy's  Appeal,  36  Pa.  St.  373 ;  O'Nail  law  cannot  be  held  valid  as  to  particular 
v.  Craig,  66  Pa.  St.  161 ;  Thomas's  Ap-  parties   on   the  ground  of  estoppel,  and 
peal,  69  Pa.  St.  120;  Bibb  v.  Janney,  45  executed  as  a  law.    O'Brien  v.  Wheelock, 
Ala.  329;  Brown  v.  Leitch,  60  Ala.  313,  184  U.  S.  450,  22  Sup.  Ct.  Rep.  354.] 

31  Am.  Rep.  42 ;  Neely  v.  Henry,  63  Ala. 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


253 


reasonable  doubt.1  A  reasonable  doubt  must  be  solved  in  favor 
of  the  legislative  action,  and  the  act  be  sustained.2 
\/  "  The  question  whether  a  law  be  void  for  its  repugnancy  to  the 
constitution  is  at  all  times  a  question  of  much  delicacy,  which 
ought  seldom,  if  ever,  to  be  decided  in  the  affirmative  in  a  doubt- 
ful case.  The  court,  when  impelled  by  duty  to  render  such  a 
judgment,  would  be  unworthy  of  its  station  could  it  be  unmindful 
of  the  solemn  obligation  which  that  station  imposes ;  but  it  is 
not  on  slight  implication  and  vague  conjecture  that  the  legislature 
is  to  be  pronounced  to  have  transcended  its  powers,  and  its  acts 
to  be  considered  as  void.  The  opposition  between  the  constitu- 
tion and  the  law  should  be  such  that  the  judge  feels  a  clear 
and  strong  conviction  of  their  incompatibility  with  each  other."  3 
Mr.  Justice  Washington  gives  a  reason  for  this  rule,  which  has 
been  repeatedly  recognized  in  other  cases  which  we  have  cited. 
After  expressing  the  opinion  that  the  particular  question  there 
presented,  and  which  regarded  the  constitutionality  of  a  State 
law,  was  involved  in  difficulty  and  doubt,  he  says  :  "  But  if  I 
could  rest  my  opinion  in  favor  of  the  constitutionality  of  the  law 
on  which  the  question  arises,  on  no  other  ground  than  this  doubt 
so  felt  and  acknowledged,  that  alone  would,  in  my  estimation,  be 


1  Wellington,  Petitioner,  16  Pick.  87, 
per  Shaw,  Ch.  J.     Alexander  v.  People,  7 
Col.  155,  2  Pac.  894  ;  Crowley  v.  State,  11 
Oreg.  512,  6  Pac.  70.     A  law  will  be  up- 
held unless  its  unconstitutionality  is  so 
clear  "as  to  leave  no  doubt  on  the  sub- 
ject."    Kelly  v.  Meeks,  87  Mo.  396 ;  Rob- 
inson  v.  Schenck,  102  Ind.  307,  1  N.  E. 
698.     If  an  act  may  be  valid  or  not  ac- 
cording to   the   circumstances,   a   court 
would  be  bound  to  presume  that   such 
circumstances  existed  as  would  render  it 
valid.     Talbot  v.  Hudson,  16  Gray,  417. 

2  Cooper  »>.  Telfair,  4  Dall.  14 ;  Dow 
v.  Norris,  4  N.  H.  16 ;  Flint  River  Steam- 
boat Co.  v.  Foster,  5  Ga.  194 ;  Carey  v. 
Giles,  9  Ga.  253  ;  Macon  &  Western  Rail- 
road Co.  v.  Davis,  13  Ga.  68;  Franklin 
Bridge  Co.  v.  Wood,  14  Ga.  80;  Kendall 
r.    Kingston,    5    Mass.    524 ;     Foster    v. 
Essex  Bank,  16  Mass.  245 ;   Norwich  v. 
County  Commissioners  of  Hampshire,  13 
Pick.  60 ;  Hartford  Bridge  Co.  v.  Union 
Ferry  Co.,  29  Conn.  210 ;  Rich  v.  Flanders, 

'  39  N.  H.  304  ;  Eason  v.  State,  11  Ark.  481 ; 
Hedley  v.  Commissioners  of  Franklin  Co., 
4  Blackf.  116 ;  Stocking  v.  State,  7  Ind. 
326 ;  La  Fayette  v.  Jenners,  10  Ind.  74 ; 
Ex  parte  McCollum,  1  Cow.  550;  Coutant 


v.  People,  11  Wend.  511 ;  Clark  v.  People, 
26  Wend.  559 ;  Morris  v.  People,  3  Denio, 
376 ;  N.  Y.,  &c.  R.  R.  Co.  v.  Van  Horn, 
57  N.  Y.  473 ;  Baltimore  v.  State,  15  Md. 
376 ;  Cotton  v.  Commissioners  of  Leon 
Co.,  6  Fla.  610 ;  Cheney  v.  Jones,  14  Fla. 
687 ;  Lane  v.  Dorman,  4  111.  238,  36  Am. 
Dec.  543;  Newland  v.  Marsh,  19  111.  376; 
Farmers'  and  Mechanics'  Bank  v.  Smith, 
3  S.  &  R.  63 ;  Weister  v.  Hade,  52  Pa. 
St.  474 ;  Sears  v.  Cottrell,  5  Mich.  251 ; 
Tyler  v.  People,  8  Mich.  320;  Allen 
County  Commissioners  v.  Silvers,  22  Ind. 
491 ;  State  v.  Robinson,  1  Kan.  17  ;  Eyre  v. 
Jacob,  14  Gratt.  422;  Gormley  v.  Taylor, 
44  Ga.  76 ;  State  v.  Cape  Girardeau,  &c. 
R.  R.  Co.,  48  Mo.  468 ;  Oleson  v.  Railroad 
Co.,  36  Wis.  383;  Newsom  v.  Cocke,  44 
Miss.  352;  Slack  v.  Jacob,  8  W.  Va.  612; 
Commonwealth  v.  Moore,  25  Gratt.  951. 
£All  doubts  are  to  be  resolved  in  favor 
of  the  validity  of  statutes.  State  v.  Stan- 
dard Oil  Co.,  61  Neb.  28,  84  N.  W.  413, 
87  Am.  St.  449;  Isenhour  v.  State,  157 
Ind.  617,  62  N.  F.  40,  87  Am.  St.  228; 
Farm  Investment  Co.  v.  Carpenter,  9 
Wyo.  110,  61  Pac.  258,  87  Am.  St.  918.] 

3  Fletcher  v.  Peck,  6  Cranch,  87,  128, 
per  Marshall,  Ch.  J. 


254  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

a  satisfactory  vindication  of  it.  It  is  but  a  decent  respect  due 
to  the  wisdom,  the  integrity,  and  the  patriotism  of  the  legisla- 
tive body  by  which  any  law  is  passed,  to  presume  in  favor  of  its 
validity,  until  its  violation  of  the  constitution  is  proved  beyond  all 
reasonable  doubt."  l 

The  constitutionality  of  a  law,  then,  is  to  be  presumed,  because 
the  legislature,  which  was  first  required  to  pass  upon  the  ques- 
tion, acting,  as  they  must  be  deemed  to  have  acted,  with  integrity, 
and  with  a  just  desire  to  keep  within  the  restrictions  laid  by  the 
constitution  upon  their  action,  have  adjudged  that  it  is  so.  They 
are  a  co-ordinate  department  of  the  government  with  the  judi- 
ciary, invested  with  very  high  and  responsible  duties,  as  to  some 
of  which  their  acts  are  not  subject  to  judicial  scrutiny,  and  they 
legislate  under  the  solemnity  of  an  official  oath,  which  it  is  not 
to  be  supposed  they  will  disregard.  It  must,  therefore,  be  sup- 
posed that  their  own  doubts  of  the  constitutionality  of  their  action 
have  been  deliberately  solved  in  its  favor,  so  that  the  courts  may 
with  some  confidence  repose  upon  their  conclusion,  as  one  based 
upon  their  best  judgment.  For  although  it  is  plain,  upon  the 
authorities,  that  the  courts  should  sustain  legislative  action  when 
not  clearly  satisfied  of  its  invalidity,  it  is  equally  plain  in  reason 
that  the  legislature  should  abstain  from  adopting  such  action  if 
not  fully  assured  of  their  authority  to  do  so.  Respect  for  the 
instrument  under  which  they  exercise  their  power  should  impel 
the  legislature  in  every  case  to  solve  their  doubts  in  its  favor,  and 
it  is  only  because  we  are  to  presume  they  do  so,  that  courts  are 
warranted  in  giving  weight  in  any  case  to  their  decision.  If  it 
were  understood  that  legislators  refrained  from  exercising  their 
judgment,  or  that,  in  cases  of  doubt,  they  allowed  themselves  to 
lean  in  favor  of  the  action  they  desired  to  accomplish,  the  foun- 
dation for  the  cases  we  have  cited  would  be  altogether  taken 
away.2 

As  to  what  the  doubt  shall  be  upon  which  the  court  is  to  act, 
we  conceive  that  it  can  make  no  difference  whether  it  springs 
from  an  endeavor  to  arrive  at  the  true  interpretation  of  the  con- 
stitution, or  from  a  consideration  of  the  law  after  the  meaning  of 
the  constitution  has  been  judicially  determined.  It  has  sometimes 
been  supposed  that  it  was  the  duty  of  the  court,  first,  to  interpret 
the  constitution,  placing  upon  it  a  construction  that  must  remain 

1  Ogden  v.  Saunders,  12  Wheat.  213.         2  See  upon  this  subject  what  is  said 
See  Adams  v.  Howe,  14  Mass.  340,  7  Am.     in  Osburn  v.  Staley,  5  W.  Va.  85 ;  Tate  v. 
Dec.  216;  Kellogg  v.  State  Treasurer,  44    Bell,  4  Yerg.  202,  26  Am.  Dec.  221. 
Vt.  356,  359 ;  Slack  v.  Jacob,  8  W.  Va. 
612. 


CH.  VII.]  DECLAE1NG   STATUTES   UNCONSTITUTIONAL.  255 

unvarying,  and  then  test  the  law  in  question  by  it ;  and  that  any 
other  rule  would  lead  to  differing  judicial  decisions,  if  the  legisla- 
ture, should  put  one  interpretation  upon  the  constitution  at  one 
time  and  a  different  one  at  another.     But  the  decided  cases  do  not 
sanction  this  rule,1  and  the  difficulty  suggested  is  rather  imagin- 
ary than  real,  since  it  is  but  reasonable  to  expect  that,  where  a 
construction  has  once  been  placed  upon  a  constitutional  provision, 
it  will  be  followed  afterwards,  even  though  its  original  adoption  i 
may  have  sprung  from  deference  to  legislative  action  rather  than  7 
from  settled  convictions  in  the  judicial  mind.2 

The  duty  of  the  court  to  uphold  a  statute  when  the  conflict 
between  it  and  the  constitution  is  not  clear,  and  the  implication 
which  must  always  exist  that  no  violation  has  been  intended  by 
the  legislature,  may  require  it  in  some  cases,  where  the  meaning 
of  the  constitution  is  not  in  doubt,  to  lean  in  favor  of  such  a  con- 
struction of  the  statute  as  might  not  at  first  view  seem  most  ob- 
vious and  natural.  For  as  a  conflict  between  the  statute  and  the 
constitution  is  not  to  be  implied,  it  would  seem  to  follow,  where 
the  meaning  of  the  constitution  is  clear,  that  the  court,  if  possible, 
must  give  the  statute  such  a  construction  as  will  enable  it  to  have 
effect.  This  is  only  saying,  in  another  form  of  words,  that  the 
court  must  construe  the  statute  in  accordance  with  the  legislative 
intent ;  since  it  is  always  to  be  presumed  the  legislature  designed 
the  statute  to  take  effect,  and  not  to  be  a  nullity,  (a) 

The  rule  upon  this  subject  is  thus  stated  by  the  Supreme  Court 
of  Illinois  :  "  Whenever  an  act  of  the  legislature  can  be  so  con- 
strued and  applied  as  to  avoid  conflict  with  the  constitution  and 
give  it  the  force  of  law,  such  construction  will  be  adopted  by  the 
courts.  Therefore,  acts  of  the  legislature,  in  terms  retrospective, 
and  which,  literally  interpreted,  would  invalidate  and  destroy 
vested  rights,  are  upheld  by  giving  them  prospective  operation 
only  ;  for,  applied  to,  and  operating  upon,  future  acts  and  transac- 
tion only,  they  are  rules  of  property  under  and  subject  to  which 
the  citizen  acquires  property  rights,  and  are  obnoxious  to  no  con- 
stitutional limitation  ;  but  as  retroactive  laws,  they  reach  to  and 
destroy  existing  rights,  through  force  of  the  legislative  will,  with- 
out a  hearing  or  judgment  of  law.  So  will  acts  of  the  legislature, 

1  Sun  Mutual  Insurance  Co.  v.  New  Wend.  599;  Baltimore  v.  State,  15  Md. 
York,  5  Sandf.  10;  Clark  v.  People,  26  376. 

2  People  v.  Blodgett,  13  Mich  127. 

(a)  QThe  court  will  not  go  beyond  the  face  of  the  law  to  seek  for  grounds,  for 
holding  it  unconstitutional.  Stevenson  v.  Colgan,  91  Cal.  649,  27  Pac.  1089,  14 
L.  R.  A.  459,  25  Am.  St.  230,  and  note  on  extrinsic  evidence  to  show  unconstitu- 
tionality  in  25  Am.  St.  233-3 


256  CONSTITUTIONAL   LIMITATIONS.  [CH.  VII. 

having  elements  of  limitation,  and  capable  of  being  so  applied 
and  administered,  although  the  words  are  broad  enough  to,  and 
do,  literally  read,  strike  at  the  right  itself,  be  construed  to  limit 
and  control  the  remedy ;  for  as  such  they  are  valid,  but  as  weap- 
ons destructive  of  vested  rights  they  are  void ;  and  such  force 
only  will  be  given  the  acts  as  the  legislature  could  impart  to 
them." ! 

The  Supreme  Court  of  New  Hampshire,  a  similar  question 
being  involved,  recognizing  their  obligation  "  so  to  construe  every 
act  of  the  legislature  as  to  make  it  consistent,  if  it  be  possible, 
with  the  provisions  of  the  constitution,"  proceed  to  the  examina- 
tion of  a  statute  by  the  same  rule,  "  without  stopping  to  inquire 
what  construction  might  be  warranted  by  the  natural  import  of 
the  language  used."  2 

And  it  is  said  by  Harris,  J.,  delivering  the  opinion  of  the  ma- 
jority of  the  Court  of  Appeals  of  New  York :  "  A  legislative  act 
is  not  to  be  declared  void  upon  a  mere  conflict  of  interpretation 
between  the  legislative  and  the  judicial  power.  Before  proceed- 
ing to  annul,  by  judicial  sentence,  what  lias  been  enacted  by  the 
law-making  power,  it  should  clearly  appear  that  the  act  cannot 
be  supported  by  any  reasonable  intendraent  or  allowable  presump- 
tion." 3  And  this  after  all  is  only  the  application  of  the  familiar 
rule,  that  in  the  exposition  of  a  statute  it  is  the  duty  of  the  court 
to  seek  to  ascertain  and  carry  out  the  intention  of  the  legislature 
in  its  enactment,  and  to  give  full  effect  to  such  intention ;  and 
they  are  bound  so  to  construe  the  statute,  if  practicable,  as  to 
give  it  force  and  validity,  rather  than  to  avoid  it,  or  render  it 
nugatory.4 

The  rule  is  not  different  when  the  question  is  whether  any 
portion  of  a  statute  is  void,  than  when  the  whole  is  assailed.  The 
excess  of  power,  if  there  is  any,  is  the  same  in  either  case,  and  is 
not  to  be  applied  in  any  instance. 

And  on  this  ground  it  has  been  held  that  where  the  repealing 
clause  in  an  unconstitutional  statute  repeals  all  inconsistent  acts, 
the  repealing  clause  is  to  stand  and  have  effect,  notwithstanding 

1  Newland  v.  Marsh,  19  111.  376,  384.  zens'  Bank,  9  La.  506,  29  Am.  Dec.  453. 
See  also  Bigelow  v.  West  Wisconsin  R.  R.  It  is  the  duty  of  the  court  to  adopt  a  con- 
Co.,   27    Wis.  478 ;  Attorney-General   v.  struction    of   a    statute    which,   without 
Eau   Claire,    37    Wis.   400;    Coleman   v.  doing  violence  to  the  fair  meaning  of  words 
Yesler,   1   Wash.  Ter.  591  ;  Singer  Mfg.  brings  it  into  harmony  with  the  consti- 
Co.  v.  McCollock,  24  Fed.  Rep.  667.  tution.       Grenada    Co.     Supervisors     v. 

2  Dow  t-.  Norris,  4  N.  H.  16,  18.     See  Brogden,  112  U.  S.  261,  5  Sup.  Ct.  Rep. 
Dubuque  v.  Illinois  Cent.  R.  R.  Co.,  39  125. 

Iowa,  56*  ,  .  __      *  Clarke  v.  Rochester,  24  Barb.  446. 

^  8  People,  t*.  Supervisors  of  Orange,  17  See  Marshall  v.  Grimes,  41  Miss.  27 ; 
N.  Y.  235,  24*1.  See  also  Boisdere  r.  Citi-  Morrell  v.  Fickle,  3  Lea,  79. 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL.  257 

the  invalidity  of  the  rest.1  But  other  cases  hold  that  such  repeal- 
ing clause  is  to  be  understood  as  designed  to  repeal  all  conflicting 
provisions,  in  order  that  those  of  the  new  statute  can  have  effect ; 
and  that  if  the  statute  is  invalid,  nothing  can  conflict  with  it,  and 
therefore  nothing  is  repealed.2  Great  caution  is  necessary  in  some 
cases,  or  the  rule  which  was  designed  to  ascertain  and  effectuate 
the  legislative  intent  will  be  pressed  to  the  extreme  of  giving 
effect  to  part  of  a  statute  exclusively,  when  the  legislative  intent 
was  that  the  part  should  not  stand  except  as  a  component  part  of 
the  whole,  (a) 

Inquiry  into  Legislative  Motives. 

From  what  examination  has  been  given  to  this  subject,  it  ap- 
pears that  whether  a  statute  is  constitutional  or  not  is  always  a 
question  vof  power ;  that  is,  a  question  whether  the  legislature  in 
the  particular  case,  in  respect  to  the  subject-matter  of  the  act, 
the  manner  in  which  its  object  is  to  be  accomplished,  and  the 
mode  of  enacting  it,  has  kept  with'in  the  constitutional  limits  and 
observed  the  constitutional  conditions.  In  any  case  in  which  this 
question  is  answered  in  the  affirmative,  the  courts  are  not  at  lib- 
erty to  inquire  into  the  proper  exercise  of  the  power.  They  must 
assume  that  legislative  discretion  has  been  properly  exercised.3 
If  evidence  was  required,  it  must  be  supposed  that  it  was  before 
the  legislature  when  the  act  was  passed  ;4  and  if  any  special  find- 

1  Meshmeier  v.  State,  11  Ind.  482 ;  Ely  261 ;  Harbeck  v.  New  York,  10  Bosw.  366 ; 
v.  Thompson,  3  A.  K.  Marsh.  70.  QKquit.  People  v.  Fleming,  7  Col.  230,  3  Pac.  70; 
G.  &  Trust  Co.  v.  Donahoe,  —  Del.  —  ,  Portland  v.  Schmidt,  13  Oreg.  17,  6  Pac. 
49  Atl.  372  (May  16, 1901).]  221. 

2  Shepardson   ».  Milwaukee  &  Beloit          8  People  v.  Lawrence,  36  Barb.  177 ; 
Eailroad  Co.,  6  Wis.  605  ;  State  v.  Judge  People  v.  New  York  Central  Railroad  Co., 
of  County   Court,    11  Wis.  60;  Tims  v.  34  Barb.  123;  Baltimore  v.  State,  15  Md. 
State,  26  Ala.  165;  Sullivan  v.  Adams,  3  376;  Goddin  v.  Crump,  8  Leigh,  154. 
Gray,  476;  Devoy  v.  Mayor,  &c.  of  New         *  De  Camp  v.  Eveland,  19  Barb.  81; 
York,  35  Barb.  264;  Campau  v.  Detroit,  Lusher  v.  Scites,  4  W.  Va.  11. 

14  Mich.  276 ;  Childs  v.  Shower,  18  Iowa, 

(a)  [The  declaration  of  Brewer,  J.,  in  Chicago,  &c.  Ry.  Co.  v.  Wellman,  143  U.  S. 
343,  345,  12  Sup.  Ct.  Rep.  400,  aff.  83  Mich.  592,  47  N.  W.  592,  illustrates  the  hesi- 
tation of  the  courts  to  determine  constitutional  questions  except  the  duty  is  clear. 
It  was  raised  in  this  case  on  an  agreed  statement  of  facts.  Said  Justice  Brewer: 
Whenever  in  pursuance  of  an  honest  and  actual  antagonistic  assertion  of  rights  by 
one  individual  against  another,  there  is  presented  a  question  involving  the  validity 
of  any  act  of  any  legislature,  State  or  Federal,  and  the  decision  necessarily  rests  on 
the  competency  of  the  legislature  to  so  enact,  the  court  must,  in  the  exercise  of  its 
solemn  duties,  determine  whether  the  act  is  constitutional  or  not.  But  such  an  exer- 
cise of  power  is  the  ultimate  and  supreme  function  of  courts.  It  is  legitimate  only 
in  the  last  resort  and  as  a  necessity  in  the  determination  of  real,  earnest,  and  vital 
controversies  between  individuals.  It  never  was  the  thought  that  by  means  of  a 
friendly  suit  a  party  beaten  in  the  legislature  could  transfer  to  the  courts  an  inquiry 
as  to  the  constitutionality  of  the  legislative  act.] 

17 


258 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VII. 


ing  was  required  to  warrant  the  passage  of  the  particular  act,  it 
would  seem  that  the  passage  of  the  act  itself  might  be  held  equiv- 
alent to  such  finding.1  And  although  it  has  sometimes  been  urged 
at  the  bar  that  the  courts  ought  to  inquire  into  the  motives  of  the 
legislature  where  fraud  and  corruption  were  alleged,  and  annul 
their  action  if  the  allegation  were  established,  the  argument  has 
in  no  case  been  acceded  to  by  the  judiciary,  and  they  have  never 
allowed  the  inquiry  to  be  entered  upon.2  The  reasons  are  the 


1  Johnson  v.  Joliet  &  Chicago  Railroad 
Co.,   23  111.   202.      The   Constitution   of 
Illinois  provided  that  "  corporations  not 
possessing  banking  powers  or  privileges 
may  be  formed  under  general  laws,  but 
shall  not  be  created  by  special  acts,  except 
for  municipal  purposes, and  in  cases  where, 
in  the  judgment  of  the  General  Assembly, 
the  objects  of  the  corporation  cannot  be 
attained  under  general  laws."     A  special 
charter  being  passed  without  any  legis- 
lative declaration  that  its  object  could  not 
be  attained  under  a  general  law,  the  Su- 
preme Court  sustained  it,  but  placed  their 
decision  mainly  on  the  ground  that  the 
clause  had  been  wholly  disregarded,  "  and 
it  would  now  produce  far-spread  ruin  to 
declare  such    acts    unconstitutional  and 
void."    It  is  very  clearly  intimated  in  the 
opinion,  that  the  legislative  practice,  and 
this  decision  sustaining  it,  did  violence  to 
the  intent  of  the  constitution.     A  provi- 
sion in  the  Constitution  of  Indiana  that 
"no  act  shall  take  effect  until  the  same 
shall  have  been  published  and  circulated 
in  the  several  counties  of  this  State,  by 
authority,  except  in  case  of  emergency," 
adds  the  words,  "  which  emergency  shall 
be  declared  in  the  preamble,   or  in  the 
body  of  the  law ; "  thus  clearly  making 
the    legislative     declaration    necessary. 
Carpenter  v.  Montgomery,  7  Blackf.  415 ; 
Mark  v.  State,  15  Ind.  98;  Hendrickson 
v.  Hendrickson,  7  Ind.  13. 

2  Sunbury   &  Erie    Railroad    Co.    v. 
Cooper,  33  Pa.   St.  278;  Ex  parte  New- 
man, 9  Cal.  602;  Baltimore  v.  State,  15 
Md.   376 ;   Johnson   v.    Higgins,    3   Met. 
(Ky.)  560.     "The  courts  cannot  impute 
to  the  legislature  any  other  than  public 
motives  for  their  acts."  People  v.  Draper, 
16  N.  Y.  532,  545,  per  Denio,  Ch.  J.  "  We 
are  not  made  judges  of  the  motives  of  the 
legislature,  and  the  court  will  not  usurp 
the  inquisitorial  office  of  inquiring  into  the 
bona  Jides  of  that  body  in  discharging  its 


duties."  Shankland,  J.,  in  the  same  case, 
p.  555.  "  The  powers  of  the  three  depart- 
ments are  not  merely  equal  ;  they  are 
exclusive  in  respect  to  the  duties  assigned 
to  each.  They  are  absolutely  indepen- 
dent of  each  other.  It  is  now  proposed 
that  one  of  the  three  powers  shall  insti- 
tute an  inquiry  into  the  conduct  of  an- 
other department,  and  form  an  issue  to 
try  by  what  motives  the  legislature  were 
governed  in  the  enactment  of  a  law.  If 
this  may  be  done,  we  may  also  inquire 
by  what  motives  the  executive  is  induced 
to  approve  a  bill  or  withhpld  his  approval, 
and  in  case  of  withholding  it  corruptly, 
by  our  mandate  compel  its  approval.  To 
institute  the  proposed  inquiry  would  be 
a  direct  attack  upon  the  independence  of 
the  legislature,  and  a  usurpation  of  power 
subversive  of  the  constitution."  Wright 
v.  Defrees,  8  Ind.  298,  302,  per  Gookins,  J. 
"  We  are  not  at  liberty  to  inquire  into  the 
motives  of  the  legislature.  We  can  only 
examine  into  its  power  under  the  consti- 
tution." Per  Chase,  Ch.  J.,  in  Ex  parte 
McCardle,  7  Wall.  506,  514.  The  same 
doctrine  is  restated  by  Mr.  Justice  Hunt, 
in  Doyle  v.  Continental  Ins.  Co.,  94  U.  S. 
635.  Courts  cannot  inquire  into  legis- 
lative motives  "  except  as  they  may  be 
disclosed  on  the  face  of  the  acts  or  be 
inferable  from  their  operation  considered 
with  reference  to  the  condition  of  the 
country  and  existing  legislation."  Soon 
King  v.  Crowley,  1 13  U.  S.  703,  5  Sup.  St. 
Rep.  730.  QSee  also  Com.  ex  rel.  Elkin  r. 
Moir,  199  Pa.  534,  49  Atl.  351, 53  L.  R.  A. 
837, 85  Am.  St.  801 . 3  The  rule  applies  to 
the  legislation  of  municipalities.  Brown 
v.  Cape  Girardeau,  90  Mo.  377,  2  S.  W. 
302.  And  see  McCulloch  v.  State,  11 
Ind.  424;  Bradshaw  v.  Omaha,  1  Neb.  16; 
Lyon  v.  Morris,  15  Ga.  480;  People  v. 
Flagg,  46  N.  Y.  401  ;  Slack  v.  Jacob,  8 
W.  Va.  612,  635;  State  v.  Cardozo,  5 
S.  C.  297 ;  Humboldt  County  v.  Churchill 


CH.  VII.]  DECLARING   STATUTES   UNCONSTITUTIONAL. 


259 


same  here  as  those  which  preclude  an  inquiry  into  the  motives  of 
the  governor  in  the  exercise  of  a  discretion  vested  in  him  exclu- 
sively. He  is  responsible  for  his  acts  in  such  a  case,  not  to  the 
courts,  but  to  the  people.1 


Consequences  if  a  Statute  is  Void. 

When  a  statute  is  adjudged  to  be  unconstitutional,  it  is  as  if  it 
had  never  been.  Rights  cannot  be  built  up  under  it ;  contracts 
which  depend  upon  it  for  their  consideration  are  void  ;  it  consti- 
tutes a  protection  to  no  one  who  has  acted  under  it,  and  no  one 
can  be  punished  for  having  refused  obedience  to  it  before  the  de- 
cision was  made.2  And  what  is  true  of  an  act  void  in  toto  is  true 


County  Com'rs,  6  Nev.  30 ;  Flint,  &c. 
Plank  Road  Co.  v.  Woodhull,  25  Midi.  99; 
State  o.  Pagan,  22  La.  Ann.  645;  State 
v.  Hays,  49  Mo.  604;  Luehrman  v.  Tax- 
ing District,  2  Lea,  425 ;  Kountze  r. 
Omaha,  5  Dill.  443.  In  Jones  v.  Jones,  12 
Pa.  St.  350,  the  general  principle  was 
recognized,  and  it  was  decided  not  to  be 
competent  to  declare  a  legislative  divoYce 
void  for  fraud.  It  was  nevertheless  held 
competent  to  annul  it,  on  the  ground  that 
it  had  been  granted  (as  shown  by  parol 
evidence)  for  a  cause  which  gave  the  leg- 
islature no  jurisdiction.  The  legislature 
was  regarded  as  being  for  the  purpose  a 
court  of  limited  jurisdiction.  In  Attor- 
ney-General v.  Supervisors  of  Lake  Co., 
33  Mich.  289,  it  is  decided  that  when 
supervisors  and  people,  having  full  au- 
thority over  the  subject,  have  acted  upon 
the  question  of  removal  of  a  county  seat, 
no  question  of  motive  can  be  gone  into 
to  invalidate  their  action.  fJTIiat  a  res- 
olution accepting  an  imperfect  sewer 
was  secured  by  fraud  and  corrupt  in- 
fluences is  a  valid  defence  to  an  action 
brought  upon  the  resolution.  Weston  v, 
Syracuse,  158  N.  Y.  274,  53  N.  E.  12,  43 
L.  R.  A.  678,  70  Am.  St.  472.] 

1  Attorney-General  v.  Brown,  1  Wis. 
613;  Wright  v.  Defrees,  8  Ind.  298. 

2  Strong  v.  Daniel,  6  Ind.  348;  Sum- 
ner  v.  Beeler,  50    Ind.  341  ;   Astrom  v. 
Hammond,  3  McLean,  107  ;  Woolsey  v. 
Commercial  Bank,  6  McLean,  142 ;  De- 
troit v.  Martin,  34  Mich.  170 ;    Kelly  v. 
Bemis,  4  Gray,  83;    Hover  v.  Barkhoof, 
44  N.  Y.  113;  Clark  v.  Miller,  54  N.  Y. 
528 ;  Meagher  v.  Storey  Co.,  5  Nev.  244  ; 
Ex  pane  Rosenblatt,  19  Nev.  439, 14  Pac. 


298.  In  People  v.  Salomon,  54  111.  46,  a 
ministerial  officer  was  severely  censured 
for  presuming  to  disregard  a  law  as  un- 
constitutional. The  court  found  the  law 
to  be  valid,  but  they  could  not  have 
found  otherwise  without  justifying  the 
officer.  In  Texas  it  has  been  held  that 
an  unconstitutional  act  has  the  force  of 
law  for  the  .protection  of  officers  acting 
under  it.  Sessums  ?:.  Bolts,  34  Tex.  335. 
In  Iowa,  a  magistrate  who  had  issued  a 
warrant,  and  the  officer  who  had  served 
it,  for  the  destruction  of  liquors,  under  a 
city  ordinance  which  the  city  had  no 
power  to  adopt,  were  held  to  be  protected, 
notwithstanding  this  want  of  power  in  the 
city.  Henke  v.  McCord,  55  Iowa,  378, 
7  N.  W.  623.  The  warrant  seems  to  have 
been  considered  "  fair  on  its  face ; "  but 
can  process  ever  be  fair  on  its  face  when 
it  commands  that  which  is  illegal?  If  a 
decision  adjudging  a  statute  unconstitu- 
tional is  afterwards  overruled,  the  statute 
is  to  be  considered  as  having  been  in  ' 
force  for  the  whole  period.  Pierce  v. 
Pierce,  46  Ind.  86.  fjA  statute  void  for 
unconstitutionality  is  dead  and  cannot  be 
vitalized  by  a  subsequent  amendment  of 
the  constitution  removing  the  constitu-  • 
tional  objection,  but  must  be  re-enacted. 
Seneca  Mining  Co.  v.  Secretary  of  State, 
82  Mich.  673, 47  N.  W.  25,  9  L.  R.  A.  770 ; 
Banaz  v.  Smith,  133  Cal.  102,  65  Pac. 
309 ;  but  see  Re  Rahrer,  43  Fed.  656,  10 
L.  R.  A.  444;  and  this  case  in  the  Su- 
preme Court,  Wilkerson  v.  Rahrer,  140 
U.  S.  645,  11  Sup.  Ct.  Rep.  865;  Re 
Spkkler,  43  Fed.  653,  10  L.  R.  A.  440; 
Re  Van  Vliet,  43  Fed.  761,  10  L.  R. 
A.  451.  In  State  r.  Godwin,  123  N.  C. 


260  CONSTITUTIONAL  LIMITATIONS.  [CH.  VII. 

also  as  to  any  part  of  an  act  which  is  found  to  be  unconstitutional, 
and  which,  consequently,  is  to  be  regarded  as  having  never,  at  any 
time,  been  possessed  of  any  legal  force. 

697,  31  S.  E.  221,  44  Am.  St.  42,  it  is  held  be  held  to  answer  criminally  for  such 

that  a  person  acting  in  reliance  upon  a  conduct  if  the  conduct  would  not  have 

statute  before  it  has  been  judicially  de-  been  criminal  if  the  statute  was  valid.]] 
termined  to  be  unconstitutional  cannot 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL  GOVERNMENT.  261 


CHAPTER  VIII. 

THE   SEVERAL  GRADES   OP  MUNICIPAL  GOVERNMENT. 

IN  the  examination  of  American  constitutional  law,  we  shall 
not  fail  to  notice  the  care  taken  and  the  means  adopted  to  bring 
the  agencies  by  which  power  is  to  be  exercised  as  near  as  possible 
to  the  subjects  upon  which  the  power  is  to  operate. 

In  contradistinction  to  those  governments  where  power  is 
concentrated  in  one  man,  or  one  or  more  bodies  of  men,  whose 
supervision  and  active  control  extends  to  all  the  objects  of  gov- 
ernment within  the  territorial  limits  of  the  State,  the  American 
system  is  one  of  complete  decentralization,  the  primary  and  vital 
idea  of  which  is,  that  local  affairs  shall  be  managed  by  local 
authorities,  and  general  affairs  only  by  the  central  authority.  It 
was  under  the  control  of  this  idea  that  a  national  constitution 
was  formed,  under  which  the  States,  while  yielding  to  the  na- 
tional government  complete  and  exclusive  jurisdiction  over  exter- 
nal affairs,  conferred  upon  it  such  powers  only,  in  regard  to 
matters  of  internal  regulation,  as  seemed  to  be  essential  to  na- 
tional union,  strength,  and  harmony,  and  without  which  the 
purpose  in  organizing  the  national  authority  might  have  been 
defeated.  It  is  this,  also,  that  impels  the  several  States,  as  if  by 
common  arrangement,  to  subdivide  their  territory  into  counties, 
towns,  road  and  school  districts,1  and  to  confer  powers  of  local 

1  The  general  rules  respecting  schools  612,  34  Am.  Rep.  151 ;  and  so  may  normal 
are  sufficiently  alike  in  the  several  States  schools  and  colleges  :  Powell  v.  Board  of 
to  justify  bringing  together  in  this  place  Education,  97  111.  375;  Briggs  v.  Johnson 
the  leading  authorities  concerning  them.  Co.,  4  Dill.  148  ;  music  may  be  taught : 
To  what  degree  the  legislature  shall  pro-  Bellmeyer  v.  School  District,  44  Iowa, 
vide  for  the  education  of  the  people  at  the  564 ;  State  v,  Webber,  108  Ind.  31,  8  N.  E. 
cost  of  the  State  or  of  its  municipalities,  708.  "Common  schools,"  means  schools 
is  a  question  which,  except  as  regulated  open  to  all,  rather  than  those  of  a  definite 
by  the  constitution,  addresses  itself  to  the  grade  :  Roach  v.  Board,  &c.,  77  Mo.  484 ; 
legislative  judgment  exclusively.  Com-  and  the  State  may  confer  upon  the  gov- 
monwealth  v.  Hartman,  17  Pa.  St.  118.  erning  boards  such  authority  as  it  shall 
It  has  been  sometimes  contended  that  it  deem  wise,  but  subject  to  alteration  at 
was  incompetent  to  go  beyond  making  all  times,  and  to  be  taken  away  at  the 
provision  for  general  education  in  the  discretion  of  the  State.  Rawson  v.  Spen- 
common  brandies  of  learning;  but  this  cer,  113  Mass.  40.  Many  of  the  State  con- 
notion  is  exploded.  High  schools  may  stitutions  provide  common-school  funds, 
be  established  :  Stuart  v.  School  District,  and  some  provide  a  fund  for  higher  edu- 
30  Mich.  69;  Richards  v.  Raymond,  92  111.  cation  with  certain  restrictions  :  whatever 


262 


CONSTITUTIONAL  LIMITATIONS. 


[Oil.  VIII. 


legislation  upon  the  people  of  each  subdivision,  and  also  to  incor- 
porate cities,  boroughs,  and  villages  wherever  the  circumstances 


these  are  they  must  be  observed.  Peo- 
ple v.  Board  of  Education,  13  Barb.  400; 
People  v.  Allen,  42  N.  Y.  404;  Halbert  v. 
Sparks,  9  Bush,  259;  Collins  v.  Hender- 
son, 11  Bush,  74;  State  v.  Graham,  25 
La.  Ann.  440;  State  v.  Board  of  Liquida- 
tion, 29  La.  Ann.  77;  Sun  Mut.  Ins.  Co. 
v.  Board  of  Liquidation,  31  La.  Ann.  175; 
Littlewort  v.  Davis,  50  Miss.  403;  Weir 
v.  Day,  35  Ohio  St.  143;  Otken  v.  Lam- 
kin,  5i>  Miss.  758.  Although  it  is  custom- 
ary to  leave  the  control  of  schools  in  the 
hands  of  the  school  authorities,  it  is  held 
competent  for  the  State  to  contract  with 
a  publisher  to  supply  all  the  schools  of 
the  State  with  text-books  of  a  uniform 
character  and  price.  Curryer  v.  Merrill, 
25  Minn.  1,  33  Am  Rep.  450;  Bancroft 
v.  Tliayer,  5  Sawy.  502 ;  People  v.  Board 
of  Education,  55  Cal.  331.  QLeeper  v. 
State,  103  Tenn.  500,  53  S.  W.  962,  48 
L.  R.  A.  166 ;  State  v.  Haworth,  122  Ind. 
462,  23  N.  E.  946,  7  L.  R.  A.  240.]  The 
governing  school  boards  derive  all  their 
authority  from  the  statute,  and  can  ex- 
ercise no  powers  except  those  expressly 
granted,  and  those  which  result  by  neces- 
sary implication  from  the  grant.  Peers 
v.  Board  of  Education,  72  111.  508;  Clark 
v.  School  Directors,  78  111.  474  ;  Adams  v. 
State,  82  111.  132;  Stevenson  v.  School 
Directors,  87  III.  255;  Manning  v.  Van 
Buren,  28  Iowa,  332 ;  Monticello  Bank  v. 
Coffin's  Grove,  51  Iowa,  350,  1  N.  W. 
592 ;  State  v.  Board  of  Education,  35  Ohio 
St.  368 ;  State  v.  Mayor,  &c.,  7  Neb.  267 ; 
Gehling  v.  School  District,  10  Neb.  239, 
4  N.  W.  1023.  The  board,  in  exercising 
its  authority,  must  act  as  such,  in  regular 
meetings  convened  for  the  purpose  ;  it  is 
not  sufficient  that  the  members  severally 
give  their  assent  to  what  is  done.  State 
v.  Leonard,  3  Tenn.  Ch.  117  ;  State  v. 
Tiedemann,  69  Mo.  515 ;  Smith  v.  Town- 
ship Board,  58  Mo.  297  ;  Dennison  School 
District  r.  Padden,  89  Pa.  St.  395;  Hazen 
v.  Lerche,  47  Mich.  626,  11  N.  W.  413. 
But  see  Crane  v.  School  District,  61 
Mich.  299,  28  N.  W.  105;  Russell  v. 
State,  13  Neb.  68,  12  N.  W.  829.  Illegal 
or  unauthorized  action  by  the  board  can- 
not be  ratified  by  it,  and  the  fact  that  the 
district  has  the  benefit  of  what  is  done 
will  not  amount  to  a  ratification  by  the 


district.  School  District  v.  Fogelman,  76 
111.  189 ;  Johnson  v.  School  District,  67 
Mo.  319 ;  Board  of  Education  v.  Thomp- 
son, 33  Ohio  St.  321 ;  Gibson  v.  School 
District,  36  Mich.  404 ;  Wells  v.  People, 
71  111.  532.  The  general  control  of  a 
school  building  is  in  the  board,  which 
may  maintain  all  proper  suits  for  posses- 
sion. Barber  v.  Trustees  of  Schools,  51 
111.  396 ;  Alderman  v.  School  Directors, 
91  111.  179.  The  board  must  not  enter 
into  contracts  with  its  own  members,  as 
these  would  be  void.  Pickett  v.  School 
District,  25  Wis.  551 ;  Hewitt  v.  Normal 
School  District,  94  111.  528 ;  Flint,  &c.  R.  R. 
Co.  v.  Dewey,  14  Mich.  477.  The  board 
is  entrusted  with  the  authority  to  employ 
teachers,  and  to  remove  them  under  the 
rules  prescribed  by  statute.  Crawfords- 
ville  v.  Hays,  42  Ind.  200;  School  Dis- 
trict v.  Colvin,  10  Kan.  283 ;  Directors, 
&c.  v.  Burton,  26  Ohio  St.  421 ;  Jones  v. 
Nebraska,  1  Neb.  176 ;  Bays  v.  State,  6 
Neb.  167;  Parker  v.  School  District,  5 
Lea,  505.  If  a  teacher  is  rightfully  dis- 
missed, he  cannot  recover  for  services 
performed  thereafter,  though  he  takes 
possession  of  the  school-house  and  con- 
tinues to  teach.  Pierce  v.  Beck,  61  Ga. 
413.  But  if  he  is  wrongfully  dismissed, 
or  if  he  leaves  school  because  of  the  un- 
justifiable action  of  the  board,  he  may 
recover  for  his  whole  time.  Ewing  v. 
School  Directors,  2  111.  App.  458 ;  Scott 
v.  School  District,  46  Vt.  452.  See  Mc- 
Cutchen  v.  Windsor,  55  Mo.  149.  Con- 
tracts for  a  stated  time  are  subject  to  the 
observance  of  public  holidays,  and  the 
teacher  is  entitled  to  these  without  de- 
duction from  his  salary.  School  District 
v.  Gage,  39  Mich.  484.  The  school  board 
may  make  the  contract  for  teaching  ex- 
tend beyond  their  own  term  of  office : 
Wilson  v.  School  District,  36  Conn.  280; 
Wait  v.  Ray,  67  N.  Y.  36 ;  provided  they 
act  in  good  faith  and  do  not  unreasonably 
forestall  the  action  of  their  successors. 
Loomis  v.  Coleman,  51  Mo.  21  ;  Steven- 
son v.  School  District,  87  111.  255  ;  Hewitt 
v.  School  District,  94  111.  528;  School 
Directors  v.  Hart,  4  111.  App.  224.  See 
Tappan  v.  School  District,  44  Mich.  500, 
7  N.  W.  73;  Athearn  v.  Independent 
District,  33  Iowa,  105.  The  board  has 


CH.  VIII.]          THE  GRADES   OF  MUNICIPAL   GOVERNMENT. 


263 


and  needs  of  a  dense  population  seem  to  require  other  regulations 
than  those  which  are  needful  for  the  rural  districts. 

The  system  is  one  which  almost  seems  a  part  of  the  very  nature 
of  the  race  to  which  we  belong.  A  similar  subdivision  of  the 
realm  for  the  purposes  of  municipal  government  has  existed  in 
England  from  the  earliest  ages ; 1  and  in  America,  the  first  set- 
tlers, as  if  instinctively,  adopted  it  in  their  frame  of  government, 
and  no  other  has  ever  supplanted  it,  or  even  found  advocates. 
In  most  of  the  colonies  the  central  power  created  and  provided 
for  the  organization  of  the  towns ;  2  in  one  at  least  the  towns 
preceded  and  created  the  central  authority ; 3  but  in  all,  the  final 


general  authority  to  establish  for  the 
school  such  rules  and  regulations  as  it 
shall  deem  wise.  Donahoe  v.  Richards, 
38  Me.  376;  Spiller  v.  Woburn,  12  Allen, 
127  ;  Board  of  Education  v.  Minor,  23 
Ohio  St.  211.  The  rules  may  be  enforced 
by  suspensions  and  expulsions  if  neces- 
sary. Hodgkins  v.  Rockport,  105  Mass. 
475 ;  Murphy  v.  Directors,  30  Iowa,  429  ; 
Burdick  v.  Babcock,  31  Iowa,  562  ;  Board 
of  Education  v.  Thompson.  33  Ohio  St. 
321 ;  Rulison  v.  Post,  79  111.  567  ;  Sewell 
v.  Board  of  Education,  29  Ohio  St.  89. 
But  this  power  is  subject  to  the  general 
principle  that  the  by-laws  of  all  corpora- 
tions must  be  reasonable  ;  if  a  rule  is  un- 
reasonable, and  a  pupil  is  punished  for 
refusal  to  submit  to  it,  an  action  will  lie. 
Roe  v.  Deming,  21  Ohio  St.  666.  See 
Ward  v.  Flood,  48  Cal.  36;  State  v. 
Vanderbilt,  116  Ind.  11,  18  N.  E.  266; 
Fertich  v.  Michener,  111  Ind.  472, 11  N.  E. 
605  ;  State  v.  Board  of  Education,  63  Wis. 
234,  23  N.  W.  102;  Holraan  v.  School 
Trustees,  77  Mich.  605,  43  N.  W.  996. 
The  board  and  the  teacher  have  no  con- 
trol of  pupils  after  they  have  returned  to 
their  homes :  Dritt  v.  Snodgrass,  66  Mo. 
288 ;  State  v.  Osborne,  24  Mo.  App.  309 ; 
otherwise  while  they  are  on  their  way 
home  before  parental  control  is  resumed 
Deskins  v.  Gose,  85  Mo.  485 ;  Hutton  v. 
State,  23  Tex.  App.  386,  5  S.  W.  122.  It 
is  held  in  Wisconsin  and  Illinois  that  pa- 
rents have  a  right  to  excuse  their  children 
from  taking  any  particular  study  in  a 
course,  and  that  teachers  cannot  refuse 
to  give  instruction  in  other  studies  of  the 
course  to  the  pupils  thus  excused.  Mor- 
row v.  Wood,  35  Wis.  59,  17  Am.  Rep. 
471 ;  Rulison  v.  Post,  79  111.  567  ;  Lake 
View  School  Trustees  v.  People,  87  111. 


303.  As  to  the  power  to  discriminate 
between  colored  and  other  children  in 
schools,  see  post,  556,  note.  As  to  devot- 
ing school  funds  and  school  buildings 
to  religious  purposes,  see  post,  663,  note. 
That  towns,  &c.,  may  hold  in  trust  moneys 
given  for  education,  see  Piper  v.  Moulton, 
72  Me.  155;  Hatheway  v.  Sackett,  32 
Mich.  97. 

1  Crabbe's  History  of  English  Law, 
c.  2;  1  Bl.  Com.   114;  Hallam's  Middle 
Ages,  c.  8,  pt.  1 ;  2  Kent,  278 ;  Vaughan's 
Revolutions  in  English  History,  b.  2,  c.  8 ; 
Frothingham's  Rise  of  the  Republic,  14, 
15.    The  early  local  institutions  of  Eng- 
land are  presented  with  great  fulness  and 
erudition  in  the  Constitutional  History  of 
Professor  Stubbs. 

2  For  an  interesting  history  of  the  leg- 
islation in  Connecticut  on  this   subject, 
see  Webster  v.  Harwinton,  32  Conn.  131. 
In  New  Hampshire,  see  Bow  v.  Aliens- 
town,  34  N.  H.  351.     The  learned  note  to 
Commonwealth  v.  Roxbury,  9  Gray,  503, 
will  give  similar  information  concerning 
the  organization  and  authority  of  towns 
in   the   Massachusetts  provinces.      And 
see  People  v.  Hurlbut,  24   Mich.  98,   9 
Am.   Rep.    103;    Shumway   v.   Bennett, 
29   Mich.   451.      Mr.    Elliott   well   says: 
"  The  prime  strength  of  New  England 
and  of  the  whole  republic  was  and  is  in 
the  municipal  governments  and  in    the 
homes."     And  he  adds,  that  among  the 
earliest  things  decided  in  Massachusetts 
was,  '  that  trivial  things  should  be  ended 
in  towns"   (1635).     Elliott's   New   Eng- 
land, Vol.  I.  p.  182. 

3  Rhode  Island ;  see  Arnold's  History, 
c.  7.     It  is  remarked  by  this  author  that, 
when  the  charter  of  Rhode  Island  was 
suspended  to  bring  the  colony  under  the 


264 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


result  \Vcis  substantially  the  same,  that  towns,  villages,  boroughs, 
cities,  and  counties  exercised  the  powers  of  local  government,  and 
the  Colony  or  State  the  powers  of  a  more  general  nature.1 

The  several  State  constitutions  have  been  framed  with  this 
system  in  view,  and  the  delegations  of  power  which  they  make, 
and  the  express  and  implied  restraints  which  they  impose  there- 
upon, can  only  be  correctly  understood  and  construed  by  keeping 
in  view  its  present  existence  and  anticipated  continuance.  There 
are  few  of  the  general  rules  of  constitutional  law  that  are  not 
more  or  less  affected  by  the  fact  that  the  powers  of  government, 
instead  of  being  concentrated  in  one  body  of  men,  are  carefully 
distributed,  with  a  view  to  being  exercised  with  intelligence, 
economy,  and  facility,  and  as  far  as  possible  by  the  persons  most 
directly  and  immediately  interested. 

It  has  already  been  seen  that  the  legislature  cannot  delegate 
its  power  to  make  laws ;  but  fundamental  as  this  maxim  is,  it  is 
so  qualified  by  the  customs  of  our  race,  and  by  other  maxims 
which  regard  local  government,  that  the  right  of  the  legislature, 
in  the  entire  absence  of  authorization  or  prohibition,  to  create 
towns  and  other  inferior  municipal  organizations,  and  to  confer 
upon  them  the  powers  of  local  government,  and  especially  of  local 
taxation  and  police  regulation  usual  with  such  corporations, 


dominion  of  Andros,  "the  American  system 
uf  town  governments  which  necessity  had 
compelled  Rhode  Island  to  initiate  fifty 
years  before,  became  the  means  of  pre- 
serving the  individual  liberty  of  the  citi- 
zen when  that  of  the  State  or  Colony  was 
crushed."  Arnold,  Vol.  I.  p.  487. 

1  "The  townships,"  says  De  Tocque- 
ville,  "  are  only  subordinate  to  the  State 
in  those  interests  which  I  shall  term 
social,  as  they  are  common  to  all  the 
citizens.  They  are  independent  in  all 
that  concerns  themselves,  and  among  the 
inhabitants  of  New  England  I  believe 
that  not  a  man  is  to  be  found  who  would 
acknowledge  that  the  State  has  any  right 
to  interfere  in  their  local  interests.  The 
towns  of  New  England  buy  and  sell,  pros- 
ecute or  are  indicted,  augment  or  diminish 
their  rates,  without  the  slightest  opposi- 
tion on  the  part  of  the  administrative  au- 
thority of  the  State.  They  are  bound, 
however,  to  comply  with  the  demands  of 
the  community.  If  a  State  is  in  need  of 
money,  a  town  can  neither  give  nor  with- 
hold the  supplies.  If  a  State  projects  a 
road,  the  township  cannot  refuse  to  let  it 
cross  its  territory;  if  a  police  regulation 


is  made  by  the  State,  it  must  be  enforced 
by  the  town.  A  uniform  system  of  in- 
struction is  organized  all  over  the  country, 
arid  every  town  is  bound  to  establish  the 
schools  which  the  law  ordains.  .  .  .  Strict 
as  this  obligation  is,  the  government  of 
the  State  imposes  it  in  principle  only, 
and  in  its  performance  the  township  as- 
sumes all  its  independent  rights.  Thus 
taxes  are  voted  by  the  State,  but  they 
are  assessed  and  collected  by  the  town- 
ship ;  the  existence  of  a  school  is  obliga- 
tory, but  the  township  builds,  pays,  and 
superintends  it.  In  France,  the  State 
collector  receives  the  local  imposts ;  in 
America,  the  town  collector  receives  the 
taxes  of  the  State.  Thus  the  French 
government  lends  its  agents  to  the  com- 
mune; in  America,  the  township  is  the 
agent  of  the  government.  This  fact  alone 
shows  the  extent  of  the  differences  which 
exist  between  the  two  nations."  Democ- 
racy in  America,  c.  6.  See  Frothing- 
ham's  Rise  of  the  Republic,  14-28.  (T)n 
the  Right  to  Local  Self-Government,  see 
articles  by  Amasa  M.  Eaton  in  13  Harv. 
L.  Rev.  441,  570,  638,  and  14  Harv.  L. 
Rev.  20,  116.3 


CH.  VIII.]  THE  GRADES   OF   MUNICIPAL   GOVERNMENT. 


265 


would  always  pass  unchallenged.  The  legislature  in  these  cases 
is  not  regarded  as  delegating  its  authority,  because  the  regulation 
of  such  local  affairs  as  are  commonly  left  to  local  boards  and 
officers  is  not  understood  to  belong  properly  to  the  State ;  and 
when  it  interferes,  as  sometimes  it  must,  to  restrain  and  control 
the  local  action,  there  should  be  reasons  of  State  policy  or  dangers 
of  local  abuse  to  warrant  the  interposition.1 

The  people  of  the  municipalities,  however,  do  not  define  for 
themselves  their  own  rights,  privileges,  and  powers,  nor  is  there 
any  common  law  which  draws  a  definite  line  of  distinction  be- 
tween  the  powers  which  may  be  exercised  by  the  State,  and  those 
which  must  be  left  to  the  local  governments.2  The  municipalities 
must  look  to  the  State  for  such  charters  of  government  as  the 
legislature  shall  see  fit  to  provide ;  and  they  cannot  prescribe  for 
themselves  the  details,  though  they  have  a  right  to  expect  that 
those  charters  will  be  granted  with  a  recognition  of  the  general 
principles  with  which  we  are  familiar.  The  charter,  or  the 


1  "  It  seems  to  be  generally  conceded 
that  powers  of  local  legislation  may  be 
granted  to  cities,  towns,  and  other  munic- 
ipal corporations.  And  it  would  require 
strong  reasons  to  satisfy  us  that  it  could 
have  been  the  design  of  the  framers  of 
our  constitution  to  take  from  the  legisla- 
ture a  power  which  has  been  exercised  in 
Europe  by  governments  of  all  classes 
from  the  earliest  history,  and  the  exercise 
of  which  has  probably  done  more  to  pro- 
mote civilization  than  all  other  causes 
combined ;  which  has  been  constantly 
exercised  in  every  part  of  our  country 
from  its  earliest  settlement,  and  which 
has  raised  up  among  us  many  of  our 
most  valuable  institutions."  State  v. 
Noyes,  30  N.  H.  279,  292,  per  Bell,  J.  See 
also  Tanner  v.  Trustees  of  Albion,  5  Hill, 
121 ;  Dalby  v.  Wolf,  14  Iowa,  228;  State 
v.  Simonds,  3  Mo.  414;  McKee  v.  McKee, 
8  B  Monr.  433;  Smith  v.  Levinus,  8  N. 
Y.  472  ;  People  v.  Draper,  15  N.  Y.  532 ; 
Burgess  v.  Pue,  2  Gill,  11 ;  New  Orleans 
v.  Turpin,  13  La.  Ann.  56 ;  Gilkeson  v. 
The  Frederick  Justices,  13  Gratt.  577; 
Mayor,  &c.  of  New  York  v  Ryan,  2  E.  D. 
Smith,  368;  St.  Louis  v.  Russell,  9  Mo. 
507;  Bliss  v.  Kraus,  16  Ohio  St.  55;  Tri- 
gally  v.  Memphis,  6  Cold.  382 ;  Durach's 
Appeal,  62  Pa.  St.  491 ;  State  v.  Wilcox, 
45  Mo.  458 ;  Jones  v.  Richmond,  18  Gratt: 
617  ;  State  v.  O'Neill,  24  Wis.  149;  Brad- 
ley v.  M'Atee,  7  Bush,  667,  3  Am.  Rep. 
309;  Burckholter  v.  M'Connellsville,  20 


Ohio  St.  308 ;  People  v.  Hurlbut,  24  Mich. 
44,  9  Am.  Rep.  103 ;  Mills  v.  Charleton, 
29  Wis.  400;  Commonwealth  v.  Coyning- 
ham,  65  Pa.  St.  76;  People  v.  Kelsey,  34 
Cal.  470 ;  Tugman  v.  Chicago,  78  111.  405 ; 
Manly  v.  Raleigh,  4  Jones  Eq.  370 ;  Stone 
v.  Charlestown,  114  Mass.  214 ;  Hayden. 
v.  Goodnow,  39  Conn.  164 ;  Goldthwaite  v. 
Montgomery,  50  Ala.  486;  Stanfill  v. 
Court  of  Co.  Rev.,  80  Ala.  287  ;  Robin- 
son v.  Schenck,  102  Ind.  307,  1  N.  E. 
698;  Cross  v.  Hopkins,  6  W.  Va.  323. 
[^Statute  for  government  of  cities  of 
certain  class  may  provide  for  appointment 
by  governor  temporarily  of  an  executive 
officer  for  said  city.  Com.  v.  Moir,  199 
Pa.  534,  49  Atl.  351,  53  L.  R.  A.  837,  85 
Am.  St.  801-3  The  propriety  of  establish- 
ing a  municipality  is  not  a  judicial  ques- 
tion. People  v.  Riverside,  70  Cal.  461, 11 
Pac.  759.  It  is  not  an  unlawful  delega- 
tion of  power  to  give  a  city  the  right  to 
extend  its  bounds.  Kelly  v.  Meeks,  87 
Mo.  396.  See  cases,  post,  p.  334.  [[Nor 
to  confer  upon  it  the  power  to  levy  li- 
cense taxes  upon  occupations,  and  under 
such  power  it  may  tax  brokers,  even 
though  they  deal  in  nothing  but  stocks, 
and  trade  only  upon  the  stock  exchange. 
Banta  v.  Chicago,  172  111.  204,  50  N.  E. 
233,  40  L.  R.  A.  611. 

2  As  to  the  common  law  affecting 
these  corporate  existences,  and  the  effect 
of  usage,  see  2  Kent,  278,  279. 


266 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


general  law  under  which  they  exercise  their  powers,  is  their  con- 
stitution, in  which  they  must  be  able  to  show  authority  for  the 
acts  they  assume  to  perform.  They  have  no  inherent  jurisdiction 
to  make  laws  or  adopt  regulations  of  government ;  they  are  gov- 
ernments of  enumerated  powers,  acting  by  a  delegated  authority ; 
so  that  while  the  State  legislature  may  exercise  such  powers  of 
government  coming  within  a  proper  designation  of  legislative 
power  as  are  not  expressly  or  impliedly  prohibited,  the  local 
authorities  can  exercise  those  only  which  are  expressly  or  im- 
pliedly conferred,  and  subject  to  such  regulations  or  restrictions 
as  are  annexed  to  the  grant.1 

The  creation  of  municipal  corporations,  and  the  conferring 
upon  them  of  certain  powers  and  subjecting  them  to  correspond- 
ing duties,  does  not  deprive  the  legislature  of  the  State  of  that 
general  control  over  their  citizens  which  was  before  possessed. 
It  still  has  authority  to  amend  their  charters,  enlarge  or  diminish 
their  powers,  extend  or  limit  their  boundaries,  consolidate  two 
or  more  into  one,  overrule  their  legislative  action  whenever  it 
is  deemed  unwise,  impolitic,  or  unjust,  and  even  abolish  them 
altogether  in  the  legislative  discretion,  and  substitute  those  which 
are  different.2  The  rights  and  franchises  of  such  a  corporation, 


1  Stetson  v.  Kempton,  13  Mass.  272 ; 
Willard  v.  Killingworth,  8  Conn.  247; 
Abendroth  v.  Greenwich,  29  Conn.  356 ; 
Baldwin  v.  North  Stanford,  32  Conn.  47  ; 
Webster  o.  Harwinton,  32  Conn.  131  ; 
Douglass  v.  Placerville,  18  Cal.  643 ;  Lack- 
land v.  Northern  Missouri  Railroad  Co., 
31  Mo.  180;  Mays  v.  Cincinnati,  1  Ohio 
St.  268;  Frost  v.  Belmont,  6  Allen,  152; 
Hess  v.  Pegg,  7  Nev.  23 ;  Quid  v.  Rich- 
mond, 23  Gratt.  464;  Youngblood  v. 
Sexton,  32  Mich.  406,  20  Am.  Hep.  655; 
[^Louisiana  Constr.  &  Imp.  Co.  v.  Illinois 
C.  R.  Co.,  49  La.  Ann.  527,  21  So.  891,  37 
L.  R.  A.  661.  Where  legislature  grants 
right  to  occupy  streets  of  a  city  upon 
getting  consent  of  city  council,  that  body 
cannot  attach  conditions  to  its  consent 
unless  the  conditions  are  restricted  en- 
tirely to  matters  within  the  city  limits. 
Galveston  &  W.  R.  Co.  v.  Galveston,  90 
Tex.  398,  39  S.  W.  920,  36  L.  R.  A.  33 
and  note.  Interest  cannot  be  required 
upon  delayed  payments  of  sewer  as- 
sessments in  the  absence  of  statutory 
authority  therefor.  Sargent  &  Co.  v. 
Tuttle,  67  Conn.  162,  34  Atl.  1028,  32 
L.  R.  A.  822.  Nor  can  the  city  regulate 
the  charges  of  gas  companies  for  gas 


furnished  private  consumers  in  the  ab- 
sence of  a  reservation  of  such  power  in 
their  charter.  Re  Pryor,  55  Kan.  724,  41 
Pac.  958,  29  L.  R.  A.  398,  49  Am.  St.  280.] 
2  St.  Louis  v.  Allen,  13  Mo.  400 ;  Coles 
v.  Madison  Co.,  Breese,  115;  Richland 
County  v.  Lawrence  County,  12  III.  1; 
Trustees  of  Schools  v.  Tatman,  13  111.  27  ; 
Robertson  v.  Rockford,  21  111.  451 ;  Peo- 
ple v.  Power,  25  111.  187;  St.  Louis  v. 
Russell,  9  Mo.  507  ;  State  v.  Cowan,  29 
Mo.  330 ;  McKim  v.  Odom,  3  Bland,  407  ; 
Granby  v.  Thurston,  23  Conn.  416  ;  Har- 
rison Justices  v.  Holland,  3  Gratt.  247; 
Brighton  v.  Wilkinson,  2  Allen,  27;  Sloan 
v.  State,  8  Blackf.  361;  Mills  v.  Wil- 
liams, 11  Ired.  558;  Langworthy  v.  Du- 
buque,  16  Iowa,  271;  Weeks  v.  Milwaukee, 
10  Wis.  242  ;  State  v.  Branin,  23  N.  J. 
484  ;  Patterson  v.  Society,  &c.,  24  N.  J. 
385 ;  Atchison  v.  Bartholow,  4  Kan.  124  ; 
City  of  St.  Louis  v.  Cafferata,  24  Mo.  94  ; 
People  v.  Draper,  15  N.  Y.  532 ;  Hawkins 
v.  Commonwealth,  76  Pa.  St.  15;  People 
v.  Tweed,  63  N.  Y.  202 ;  Barnes  v.  Dis- 
trict of  Columbia,  91  U.  S.  540  ;  Laramie 
Co.  v.  Albany  Co.,  92  U.  S.  307  ;  Aspin- 
wall  v.  Commissioners,  &c  ,  22  How.  364; 
Howard  v.  McDiamid,  26  Ark.  100 ;  Phila- 


CH.  VIII.]          THE   GEADES    OF  MUNICIPAL   GOVERNMENT. 


267 


being  granted  for  the  purposes  of  government,  can  never  become 
such  vested  rights  as  against  the  State  that  they  cannot  be  taken 


delphia  v.  Fox,  94  Pa.  St.  169 ;  Brad- 
sliaw  v.  Omaha,  1 x  Neb.  16 ;  Kulin  v. 
Board  of  Education,  4  W.  Va.  499 ;  Sin- 
ton  v.  Ashbury,  41  Cal.  525;  Hess  v. 
Pegg,  7  Nev.  23  ;  Hagerstown  v.  Schuer, 
37  Md.  180 ;  San  Francisco  v.  Cnnavan, 
42  Cal.  541  ;  State  v.  Jennings,  27  Ark. 
419;  Division  of  Howard  Co.,  15  Kan. 
194  ;  Martin  v.  Dix,  52  Miss.  53  ;  Goff  v. 
Frederick,  44  Md.  67  ;  Blessing  v.  Gal- 
veston,  42  Tex.  641 ;  Wiley  v.  Bluffton, 
111  Ind.  152,  12  N.  E.  165;  True  v. 
Davis,  133  111.  522,  22  N.  E.  Rep.  410. 
[^Legislature  may  create  a  municipality 
of  the  inhabitants  residing  near  the 
mouth  of  a  navigable  river  and  compel 
them  to  maintain  a  ship  channel  therein, 
although  a  portion  of  the  benefit  thereof 
is  enjoyed  by  the  inhabitants  of  a  much 
larger  area.  Cook  v.  Portland,  20  Oreg. 
680,  27  Pac.  263,  13  L.  R.  A.  633.  May 
combine  several  cities  and  towns  into  a 
sewage  district  and  compel  them  to  con- 
struct a  system  of  sewerage.  Re  King- 
man,  153  Mass.  566,  27  N.  E.  778,  12  L. 
R.  A.  417.]  The  legislature  may  in  its 
discretion  recall  to  itself  and  exercise 
so  much  of  such  powers  as  it  has  con- 
ferred upon  municipal  corporations  as  is 
not  secured  to  them  by  the  constitution. 
People  v.  Pinkney,  32  N.  Y.  377.  The 
subject  was  considered  at  length  in 
Meri  wether  v.  Garrett,  102  U.  S.  472,  in 
which  was  considered  the  effect  of  the 
legislation  which  abolished  the  city  gov- 
ernment of  Memphis ;  and  in  Amy  v. 
Selma,  77  Ala.  103.  The  creditors  of  a 
county  cannot  prevent  the  legislature 
reducing  its  limits,  notwithstanding  their 
security  may  be  diminished  thereby. 
Wade  v.  Richmond,  18  Gratt.  583 ;  Luerh- 
man  v.  Taxing  District,  2  Lea,  425.  Com- 
pare Milner  v.  Pensacola,  2  Woods,  632  ; 
Galesburg  v.  Hawkinson,  75  111.  152 ; 
Rader  v.  Road  District,  36  N.  J.  273; 
Wallace  v.  Sharon  Trustees,  84  N.  C. 
164.  A  charter  may  not  be  repealed  to 
the.  injury  of  creditors  already  entitled  to 
payment.  Morris  v.  State,  62  Tex.  728. 
This  power  is  not  defeated  or  affected  by 
the  circumstance  that  the  municipal  cor- 
poration was  by  its  charter  made  the 
trustee  of  a  charity;  and  in  such  case,  if 
the  corporation  is  abolished,  the  Court  of 


Chancery  may  be  empowered  and  di- 
rected by  the  repealing  act  to  appoint  a 
new  trustee  to  take  charge  of  the  prop- 
erty and  execute  the  trust.  Montpelier 
v.  East  Montpelier,  29  Vt.  12.  And  see 
Harrison  v.  Bridgeton,  16  Mass.  16 ; 
Montpelier  Academy  v.  George,  14  La. 
Ann.  406;  Reynolds  v.  Baldwin,  1  La. 
Ann.  162;  Police  Jury  v.  Shreveport,  5 
La.  Ann.  665;  Philadelphia  v.  Fox,  64 
Pa.  St.  169;  Weymouth  &  Braintree 
Fire  Commissioners  v.  County  Commis- 
sioners, 108  Mass.  142.  As  to  extent  of 
power  to  hold  property  in  trust,  see 
Hatheway  v.  Sackett,  32  Mich.  97.  But 
neither  the  identity  of  a  corporation,  nor 
its  right  to  take  property  by  devise,  is 
destroyed  by  a  change  in  its  name,  or 
enlargement  of  its  area,  or  an  increase  in 
the  number  of  its  corporators.  Girard 
v.  Philadelphia,  7  Wall.  1.  Changing  a 
borough  into  a  city  does  not  of  itself 
abolish  or  affect  the  existing  borough 
ordinances.  Trustees  of  Erie  Academy 
v.  City  of  Erie,  31  Pa.  St.  515.  Nor 
will  it  affect  the  indebtedness  of  the  cor- 
poration, which  will  continue  to  be  its 
indebtedness  under  its  new  organization. 
Olney  v.  Harvey,  50  111.  453.  QSo  when 
a  city  has  had  a  de  facto  organization, 
and  is  afterward  reorganized  so  as  to  be- 
come dejure,  its  old  obligations  continue. 
Shapleigh  v.  San  Angelo,  167  U.  S.  646, 
17  Sup.  Ct.  Rep.  957;  Ranken  v.  Mc- 
Callum,  —  Tex.  Civ.  Ap.  — ,  60  S.  W. 
975  (Jan.  26,  1901).  Upon  municipal 
bonds  and  changes  in  statutory  construc- 
tion, see  note  to  18  L.  ed.  U.  S.  350;  also 
notes  to  26  L.  ed.  U.  S.  263,  and  35  L.  ed. 
U.  S.  344.]  Property  brought  within  a 
city  by  the  exercise  of  legislative  discre- 
tion is  liable  for  existing  municipal  in- 
debtedness. Maddrey  v.  Cox,  73  Tex. 
538,  11  S.  W.  541.  A  general  statute,  con- 
taining a  clause  repealing  all  statutes  con- 
trary to  its  provisions,  does  not  repeal  a 
clause  in  a  municipal  charter  on  the  same 
subject.  State  v.  Branin,  23  N.  J.  484. 
fJWhere  the  constitution  prescribes  that 
the  charter  of  a  certain  city  can  be 
amended  by  its  own  citizens,  the  power 
of  the  legislature  to  amend  is  excluded. 
St.  Louis  v.  Dorr,  145  Mo.  466,  41  S.  W. 
1094,  46  S.  W.  976,  42  L.  R.  A.  686,  68 


268 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


away ;  nor  does  the  charter  constitute  a  contract  in  the  sense  of 
the  constitutional  provision  which  prohibits  the  obligation  of  con- 
tracts being  violated.1  Restraints  on  the  legislative  power  of 
control  must  be  found  in  the  constitution  of  the  State,  or  they 
must  rest  alone  in  the  legislative  discretion.2  If  the  legislative 


Am.  St.  675.  Legislature  has  power  to 
divide  counties  and  to  modify  their  boun- 
daries, but  such  modifications  do  not  mod- 
ify the  boundaries  of  legislative  districts. 
People  o.  Board  of  Supervisors,  147  N.  Y. 
1,  41  N.  E.  563,  30  L.  R.  A.  74.  j 

1  This  principle  was  recognized  by  the 
several  judges  in  Dartmouth  College  v. 
Woodward,  4  Wheat.  518,  and  in  Meri- 
wether  v.  Garrett,  102   U.  S.  472.     And 
see  People  v.  Morris,  13  Wend.  325 ;  St. 
Louis  v.  Russell,  9  Mo.  507 ;  Montpelier 
v.  East  Montpelier,  29  Vt.  12;  Trustees 
of  Schools  v.  Tatman,  13  111.  27  ;  Brighton 
v.  Wilkinson,  2  Allen,  27 ;  Reynolds  v. 
Baldwin,  1  La.  Ann.  162;  Police  Jury  v. 
Shreveport,  5  La.  Ann.  665 ;  Mt.  Carmel 
v.    Wabash   County,   50    111.   69;    Lake 
View  v.  Rose  Hill  Cemetery,  70  111.  19]  ; 
Zitske  v.  Goldberg,  38  Wis.  216  ;  Weeks 
».  Gilmanton,  60  N.  H.  500 ;  Dillon,  Mun. 
Corp.  §§  24,  30,  37;  FJCovington  v.  Ken- 
tucky, 173  U.  S.  231,  19  Sup.  Ct.  Rep. 
383;  Essex  Public  Road  Bd.  v.  Skinkle, 
140  U.  S.  334,  11  Sup.  Ct.  Rep.  790-3 

2  See  ante,  p.  66;  post,  pp.  334-342. 
"  Where  a  corporation  is  the  mere  creat- 
ure  of  legislative    will,   established   for 
the  general  good  and  endowed  by  the 
State  alone,  the  legislature  may,  at  pleas- 
ure,  modify   the   law   by  which   it  was 
created.    For  in  that  case  there  would  be 
but  one  party  affected,  — the  government 
itself,  —  and    therefore'   not    a    contract 
within  the  meaning  of  the  constitution. 
The  trustees  of  such  a  corporation  would 
be  the  mere  mandatories  of   the   State, 
having  no  personal  interest  involved,  and 
could  not  complain  of  any  law  that  might 
abridge  or  destroy  their  agency."     Mont- 
pelier Academy  v.  George,  14  La.  Ann. 
406.     In  Trustees  of  Schools  v.  Tatman, 
13    111.  27,  30,  the   court    say:    "Public 
corporations  are  but  parts  of  the  machin- 
ery employed  in  carrying  on  the  affairs 
of  the  State ;  and  they  are  subject  to  be 
changed,  modified,  or  destroyed,  as   the 
exigencies  of  the   public   may  demand. 
The  State  may  exercise  a  general  super- 
intendence and  control   over   them   and 


their  rights  and  effects,  so  that  their 
property  is  not  diverted  from  the  uses  and 
objects  for  which  it  was  given  or  pur- 
chased." And  see  State  v.  Miller,  65  Mo. 
50.  As  to  the  effect  of  legislation  abol- 
ishing a  corporation  upon  its  property 
and  debts,  see  Mount  Pleasant  v.  Beck- 
with,  100  U.  S.  514;  Meriwether  v.  Gar- 
rett, 102  U.  S.  472 ;  Rawson  v.  Spencer, 
113  Mass.  40.  Where  a  municipal  cor- 
poration is  dissolved  and  a  new  one  for 
the  same  general  purposes  is  created  con- 
taining the  same  population  and  property 
in  substance,  to  which  the  corporate 
property  passes  without  consideration, 
the  debts  of  the  old  fall  upon  the  new 
municipality,  and  with  them  the  power 
to  tax  for  their  payment.  Mobile  v. 
Watson,  116  U.  S.  289,  6  Sup.  Ct.  Rep. 
398;  Amy  v.  Selma,  77  Ala.  103.  Upon 
the  division  of  towns  and  counties,  &c. 
the  legislature  may  apportion  the  debts 
as  it  sees  fit.  People  v.  Supervisors,  94 
N.  Y.  263;  Clay  Co.  v.  Chickasaw  Co., 
64  Miss.  634,  1  So.  753 ;  Dare  Co.  v.  Cur- 
rituck  Co.,  95  N.  C.  189;  Morrow  Co.  v. 
Hendryx,  14  Oreg.  397,  12  Pac.  806.  It  is 
a  lawful  exercise  of  legislative  authority 
upon  such  division,  to  confer  a  part  of 
the  corporate  property  of  the  old  corpo- 
ration upon  the  new,  and  to  direct  the  old 
body  to  pay  it  over  to  the  new.  Har- 
rison v.  Bridgeton,  16  Mass.  16;  Salem 
Turnpike  v.  Essex  Co.,  100  Mass.  282 ; 
Whitney  v.  Stow,  111  Mass.  368 ;  Stone 
v.  Charlestown,  114  Mass.  214;  Sedgwick 
Co.  v.  Bunker,  14  Kan.  498;  Port  wood  v. 
Montgomery,  52  Miss.  523 ;  Bristol  v. 
New  Chester,  3  N.  H.  624;  Milwaukee 
Town  v.  Milwaukee  City,  12  Wis.  93; 
Marshall  Co.  Court  v.  Galloway  Co. 
Court,  3  Bush,  93.  QColumbus  v.  Colum- 
bus, 82  Wis.  374;  62  N.  W.  425,  16  L.  R. 
A.  695,  and  note.]  But  it  seems  that  an 
apportionment  of  property  can  only  be 
made  at  the  time  of  the  division.  Wind- 
ham  v.  Portland,  4  Mass.  384 ;  Hampshire 
v.  Franklin,  16  Mass.  76.  See  Richland 
v.  Lawrence,  12  III.  1 ;  Bowdoinham  v. 
Richmond,  6  Me.  112.  In  the  latter  case 


CH.  VIII.]          THE   GEADES   OF   MUNICIPAL   GOVERNMENT. 


269 


action  in  these  cases  operates  injuriously  to  the  municipalities  or 
to  individuals,  the  remedy  is  not  with  the  courts.  The  courts 
have  no  power  to  interfere,  and  the  people  must  be  looked  to, 
to  right  through  the  ballot-box  all  these  wrongs.1  This  is  the 


it  was  held  that  the  apportionment  of 
debts  between  an  old  town  and  one  cre- 
ated from  it  was  in  the  nature  of  a  con- 
tract ;  and  it  was  not  in  the  power  of  the 
legislature  afterwards  to  release  the  new 
township  from  payment  of  its  share  as 
thus  determined.  But  the  case  of  Lay- 
ton  v.  New  Orleans,  12  La.  Ann.  515,  is 
contra.  See  also  Borough  of  Dunmore's 
Appeal,  52  Pa.  St.  374,  and  School  Dis- 
trict v.  Board  of  Education,  73  Mo.  627 ; 
QJohnson  v.  San  Diego,  109  Cal.  468,  42 
Pac.  249,  30  L.  R.  A.  178 ;  Perry  County 
v.  Conway  County,  52  Ark.  430,  12  S.  W. 
877,  6  L.  R.  A.  665,  and  note ;]  which  in 
principle  seem  to  accord  with  the  Louisi- 
ana case.  In  the  absence  of  such  legisla- 
tion each  part  is  entitled  to  the  property 
falling  within  it,  and  to  any  equitable 
share  of  the  moneys  of  the  township. 
Towle  v.  Brown,  110  Ind.  65,  10  N.  E. 
626.  [The  old  corporation  retains  all 
the  property  within  its  borders  and  re- 
mains subject  to  the  then  existing  debts, 
in  the  absence  of  any  legislative  appor- 
tionment. McCully  v.  Tracy,  66  N.  J. 
L.  489, 49  Atl.  436.  j  In  Burns  v.  Clarion 
County,  62  Pa.  St.  422,  it  was  held  the 
legislature  had  the  power  to  open  a  set- 
tlement made  by  county  auditors  with 
the  county  treasurer,  and  to  compel  them 
to  settle  with  him  on  principles  of  equity. 
See  further,  Cambridge  v.  Lexington,  17 
Pick.  222  ;  Attorney-General  v.  Cam- 
bridge, 16  Gray,  247  ;  Clark  v.  Cam- 
bridge, &c.  Bridge  Proprietors,  104  Mass. 
236.  The  legislature  has  power  to  lay  out 
a  road  through  several  towns,  and  appor- 
tion the  expense  between  them.  Water- 
vine  v.  Kennebeck  County,  59  Me.  80; 
Commonwealth  r.Newburyport,103  Mass. 
129.  QAnd  where  a  highway  or  bridge, 
although  lying  outside  the  territorial  lim- 
its of  a  municipality,  is  especially  bene- 
ficial to  the  people  thereof,  the  legislature 
may  compel  that  municipality  to  sustain 
part  of  the  burden  of  providing  and  main- 
taining such  highway,  and  may  determine 
what  portion  of  such  expense  shall  be 
contributed  by  such  municipality.  State 
v.  Williams,  68  Conn.  181,  36  Atl.  24,  421, 


48  L.  R.  A.  465,  aff.  in  Williams  v.  Eggles- 
ton,  170  U.  S.  304,  18  Sup.  Ct.  Rep.  617. 
Upon  the  power  of  the  legislature  to  im- 
pose burdens  upon  municipalities,  see  the 
cases  collected  in  note  to  48  L.  R.  A.  465.] 
And  it  may  change  the  law  and  redis- 
tribute the  burden  afterwards,  if  from  a 
change  of  circumstances  or  other  reasons 
it  is  deemed  just  and  proper  to  do  so. 
Scituate  v.  Weymouth,  108  Mass.  128, 
and  cases  cited.  A  statute  abolishing 
school  districts  is  not  void  on  grounds 
like  the  following :  that  it  takes  the  prop- 
erty of  the  districts  without  compensa- 
tion ;  that  the  taxes  imposed  will  not  be 
proportional  and  reasonable,  or  that  con- 
tracts will  be  affected.  Rawson  v.  Spen- 
cer, 113  Mass.  40.  See  Weymouth  &c. 
Fire  District  v.  County  Commissioners, 
108  Mass.  142.  FJThe  legislature  may 
lay  a  penalty  upon  any  county  in  which 
a  lynching  occurs,  and  may  provide 
that  such  penalty  shall  be  recovered  by 
the  person  injured.  Champaign  Co.  v. 
Church,  62  Ohio  St.  318,  57  N.  E.  50,  48 
L.  R.  A.  738-3 

1  "  The  correction  of  these  abuses  is  as 
readily  attained  at  the  ballot-box  as  it 
would  be  by  subjecting  it  to  judicial  re- 
vision. A  citizen  or  a  number  of  citizens 
may  be  subtracted  from  a  county  free 
from  debt,  having  no  taxation  for  county 
purposes,  and  added  to  an  adjacent  one, 
whose  debts  are  heavy,  and  whose  taxing 
powers  are  exercised  to  the  utmost  extent 
allowed  by  law,  and  this,  too,  without 
consulting  their  wishes.  It  is  done  every 
day.  Perhaps  a  majority  of  the  people 
thus  annexed  to  an  adjacent  or  thrown 
into  a  new  county  by  the  division  of  an 
old  one  may  have  petitioned  the  legisla- 
ture for  this  change  ;  but  this  is  no  relief 
to  the  outvoted  minority,  or  the  individ- 
ual who  deems  himself  oppressed  and 
vexed  by  the  change.  Must  we,  then,  to 
prevent  such  occasional  hardships,  deny 
the  power  entirely  ? 

"  It  must  be  borne  in  mind  that  these 
corporations,  whether  established  over 
cities,  counties,  or  townships  (where  such 
incorporated  subdivisions  exist),  are  never 


270  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

general  rule ;  and  the  exceptions  to  it  are  not  numerous,  and  will 
he  indicated  hereafter. 

Powers  of  Public  Corporations. 

The  powers  of  these  corporations  are  either  express  or  implied. 
The  former  are  those  which  the  legislative  act  under  which  they 
exist  confers  in  express  terms  ;  the  latter  are  such  as  are  neces- 
sary in  order  to  carry  into  effect  those  expressly  granted,  and 
which  must,  therefore,  be  presumed  to  have  been  within  the  in- 
tention of  the  legislative  grant.1  Certain  powers  are  also  inciden- 
tal to  corporations,  and  will  be  possessed  unless  expressly  or  by 
implication  prohibited.  Of  these  an  English  writer  has  said :  "  A 
municipal  corporation  has  at  common  law  few  powers  beyond  those 
of  electing,  governing,  and  removing  its  members,  and  regulating 
its  franchises  and  property.  The  power  of  its  governing  officers 
can  only  extend  to  the  administration  of  the  by-laws  and  other 
ordinances  by  which  the  body  is  regulated."2  But  without  being 
expressly  empowered  so  to  do,  they  may  sue  and  be  sued ;  may 
have  a  common  seal;  may  purchase  and  hold  lands  and  other 
property  for  corporate  purposes  (a),  and  convey  the  same  ;  may 
make  by-laws  whenever  necessary  to  accomplish  the  design  of 
the  incorporation,  and  enforce  the  same  by  penalties ;  and  may 
enter  into  contracts  to  effectuate  the  corporate  purposes.3  Ex- 
cept as  to  these  incidental  powers,  which  need  not  be,  though 
they  usually  are,  mentioned  in  the  charter,  the  charter  itself, 

intrusted  and  can  never  be  intrusted  with  son,  33  N.   H.   424  ;    McMillan   v.    Lee 

any  legislative  power  inconsistent  or  con-  County,  3  Iowa,  311 ;  La  Fayette  v.  Cox, 

Hiding  with  the  general  laws  of  the  land,  5  Ind.  38;  Clark  v,  Des  Moines,  19  Iowa, 

or  derogatory  to  those  rights,  either  of  199 ;  State  v.  Morristown,  33  N.  J.  67 ; 

person  or  property,  which  the  constitution  Beaty  v.  Knowler,  4  Pet.  152  ;   Mills  v. 

and  the  general  laws  guarantee.     They  Gleason,  11  Wis.  470.     In  this  last  case, 

are  strictly   subordinate  to   the  general  it  was  held  that  these  corporations  had 

laws,  and  merely  created  to  carry  out  the  implied  power  to  borrow  money  for  cor- 

purposes  of   those  laws  with  more  cer-  porate  purposes.     And  see  also  Ketchum 

tainty  and  efficiency.     They  may  be  and  v,  Buffalo,  14  N.  Y.  356. 
sometimes    are     intrusted    with    powers         2  Willcock  on  Municipal  Corporations, 

which  properly  appertain  to  private  cor-  tit.  769. 

porations,and  in  such  matters  their  power         3  Angell  &  Ames  on  Corp.  §§  111,  239 ; 

as  mere  municipal  corporations  ceases."  2  Kyd  on  Corp.  102;  State  W.Ferguson, 

City  of  St.  Louis  <>.  Allen,  13  Mo.  400.  33  N.  H.  424.    See  Dillon,  Mun.  Corp., 

1  2 Kent, 278, note;  Halstead  v.  Mayor,  for  an  examination,  in  the  light  of  the 

&c.  of  New  York,  3  N.  Y.  430 ;  Hodges  v.  authorities,  of  the  several  powers  here 

Buffalo,  2  Denio,  110 ;   New   London  v.  mentioned. 
Brainard,  22  Conn.  562 ;  State  v.  Fergu- 

(n)  QSuch  property  as  is  held  by  the  corporation  in  its  public  capacity  is  not  liable 
to  be  taken  on  execution.  See  Klein  v.  New  Orleans,  99  U.  S.  149,  and  other  cases 
in  note  to  35  L.  ed.  U.  S.  656.] 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


271 


or  the  general  law  under  which  they  exist,  is  the  measure  of 
the  authority  to  be  exercised.  And  the  general  disposition  of 
the  courts  in  this  country  has  been  to  confine  municipalities 
within  the  limits  that  a  strict  construction  of  the  grants  of 
powers  in  their  charters  will  assign  to  them ;  thus  applying  sub- 
stantially the  same  rule  that  is  applied  to  charters  of  private 
incorporation.1  The  reasonable  presumption  is  that  the  State 


1  Under  a  city  charter  which  author- 
ized the  common  council  to  appoint 
assessors  for  the  purpose  of  awarding 
damages  to  those  through  whose  property 
a  street  might  be  opened,  and  to  assess 
such  damages  on  the  property  benefited, 
it  was  decided  that  the  council  were  not 
empowered  to  levy  a  tax  to  pay  for  the 
other  expenses  of  opening  the  street. 
Reed  v.  Toledo,  18  Ohio,  161.  So  a  power 
to  enact  by-laws  and  ordinances  to  abate 
and  remove  nuisances  will  not  authorize 
the  passing  of  an  ordinance  to  prevent 
nuisances,  or  to  impose  penalties  for  the 
creation  thereof.  Rochester  v.  Collins,  12 
Barb  559.  A  power  to  impose  penalties 
f  or  obstructions  to  streets  would  not  author- 
ize the  like  penalties  for  encroachments 
upon  streets,  where,  under  the  general 
laws  of  the  State,  the  offences  are  recog- 
nized as  different  and  distinct.  Grand 
Rapids  v.  Hughes,  15  Mich.  54.  Authority 
to  levy  a  tax  on  real  and  personal  estate 
would  not  warrant  an  income  tax,  espe- 
cially when  such  a  tax  is  unusual  in  the 
State.  Mayor  of  Savannah  v.  Hartridge, 
8  Ga.  23.  It  will  appear,  therefore,  that 
powers  near  akin  to  those  expressly  con- 
ferred, are  not,  for  that  reason,  to  be  taken 
by  implication.  And  see  Commonwealth 
v.  Erie  &  N.  E.  Railroad  Co.,  27  Pa.  St. 
339.  This  rule  has  often  been  applied 
where  authority  has  been  asserted  on  be- 
half of  a  municipal  corporation  to  loan 
its  credit  to  corporations  formed  to  con- 
struct works  of  internal  improvement. 
See  LaFayette  v.  Cox,  6  Ind.  38;  Cle- 
burne  v.  Gulf,  &c.  Ry.  Co.,  66  Tex.  457, 
1  S.  W.  342.  The  ordinary  powers  of  a 
city  do  not  give  it  authority  to  grant 
a  street  railway  franchise.  Eichels  v. 
Evansville  Street  Railway  Co.,  78  Ind. 
261.  Power  to  buy  land  for  public  pur- 
poses does  not  cover  a  purchase  for  an 
agricultural  society.  Eufaula  v.  McNab, 
67  Ala.  588.  Power  to  make  health  regu- 
lations does  not  permit  the  erection  of 
a  public  slaughter-house.  Huesing  v. 


Rock  Island,  128  111.  465,  21  N.  E.  558. 
Power  to  contract  for  a  water-supply 
does  not  authorize  granting  an  exclusive 
privilege  for  twenty-five  years.  Brenham 
v.  Brenham  Water  Co.,  67  Tex.  542,  4 
S.  W.  143.  Power  to  regulate  wharves 
does  not  cover  creating  a  harbor.  Speng- 
ler  v.  Trowbridge,  62  Miss.  46.  A  power 
to  pass  ordinances  to  prohibit  the  sale 
or  giving  away  of  intoxicating  liquors 
in  certain  special  cases  is  an  implied 
exclusion  of  the  power  to  prohibit  the 
sale  or  giving  away  in  other  cases.  State 
v.  Ferguson,  33  N.  H.  424.  In  Dunham 
v.  Rochester,  6  Cow.  462,  465,  it  is  said : 
"  For  all  the  purposes  of  jurisdiction,  cor- 
porations are  like  the  inferior  courts,  and 
must  show  the  power  given  them  in  every 
case.  If  this  be  wanting,  their  proceed- 
ings must  be  holden  void  whenever  they 
come  in  question,  even  collaterally ;  for 
they  are  not  judicial  and  subject  to  direct 
review  on  certiorari.  2  Kyd  on  Corp.  104- 
107."  The  prescribed  method  of  exer- 
cising a  power  must  be  strictly  followed. 
Des  Moines  v.  Gilchrist,  67  Iowa,  210,  25 
N.  W.  136.  The  power  "to  enact  ordi- 
nances necessary  for  government "  does 
not  authorize  the  grant  of  the  franchise 
of  a  toll-bridge.  Williams  v.  Davidson, 
43  Tex.  1.  Like  power  coupled  with  that 
to  regulate  streets  and  business  does  not 
allow  regulation  of  telephone  charges. 
St.  Louis  v.  Bell  Telephone  Co.,  96  Mo. 
623,  10  S.  W.  197.  The  power  to  create 
indebtedness  does  not  by  implication 
carry  with  it  a  power  to  tax  for  its  pay- 
ment. Jeffries  v.  Lawrence,  42  Iowa, 
498.  The  approving  vote  of  the  citizens 
cannot  give  an  authority  the  law  has  not 
conferred.  McPherson  v.  Foster,  43 
Iowa,  48.  See  Hackettstown  v.  Swack- 
hamer,  37  N.  J.  191.  In  Nashville  v.  Ray, 
19  Wall.  468,  four  of  the  eight  justices 
of  the  Supreme  Court  denied  the  power 
of  municipal  corporations  to  borrow 
money  or  issue  securities  unless  expressly 
authorized.  Says  Bradley,  J. :  "  Such  a 


272 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


has  granted  in  clear  and  unmistakable  terms  all  it  has  designed 
to  grant  at  all. 

It  must  follow  that,  if  in  any  case  a  party  assumes  to  deal 
with  a  corporation  on  the  supposition  that  it  possesses  powers 


power  does  not  belong  to  a  municipal 
corporation  as  an  incident  of  its  creation. 
To  be  possessed  it  must  be  conferred  by 
legislation,  either  express  or  implied.  It 
does  not  belong,  as  a  mere  matter  of 
course,  to  local  government  to  raise  loans. 
Such  governments  are  not  created  for  any 
such  purpose.  Their  powers  are  pre- 
scribed by  their  charters,  and  those  char- 
ters provide  the  means  for  exercising  the 
powers ;  and  the  creation  of  specific  means 
excludes  others."  See  Waxahachie  v. 
Brown,  67  Tex.  619,  4  S.  W.  207.  Com- 
pare Bank  of  Chillicothe  v.  Chillicothe,  7 
Ohio,  354;  Clark  v.  School  District,  3 
R.  I.  199 ;  State  v.  Common  Council  of 
Madison,  7  Wis.  688;  Mills  v.  Gleason, 
11  Wis.  470;  Hamlin  v.  Meadville,  6  Neb. 
227 ;  State  v.  Babcock,  22  Neb.  614,  85 
N.  W.  941.  [[No  implied  power  to  exempt 
from  taxation.  Whiting  v.  West  Point, 

88  Va.  905,  14  S.  E.  698,  15  L.  R.  A.  860, 
29  Am.  St.  750,  and  note.    Nor  to  establish 
separate    schools    for   white  and   negro 
children.     Knox  v.  Bd.  of  Education,  45 
Kan.  152,  25  Pac.  616,  11  L.  R.  A.  830. 
Nor    to    publish    ordinances  in    foreign 
languages.      Chicago  v.  McCoy,  136  111. 
344,  26  N.  E.  363,  11  L.  R.  A.  413.    Nor 
to  borrow  money.     Allen  v.  La  Fayette, 

89  Ala.  641,  8  So.  30,  9  L.  R.  A.  497,  and 
note;  Wells  v.  Salina,  119  N.  Y.  280,  23 
N.  E.  870,  7  L.  R.  A.  759,  and  note.   Bonds 
may  be  issued  in  payment  for  property 
lawfully  purchased,  although  they  could 
not  be  issued  in  order  to  borrow  money. 
Rushville  Gas  Co.  v.  Rushville,  121  Ind. 
206,  23  N.  E.  72,  6  L.  R.  A.  315,  16  Am. 
St.  388.]     But  power  to  confine  patients 
with  infectious  diseases  covers  renting  a 
pest-house :    Anderson   v.   O'Conner,  98 
Ind.  168 ;  and  paying  nurses :  Labrie  ». 
Manchester,  59  N.  H.  120;  Rae  v.  Flint, 
61   Mich.  526,  16  N.  W.  887.    Such  cor- 
poration  has   implied  power  to  take  as 
trustee  for  indigent  inhabitants:  Estate 
of  Robinson,  63  Cal.  620;  and  to  defend 
its  marshal  sued  for  false  imprisonment. 
Cullen  v.  Carthage,  103  Ind.  196,  2  N.  E. 
671 ;  Roper  v.  Laurinburg,  90  N.  C.  427. 
See  also  Nashville  v.  Ray,  19  Wall.  468; 


Milhau  v.  Sharp,  17  Barb.  435,  28  Barb. 
228,  and  27  N.  Y.  611 ;  Douglass  v.  Placer- 
ville,  18  Cal.  643;  Mount  Pleasant  v. 
Breeze,  11  Iowa,  399;  Hooper  v.  Emery, 
14  Me.  375;  Mayor,  &c.  of  Macon  v. 
Macon  &  Western  R.  R.  Co.,  7  Ga.  221 ; 
Hopple  v.  Brown,  13  Ohio  St.  311 ;  Lack- 
land v.  Northern  Missouri  Railroad  Co., 
31  Mo.  180;  Smith  v.  Morse,  2  Cal.  524; 
Bennett  v.  Borough  of  Birmingham,  31 
Pa.  St.  15 ;  Earley's  App.,  103  Pa.  St.  273 ; 
Tucker  v.  Virginia  City,  4  Nev.  20 ; 
Leavenworth  v.  Norton,  1  Kan.  432;  Kyle 
v.  Malin,  8  Ind.  34;  Johnson  v.  Philadel- 
phia, 60  Pa.  St.  445;  Kniper  v.  Louisville, 
7  Bush,  599;  Johnston  v.  Louisville,  11 
Bush,  527 ;  Williams  v.  Davidson,  43 
Tex.  1 ;  Burritt  v.  New  Haven,  42  Conn. 
174;  Logan  v.  Pyne,  43  Iowa,  624; 
Field  v.  Des  Moines,  39  Iowa,  575 ;  Vance 
v.  Little  Rock,  30  Ark.  435;  English  v. 
Chicot  County,  26  Ark.  454;  Pullen  v. 
Raleigh,  68  N.  C.  451 ;  Chisholm  v.  Mont- 
gomery, 2  Woods,  684 ;  Burmeister  v. 
Howard,  1  Wash.  Ter.  207;  Bell  v. 
Plattville,  71  Wis.  139,  36  N.  W.  831; 
Murphy  v.  Jacksonville,  18  Fla.  318. 
L~The  expense  of  providing  water  for  a 
city  is  not  a  "  necessary  expense "  and 
therefore  is  within  the  constitutional  limi- 
tation upon  the  debt-creating  power  of 
the  municipality.  Edgerton  v.  Goldsboro 
Water  Co.,  126  N.  C.  93,  35  S.  E.  243,  48 
L.  R.  A.  444.  But  see  Swanson  v.  Ottum- 
wa,  —  Iowa,  — ,  91  N.  W.  1048,  and  Grune- 
walds  v.  Cedar  Rapids,  —  Iowa,  — ,  91  N. 
W.  1059.  Where  a  state  board  of  health 
is  empowered  to  quarantine  and  inspect 
persons  and  disinfect  baggage  from 
countries  where  contagious  disease  is  for 
good  reasons  suspected,  it  cannot  extend 
its  powers,  and  quarantine  all  immigrants 
and  incoming  baggage.  Hurst  v.  Warner, 
102  Mich.  238,  60  N.  W.  440,  26  L.  R.  A. 
484,  47  Am.  St.  525.  See  also  Wilson  v. 
Alabama  G.  S.  R.  Co.,  77  Miss.  714,  28 
So.  567,  78  Am.  St.  543.  Power  to  reg- 
ulate ten-pin  alleys  does  not  authorize 
their  exclusion  from  all  places  within  fire 
limits.  Ex  parte  Patterson,  —  Tex.  Cr. 
— ,  58  S.  W.  1011,  51  L.  R.  A.  654.] 


CH.  VIII.]  THE    GRADES   OF   MUNICIPAL   GOVERNMENT. 


273 


which  it  does  not,  or  to  contract  in  any  other  manner  than  is  per- 
mitted by  the  charter,  he  will  not  be  allowed,  even  though  he  may 
have  complied  with  the  undertaking  on  his  part,  to  maintain  a 
suit  against  the  corporation  based  upon  its  unauthorized  action. 
Even  where  a  party  is  induced  to  enter  upon  work  for  a  corpora- 
tion by  the  false  representations  of  corporate  officers  in  regard 
to  the  existence  of  facts  on  which  by  law  the  power  of  the  corpo- 
ration to  enter  upon  the  work  depends,  these  false  representations 
cannot  have  the  effect  to  give  a  power  which  in  the  particular 
case  was  wanting,  or  to  validate  a  contract  otherwise  void,  and 
therefore  can  afford  no  ground  of  action  against  the  corporation  ; 
but  every  party  contracting  with  it  must  take  notice  of  any  want 
of  authority  which  the  public  records  would  show.1  This  is  the 

1  The  common  council  of  Williams-  thereby,  and  to  be  assessed  therefor,  are 
burg  had  power  to  open,  regulate,  grade, 
and  pave  streets,  but  only  upon  petition 
signed  by  one-third  of  the  persons  own- 
ing lands  within  the  assessment  limits. 
A  party  entered  into  a  contract  with 
the  corporation  for  improving  a  street, 
upon  the  false  representations  of  the 
council  that  such  a  petition  had  been 
presented.  Held,  that  the  provision  of 
law  being  public,  and  all  the  proceedings 
leading  to  a  determination  by  the  council 
to  make  a  particular  improvement  being 
matters  of  record,  all  persons  were  charge- 
able with  notice  of  the  law  and  such  pro- 
ceedings ;  and  that,  notwithstanding  the 
false  representations,  no  action  would  lie 
against  the  city  for  work  done  under  the 
contract.  Swift  v.  Williamsburg,  24 
Barb.  427.  "  If  the  plaintiff  can  recover 
on  the  state  of  facts  he  has  stated  in  his 
complaint,  the  restriction  and  limitations 
which  the  legislature  sought  to  impose 
upon  the  powers  of  the  common  council 
will  go  for  nothing.  And  yet  these  pro- 
visions are  matters  of  substance,  and  were 
designed  to  be  of  some  service  to  the  con- 
stituents of  the  common  council.  They 
were  intended  to  protect  the  owners  of 
lands  and  the  taxpayers  of  the  city,  as 
well  against  the  frauds  and  impositions  of 
the  contractors  who  might  be  employed 
to  make  these  local  improvements,  as 
against  the  illegal  acts  of  the  common 
council  themselves  in  employing  the  con- 
tractors. But  if  the  plaintiff  can  recover 
in  this  action,  of  what  value  or  effect  are 
all  these  safeguards  ?  If  the  common 
council  desire  to  make  a  local  improve- 
ment, which  the  persons  to  be  benefited 


unwilling  to  have  made,  the  consent  of 
the  owners  may  be  wholly  dispensed 
with,  according  to  the  plaintiff's  theory. 
The  common  council  have  only  to  repre- 
sent that  the  proper  petition  has  been  pre- 
sented and  the  proper  proceedings  have 
been  taken,  to  warrant  the  improvement. 
They  then  enter  into  the  contract.  The 
improvement  is  made.  Those  other  safe- 
guards for  an  assessment  of  the  ex- 
penses and  for  reviewing  the  proceedings 
may  or  may  not  be  taken.  But  when 
the  work  is  completed  and  is  to  be  paid 
for,  it  is  found  that  the  common  council 
have  no  authority  to  lay  any  assessment 
or  collect  a  dollar  from  the  property 
benefited  by  the  improvement.  The 
contractor  then  brings  his  action,  and 
recovers  from  the  city  the  damages  he 
has  sustained  by  the  failure  of  the  city 
to  pay  him  the  contract  price.  The 
ground  of  his  action  is  the  falsity  of 
the  representations  made  to  him.  But 
the  truth  or  falsity  of  sucli  representa- 
tions might  have  been  ascertained  by  the 
party  with  the  use  of  the  most  ordinary 
care  and  diligence.  The  existence  of 
the  proper  petition,  and  the  taking  of  the 
necessary  initiatory  steps  to  -warrant  the 
improvement,  were  doubtless  referred  to 
and  recited  in  the  contract  made  with  the 
plaintiff.  And  he  thus  became  again 
directly  chargeable  with  notice  of  the 
contents  of  all  these  papers.  It  is  ob- 
vious that  the  restrictions  and  1'mita- 
tions  imposed  by  the  law  cannot  thus  be 
evaded.  The  consent  of  the  parties  in- 
terested in  such  improvements  cannot  be 
dispensed  with ;  the  responsibility,  which 


18 


274 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


general  rule,  and  the  cases  of  unauthorized  action  which  may 
bind  the  corporation  are  exceptional,  and  will  be  referred  to 
further  on. 

Municipal  corporations  exercise  the  authority  conferred  upon 
them  by  law  through  votes  of  the  corporators  at  public  meetings, 
and  through  officers  and  agents  duly  elected  or  chosen.  The  cor- 
porators are  the  resident  electors,  who,  under  the  general  laws  of 
the  State,  may  vote  at  the  ordinary  elections,  though  sometimes, 
in  special  cases,  the  franchise  has  been  conferred  upon  taxpayers 
exclusively.  A  meeting  of  corporators  for  any  purpose  of  legal 
action  must  be  regularly  convened  in  such  manner  or  at  such 
time  as  may  have  been  prescribed  by  law.  If  the  corporators 
were  to  come  together  at  any  time  without  legal  permission  and 
assume  to  act  for  the  corporation,  their  action  would  be  of  no 
legal  force  or  validity  whatever.  The  State  permits  them  to 
wield  a  part  of  the  governmental  authority  of  the  State,  but  only 
on  the  conditions  which  the  law  has  prescribed,  and  one  of  these 


the  conditions  precedent  created  by  the 
statute  impose,  cannot  be  thrown  off  in 
this  manner.  For  the  effect  of  doing  so 
is  to  shift  entirely  the  burden  of  making 
these  local  improvements,  to  relieve  those 
on  whom  the  law  sought  to  impose  the 
expense,  and  to  throw  it  on  others  who 
are  not  liable  either  in  law  or  morals." 

So,  where  the  charter  of  Detroit  pro- 
vided that  no  public  work  should  be 
contracted  for  or  commenced  until  an 
assessment  had  been  levied  to  defray  the 
expense,  and  that  no  such  work  should 
be  paid  or  contracted  to  be  paid  for,  ex- 
cept out  of  the  proceeds  of  the  tax  thus 
levied,  it  was  held  that  the  city  corpora- 
tion had  no  power  to  make  itself  respon- 
sible for  the  price  of  any  public  work, 
and  that  such  work  could  only  be  paid 
for  by  funds  actually  in  the  hands  of 
the  city  treasurer,  provided  for  the  spe- 
cific purpose.  Goodrich  v.  Detroit,  12 
Mich,  279.  But  if  the  city  receives  the 
fund  and  misappropriates  it,  it  will  be 
liable.  Lansing  v.  Van  Gorder,  24  Mich. 
456.  And  that  even  if  a  contract  is  ultra 
vires  a  city  is  liable  for  value  of  work 
done  under  it,  provided  it  receives  the 
benefit  of  it,  see  Schipper  v.  Aurora,  121 
Ind.  154,  22  N.  E.  878,  and  cases  cited. 

Parties  dealing  with  the  agents  or  offi- 
cers of  municipal  corporations  must,  at 
their  own  peril,  take  notice  of  the  limits 
of  the  powers  both  of  the  municipal  cor- 


poration, and  of  those  assuming  to  act  on 
its  behalf.  State  v.  Kirkley,  29  Md.  85; 
Gould  v.  Sterling,  23  N.  Y.  456 ;  Clark  v. 
Des  Moines,  19  Iowa,  199;  Veeder  v. 
Lima,  19  Wis.  280;  Bryan  v.  Page,  61 
Tex.  532,  32  Arn.  Rep.  637;  Tainter  v. 
Worcester,  123  Mass.  311,25  Am.  Rep. 
90;  Barton  v.  Swepston,  44  Ark.  437; 
Thomas  v.  Richmond,  12  Wall.  349 ;  East 
Oakland  v.  Skinner,  94  U.  S.  255;  Dillon, 
Mun.  Corp.  §  381.  But  a  bonafide  holder 
of  municipal  obligations  has  a  right  to 
rely  upon  the  truth  of  their  recitals,  if 
they  appear  to  be  warranted  by  the 
legislation  under  which  they  are  issued. 
Coloma  v.  Eaves,  92  U.  S.  484;  Walnut 
v.  Wade,  103  U.  S.  683 ;  Pana  v.  Bowler, 
107  U.  S.  529,  2  Sup.  Ct.  Rep.  704 ;  New 
Providence  v.  Halsey,  117  U.  S.  336, 6  Sup. 
Ct.  Rep.  764;  Oregon  v.  Jennings,  119 
U.  S  74,  7  Sup  Ct.  Rep.  124  ;  Aberdeen 
v.  Sykes,  59  Miss.  236 ;  and  cases  post, 
pp.  319-325.  ([Contract  for  erecting 
public  buildings  and  providing  that  only 
union  labor  shall  be  employed  thereon  is 
void,  as  unduly  restricting  competition 
and  thereby  increasing  the  cost  of  the 
wofk.  Adams  v.  Brenan,  177  111.  194, 
52  N.  E.  314,  42  L.  R.  A.  718,  69  Am.  St. 
222.  And  see  in  this  connection  Atlanta 
v.  Stein,  111  Ga.  789,  36  S.  E.  932,  51 
L.  R.  A.  335;  Fiske  v.  People,  188  111. 
206,  68  N.  E.  985;  People  v.  Coler,  166 
N.  Y.  1,  59  N.  E.  716,  82  Am.  St.  605.] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  275 

is  that  it  shall  be  exercised  in  an  orderly  manner,  at  meetings 
assembled  upon  due  notice  and  conducted  according  to  legal 
forms,  in  order  that  there  may  be  opportunity  for  reflection,  con- 
sultation, and  deliberation.1  The  notice  may  be  either  general, 
and  given  by  the  law  itself,  or  it  may  be  special,  and  given  by 
some  corporate  officer  or  agent.  Annual  meetings  are  commonly 
provided  for  by  general  law,  which  names  a  time,  and  perhaps  a 
place  for  the  purpose.  Of  this  general  law  every  corporator  must 
take  notice,  and  the  meetings  held  in  pursuance  of  it  are  legal, 
even  though  a  further  notice  by  publication,  which  the  statute 
directs,  has  been  omitted.2  But  for  special  meetings  the  require- 
ment of  special  notice  is  imperative,  and  it  must  be  given  as  the 
statute  requires.3  Sometimes  it  is  directed  to  be  given  by  publi- 
cation, sometimes  by  posted  notice,  and  sometimes  by  personal 
notification.  If  the  law  requires  the  order  or  warrant  for  the 
meeting  to  specify  its  object,  compliance  is  imperative,  and  the 
business  which  can  be  lawfully  done  at  the  meeting  will  be  strictly 
limited  to  the  object  stated.4 

Special  charters  for  corporations  usually  provide  for  some 
governing  body  who  shall  be  empowered  to  make  laws  for 
them  within  the  sphere  of  the  powers  conferred,  and  perhaps  to 
appoint  some  portion  or  all  of  the  ministerial  and  administrative 
officers.  In  the  case  of  towns,  school  districts,  &c.,  the  power 
to  make  laws  is  largely  confided  to  the  corporators  assembled  in 
annual  meeting ; 6  and  in  the  case  of  counties,  in  some  county 
board.  The  laws,  whether  designated  orders,  resolutions,  or  or- 
dinances, are  more  often  in  law  spoken  of  as  by-laws,  and  they 
must  be  justified  by  the  grant  of  power  which  the  State  has  made. 
Whatever  is  ultra  vires  in  the  case  of  any  delegated  authority,  is 
of  course  void. 

Whatever  is  said  above  respecting  notice  for  corporate  meet- 

*  Chamberlain  v.  Dover,  13  Me.  466, 29         2  See  People  v.  Cowles,  13  N.  Y.  350 ; 

Am.  Dec.  517;  Evans  v.  Osgood,  18  Me.  People  v,  Hartwell,  12  Mich.  508;  People 

213;  School  District  v.  Atherton,  12  Met.  v.  Brenham,  3  Cal.  477;   State  v.  Orvis, 

105;    Stone  v.  School  District,  8  Cush.  20  Wis.  235;  Dishon  v.  Smith,  10  Iowa, 

592 ;   Bethany  v.  Sperry,  10  Conn.  200 ;  212 ;  State  v.  Jones,  19  Ind.  356. 
State  v.  Harrison,  67  Ind.  71 ;  Pike  County         8  Tuttle  v.  Cary,  7  Me.  426. 
v.  Rowland,  94  Pa.  St.  238;  State  v.  Pet-         *  Little  v.  Merrill,  10  Pick.  543;  Bart- 

tineli,  10  Nev.  181 ;  State  v.  Bonnell,  35  lett  v.  Kinsley,  15   Conn.  327 ;   Atwood 

Ohio  St.   10;    Ross  v.  Crockett,  14  La.  v.  Lircoln,  44  Vt.  332;    Holt's  Appeal, 

Ann.  811;    Goulding  v.  Clark,  34  N.  H.  5  R.  I.  603;    Reynolds   v.  New   Salem, 

148.     See  Stow  v.  Wise,  7  Conn.  214,  18  6  Met.  340;    Bowen  v.  King,  34  Vt.  156; 

Am.  Dec.  99;    Brooklyn  Trust    Co.   ».  Haines  v.  School  District,  41  Me.  246; 

Hebron,  51  Conn.  22;  Pierce  v.  New  Or-  Bloomfield    v.    Charter   Oak  Bank,   121 

leans   Building  Co.,  9  La.  397,  29  Am.  U.  S.  121,  7  Sup.  Ct.  Rep.  865. 
Dec.   448 ;    Atlantic    De    Laine    Co.    ».          *  See  Williams  v.  Roberts,  88  111.  11. 
Mason,  5  R.  I.  463. 


276  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

ings  is  equally  applicable  to  meetings  of  the  official  boards,  with 
this  exception:  that  as  the  board  is  composed  of  a  definite  num- 
ber of  persons,  if  these  all  convene  and  act  they  may  thereby 
waive  the  want  of  notice.  But  the  meeting  of  a  mere  majority 
without  notice  to  the  others  would  be  without  legal  authority.1 

Corporations  by  Prescription  and  Implication. 

The  origin  of  many  of  the  corporate  privileges  asserted  and 
enjoyed  in  England  is  veiled  in  obscurity,  and  it  is  more  than 
probable  that  in  some  instances  they  had  no  better  foundation 
than  an  uninterrupted  user  for  a  considerable  period.  In  other 
cases  the  royal  or  baronial  grant  became  lost  in  the  lapse  of  time, 
and  the  evidence  that  it  had  ever  existed  might  rest  exclusively 
upon  reputation,  or  upon  the  inference  to  be  drawn  from  the 
exercise  of  corporate  functions.  In  all  these  cases  it  seems  to 
be  the  law  that  the  corporate  existence  may  be  maintained  on 
the  ground  of  prescription ;  that  is  to  say,  the  exercise  of  cor- 
porate rights  for  a  time  whereof  the  memory  of  man  runneth  not 
to  the  contrary  is  sufficient  evidence  that  such  rights  were  once 
granted  by  competent  authority,  and  are  therefore  now  exercised 
by  right  and  not  by  usurpation.2  And  this  presumption  con- 
cludes the  crown,  notwithstanding  the  maxim  that  the  crown 
shall  lose  no  rights  by  lapse  of  time.  If  the  right  asserted  is 
one  of  which  a  grant  might  be  predicated,  a  jury  is  bound  to 
presume  a  grant  from  that  prescription.3  In  this  particular  the 
claim  to  a  corporate  franchise  stands  on  the  same  ground  as 
any  claim  of  private  right  which  requires  a  grant  for  its  sup- 
port, and  is  to  be  sustained  under  the  same  circumstances  of 
continuous  assertion  and  enjoyment.4  And  even  the  grant  of  a 
charter  by  the  crown  will  not  preclude  the  claim  to  corporate 
rights  by  prescription ;  for  a  new  charter  does  not  extinguish  old 
privileges.5 

A  corporation  may  also  be  established  upon  presumptive  evi- 
dence that  a  charter  has  been  granted  within  the  time  of  memory. 
Such  evidence  is  addressed  to  a  jury,  and  though  not  conclusive 
upon  them,  yet,  if  it  reasonably  satifies  their  minds,  it  will  justify 

1  Gordon  v.  Preston,  1  Watts,  385,  26  Maynard,  15  Mich.  463;  Stater.  Bunker, 
Am.  Dee.  75.  69  Me.  366. 

2  Introduction  to  Willcock  on  Munici-         4  2  Kent,  277;  Angell  &  Ames  on  Corp. 
pal   Corporations ;  The   King  v.  Mayor,  §  70,  1  Kyd  on  Corp.  14. 

&c.  of  Stratford  upon  Avon,  14  East,  348  ;         6  Hadduck's    Case,    T.    Raym.    439; 

Robie  v.  Sedgwick,  35  Barb.  319.      See  The    King  v.   Mayor,   &c.   of    Stratford 

Londonderry  v.  Andover,  28  Vt.  416.  upon  Avon,  14  East,  348;  Bow  v.  Allena- 

3  Mayor  of  Hull  v.  Horner,  Cowp.  104,  town,  34  N.  H.  351.    See  Jameson  v.  Peo- 
per  Lord  Mansfield.    Compare  People  v.  pie,  16  111.  257. 


CH.  VIII.]  THE   GRADES   OF  MUNICIPAL   GOVERNMENT.  277 

them  in  a  verdict  finding  the  corporate  existence.  "There  is  a 
great  difference,"  says  Lord  Mansfield,  "  between  length  of  time 
which  operates  as  a  bar  to  a  claim,  and  that  which  is  only  used  by 
way  of  evidence.  A  jury  is  concluded  by  length  of  time  which 
operates  as  a  bar ;  as  where  the  Statute  of  Limitations  is  pleaded 
in  bar  to  a  debt:  though  the  jury  is  satisfied  that  the  debt  is  due 
and  unpaid,  it  is  still  a  bar.  So  in  the  case  of  prescription.  If 
it  be  time  out  of  mind,  a  jury  is  bound  to  preclude  the  right  from 
that  prescription,  if  there  could  be  a  legal  commencement  of  the 
right.  But  any  written  evidence,  showing  that  there  was  a  time 
when  the  prescription  did  not  exist,  is  an  answer  to  a  claim 
founded  on  prescription.  But  length  of  time  used  merely  by  way 
of  evidence  may  be  left  to  the  consideration  of  the  jury,  to  be 
credited  or  not,  and  to  draw  their  inference  one  way  or  the  other 
according  to  circumstances."  *  The  same  ruling  has  been  had  in 
several  cases  in  the  courts  of  this  country,  where  corporate  powers 
had  been  exercised,  but  no  charter  could  be  produced.  In  one  of 
these  cases,  common  reputation  that  a  charter  had  once  existed 
was  allowed  to  be  given  to  the  jury ;  the  court  remarking  upon 
the  notorious  fact  that  two  great  fires  in  the  capital  of  the  colony 
had  destroyed  many  of  the  public  records.2  In  other  cases  there 
was  evidence  of  various  acts  which  could  only  lawfully  and  prop- 
erly be  done  by  a  corporation,  covering  a  period  of  thirty,  forty, 
or  fifty  years,  and  done  with  the  knowledge  of  the  State  and 
without  question.3  The  inference  of  corporate  powers,  however,  is 
not  one  of  law ;  but  it  is  to  be  drawn  as  a  fact  by  the  jury.4 

Wherever  a  corporation  is  found  to  exist  by  prescription,  the 
same  rule  as  to  construction  of  powers,  we  apprehend,  would  apply 
as  in  other  cases.  The  presumption  as  to  the  powers  granted 
would  be  limited  by  the  proof  of  the  usage,  and  nothing  could 
be  taken  by  intendment  which  the  usage  did  not  warrant. 

Corporations  are  also  said  sometimes  to  exist  by  implication. 
When  that  power  in  the  State  which  can  create  corporations 
grants  to  individuals  such  property,  rights,  or  franchises,  or  im- 
poses upon  them  such  burdens,  as  can  only  be  properly  held, 
enjoyed,  continued,  or  borne,  according  to  the  terms  of  the  grant, 
by  a  corporate  entity,  the  intention  to  create  such  corporate  entity 
is  to  be  presumed,  and  corporate  capacity  is  held  to  be  conferred 

1  Mayor  of  Hull  v.  Horner,  Cowp.  104,  Mass.   400;   New  Boston  v.   Punbarton, 
108;  citing,  among  other  cases,  Bedle  v.  12   N.  H.  400,  and  15  N.  H.  201;   Bow 
Beard,  12  Co.  5.  v.  Allenstown,  34  N.  H.   351 ;   Trott  v. 

2  Dillingham   v.  Snow,   5  Mass.  547.  Warren,  11  Me.  227. 

And   see  Bow  v.  Allenstown,  34   N.  H.         *  New  Boston  v.  Dunbarton,  15  N.  H. 

351 ;  Bassett  v.  Porter,  4  Cush.  487.  201 ;  Bow  v.  Allenstown,  34  N.  H.  351 ; 

8  Stockbridge  v.  West  Stockbridge,  12    Mayor  of  Hull  v.  Horner,  14  East,  102. 


278  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

so  far  as  is  necessary  to  effectuate  the  purpose  of  the  grant  or 
burden.  On  this  subject  it  will  be  sufficient  for  our  purpose  to 
refer  to  authorities  named  in  the  note.1  In  these  cases  the  rule 
of  strict  construction  of  corporate  powers  applies  with  unusual 
force. 

Municipal  By-Laws,  (a) 

The  power  of  municipal  corporations  to  make  by-laws  is  limited 
in  various  ways. 

1 .  It  is  controlled  by  the  Constitution  of  the  United  States  and 
of  the    State.     The    restrictions   imposed  by  those  instruments, 
which  directly  limit  the  legislative  power  of  the  State,  rest  equally 
upon  all  the  instruments  of  government  created  by  the  State.     If 
a  State  cannot  pass  an  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts,  neither  can  any  agency  do  so  which  acts  under 
the  State  with  delegated  authority.2     By-laws,  therefore,  which  in 
their  operation  would  be  ex  post  facto,  or  violate  contracts,  are 
not  within  the  power  of  municipal  corporations  ;   and  whatever 
the  people  by  the  State  constitution  have  prohibited   the   State 
government  from  doing,  it  cannot  do  indirectly  through  the  local 
governments. 

2.  Municipal  by-laws  must  also  be  in  harmony  with  the  general 

1  Dyer,  400,  cited  by  Lord  Kenyan,  in  previously  entered  into  by  the  corpora- 
Russell  v.  Men  of  Devon,  2  T.  R.  667,  and  tion  in  a  certificate  of  scholarship  which 
in  2  Kent,  276 ;  Viner's  Abr.  tit.  "  Cor-  it  had  issued.     See  also  Davenport,  &c. 
poration ; "  Conservators  of  River  Tone  Co.  v.  Davenport,  13  Iowa,  229;  Saving 
v.  Ash,  10  B.  &  C.  349,  10  B.  &  C.  383,  Society  v.  Philadelphia,  31  Pa.  St.  175; 
citing  case   of  Sutton   Hospital,  10  Co.  Haywood  v.  Savannah,  12  Ga.  404.      If 
28;   per  Kent,  Chancellor,  in  Denton  v.  an  ordinance  and  its  acceptance  make  a 
Jackson,  2  Johns.  Ch.  320 ;  Coburn  v.  El-  contract,  it  cannot  be  impaired  by  sub- 
lenwood,  4  N.  H.  99 ;  Atkinson  v.  Bemis,  sequent  ordinances.     People  v.  Chicago 
11  N.  H.  44;  North  Hempstead  v.  Hemp-  W.  D.  Ry.  Co.,  118  111.  113,  7  N.  E.  116; 
stead,  2  Wend.  109;  Thomas  v.  Dakin,22  Kansas  City  v.  Corrigan,  86  Mo.  67.    fJA 
Wend.  9 ;  per  Shaw,  Ch.  J.,  in  Stebbins  v.  city  cannot  set  apart  a  certain  street  as  a 
Jennings,  10  Pick.  172 ;  Mahony  v.  Bank  boulevard   and   require    that    only   resi- 
of  the  State,  4  Ark.  620.     Only  where  a  dences  be  erected  upon  the  lands  abutting 
contract  made  in  good  faith  cannot  other-  thereon.     St.  Louis  v.  Dorr,  145  Mo.  466, 
wise  be  enforced,  will  the  doctrine  of  im-  41  S.  W.  1094,  46  S.  W.  976,  68  Am.  St. 
plication  be  upheld.     Blair  v.  West  Point,  .  575,  42  L.  R.  A.  686.     An  ordinance  for- 
'2  McCrary,  459,  and  cases  cited.  bidding  any  person  "  knowingly  to  asso- 

2  Angell    &   Ames    on   Corporations,  ciate  with  persons  having  the  reputation 
§  322;  Stuyvesant  v.  Mayor,  &c.  of  New  of  being  thieves  is  invalid."    Ex  parte 
York,   7   Cow.   588;     Brooklyn   Central  Smith,   135   Mo.   223,  36  S.  W.  628,  58 
Railroad  Co.  v.  Brooklyn  City  Railroad  Am.   St.  676,  33  L.  R.   A.  606.    So  an 
Co.,   32   Barb.  358 ;   Illinois   Conference  ordinance  forbidding  the  carrying  on  of 
Female   College  v.  Cooper,  25  111.  148.  one's   regular    occupation   on  Christmas 
The  last  was  a  case  where  a  by-law  of  Day  is  void.     Watson  v.  Town  of  Thorn, 
an  educational  corporation  was  held  void,  —  Ga.  — ,  42  S.  E.  747.] 

as  violating  the  obligation  of  a  contract 

(a)  £Upon  municipal  ordinances  and  by-laws,  see  note  to  41  L.  ed.  U.  S.  519.J 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL  GOVERNMENT. 


279 


laws  of  the  State,  and  with  the  provisions  of  the  municipal  char- 
ter. Whenever  they  come  in  conflict  with  either,  the  by-law  must 
give  way.1  The  charter,  however,  may  expressly  or  by  necessary 
implication  exclude  the  general  laws  of  the  State  on  any  particular 
subject,  and  allow  the  corporation  to  pass  local  laws  at  discretion, 
which  may  differ  from  the  rule  in  force  elsewhere.2  But  in  these 
cases  the  control  of  the  State  is  not  excluded  if  the  legislature 
afterward  see  fit  to  exercise  it ;  nor  will  conferring  a  power  upon 
a  corporation  to  pass  by-laws  and  impose  penalties  for  the  regula- 
tion of  any  specified  subject  necessarily  supersede  the  State  law 
on  the  same  subject,  but  the  State  law  and  the  by-law  may  both 
stand  together  if  not  inconsistent.3  Indeed,  an  act  may  be  a  penal 
offence  under  the  laws  of  the  State,  and  further  penalties,  under 
proper  legislative  authority,  be  imposed  for  its  commission  by 
municipal  by-laws,  and  the  enforcement  of  the  one  would  not 
preclude  the  enforcement  of  the  other.* 


1  Wood  v.  Brooklyn,  14  Barb.  425; 
Mayor,  &c.  of  New  York  v.  Nichols,  4 
Hill,  209  ;  Petersburg  v.  Metzker,  21  111. 
205 ;  Southport  v.  Ogden,  23  Conn.  128 ; 
Andrews  v.  Insurance  Co.,  37  Me.  256 ; 
Canton  v.  Nist,  9  Ohio  St.  439;  Carr  v. 
St.  Louis,  9  Mo.  191 ;  Commonwealth  v. 
Erie  &  Northeast  Railroad  Co.,  27  Pa. 
St.  339;  Burlington  v.  Kellar,  18  Iowa, 
59;  Conwell  v.  O'Brien,  11  Ind.  419; 
March  v.  Commonwealth,  12  B.  Monr.  25. 
See  Baldwin  v.  Green,  10  Mo.  410;  Cowen 
v.  West  Troy,  43  Barb.  48;  State  v. 
Georgia  Medical  Society,  38  Ga.  608; 
Pesterfield  v.  Vickers,  3  Cold.  205 ;  Mays 
v.  Cincinnati,  1  Ohio  St.  268;  Wirth  v. 
Wilmington,  68  N.  C.  24;  Flood  v.  State, 
19  Tex.  App.  584  ;  Bohmy  v.  State,  21 
Tex.  App.  507,  2  S.  W.  886;  QShreve- 
port  v.  Prescott,  51  La.  Ann.  1895,  26  So. 
6G4,  46  L.  R.  A.  193;  Katzenberger  v. 
Lawo,  90  Tenn.  235,  16  S.  W.  611,  13 
L.  R.  A.  185,  25  Am.  St.  68.1.  Ordinance 
cannot  authorize  keeping  within  city  lim- 
its a  greater  quantity  of  explosives  than 
statute  allows.  Cameron  v.  Kenyon-Con- 
nell  Comm'l  Co.,  22  Mont.  312,  56  Pac. 
358, 44  L.  R.  A.  508.  Ordinance  granting 
exclusive  privilege  for  thirty  years  to  con- 
struct and  maintain  waterworks  to  sup- 
ply town  with  water  is  void  as  creating  a 
monopoly.  Thrift  v.  Elizabeth  City,  122 
N.  C.  31,  30  S.  E.  349,  44  L.  R.  A.  427. 
Ordinance  cannot  penalize  the  employ- 
ment of  a  laborer  by  a  contractor  for 
more  than  eight  hours  a  day  upon  city 


works.  Re  Kuback,  85  Cal.  274,  24  Pac. 
737,  9  L.  R.  A.  482,  20  Am.  St.  226.] 
Under  the  Kansas  Constitution  no  city  can 
by  imposing  a  liquor  license  tax  encour- 
age a  forbidden  business  without  incurring 
a  liability  to  be  ousted  of  its  corporate 
powers.  State  v.  Topeka,  30  Kan.  653, 
2  Pac.  587,  31  Kan.  452,  2  Pac.  593. 

2  State  r.  Clark,  1  Dutch.  54;  State 
v.  Dwyer,  21  Minn.  512;  Covington  v. 
East  St.  Louis,  78  III.  548 ;  Coulterville 
v.  Gillen,  72  111.  599 ;  McPherson  v.  Che- 
banse,  114  111.  46,  28  N.  E.  454;  St. 
Johnsbury  v.  Thompson,  59  Vt.  300,  9 
Atl.  671.  Peculiar  and  exceptional  regu- 
lations may  even  be  made  applicable  to 
particular  portions  of  a  city  only,  and 
yet  not  be  invalid.  Goddard,  Petitioner, 
16  Pick.  504;  Commonwealth  v.  Patch, 
97  Mass.  221,  per  Hoar,  J. ;  St.  Louis  v. 
Weber,  44  Mo.  547. 

8  City  of  St.  Louis  v.  Bentz,  11  Mo. 
61 ;  City  of  St.  Louis  v.  Cafferata,  24  Mo. 
94;  Rogers  v.  Jones,  1  Wend.  261;  Levy 
t'.  State,  6  Ind.  281 ;  Mayor,  &c.  of  Mo- 
bile v.  Allaire,  14  Ala.  400 ;  Elk  Point  ». 
Vaugn,  1  Dak.  113  ;  People  v.  Hanrahan, 
75  Mich.  611,  42  N.  W.  1124. 

*  Such  is  the  clear  weight  of  author- 
ity, though  the  decisions  are  not  uniform. 
We  quote  from  Rogers  v.  Jones,  1  Wend. 
261 :  "  But  it  is  said  that  the  by-law  of  a 
town  or  corporation  is  void,  if  the  legisla- 
ture have  regulated  the  subject  by  law. 
If  the  legislature  have  passed  a  law  reg- 
ulating as  to  certain  things  in  a  city,  I 


280 


CONSTITUTIONAL  LIMITATIONS. 


[OH.  VIII. 


3.    Municipal  by-laws  must  also  be  reasonable.    Whenever  they 
appear  not  be  so,  the  court  must,  as  a  matter  of  law,  declare 


apprehend  the  corporation  are  not  thereby 
restricted  from  making  further  regula- 
tions. Cases  of  this  kind  have  occurred 
and  never  been  questioned  on  that 
ground ;  it  is  only  to  notice  a  case  or 
two  out  of  many.  The  legislature  have 
imposed  a  penalty  of  one  dollar  for 
servile  labor  on  Sunday  ;  the  corpora- 
tion of  New  York  have  passed  a  by-law 
imposing  the  penalty  of  five  dollars  for 
the  same  offence.  As  to  storing  gunpow- 
der in  New  York,  the  legislature  and 
corporation  have  each  imposed  the  same 
penalty.  Suits  to  recover  the  penalty 
have  been  sustained  under  the  corpora- 
tion law.  It  is  believed  that  the  ground 
has  never  been  taken  that  there  was  a 
conflict  with  the  State  law.  One  of  these 
cases  is  reported  in  12  Johns.  122.  The 
question  was  open  for  discussion,  but  not 
noticed."  In  Mayor,  &c.  of  Mobile  e. 
Allaire,  14  Ala.  400,  the  validity  of  a 
municipal  by-law,  imposing  a  fine  of  fifty 
dollars  for  an  assault  anil  battery  com- 
mitted within  the  city,  was  brought  in 
question.  Collier,  Ch.  J.,  says  (p.  403)  : 
"  The  object  of  the  power  conferred  by 
the  charter,  and  the  purpose  of  the  ordi- 
nance itself,  was  not  to  punish  for  an 
offence  against  the  criminal  justice  of 
the  country,  but  to  provide  a  mere  police 
regulation,  for  the  enforcement  of  good 
order  and  quiet  within  the  limits  of  the 
corporation.  So  far  as  an  offence  has 
been  committed  against  the  public  peace 
and  morals,  the  corporate  authorities  have 
no  power  to  inflict  punishment,  and  we 
are  not  informed  that  they  have  attempted 
to  arrogate  it.  It  is  altogether  immaterial 
whether  the  State  tribunal  has  interfered 
and  exercised  its  power  in  bringing  the 
defendant  before  it  to  answer  for  the 
assault  and  battery ;  for  whether  he  has 
there  been  punished  or  acquitted  is  alike 
unimportant.  The  offence  against  the 
corporation  and  the  State  we  have  seen 
are  distinguishable  and  wholly  discon- 
nected, and  the  prosecution  at  the  suit  of 
each  proceeds  upon  a  different  hypothesis; 
the  one  contemplates  the  observance  of 
the  peace  and  good  order  of  the  city  ;  the 
other  has  a  more  enlarged  object  in  view, 
the  maintenance  of  the  peace  and  dignity 
of  the  State."  See  also  Mayor,  &c.  of 


Mobile  v.  Rouse,  8  Ala.  515 ;  Intendant, 
&c.  of  Greensboro'  v.  Mullins,  13  Ala.  341 ; 
Mayor,  &c.  of  New  York  v.  Hyatt,  3  E.  D. 
Smith,  156  ;  People  v.  Stevens,  13  Wend. 
341;  Blatcliley  v.  Moser,  15  Wend.  215; 
Amboy  v.  Sleeper,  31  111.  499;  State  v. 
Crummey,  17  Minn.  72;  State  v.  Oleson, 
26  Minn.  507,  6  N.  W.  959 ;  Greenwood  v. 
State,  6  Bax.  567,  32  Am.  Rep.  539; 
Brownville  v.  Cook,  4  Neb.  101 ;  Levy 
v.  State,  6  Ind.  281 ;  Ambrose  v.  State, 
6  Ind.  351 ;  Lawrenceburg  v.  Wuest,  16 
Ind.  337  ;  St.  Louis  v.  Bentz,  11  Mo.  61  ; 
St.  Louis  v.  Cafferata,  24  Mo.  94;  State 
v.  Gordon,  60  Mo.  383;  St.  Louis  v. 
Schoenbusch,  95  Mo.  618,  8  S.  W.  791; 
Shafer  v.  Mumma,  17  Md.  331 ;  Brown- 
ville v  Cook,  4  Neb.  101 ;  State  v.  Lud- 
wig,  21  Minn.  202  ;  Bloomfield  v.  Trim- 
ble, 54  Iowa,  399,  37  Am.  Rep.  212; 
Chicago  Packing,  &c.  Co.  v.  Chicago,  88 
111.  221,  30  Am.  Rep.  545;  Hankins  v. 
People,  106  111.  628 ;  Fennell  v.  Bay  City, 
36  Mich.  186 ;  McRea  v.  Americus,  59  Ga. 
168;  Wong  p.  Astoria,  13  Oreg.  538,  11 
Pac.  295 ;  Hughes  v.  People,  8  Col.  536, 
9  Pac.  50.  [[Greenville  v.  Kemrnis,  58  S. 
C.  427,  36  S.  E.  727,  50  L.  R.  A.  725 ; 
Thiesen  v.  McDavid,  34  Fla.  440,  16  So. 
321,  26  L.R.  A.  234;  Ogden  v.  City  of 
Madison,  111  Wis.  413,  87  N.  W.  568,  55 
L.  R.  A.  506.  So,  too,  the  same  act  may 
be  a  crime  against  a  State  and  against 
the  United  States,  punishable  by  each. 
People  v.  Welch,  141  N.  Y.  266,  36  N.  E. 
328,  24  L.  R.  A.  117,  38  Am.  St.  793.J 
Under  a  statute  forbidding  cities  to  pun- 
ish acts  punishable  by  State  law,  a  city 
may  punish  selling  liquor  without  a  city 
license,  as  this  is  not  an  offence  against 
the  State  law.  Frankfort  v.  Aughe,  114 
Ind.  77, 15  N.  E.  802.  On  the  other  hand, 
it  was  held  in  State  v.  Cowan,  29  Mo.  330. 
that  where  a  municipal  corporation  was 
authorized  to  take  cognizance  of  and  pun- 
ish an  act  as  an  offence  against  its  ordi- 
nances which  was  also  an  offence  against 
the  general  laws  of  the  State,  and  this 
power  was  exercised  and  the  party  pun- 
ished, he  could  not  afterwards  be  pro- 
ceeded against  under  the  State  law. 
"  The  constitution,"  say  the  court,  "  for- 
bids that  a  person  shall  be  twice  pun- 
ished for  the  same  offence.  To  hold  that 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL  GOVERNMENT. 


281 


them  void.1     To  render  them  reasonable,  they  should  tend  in 


a  party  can  be  prosecuted  for  an  act  un- 
der the  State  laws,  after  he  has  been 
punished  for  the  same  act  by  the  munic- 
ipal corporation  within  whose  limits  the 
act  was  done,  would  be  to  overthrow  the 
power  of  the  General  Assembly  to  create 
corporations  to  aid  in  the  management  of 
the  affairs  of  the  State.  For  a  power  in 
the  State  to  punish,  after  a  punishment 
had  been  inflicted  by  the  corporate  au- 
thorities, could  only  find  a  support  in  the 
assumption  that  all  the  proceedings  on 
the  part  of  the  corporation  were  null  and 
void.  The  circumstance  that  the  munic- 
ipal authorities  have  not  exclusive  juris- 
diction over  the  acts  which  constitute 
offences  within  their  limits  does  not  affect 
the  question.  It  is  enough  that  their 
jurisdiction  is  not  excluded.  If  it  exists, 
—  although  it  may  be  concurrent,  — if  it 
is  exercised,  it  is  valid  and  binding  so 
long  as  it  is  a  constitutional  principle 
that  no  man  may  be  punished  twice  for 
the  same  offence."  A  similar  ruling  is 
laid  down  in  People  v.  Hanrahan,  75 
Mich.  611,  42  N.  W.  1124,  and  the  case 
seems  to  be  supported  by  State  r.  Welch, 
36  Conn.  216.  The  case  of  Slaughter  v. 
People,  cited  below,  goes  still  farther. 
Those  which  hold  that  the  party  may 
be  punished  under  both  the  State  and 
the  municipal  law  are  within  the  princi- 
ple of  Fox  v.  State,  6  How.  410;  Moore 
v.  People,  14  How.  13.  And  see  Phillips 
v.  People,  55  111.  429;  State  v.  Rankin, 
4  Cold.  145  ;  Ex  parte  Siebold,  100  U.  S. 
371.  A  city  cannot  punish  by  ordinance 
what  is  already  an  offence  by  statute. 
State  v.  Keith,  94  N.  C.  933;  In  re  Sic,  73 
Cal.  142,  14  Pac.  405 ;  Menken  v.  Atlan- 
ta, 78  Ga.  668,  2  S.  E.  659 ;  [especially 
where  the  Constitution  prescribes  that  all 
prosecutions  shall  be  conducted  in  the 
name  and  by  the  authority  of  the  State. 
Ex  parte  Fagg,  38  Tex.  Cr.  573,44  S.  W. 
294,  40  L.  E.  A.  212;]  unless  expressly 
empowered:  Ex  parte  Bourgeois,  60  Miss. 
663.  See  Loeb  v.  Attica,  82  Ind.  175.  In 
Jefferson  City  r.  Courtmire,  9  Mo.  692, 
it  was  held  that  authority  to  a  municipal 
corporation  to  "  regulate  the  police  of  the 
city  "  gave  it  no  power  to  pass  an  ordi- 
nance for  the  punishment  of  indictable 
offences.  To  the  same  effect  is  State  v. 
Savannah,  1  T.  U.  P.  Charl.  235,  4  Am. 
Dec.  708 ;  Slaughter  v.  People,  2  Doug. 


(Mich.)  334  ;  Jenkins  v.  Thomasville,  35 
Ga.  145;  Vason  v.  Augusta,  38  Ga.  542; 
Reich  v.  State,  53  Ga.  73;  Washington  v. 
Hammond,  76  N.  C.  33 ;  New  Orleans  v. 
Miller,  7  La.  Ann.  651.  fJAnd  see  also 
State  v.  McNally,  48  La.  Ann.  1450,  21 
So.  27,  36  L.  R.  A.  533-3 

Where  an  act  is  expressly  or  by  impli- 
cation permitted  by  the  State  law,  it 
cannot  be  forbidden  by  the  corporation. 
Thus,  the  statutes  of  New  York  estab- 
lished certain  regulations  for  the  putting 
up  and  marking  of  pressed  hay,  and  pro- 
vided that  such  hay  might  be  sold  with- 
out deduction  for  tare,  and  by  the  weight 
as  marked,  or  any  other  standard  weight 
that  should  be  agreed  upon.  It  was  held 
that  the  city  of  New  York  had  no  power 
to  prohibit  under  a  penalty  the  sale  of 
such  hay  without  inspection  ;  this  being 
obviously  inconsistent  with  the  statute 
which  gave  a  right  to  sell  if  its  regulations 
were  complied  with.  Mayor,  &c.  of  New 
York  v.  Nichols,  4  Hill,  209. 

The  penal  enactments  of  a  corpora- 
tion, like  those  of  the  State,  must  be  sev- 
eral (De  Ben  v.  Gerard,  4  La.  Ann.  30), 
and  will  be  strictly  construed.  St.  Louis 
v.  Goebel,  32  Mo.  295.  An  ordinance 
punishing  as  a  crime  a  failure  to  build  a 
sidewalk  is  void.  Port  Huron  v.  Jenkin- 
son,  77  Mich.  414,  43  N.  W.  23.  Com- 
pare James  v.  Pine  Bluff,  49  Ark.  199, 
4  S.  W.  7(50. 

1  2  Kyd  on  Corporations,  107 ;  Davies 
v.  Morgan,  1  Cromp.  &  J.  587 ;  Chamber- 
lain of  London  v.  Compton,  7  D,  &  R. 
697;  Clark  v.  Le  Cren,  9  B.  &  C.  62; 
Gosling  v.  Veley,  12  Q.  B.  328 ;  Dunham 
v.  Rochester,  6  Cow.  462  ;  Mayor,  &c.  of 
Memphis  v.  Winfield,  8  Humph.  707; 
Harden  v.  Noyes,  6  Conn.  391 ;  Waters 
v.  Leech,  3  Ark.  110 ;  White  v.  Mayor, 
2  Swan,  364 ;  Ex  parte  Burnett,  30  Ala. 
461 ;  Craig  v.  Burnett,  32  Ala.  728  ;  Aus- 
tin v.  Murray,  16  Pick.  121;  Goddard, 
Petitioner,  16  Pick.  504  ;  Commonwealth 
v.  Worcester,  3  Pick.  461 ;  Commission- 
ers v.  Gas  Co ,  12  Pa.  St.  318 ;  State  v. 
Jersey  City,  29  N.  J.  170;  Gallatin  v. 
Bradford,  1  Bibb,  209;  Western  Union 
Telegraph  Co.  v.  Carew,  16  Mich.  525; 
State  v.  Freeman,  38  N.  H.  426  ;  Pedrick  v, 
Bailey,  12  Gray,  161 ;  St.  Louis  v.  Weber, 
44  Mo.  650;  Peoria  v.  Calhoun,  29  111. 
317 ;  St.  Paul  v.  Traeger,  25  Minn.  248, 


282 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


some  degree  to  the  accomplishment  of  the  objects  for  which  the 
corporation  was  created  and  its  powers  conferred.  A  by-law,  that 
persons  chosen  annually  as  stewards  of  the  Society  of  Scriveners 
should  furnish  a  dinner  on  election  day  to  the  freemen  of  the 
society, —  the  freemen  not  being  the  electors  nor  required  to  at- 
tend, and  the  office  of  steward  being  for  no  other  purpose  but  that 
of  giving  the  dinner,  —  was  held  not  connected  with  the  business 
of  the  corporation,  and  not  tending  to  promote  its  objects,  and 
therefore  unreasonable  and  void.1  And  where  a  statute  permitted 
a  municipal  corporation  to  license  the  sale  of  intoxicating  drinks 
and  to  charge  a  license  fee  therefor,  a  by-law  requiring  the  pay- 
ment of  a  license  fee  of  one  thousand  dollars  was  held  void  as  not 
advancing  the  purpose  of  the  law,  but  as  being  in  its  nature  pro- 
hibitory.2 And  if  a  corporation  has  power  to  prohibit  the  carrying 
on  of  dangerous  occupations  within  its  limits,  a  by-law  which 
should  permit  one  person  to  carry  on  such  an  occupation  and 
prohibit  another,  who  had  an  equal  right,  from  pursuing  the  same 
business ;  or  which  should  allow  the  business  to  be  carried  on  in 
existing  buildings,  but  prohibit  the  erection  of  others  for  it,  would 


33  Am.  Rep.  462.  But  where  the  ques- 
tion of  the  reasonableness  of  a  by-law 
depends  upon  evidence,  and  it  relates  to 
a  subject  within  the  jurisdiction  of  the 
corporation,  the  court  will  presume  it  to 
be  reasonable  until  the  contrary  is  shown. 
Commonwealth  v.  Patch,  97  Mass.  221. 
And  see  St.  Louis  v.  Weber,  44  Mo.  647 ; 
Clason  v.  Milwaukee,  30  Wis.  316;  St. 
Louis  v.  Knox,  6  Mo.  App.  247.  An 
ordinance  expressly,  authorized  by  the 
legislature  cannot  be  held  unreasonable. 
A  Coal  Float  v.  Jefferson ville,  112  Ind. 
15,  13  N.  E.  115.  To  be  reasonable,  by- 
laws should  be  equal  in  their  operation. 
Tutrman  v.  Chicago,  78  111.  405;  Barling 
v.  West,  29  Wis.  307.  An  ordinance  as 
to  obstructing  streets  with  cars,  unreason- 
able in  its  operation  only  in  one  locality, 
will  be  enforced  elsewhere.  Pennsylvania 
R.  R.  Co.  v.  Jersey  City,  47  N.  J.  L.  286. 
[^Ordinance  penalizing  the  sale  or  gift  of 
street  railway  transfer  tickets  contrary 
to  regulations  of  company  issuing  them  is 
not  unreasonable.  Ex  parte  Lorenzen, 
128  Cal.  431,  61  Pac.  68,  50  L.  R.  A.  65. 
To  be  invalid  because  unreasonable  its 
unreasonable  character  must  be  so  clearly 
apparent  as  to  indicate  a  mere  arbitrary 
exercise  of  the  power  vested  in  the 
council.  State  r.  Barge,  82  Minn.  256, 
84  N.  W.  911,  63  L.  R.  A.  428;  Wygant 


v.  McLauchlan,  39  Oreg.  429,  64  Pac. 
867,  64  L.  R.  A.  636,  87  Am.  St.  673; 
State  v.  Robart,  83  Minn.  257,  86  N.  W. 
93,  333,  64  L.  R.  A.  947.  In  Ex  parte 
Bahen,  115  Cal.  372,  47  Pac.  55,  36  L. 
R.  A.  618,  an  ordinance  prohibiting  buri- 
als on  lots  not  purchased  before  its  enact- 
ment for  such  purpose  is  void  upon  the 
theory  that  it  is  unreasonable  in  that 
the  right  to  restrain  burials  rests  upon 
the  theory  that  all  burials  are  injurious 
to  the  public.  See  Barbier  v.  Connolly, 
113  U.  S.  27,  5  Sup.  Ct.  Rep.  357.] 

1  Society  of  Scriveners  v.  Brooking,  3 
Q.  B.  95.     See,  on  this  general  subject, 
Dillon,  Mun.  Corp.  §§  251-264.    - 

2  Ex  parte  Burnett,  30  Ala.  461 ;  Craig 
v.  Burnett,  32  Ala.  728.     A  by-law  de- 
claring the  keeping  on  hand  of  intoxicat- 
ing liquors  a  nuisance  was  held  unreason- 
able and  void  in  Sullivan  v.  Oneida,  61 
111.  242.     That  which  is  not  a  nuisance  in 
fact  cannot  be  made  such  by  municipal 
ordinance.     Chicago,   &c.   R.    R.   Co.   v. 
Joliet,  79111.  25;  State  v.  Mott,  61  Md. 
297;  post,  p.  883,  note  1.    fJAuthority  to 
levy  a  license  tax  does  not  authorize  the 
levy  of  one  so  heavy  as  to  be  prohibitory, 
where  the  business  upon  which  it  is  levied 
is  useful  and  legitimate.     Morton  v.  Ma- 
con,  111  Ga.  162,  36  S.  E.  627,  50 L.  R.  A. 
485.] 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


283 


be  unreasonable.1  And  a  right  to  license  an  employment  does  not 
imply  a  right  to  charge  a  license  fee  therefor  with  a  view  to  reve- 
nue, unless  such  seems  to  be  the  manifest  purpose  of  the  power ; 
but  the  authority  of  the  corporation  will  be  limited  to  such  a 
charge  for  the  license  as  will  cover  the  necessary  expenses  of 
issuing  it,  and  the  additional  labor  of  officers  and  other  expenses 
thereby  imposed.  A  license  is  issued  under  the  police  power ; 
but  the  exaction  of  a  license  fee  with  a  view  to  revenue  would 
be  an  exercise  of  the  power  of  taxation ;  and  the  charter  must 
plainly  show  an  intent  to  confer  that  power,  or  the  municipal 
corporation  cannot  assume  it.2 


1  Mayor,  &c.  of  Hudson  v.  Thome,  7 
Paige,  261.   A  power  to  prevent  and  reg- 
ulate  the  carrying  on  of  manufactures 
dangerous  in  causing  or  promoting  fires 
does  not  authorize  an  ordinance  prohib- 
iting the  erection   of  wooden   buildings 
within  the  city,  or  to  limit  the   size  of 
buildings  which  individuals  shall  be  per- 
mitted to  erect  on  their  own  premises. 
Ibid.     See  also   Newton   v.   Belger,  143 
Mass.  598,  10  N.  E.  464.     An  ordinance 
for  the    destruction   of    property    as    a 
nuisance   without  a  judicial  hearing  is 
void.     Darst  v.  People,  51  111.  286.     See 
cases  p.  883,  n.  1,  post.     An  ordinance  for 
the    arrest    and    imprisonment    without 
warrant  of  a  person  refusing  to  assist  in 
extinguishing  a  fire  is  void.     Judson  v. 
Reardon,    16   Minn.   431.      QOne    which 
forbids    the   establishment    and    mainte- 
nance of  livery  stables  within  a  specified 
part  of  the    town,  and    then    expressly 
exempts  from  its  operation  the  stables 
already  established,  is  void.     Crowley  v. 
West,  52  La.  Ann.  526,  27  So.  63,  47  L. 
R.  A.  652,  78  Am.  St.  355.] 

2  State  v.  Roberts,  11  Gill  &  J.  606; 
Mays  v.  Cincinnati,  1  Ohio  St.  268;  Cin- 
cinnati v.  Bryson,   15   Ohio,  625 ;   Free- 
holders v.  Barber,  6  N.  J.  Eq.  64 ;  Kip  v. 
Paterson,  26  N.  J.  298 ;  State  v.  Hoboken, 

41  N.  J.  71 ;  Bennett  v.  Borough  of  Bir- 
mingham, 31  Pa.  St.  15;  Commonwealth 
r.  Stodder,  2  Cush.  662;  Chilvers  v.  Peo- 
ple, 11  Mich.  43;  Mayor,  &c.  of  Mobile 
v.  Yuille,  3  Ala.  137 ;  Johnson  v.  Philadel- 
phia, 60  Pa.   St.   445;   State  v.   Herod, 
29  Iowa,  123;  Burlington  v.  Bumgardner, 

42  Iowa,  673;  Mayor,  &c.  of  New  York 
v.  Second  Avenue  R.  R.  Co.,  32  N.  Y. 
261 ;  Home  Ins.  Co.  v.  Augusta,  60  Ga. 
630;  Cairo  v.  Bross,  101  111.  475;  Muh- 


lenbrinck  v.  Commissioners,  42  N.  J.  364 ; 
36  Am.  Rep.  518 ;  Mestayer  v.  Corrige, 
38  La.  Ann.  708 ;  Wisconsin  Tel.  Co.  v. 
Oshkosh,  62  Wis.  32,  21  N.  W.  828, 
Vansant  v.  Harlem  Stage  Co.,  59  Md. 
330.  Nevertheless,  the  courts  will  not 
inquire  very  closely  into  the  expense  of 
a  license  with  a  view  to  adjudge  it  a  tax, 
where  it  does  not  appear  to  be  unreason- 
able in  amount  in  view  of  its  purpose  as 
a  regulation.  Ash  v.  People,  11  Mich. 
347;  Van  Baalen  v.  People,  40  Mich.  458; 
People  v.  Russell,  49  Mich.  617,  14  N.  W. 
568;  Wolf  v.  Lansing,  53  Mich.  367,  19 
N.  W.  38;  Johnson  v.  Philadelphia,  60 
Pa.  St.  445;  Burlington  v.  Putnam  Ins. 
Co.,  31  Iowa,  102;  Boston  v.  Schaffer, 
9  Pick.  415;  Welch  v.  Hotchkiss,  39  Conn. 
140;  State  v.  Hoboken,  41  N.  J.  71; 
Mankato  v.  Fowler,  32  Minn.  364,  20 
N.  W.  361 ;  Jackson  v.  Newman,  59  Miss. 
385;  Ex  parte  Gregory,  20  Tex.  App. 
210;  Fayetteville  v.  Carter,  52  Ark.  301, 
12  S.  W.  573.  [Littlefield  v.  State,  42 
Neb.  223,  60  N.  W.  724,  28  L.  R.  A. 
588,  47  Am.  St.  697.  Liquor  license  fee 
of  $2000  in  a  city  of  4000  inhabitants 
sustained  in  Ex  parte  Sikes,  102  Ala. 
173,  15  So.  622,  24  L.  R.  A.  774.]  In 
Illinois  the  imposition  of  license  fees  for 
revenue  has  been  sustained.  U.  S.  Dist. 
Co.  r.  Chicago,  112  111.  19,  and  cases 
cited ;  and  under  the  California  Consti- 
tution of  1879  licenses  may  be  imposed 
for  regulation  or  revenue,  or  both.  In  re. 
Guerrero,  69  Cal.  88,  10  Pac.  261.  A 
higher  license  imposed  on  a  non-resident 
than  on  a  resident  for  purposes  of  revenue 
is  void.  Morgan  v.  Orange,  60  N.  J.  L. 
389,  13  Atl.  240.  And  in  some  cases  it 
has  been  held  that  license  fees  might  be 
imposed  under  the  police  power  with  a 


284 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


A  by-law,  to  be  reasonable,  should  be  certain.1  If  it  affixes  a 
penalty  for  its  violation,  it  would  seem  that  such  penalty  should 
be  a  fixed  and  certain  sum,  and  not  left  to  the  discretion  of  the 
officer  or  court  which  is  to  impose  it  on  conviction;2  though  a 
by-law  imposing  a  penalty  not  exceeding  a  certain  sum  has  been 
held  not  to  be  void  for  uncertainty.3 

So  a  by-law,  to  be  reasonable,  should  be  in  harmony  with  the 
general  principles  of  the  common  law.4  If  it  is  in  general  re- 


view to  operate  as  a  restriction  upon 
the  business  or  thing  licensed.  Carter 
v.  Dow,  16  Wis.  299;  Tenney  v.  Lenz, 
16  Wis.  666.  See  State  v.  Cassidy,  22 
Minn.  312;  Youngblood  v.  Sexton,  32 
Mich.  406,  20  Am.  Rep.  654 ;  St.  Johns- 
bury  v.  Thompson,  59  Vt.  200,  9  Atl. 
671;  Russellville  v.  White,  41  Ark.  485. 
But  in  sucli  cases,  where  the  right  to 
impose  such  license  fees  can  be  fairly 
deduced  from  the  charter,  it  would 
perhaps  be  safer  and  less  liable  to  lead  to 
confusion  and  difficulty  to  refer  the  cor- 
porate authority  to  the  taxing  power, 
rather  than  exclusively  to  the  power  of 
regulation.  See  Dunham  v.  Trustees  of 
Rochester,  5  Cow.  462,  upon  the  extent 
of  the  police  power.  Fees  which  are 
imposed  under  the  inspection  laws  of  the 
State  are  akin  to  license  fees,  and  if 
exacted  not  for  revenue,  but  to  meet  the 
expenses  of  regulation,  are  to  be  referred 
to  the  police  power.  Cincinnati  Gas  Light 
Co.  v.  State,  18  Ohio  St.  237.  A  city 
cannot  exact  a  license  fee  from  a  national 
bank.  Carthage  v.  National  Bank,  71 
Mo.  508,  36  Am.  Rep.  494.  On  this 
subject  in  general,  see  post,  709;  Dillon, 
Mun.  Corp.  §§  291-308.  ^Ordinance  re- 
quiring payment  of  license  fee  of  $150 
per  annum  by  all  persons  buying  claims, 
held  void  as  to  one  who  bought  a  few  city 
warrants  for  purposes  of  investment  only. 
Bitzer  v.  Thompson,  20  Ky.  L.  1318,  49 
S.  W.  199,  44  L.  R.  A.  141.  j 

1  Ordinance  requiring  use  of  device, 
which  shall  prevent  escape  of  sparks  as 
effectually  as  by  any  means  in  use  for 
the  purpose,  is  bad.  Atkinson  v.  Good- 
rich Transp.  Co.,  60  Wis  141,  18  N.  W. 
764.  Under  power  to  prohibit  driving  at 
a  rate  of  speed  deemed  inconsistent  with 
public  safety,  the  city  may  not  prohibit 
driving  at  a  speed  which  shall  be  found  to 
be  immoderate  under  the  circumstances. 
Com.  v.  Roy,  140  Mass.  432,  4  N.  E.  814. 


What  shall  be  a  violation  of  an  ordinance 
cannot  be  left  to  implication.  Helena  v. 
Gray,  7  Mont.  48H,  17  Pac.  664.  A 
license  fee  may  not  be  left  to  be  fixed 
for  each  case,  or  to  be  determined  by  the 
mayor.  Bills  v.  Goshen,  117  Ind.  221, 
20  N.  E.  115;  State  Center  v.  Baren- 
stein,  66  Iowa,  249,  23  N.  W.  652.  [X)r- 
dinance  requiring  that  any  awning  over  a 
sidewalk  must  be  "upon  a  suitable  frame" 
is  void  for  uncertainty.  State  v.  Clarke, 
69  Conn.  371,  37  Atl.  975,  39  L.  R.  A.  670, 
61  Am.  St.  45.  So,  one  requiring  a  street 
railway  company  to  provide  "  in  some 
reasonable  manner  for  the  sprinkling  of 
the  streets  through  which  their  cars  run." 
State  v.  New  Orleans  City  &  R  R.  Co.,  49 
La.  Ann.  1571,  22  So.  839,  89  L.  R.  A. 
618.  Law  prescribing  different  maximum 
loads  for  "  narrow-tired "  and  "  broad- 
tired  "  wagons  using  specified  gravel 
roads  is  void  for  uncertainty  in  not  defin- 
ing "broad-tired"  and  "narrow-tired." 
Cook  o.  State,  26  Ind.  Ap.  278,  59  N.  E. 
489.  Statute  authorizing  revocation  of 
physician's  license  "for  grossly  unpro- 
fessional conduct  of  a  character  likely  to 
deceive  or  defraud  the  public "  is  void 
for  uncertainty.  Matthews  v.  Murphy, 
_  Ky.  — ,  63  S.W.  785  (June  22,  1901).] 

2  Melick  f.  Washington,  47  N.  J.  L. 
254  ;  State  v.  Crenshaw,  94  N.  C.  877. 

3  Mayor,  &c.  of  Huntsville  v.  Phelps, 
27  Ala.  55,  overruling  Mayor,  &c.  of  Mo- 
bile v.  Yuille,  3  Ala.  137.    And  see  Piper 
i'.  Chappell,  14  M.  &  W.  624. 

*  The  following  are  cases  in  which 
municipal  ordinances  have  been  passed 
upon  and  their  reasonableness  deter- 
mined :  Markets :  Prohibiting  sales  out- 
side of.  Reasonable  —  Buffalo  v.  Webster, 
10  Wend.  99 ;  Bush  w.  Seabury,  8  Johns. 
418;  Bowling  Green  v.  Carson,  10  Bush, 
64;  Le  Claire  v.  Davenport,  13  Iowa, 
210;  Winnsboro  v.  Smart,  11  Rich.  L. 
651;  St.  Louis  v.  Weber,  14  Mo.  647. 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


285 


straint  of  trade,  —  like  the  by-law  that  no  person  shall  exercise 

Unreasonable  —  Caldwell  v.  Alton,  33 
111.  416;  Bloomington  v.  Wahl,  46  III. 
489;  Bethune  v.  Hayes,  28  Ga.  560. 
Compare  Hughes  v.  Recorder's  Court,  75 
Mich.  574,  42  N.  W.  984,  with  People  v. 
Kier,  78  Mich.  98,  43  N.  W.  1039.  See 
Gossigi  v.  New  Orleans,  —  La.  Ann.  — , 
4  So.  15;  Ex  parte  Byrd,  84  Ala.  17. 
Requiring  permission  to  occupy  stands. 
Reasonable — Nightingale,  Petitioner,  11 
Pick.  167.  Imposing  tax  on  stands. 
Reasonable  —  Cincinnati  v.  Buckingham, 
10  Ohio,  257.  Unreasonable  —  Kip  v. 
Paterson,  26  N.  J.  298.  Licensing  huck- 
sters:  Reasonable  —  Cherokee  v.  Fox,  34 
Kan.  16,  7  Pac.  625.  Unreasonable  — 
Dunham  v.  Rochester,  5  Cow.  462;  St. 
Paul  v.  Traeger,  25  Minn.  248,  33  Am. 
Rep.  462 ;  Muhlenbrinck  v.  Commission- 
ers, 42  N.  J.  364,  36  Am.  Rep.  518; 
Frommer  v.  Richmond,  31  Gratt.  646; 
Barling  v.  West,  29  Wis.  307,  9  Am. 
Rep.  576.  Prohibiting  wagons  standing 
in  market.  Unreasonable  —  Common- 
wealth v.  Brooks,  109  Mass.  355;  Com- 
monwealth v.  Wilkins,  121  Mass.  356. 
Auctions:  Prohibiting  sales  at,  on  streets. 
Reasonable  —  White  v.  Kent,  11  Ohio  St. 
550.  After  sunset.  Unreasonable  — 
Hayes  v.  Appleton,  24  Wis.  542.  Im- 
posing heavy  license  on.  Reasonable — 
Decorah  v.  Dunstan,  38  Iowa,  96 ;  Wig- 
gins v.  Chicago,  68  111.  372 ;  Fretwell  v. 
Troy,  18  Kan.  271.  Making  it  penal  to 
sell  without  a  license.  Goshen  v.  Kern, 
63  Ind.  468.  Saloons  and  Restaurants  : 
Closing  for  the  night.  Reasonable  — 
Staats  v.  Washington,  45  N.  J.  L.  318; 
Platteville  u.  Bell,  43  Wis.  488 ;  Smith  v. 
Knoxville,  3  Head,  245 ;  State  v.  Welch, 
36  Conn.  216;  State  v.  Freeman,  38 
N.  H.  426;  Maxwell  ».  Jonesboro,  11 
Heisk.  257;  Baldwin  v.  Chicago,  68  111. 
418.  Unreasonable  —  Ward  v.  Green- 
ville, 8  Baxt.  228,  35  Am.  Rep.  700. 
Closing  on  certain  days.  Unreasonable 
—  Grills  v.  Jonesboro,  8  Baxt.  247.  On 
Sunday.  Reasonable  —  Gabel  v.  Hous- 
ton, 29  Tex.  335;  State  v.  Ludwig,  21 
Minn.  202;  Hudson  v.  Geary,  4  R.  I.  485. 
Forbidding  sale  of  liquor  at  restaurants. 
Reasonable  — State  v.  Clark,  28  N.  H. 
176.  Forbidding  female  waiters  in  sa- 
loons. Reasonable  —  Bergman  v.  Cleve- 
land, 39  Ohio  St.  651.  [^Requiring 
unobstructed  view  into  all  parts  of  in- 


terior from  street,  from  sunset  to  sunrise, 
and  prohibiting  the  letting  in  or  out  of 
any  person  during  the  hours  when  the 
saloon  is  lawfully  required  to  be  closed, 
is  unreasonable ;  requiring  the  saloon 
to  be  closed  from  10  p.  M.  to  4  A.  M.  is 
reasonable.  Bennett  v.  Pulaski,  —  Tenn. 
Ch.  Ap.  — ,  52  S.  W.  913,  47  L.  R.  A.  278.] 
Hackney  Carriages :  Reasonable  —  to 
regulate  fares.  Commonwealth  v.  Gage, 
114  Mass.  328.  To  put  under  direction 
of  police.  Commonwealth  ;;.  Matthews, 
122  Mass.  60;  St.  Paul  r.  Smith,  27  Minn. 
364,  7  N.  W.  734,  38  Am.  Rep.  296; 
Veneman  v.  Jones,  118  Ind.  41,  20  N.  E. 
644.  To  exclude  from  certain  streets. 
Commonwealth  v.  Stodder,  2  Cush.  562. 
To  require  a  license.  Brooklyn  v.  Bres- 
lin,  57  N.  Y.  591 ;  City  Council  r.  Pepper, 
1  Rich.  L.  364;  Frankfort,  &c.  R.  Co.  v. 
Philadelphia,  58  Pa.  St.  119;  St.  Louis 
v.  Green,  70  Mo.  562.  Unreasonable  — 
To  grant  one  person  exclusive  right  to 
run  omnibuses  in  the  city.  Logan  v. 
Pyne,  43  Iowa,  524,  22  Am.  Rep.  261. 
Railroads :  Regulating  speed  of.  Reason- 
able —  Pennsylvania  Company  v.  James, 
81£  Pa.  St.  194;  Whitson  v.  Franklin, 
34  Ind.  392.  Unreasonable  —  Outside  of 
inhabited  portion  of  city.  Meyers  v.  Chi- 
cago, R.  I.  &  P.  Co.,  57  Iowa,  555,  10 
N.  W.  896.  But  see  Knobloch  v.  Chicago, 
&c.  Ry.  Co.,  31  Minn.  402,  18  N.  W.  106. 
Requiring  flagman  at  crossing  which  is 
not  dangerous.  Unreasonable  —  Toledo, 
&c.  R.  R.  Co.  v.  Jacksonville,  67  111.  37, 
16  Am.  Rep.  611.  Prohibiting  removal 
of  snow  by  street  railway  companies 
without  consent  of  street  superintendent. 
Reasonable  —  Union  Railway  Company 
v.  Cambridge,  11  Allen,  287.  Obstruct- 
ing streets  with  cars.  Reasonable  — 
Penna.  R.  R.  Co.  v.  Jersey  City,  47  N.  J. 
L.  286.  Burials:  Prohibiting  in  town. 
Unreasonable  —  Austin  v.  Murray,  16 
Pick.  121.  Prohibiting  within  certain 
certain  limits.  Reasonable  —  Coates  v. 
New  York,  7  Cowen,  585.  Subjecting 
private  cemeteries  to  control  of  city  sex- 
ton. Unreasonable  —  Bogert  v.  Indian- 
apolis, 13  Ind.  134.  Requiring  city  sexton 
to  expend  $500  on  the  cemetery  and 
to  bury  paupers  free.  Unreasonable  — 
Beroujohn  v.  Mobile,  27  Ala.  58.  See 
p.  881,  n.  1,  post.  Fire  Limits  :  Establish- 
ing. Reasonable  —  King  v.  Davenport, 


286  CONSTITUTIONAL   LIMITATIONS.  [GIL  VIII. 

the  art  of  painter  in  the  city  of  London,  not  being  free  of  the  com- 


93  111.  305,  38  Am.  Rep.  89;  Monroe  r. 
Hoffman,  29  La.  Ann.  651,  29  Am.  Rep. 
345;  Respublica  v.  Duquet,  2  Yeates, 
493 ;  Wadleigh  v.  Oilman,  12  Me.  403,  28 
Am.  Dec.  188;  Brady  v.  Northwestern 
Ins.  Co.,  11  Midi.  425;  Salem  v.  Maynes, 
123  Mass.  372  ;  Troy  v.  Winters,  4  Thomp. 
&  C.  (N.  Y.)  256;  McKibbin  v.  Fort 
Smith,  35  Ark.  352.  Requiring  a  build- 
ing license  fee.  Reasonable  —  Welch  v. 
Hotchkiss,  39  Conn.  140,  12  Am.  Rep. 
383.  Forbidding  frame  buildings  in 
small  towns.  Unreasonable  —  Kneedler 
v.  Norristown,  100  Pa.  St.  368.  Houses 
of  III  Fame:  Reasonable  —  Prohibiting 
keeping  of.  State  v.  Williams,  11  S.  C. 
288;  Childress  v.  Mayor,  3  Sneed,  356; 
State  v.  Mack,  41  La.  Ann.  1079,  6  So. 
808.  Imposing  penalty  on  owner  of. 
McAlister  v.  Clark,  33  Conn.  91.  Licens- 
ing. State  v.  Clarke,  54  Mo.  17,  14 
Am.  Rep.  471.  Arresting  and  fining  lewd 
women.  Shafer  v.  Mumma,  17  Md.  331 ; 
Braddy  v.  Milledgeville,  74  Ga.  516. 
Unreasonable  —  Demolishing.  Welch  v. 
Stowell,  2  Doug.  (Mich.)  332.  Forbid- 
ding prostitute  occupying  any  room  in 
city.  Milliken  v.  City  Council,  54  Tex. 
388,  38  Am.  Rep.  629.  [Forbidding  all 
persons  except  nearest  male  relative  to 
associate  with  prostitutes  in  any  public 
place.  Hechinger  v.  Maysville,  22  Ky. 
L.  R.  486,  57  S.  W.  619,  49  L.  R.  A.  114. 
But  prostitutes  may  be  forbidden  to  be 
upon  the  public  streets  between  the  hours 
of  7  P.  M.  and  4  A.  M.  without  reasonable 
necessity  for  so  being.  Dunn  v.  Com- 
monwealth, 105  Ky.  834,  49  S.  W.  813, 
43  L.  R.  A.  701.]  Slaughter  Houses :  Pro- 
hibiting in  certain  parts  of  city.  Reason- 
able —  Cronin  v.  People,  82  N.  Y.  318,  37 
Am.  Rep.  564 ;  Metropolitan  Board  of 
Health  v.  Heister,  37  N.  Y.  661  ;  Mil- 
waukee v.  Gross,  21  Wis.  241.  See  Wre- 
ford  v.  People,  14  Mich.  41.  Laundries: 
Forbidding,  except  in  brick  or  stone 
buildings,  upheld.  Matter  of  Yick  Wo, 
68  Cal.  294,  9  Pac.  139;  rev.  Yick  Wo  v. 
Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  Rep. 
1064.  Limited  to  a  certain  part  of  a  city. 
In  re  Hang  Kie,  69  Cal.  149,  10  Pac.  327; 
and  to  certain  hours  Ex  parte  Moyniert 
65  Cal.  33,  2  Pac.  728.  [Ordinance  pro- 
hibiting within  certain  district,  and  de- 
claring such  as  are  within  the  district 


nuisances,    is    unconstitutional.      In    re 
Hong  Wah,  82  Fed.  Rep.  623.] 

The  following  are  cases  in  which  mu- 
nicipal ordinances  have  been  declared  rea- 
sonable—  Prohibiting  keeping  of  swine 
in  a  city.     Commonwealth  v.  Patch,  97 
Mass.  221 ;    State  v.  Holcomb,  68  Iowa, 
107,  26  N.   W.   33.      Prohibiting  swine 
running  at  large.     Waco  v.  Powell,  32 
Tex.   258;   Crosby   v.    Warren,   1   Rich. 
385;    Whitfield   v.  Longest,   6   Ired.   L. 
268 ;  Roberts  v.  Ogle,  30  111.  459  ;  Gosse- 
link  v.  Campbell,  4  Iowa,  296.    Prohibiting 
cattle  running  at  large.     Commonwealth 
v.  Bean,  14  Gray,  52.     Impounding  such 
and  selling   after  such  notice.     Carters- 
ville  r.  Lanham,  67  Ga.  753;  but  only  the 
expense  of  impounding  can  be  retained, 
not  a  tine  upon  the  owner.      Wilcox  v. 
Hemming,  58  Wis.  144,  15  N.  W.  435. 
Granting  exclusive  rights  to  remove  car- 
casses of  animals,  dirt,  or  offal  from  city. 
Vandine,  Petitioner,  6  Pick.  187,  17  Am. 
Dec.  351 ;   contra,    River    Rendering  Co. 
v.  Behr,  77  Mo.  91.    Requiring  consent  of 
mayor  to  maintain  an  awning.     Pedrick 
v.  Bailey,  12  Gray,  161.     Requiring  side- 
walk to  be  cleared  of  snow.     Goddard, 
petitioner,  16  Pick.  504,  28  Am.  Dec.  259; 
Kirby  v.  Boylston  Market  Ass'n,  14  Gray, 
249;  contra,    Gridley  v.  Bloomington,  88 
111.  555 ;  CState  v.  Jackman,  69  N.  H.  318, 
41  Atl.  347,  42  L.  R.  A.  438;  Chicago  v. 
O'Brien,  111  111.  532,  53-  Am.  Rep.  640.] 
Requiring   hoist-way  to  be  closed  after 
business  hours.     New  York  v.  Williams, 
15  N.  Y.  502.    Requiring  a  drawbridge  to 
be  closed  after  a  vehicle  had  been  kept 
waiting  ten  minutes.    Chicago  v.  McGinn, 
61   111.   266.     Prohibiting  laying  of  gas 
mains  in  winter.    Northern  Liberties  v. 
Gas  Co.,  12  Pa.  St.  318.     Requiring  hay 
or  coal  to  be  weighed  by  city  weighers. 
Stokes  v.  New  York,  14  Wend.  87  ;  Yates 
v.  Milwaukee,  12  Wis.  673;   O'Maley  v. 
Freeport,  96  Pa.  St.  24.    Regulating  price 
and  weight  of  bread.     Mayor  v.  Yuille, 
3  Ala.  137,  36   Am.  Dec.  441 ;   Page  v. 
Fazackerly,   36  Barb.  392;   Guillotte  v. 
New   Orleans,   12  La.   Ann.  432.     Pro- 
hibiting    peddling    without    a    license. 
Huntington    v.    Cheesbro,    57     Ind.    74. 
Prohibiting    sale    of    adulterated    milk. 
Polinsky  v.  People,  73  N.  Y.  65.      Pro- 
hibiting  sale    of   milk   without  license. 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


287 


pany  of  painters,  —  it  will  be  void  on  this  ground.1     To  take  an 


Chicago  v.  Bartree,  100  111.  67 ;  People  v. 
Mulhoiland,  19  Hun,  648,  82  N.  Y.  324, 
37  Am.  Rep.  668.  Punishing  vagrants. 
St.  Louis  v.  Bentz,  11  Mo.  61.  Imposing 
license  tax  on  peddlers.  Ex  parte  Ah 
Foy,  57  Cal.  92.  Prohibiting  keeping 
more  than  five  tons  of  straw  in  one  block 
at  one  time  unless  in  a  fire-proof  en- 
closure. Clark  v.  South  Bend,  86  Ind.  276. 
Prohibiting  erection  of  livery  stable  on 
a  block  without  consent  of  the  owners 
of  half  the  block.  State  v.  Beattie,  16 
Mo.  App.  131.  Requiring  street  railway 
company  to  report  quarterly  the  number 
of  passengers  carried.  St.  Louis  v.  St. 
Louis  R.  R.  Co.,  89  Mo.  44,  1  S.  W.  305. 
Prohibiting  boys  from  getting  on  or  off 
locomotives.  Bearden  v.  Madison,  73  Ga. 
184.  Prohibiting  stopping  a  vehicle  in 
the  street  more  than  twenty  minutes. 
Com.  v.  Fenton,  139  Mass.  195,  29  N.  E. 
653.  Forbidding  preaching  on  Boston 
Common  without  permission.  Com.  v. 
Davis,  140  Mass.  485,  4  N.  E.  577.  Pro- 
hibiting cornet  playing  in  street  without 
license.  Com.  v.  Plaisted,  148  Mass.  375, 
19  N.  E.  224.  (^Requiring  license  for  col- 
lecting, storing,  and  dealing  in  rags  in 
thickly  settled  portions  of  city.  Com- 
monwealth v.  Hubley,  172  Mass.  58,  51 
N.  E.  448,  42  L.  R.  A.  403,  70  Am.  St. 
242.  Requiring  a  railroad  to  light  the 
tracks  operated  by  it  within  the  city 
limits,  and  to  use  the  same  kind  of  lights 
and  to  light  for  the  same  period  of  the 
night  as  in  the  public  streets.  Cincin- 
nati, H.  &  I).  R.  Co.  v.  Bowling  Green, 


67  Ohio  St.  336,  49  N.  E.  121,  41  L.  R.  A. 
422;  upon  compelling  railroad  to  light 
its  tracks  in  city,  see  note  to  this  case 
in  L.  R.  A.  Prohibiting  dogs  from  run- 
ning at  large  in  streets  and  alleys  and 
providing  for  the  summary  destruction 
of  all  dogs  so  caught  running  at  large, 
unless  they  are  ransomed  within  twenty- 
four  hours,  notice  to  owners  of  collared 
dogs  being  provided  for.  Hagerstown 
v.  Witmer,  86  Md.  293,  37  Atl.  965,  39 
L.  R.  A.  649.  Punishing  cruelty  to 
animals  in  public  places.  State  v.  Kars- 
tendiek,  49  La.  Ann.  1621,  22  So.  845,  39 
L.  R.  A.  620;  see  upon  municipal  power 
as  to  nuisances  affecting  public  morals, 
decency,  peace,  and  good  order,  note  to 
this  case  in  L.  R.  A. ;  upon  nuisances  relat- 
ing to  trade  or  business,  note  in  L.  R.  A.  to 
Ex  parte  Lacey,  108  Cal.  326,  41  Pac.411, 
38  L.  R.  A.  640, 49  Am.  St.  93,  which  holds 
that  the  establishment  of  steam  shoddy 
machines  and  of  steam  carpet-beating 
machines  within  one  hundred  feet  of 
churches,  &c.,  may  be  prohibited.  Public 
scavengers  may  be  required  to  take  out 
licenses  and  to  secure  permit  from  board 
of  health  before  removing  contents  of  any 
privv  vault.  State  v.  McMahon,  69  Minn. 
265/72  N.  W.  79,  38  L.  R.  A.  675.  Pro- 
hibiting keeping  of  any  swine  within  city 
limits.  Darlington  v.  Ward,  48  S.  C. 
570,  26  S.  E.  906,  38  L.  R.  A.  326.  Mak- 
ing lower  water-rates  to  those  who  use 
large  quantities.  Silkman  v.  Bd.  of 
Water  Com'rs,  152  N.  Y.  327,  46  N.  E. 
612,  37  L.  R.  A.  827.  Requiring  garbage- 


1  Clark  v.  Le  Cren,  9  B.  &  C.  52; 
Chamberlain  of  London  v.  Compton,  7 
D.  &  R.  597.  Compare  Hayden  v.  Noyes, 
6  Conn.  391;  Willard  v.  Killingworth,  8 
Conn.  247.  But  a  by-law  is  not  void,  as 
in  restraint  of  trade,  which  requires  loaves 
of  bread  baked  for  sale  to  be  of  specified 
weight  and  properly  stamped,  or  which 
requires  bakers  to  be  licensed.  Mayor, 
&c.  of  Mobile  v  Yuille,  3  Ala.  137.  See 
Buffalo  v.  Webster,  10  Wend.  99.  A 
by-law  forbidding  the  maintenance  of 
slaughter-houses  within  a  city  is  not  void 
as  in  restraint  of  trade.  Cronin  v.  People, 
82  N.  Y.  318,  37  Am.  Rep.  564;  Ex  parte 
Heilbron,  65  Cal.  609,  4  Pac.  648.  Meat 
sellers  in  one  part  of  a  city  may  not  be 
allowed  to  sell  from  shops  only,  while  in 


another  they  may  sell  from  wagons  also. 
St.  Louis  i?.  Spiegel,  90  Mo.  587,  2  S.  W. 
839.  Without  special  legislative  author- 
ity a  merchant  who  has  paid  his  license 
tax  cannot  be  obliged  to  keep  a  sales-book 
open  to  inspection.  Long  r.  Taxing  Dis- 
trict, 7  Lea,  134.  An  ordinance  is  bad 
which  forbids  importing  and  dealing  in 
cast-off  garments,  but  does  not  apply  to 
such  goods  not  imported.  Greensboro  v. 
Ehrenreich,  80  Ala.  579.  [TTpon  powers 
of  cities  to  regulate  markets,  see  State  v. 
Sarradat.  46  La.  Ann.  700,  15  So.  87,  24 
L.  R.  A.  584,  and  note,  and  further  upon 
validity  of  statutes  and  ordinances  upon 
the  ground  of  reasonableness  or  unrea- 
sonableness. See,  ante,  p.  284,  n.  4J 


288 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


illustration  from  a  private  corporation :  It  has  been  held  that  a 


collectors  to  take  out  licenses.  State  v. 
Orr,  68  Conn.  101,  35  Atl.  770,  34  L.  B.  A. 
279.  Requiring  milk-venders  to  take  out 
licenses  and  have  tlieir  herds  subjected  to 
the  "  tuberculin  test."  State  v.  Nelson, 
66  Minn.  166,  68  N.  W.  1066,  34  L.  B.  A. 
318,  61  Am.  St.  399.  Requiring  that  only 
police  officers  may  prosecute  for  violation 
of  a  specified  ordinance.  State  v.  Robit- 
sliek,  60  Minn.  123,  61  N.  W.  1023,  33 
L.  R.  A.  33.  Where  a  sewer-assessment 
has  been  successfully  contested,  the  city 
may  require  that  the  amount  of  the  assess- 
ment be  paid  as  a  condition  precedent  to 
permitting  the  contestant  to  connect  with 
the  sewer.  Herrmann  v.  State,  64  Ohio 
St.  506, 43  N.  E.  990,  32  L.  R.  A.  734.  Re- 
quiring license  fee  of  $25  per  annum  from 
junk-dealers,  $50  per  annum  from  pawn- 
brokers, bonds  of  $2,000  and  $5,000  re- 
spectively, indorsements  of  twelve  free- 
holders upon  each  application  for  license, 
and  prohibiting  purchases  from  boys  and 
from  drunkards  and  intoxicated  persons, 
reserving  power  to  revoke  license  at  any 
time.  Grand  Rapids  v.  Brandy,  105  Mich. 
670,  64  N.  W.  29,  32  L.  R.  A.  116,  55  Am. 
St.  472 ;  and  upon  power  to  control  such 
dealers,  see  note  hereto  in  L.  R.  A. ;  see 
also  Rosenbaum  v.  Newbern,  118  N.  C. 
83,  24  S.  E.  1,  32  L.  R.  A.  123.  Requir- 
ing itinerant  traders  to  pay  a  license  fee 
of  $50  per  quarter,  traders  having  a  fixed 
place  of  business  being  exempt.  Re  Has- 
kell,  112  Cal.  412,  44  Pac.  725,  32  L.  R.  A. 
527.  Prohibiting  use  of  salt  upon  street- 
railway  tracks,  except  at  street  corner 
curves.  State  v.  Elizabeth,  58  N.  J.  L. 
619,  34  Atl.  146,  32  L.  B.  A.  170.  Re- 
quiring roofed  passageway  over  sidewalks 
where  buildings  are  being  constructed 
above  first  story.  Smith  v.  Milwaukee 
B.  &  T.  Exchange,  91  Wis.  360,  64  N.  W. 
1041,  30  L.  R.  A.  504,  51  Am.  St.  912. 
Requiring  boarding-house  keepers,  &c.,  to 
furnish  street  commissioner  with  list  of 
boarders  liable  to  poll-tax,  and  to  pay 
a  fine  for  failure  so  to  do.  Topeka  v. 
Boutwell,  53  Kan.  20,  35  Pac.  819,  27 
L.  R.  A.  593.  Forbidding  any  unmarried 
minor  to  enter  bar-room  unless  as  agent 
or  servant.  State  v.  Austin,  114  N.  C. 
855,  19  S.  E.  919,  25  L.  R.  A.  283,  41 
Am.  St.  817.  Contracting  for  a  supply 
of  gas  and  water  for  a  reasonable  period, 
although  such  period  extends  beyond  the 


official  life  of  any  member  of  the  city 
council.  Viiu-ennes  v.  Citizens'  Gas  L.  & 
C.  Co.,  132  Ind.  114,  31  N.  E.  673,  16 
L.  B.  A.  485;  contra,  Shelden  v.  Fox,  48 
Kan.  356,  29  Pac.  759,  16  L.  B.  A.  257, 
and  note.  Bequiring  both  driver  and  con- 
ductor on  every  street  car  in  use  on  streets. 
South  Covington  &  C.  St.  B.  Co.  v.  Berry, 
93  Ky.  43,  18  S.  W.  1026, 15  L.  B.  A.  604, 
and  note,  40  Am.  St.  161.  Regulating 
weight  of  loaves  of  bread  offered  for  sale 
and  punishing  sale  of  short  weight  loaves. 
People  v.  Wagner,  86  Mich.  594,  49  N.  W. 
609,  13  L.  R.  A.  286,  and  note,  24  Am. ' 
St.  141.  Prohibiting  suspension  of  elec- 
tric wires  over  or  upon  roofs  of  buildings. 
El.  Impr.  Co.  v.  San  Francisco,  45  Fed. 
Rep.  593,  13  L.  R.  A.  131,  and  note  on 
police  power.  Levying  license  fee  of  $5 
per  month  upon  venders  of  fresh  meats 
outside  the  public  markets.  Atkins  v. 
Phillips,  26  Fla.  281,  8  So.  429, 10  L.  R.  A. 
158.  Prohibiting  keeping  or  storing  of 
large  quantities  of  inflammable  or  ex- 
plosive oils  within  city  limits.  Richmond 
v.  Dudley,  129  Ind.  112,  28  N.  E.  312,  13 
L.  R.  A.  587,  and  note,  28  Am.  St.  180. 
Requiring  petition  of  two-thirds  of  land- 
owners of  a  block  before  permitting  a 
saloon  to  be  opened  in  it,  if  none  has  ever 
been  in  the  block  before.  Martens  v.  Peo- 
ple, 186  111.  314,  57  N.  E.  871J 

The  following  have  been  held  unreason- 
able, —  Prohibiting  putting  up  of  steam- 
engine  in  city.  Baltimore  v.  Redecke,  49 
Md.  217,  33  Am.  Rep.  239.  Prohibiting 
one  person  carrying  on  a  certain  business 
and  allowing  another  to  carry  on  the  same 
business.  Hudson  v.  Thome,  7  Paige, 
261;  Tugman  v.  Chicago,  78  111.  405. 
Prohibiting  laying  of  gas-pipes  across  the 
streets.  Northern  Liberties  v.  Gas  Co., 
12  Pa.  St.  318.  Levying  tax  for  building 
a  sidewalk  in  uninhabited  portion  of  the 
city.  Corriganu.  Gage,  68  Mo.  541.  Pro- 
hibiting use  of  Babcock's  fire  extinguish- 
ers and  imprisoning  those  who  used  them. 
Teutonia  Ins.  Co.  v.  O'Connor,  27  La. 
Ann.  371.  Requiring  every  person  en- 
tering his  drain  in  a  sewer  to  pay  his 
share  of  the  expense  of  making  such 
sewer.  Boston  v.  Shaw,  1  Mete.  130. 
Refusing  to  supply  water  to  certain 
premises.  Dayton  v.  Quigley,  29  N.  J. 
Eq.  77.  Arresting  free  negroes  found  on 
street  after  10  p.  M.  Mayor  v.  Winfield, 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


289 


by-law  of  a  bank,  that  all  payments  made  or  received  by  the  bank 


8  Humph.  707.  Requiring  druggist  to 
furnish  the  names  of  parties  to  whom  he 
sells  liquors.  Clinton  v.  Phillips,  58  111. 
102,  11  Am.  Rep.  52.  Discriminating 
between  dealers  within  and  without  the 
city.  Nashville  o.  Althorp,  5  Cold.  554  ; 
Ex  parte  Frank,  62  Cal.  606,  28  Am.  Rep. 
642.  Discriminating  between  railroads 
as  to  speed  allowable  under  like  circum- 
stances. Lake  View  v.  Tate,  130  111.  247, 
22  N.  E.  Rep.  791.  Prohibiting  distribu- 
tion of  all  handbills  on  the  street.  Peo- 
ple v.  Armstrong,  73  Mich.  288,  41  N.  W. 
275.  Forbidding  all  street  parades  with 
music  except  by  permission.  Matter  of 
Frazee,  63  Mich.  3<J6,  30  N.  W.  72  ;  An- 
derson v.  Wellington,  40  Kan.  173,  19 
Pac.  719;  [contra,  Re  Flaherty,  105  Cal. 
658, 38  Pac.  981,  27  L.  R.  A.  529.  Requir- 
ing a  license  for  the  doing  of  any  scav- 
enger work  whatever.  State  v.  Hill,  126 
N.  C.  1139,  36  S.  E.  326,  60  L.  R.  A. 
473.  Prohibiting  a  saloon  keeper,  his 
clerks,  agents,  and  employees,  from  en- 
tering the  saloon  at  any  time  during 
Sunday  without  written  permission  from 
mayor.  Newbern  v.  McCann,  105  Tenn. 
159,  58  S.  W.  114,  50  L.  R.  A.  476.  Pro- 
hibiting any  woman  from  going  into  a 
place  where  liquor  is  sold  or  standing 
within  fifty  feet  of  such  place.  Gasti- 
neau  v.  Com.,  22  Ky.  L.  R.  157,  56  S.  W. 
705,  49  L.  R.  A.  Ill;  for  constitution- 
ality of  discriminations  against  women 
in  police  regulations,  see  note  to  this 
case  in  L.  R.  A.  Prohibiting  the  use 
of  colored  nettings  and  similar  mate- 
rials to  cover  fruits  exposed  for  sale 
in  baskets.  Frost  v.  Chicago,  178  111. 
250,  52  N.  E.  869,  49  L.  R.  A.  657,  69 
Am.  St.  301.  Levying  a  wheel  tax  upon 
all  vehicles  used  upon  the  streets.  Chi- 
cago v.  Collins,  175  111.  445,  51  N.  E.  907, 
49  L.  R.  A.  408,  67  Am.  St.  224.  Dis- 
criminating against  department  stores. 
Chicago  v.  Netcher,  183  111.  104,  55  N.  E. 
707,  48  L.  R.  A.  261,  and  see  note  to  this 
case  in  L.  R.  A.  upon  discriminations 
against  department  stores.  Requiring 
that  city  shall  furnish  materials  and  con- 
struct sewer  connections  up  to  within 
three  feet  of  building  to  be  connected. 
Slaughter  v.  O'Berry,  126  N.  C.  181,  35  S. 
E.  241,  48  L.  R.  A.  442.  Prohibiting  sus- 
pending any  sijjn  whatever  above  a  side- 
walk. State  v.  Higgs,  126  N.  C.  1014,  35 


S.  E.  473,  48  L.  R.  A.  446.  Prohibiting 
the  receipt,  from  a  carrier,  of  intoxicating 
liquors  purchased  beyond  the  city  limits, 
until  a  license  tax  has  been  paid  upon 
such  liquors.  Henderson  v.  Heyward, 
109  Ga.  373,  34  S.  E.  590,  47  L.*R.  A. 
366,  77  Am.  St.  384.  Prohibiting  the  sale 
of  clothing  on  Sunday,  but  permitting 
that  of  most  other  kinds  of  goods.  Den- 
ver v.  Bach,  26  Col.  630,  58  Pac.  1089, 

43  L.    R.   A.   848.      Requiring    heavily 
loaded  vehicles  to  keep  to  specified  por- 
tion of  street  when  that  portion  is  unfit 
for  use.     State  v.  Boardman,  93  Me.  73, 

44  Atl.  118,  46  L.  R.  A.  750.     Imposing 
unreasonable  and  discriminatory  license 
fees  upon  draymen,  hackmen,  &c.    St;ite 
v.  Finch,  78  Minn.  118,  80  N.  W.  856,  46 
L.  R.  A.  437.    Requiring  a  license  for  busi- 
ness of  contracting  for  public  work.    Figg 
v.  Thompson,  20  Ky.  L.  1322,  49  S   W. 
'202,  44  L.  R.  A.  135.     Requiring  punish- 
ment  to  be  by  imprisonment  alone,  in- 
stead  of    permitting    payment    of    fine. 
Calhoun  v.  Little,  106  Ga.  336,  32  S.  E. 
86,  43  L.   R.  A.   630,   71   Am.  St.  254. 
Prohibiting  hackmen  and  draymen  from 
stopping  their  vehicles  on  certain  streets, 
except  for  purpose  of  receiving  or  deliv- 
ering persons  or  goods.     Ex  purte  Battis, 
40  Tex.  Cr.  112,  48  S.  W.  513,  43  L.  R.  A. 
863,  76  Am.  St.  708.     Prohibiting  traffic 
in    heavily    loaded    wagons    on    certain 
street  except  upon  permission  of  vilhige 
trustees,    held    arbitrary    and    unreason- 
able.     Cicero    Lumber    Co.    v.    Cicero, 
176  111.  9,  51  N.  E.  758,  42  L.  R.  A.  696, 
68  Am.  St.  155.     Prohibiting  drummers, 
cabmen,  hackmen,  &c.,  from  entering  a 
passenger  station  to  solicit  custom.     Cos- 
grove  v.  Augusta,  103  Ga.  835,  31  S.  E. 
445,  42  L.   R.  A.  711,  68  Am.  St.  149. 
Prohibiting    minors    from    being    upon 
streets  after  9  P.  M.  unless   attended   by 
guardians,    or   in    search    of    physician. 
Ex  parte  McCarver,  39  Tex.  Cr.  448,  46 
S.  W.  936,  42  L.  R.  A.  687,  73  Am.  St. 
946.    Prohibiting  during  summer  months 
sale  of  fresh  pork,  or  sausage  made  thereof. 
Helena  v.  Dwyer,  64  Ark.  424,  42  S.  W. 
1071,  39   L.  R.  A.  266,  62  Am.  St.  206. 
Declaring,   without  regard    to    time    or 
place,   the   emission   of  dense  black   or 
thick  gray  smoke  a  nuisance.     St.  Louis 
v.  Heitzeberg  P.  &  P.  Co.,  141  Mo.  375, 
42  S.  W.  954,  39  L.  R.  A.  651,  64  Am. 


19 


290 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


must  be  examine.]  at  the  time,  and  mistakes  corrected  before  the 
dealer  leaves,  was  unreasonable  and  invalid,  and  that  a  recovery 


St.  516;  upon  municipal  control  over 
smoke  as  nuisance,  see  note  to  this  case 
in  L.  II.  A.  Requiring  street  contrac- 
tors to  use  asphaltutn  controlled  by  a 
inonoplv.  Fisliburn  v.  Chicago,  171  111. 
338,  49  -N,  E.  532,  39  L.  R.  A.  482,  63  Am. 
St.  236.  Placing  harassing  and  arbitrary 
restrictions  on  dealers  in  second-hand 
goods.  State  v.  Itzcovitch,  49  La.  Ann. 
360,  21  So.  544,  37  L.  R.  A.  673,  62  Am. 
St.  648.  See  also  Morton  v.  Macon,  111 
Ga.  162, 36  S.  E.  627.  Prohibiting  traffic  in 
second-hand  clothing,  &c.  State  v.  Taft, 
118  N.  C.  1190,  23  S.  E.  970,  32  L.  R.  A. 
122,  54  Am.  St.  768.  Prohibiting  a  rail- 
road company  from  fencing  its  grounds 
inside  the  city  limits.  Grossman  i:  Oak- 
land, 30  Oreg.  478,  41  Pac  5,  36  L.  R.  A. 
593,  60  Am.  St.  8.S2.  Proliibiiing  driving 
faster  than  six  miles  per  hour  when  ap- 
plied to  fire  engine.  State  v.  Sheppard, 
64  Minn.  287,  67  N.  W.  62,  36  L.  R.  A. 
305.  Ordinance  is  not  unreasonable  when 
expressly  authorized  by  legislature. 
Beiling  ?>.  Evansville,  144  Ind.  644,  42 
N.  E.  621,  35  L.  R.  A.  272.  Unreasonable 
to  restrict  owner  of  dead  animal  to  a  par- 
ticular spot  outside  of  city  in  which  to  de- 
posit same.  Schoen  Brothers  v.  Atlanta, 
97  Ga.  697,  25  S.  E.  380,  33  L.  R.  A.  804. 
Levying  license  fee  of  $10  per  day  on 
itinerant  merchants.  Carrollton  v.  Baz- 
zette,  159  111.  284,  42  N  E.  837,  31  L.  R.  A. 
522.  Requiring  the  laying  of  a  cement 
sidewalk  where,  less  than  six  months  be- 
fore, a  duly  authorized  sidewalk  of  plank 
had  been  constructed  and  was  yet  sound 
and  in  good  condition.  Hawes  v.  Chicago, 
158  111.  653,  42  N.  E.  373,  30  L.  R.  A.  225. 
Prohibiting  erection  of  any  building  or 
addition  to  building  within  city  limits,  ex- 
cept by  permission  of  building  inspector. 
Sioux  Falls  v.  Kirby,  6  S  1).  62,  60  N.  W. 
156,  25  L.  R  A.  621.  Prohibiting  use  of 
screens,  blinds,  &c.,  to  obstruct  view  from 
street  into  saloons.  Champer  v.  Green- 
castle,  138  Ind.  339, 35  N.  E.  14, 24  L.  R.  A. 
768,  and  note,  46  Am.  St.  390.  General 
welfare  clause  does  not  warrant  an  ordin- 
ance requiring  inspection  of  steam  boilers, 
&c.  State  t>.  Robertson,  45  La.  Ann.  954, 
13  So.  164.  20  L.  R.  A.  691,  40  Am.  St. 
272.  Requiring  distance  of  billboard  from 
street  line  to  be  five  feet  greater  than 


height  of  board.  Crawford  v,  Topeka, 
61  Kan.  756,  33  Pac.  476,  20  L.  R.  A.  692, 
37  Am.  St.  323.  Requiring  permission 
from  a  city  officer  for  street  parades,  but 
exempting  from  such  requirement  fu- 
nerals, fire  companies,  State  militia,  and 
political  parties  having  a  State  organi- 
zation. Re  Garrabad,  84  Wis.  585,  54 
N.  W.  1104,  19  L.  R.  A.  858,  and  note  on 
ordinances  relating  to  street  parades  See 
also  that  ordinances  vesting  arbitrary 
powers  are  void.  Richmond  v.  Dudley, 
129  Ind.  112,  28  N.  E.  312,  13  L.  R.  A. 
587,  28  Am.  St.  180  ;  but  see  Olympia  r. 
Mann,  1  Wash.  389,  25  Pac.  330,"  337,  12 
L.  R.  A.  150,  and  note;  Child  v.  Bemus, 
71  R.  I.  230,  21  Atl.  539,  12  L.  R.  A.  67. 
Requiring  license  fee  of  $25  per  day  from 
auctioneers  of  imported  goods.  lie  Sipe, 
49  Ohio  St.  636,  31  N.  E.  884,  17  L.  R.  A. 
184.  Requiring  license  fee  of  non-resi- 
dent peddlers.  Sayre  v.  Phillips,  148  Pa. 
482,  24  Atl.  76,  16  L.  R.  A.  49,  and  note, 
33  Am.  St.  842.  Prohibiting  absolutely 
the  making  repairs  to  the  amount  of  $300 
or  more  upon  any  wooden  building  within 
specified  limits.  Mt.  Vernon  F.  Nat.  Bank 
v.  Sarlls,  129  Ind.  201,  28  N.  E.  434,  13 
L.  R.  A.  481,  and  note.  On  fire  limits, 
see  Olympia  v.  Mann,  1  Wash.  389,  25 
Pac.  330,  337,  12  L.  R.  A.  150,  and  note. 
Prohibiting  importation  or  sale  of  second- 
hand clothing  unless  owner  first  proves 
that  it  did  not  come  from  an  infected 
region.  Kosciusko  v.  Slomberg,  68  Miss. 
469,  9  So.  297,  12  L.  R.  A.  528,  24  Am. 
St.  281.  Permitting  fine  of  $1,000  for 
visiting  a  disorderly  house.  Re  Ah  You, 
88  Cal.  99,  25  Pac.  974,  11  L.  R.  A.  408, 
22  Am.  St.  280.  Penalizing  a  mere  pri- 
vate trespass.  Bregguglia  v.  Lord,  63 
N.  J.  L.  168,  20  Atl.  1082,  11  L.  It.  A. 
407.  Levying  license  tax  upon  agents  of 
non-resident  insurance  companies,  but  not 
upon  those  of  local  companies.  Simrall 
v.  Covington,  90  Ky.  444,  14  S.  W.  369,  9 
L.  R.  A.  656,  29  Am.  St.  398.  Penalizing 
breach  of  contract  with  city.  Newport 
v.  Newport  &  C.  Bridge  Co.,  90  Ky.  193, 
13  S.  W.  720,  8  L.  R.  A.  484.  Making 
arbitrary  distinctions.  Lake  View  v. 
Tate,  130  III.  247,  22  N.  E.  791, 6  L.  R.  A. 
268.  Requiring  letting  of  public  printing 
only  to  members  of  Allied  Printing  Trades 


CH.  VIII.]  THE    GRADES   OF   MUNICIPAL   GOVERNMENT. 


291 


might  be  had  against  the  bank  for  an  over-payment  discovered 
afterwards,  notwithstanding  the  by-law.1  So  a  by-law  of  a  town, 
which,  under  pretence  of  regulating  the  fishery  of  clams  and 
oysters  within  its  limits,  prohibits  all  persons  except  the  inhabi- 
tants of  the  town  from  taking  shell-fish  in  a  navigable  river,  is 
void  as  in  contravention  of  common  right.2  And  for  like  rea- 
sons a  by-law  is  void  which  abridges  the  rights  and  privileges 
conferred  by  the  general  laws  of  the  State,  unless  express  author- 
ity therefor  can  be  pointed  out  in  the  corporate  charter.3  And 


Council.  Atlanta  v.  Stein,  111  Ga.  789,  36 
S.  E.  932,  51  L.  R-  A.  335.  Fixing  liquor 
license  fee  $300  higher  for  any  place  on 
main  street  than  for  any  other  place  in 
town.  Harrodsburg  v.  Renfro,  22  Ky. 
L.  R.  806,  58  S.  W.  795,  51  L.  R.  A.  897. 
Requiring  six  incli  tires  for  loaded  wagons 
weighing  more  than  a  ton  and  driven  upon 
parkways.  State  v.  Rohart,  83  Minn.  257, 
86  N.  W.  93,  333,  54  L.  R.  A.  947.  Pro- 
hibiting getting  off  trains  or  boats  at 
any  point  within  the  State  at  time  of 
yellow  fever  outbreak,  as  applied  to  pas- 
sengers from  a  non-infected  district, 
(board  of  health  rule).  Wilson  v.  Ala- 
bama G.  S.  Ry.  Co.,  77  Miss.  714,  28 
So.  567,  78  Am.  St.  543.  Prohibiting 
interment  of  dead  bodies  within  city 
limits  without  regard  to  sparseness  of 
population.  Wygant  v.  McLauchlan,  39 
Oreg.  429,  64  Pac.  867,  54  L.  R.  A.  636,  87 
Am.  St.  673.  Restricting  employment 
upon  public  works  to  members  of  labor 
unions.  Fiske  v.  People,  188  111.  206,  58 
N.  E.  985.  For  other  ordinances  held 
void  for  unreasonableness,  see  Grand 
Rapids  v.  Newton,  111  Mich.  48,  69  N.  W. 
84,  66  Am.  St.  387,  35  L.  R.  A.  226; 
Ottumwa  v.  Zekind,  95  Iowa,  622, 64  N.  W. 
646,  68  Am.  St.  447,  29  L.  R.  A.  734 ;  Des 
Moines  C.  Ry.  Co.  v.  Des  Moines,  90  Iowa, 
770,  58  N.  W.  906,  26  L.  R.  A.  767 ;  Ex 
parte  Sing  Lee,  96  Cal.  354,  31  Pac.  245, 
31  Am.  St.  218,  24  L.  R.  A.  195;  Avis  v. 
Vim-land,  55  N.  J.  L.  285,  26  Atl.  149,  23 
L.  R.  A.  685;  State  v.  Tenant,  110  N.  C. 
609,  14  S.  E.  387,  28  Am.  St.  715,  15 
L.  R  A.  423 ;  Ex  parte  Vance,  —  Tex.  Cr. 
App.  — ,  62  S.  W.  568  (April  17,  1901) ; 
Mills  v.  Missouri  K.  T.  R.  Co.,  94  Tex. 
242,59  S.  W.  874;  Ex  parte  Patterson,— 
Tex.  Cr.  App.  — ,  58  S.  W.  1011  (Oct.  24, 
1900). 3 

1  Mechanics'  and   Farmers'   Bank   v. 
Smith,  19  Johns.  115;  Gallatin  v.  Brad- 


ford, 1  Bibb,  209.  Although  these  are 
cases  of  private  corporations,  they  are 
cited  here  because  the  rules  governing 
the  authority  to  make  by-laws  are  the 
same  with  both  classes  of  corporations. 

2  Hayden  v.  Noyes,  5  Conn.  391.  As 
it  bad  been  previously  held  that  every 
person  has  a  common-law  right  to  fish  in 
a  navigable  river  or  arm  of  the  sea,  until 
by  some  legal  mode  of  appropriation  this 
common  right  was  extinguished  (Peck 
v.  Lock  wood,  5  Day,  22),  the  by-law  in 
effect  deprived  every  citizen,  except  resi- 
dents of  the  township,  of  rights  which 
were  vested,  so  far  as  from  the  nature  of 
the  case  a  right  could  be  vested.  See 
also  Marietta  v.  Fearing,  4  Ohio,  427. 
That  a  right  to  regulate  does  not  indude  a 
right  to  prohibit,  see  also  Ex  parte  Bur- 
nett, 80  Ala.  461 ;  Austin  v.  Murray,  16 
Pick.  121 ;  Portland  v.  Schmidt,  13  Oreg. 
17  ;  Bronson  v.  Oberlin,  41  Ohio  St.  476. 
And  see  Milhau  v.  Sharp,  17  JSarb.  435, 
28  Barb.  228,  and  27  N.  Y.  611,  and  cases 
supra,  p.  213.  £The  State's  power  to 
regulate  the  taking  of  game  extends  to 
the  public  lands  of  the  United  States 
within  the  State's  borders,  such  lands  not 
being  included  in  an  Indian  reservation. 
Ward  v.  Race  Horse,  163  U.  S.  504,  16 
Sup.  Ct.  Rep.  1076.] 

8  Dunham  v.  Trustees  of  Rochester,  5 
Cow.  462 ;  Mayor,  &c.  of  New  York  v. 
Nichols,  4  Hill,  209 ;  St.  Paul  v.  Traeger, 
25  Minn.  248,  33  Am.  Rep.  462.  See 
Strauss  v.  Pontiac,  40  111.  301 ;  Mayor 
of  Athens  v.  Georgia  R.  R.  Co.,  72  Ga. 
800.  An  ordinance  granting  the  exclu- 
sive privilege  to  take  every  animal  which 
dies  in  a  city  without  regard  to  its  being 
a  nuisance  is  void.  River  Rendering  Co. 
v.  Behr,  77  Mo.  91.  Hacks  cannot  be  per- 
mitted to  stand  permanently  in  a  street 
so  as  to  cut  off  access  to  adjoining  prem- 
ises. Branahan  v.  Hotel  Co.,  39  Ohio  St 


292 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


a  by-law  which  assumes  to  be  a  police  regulation,  but  deprives 
a  party  of  the  use  of  his  property  without  regard  to  the  public 
good,  under  the  pretence  of  the  preservation  of  health,  when  it  is 
manifest  that  such  is  not  the  object  and  purpose  of  the  regulation, 
will  be  set  aside  as  a  clear  and  direct  infringement  of  the  right  of 
property  without  any  compensating  advantages.1 


333.  Unless  by  express  authority,  a 
wooden  building  put  up  contrary  to  an 
ordinance  cannot  be  forfeited.  Kneedler 
v.  Norristown,  100  Pa.  St.  368.  [[Ordi- 
nance prohibiting  barbers  from  working 
on  Sunday,  but  not  other  shopkeepers,  is 
void.  Tacoma  v.  Krech,  15  Wash.  296, 
46  Pac.  255,  34  L.  R.  A.  68.] 

1  By  a  by-law  of  the  town  of  Charles- 
town,  all  persons  were  prohibited,  without 
license  from  the  selectmen,  from  burying 
any  dead  body  brought  into  town  on  any 
part  of  their  own  premises  or  elsewhere 
within  the  town.  By  the  court,  Wilde,  J. ; 
"  A  by-law,  to  be  valid,  must  be  reason- 
able ;  it  must  be  legi  fidei  rationi  consona. 
Now  if  this  regulation  or  prohibition  had 
been  limited  to  the  populous  part  of  the 
town,  and  were  made  in  good  faith  for 
the  purpose  of  preserving  the  health  of 
the  inhabitants,  which  may  be  in  some 
degree  exposed  to  danger  by  the  allow- 
ance of  interments  in  the  midst  of  a  dense 
population,  it  would  have  been  a  very 
reasonable  regulation.  But  it  cannot  be 
pretended  that  this  by-law  was  made  for 
the  preservation  of  the  health  of  the  in- 
habitants. Its  restraints  extend  many 
miles  into  the  country,  to  the  utmost  lim- 
its of  the  town.  Now  such  an  unneces- 
sary restraint  upon  the  right  of  interring 
the  dead  we  think  essentially  unreason- 
able. If  Charlestown  may  lawfully  make 
such  a  by-law  as  this,  all  the  towns  ad- 
joining Boston  may  impose  similar  re- 
straints, and  consequently  all  those  who 
die  in  Boston  must  of  necessity  be  in- 
terred within  the  precincts  of  the  city. 
That  this  would  be  prejudicial  to  the 
health  of  the  inhabitants,  especially  in 
the  hot  season  of  the  year,  and  when 
epidemic  diseases  prevail,  seems  to  be 
a  well-established  opinion.  Interments, 
therefore,  in  cities  and  large  populous 
towns,  ought  to  be  discountenanced,  and 
no  obstacles  should  be  permitted  to  the 
establishment  of  cemeteries  at  suitable 
places  in  the  vicinity.  The  by-law  in 
question  is  therefore  an  unreasonable  re- 


straint upon  many  of  the  citizens  of  Bos- 
ton, who  are  desirous  of  burying  their 
dead  without  the  city,  and  for  that  reason 
is  void."  Austin  v.  Murray,  16  Pick.  121, 
125.  So  in  Wreford  v.  People,  14  Mich. 
41,  the  common  council  of  Detroit,  under 
a  power  granted  by  statute  to  compel 
the  owners  and  occupants  of  slaughter- 
houses to  cleanse  and  abate  them  when- 
ever necessary  for  the  health  of  the 
inhabitants,  assumed  to  pass  an  ordinance 
altogether  prohibiting  the  slaughtering 
of  animals  within  certain  limits  in  the 
city  ;  and  it  was  held  void.  See  further, 
State  v.  Jersey  City,  29  N.  J.  170.  [>nd 
upon  power  of  municipal  corporations  to 
define,  prevent,  and  abate  nuisances,  see 
note  36  L.  R  A.  593.  See  also  Orlando 
o.  Pragg,  31  Fla.  Ill,  12  So.  368, 19  L.  R. 
A.  196,  and  note,  34  Am.  St.  17.]  Power 
to  control  the  erection  of  dwellings  with 
reference  to  health  does  not  allow  regu- 
lation of  the  thickness  of  outer  walls. 
Hubbard  v.  Paterson,  45  N.  J.  L.  310. 
Upon  the  whole  subject  of  municipal  by- 
laws, see  Angell  &  Ames  on  Corp.  c.  10 ; 
Grant  on  Corp.  76  et  seq.  See  also  Red- 
field  on  Railways  (3d  ed.),  Vol.  I.  p.  88; 
Dillon,  Mun.  Corp.  c.  12.  The  subject 
of  the  reasonableness  of  by-laws  was 
considered  at  some  length  in  People  v. 
Medical  Society  of  Erie,  24  Barb.  570, 
and  Same  v.  Same,  32  N.  Y.  187.  See 
note  to  Ward  v.  Greencastle,  35  Am.  Rep. 
702.  Municipal  by-laws  may  impose  pen- 
alties on  parties  guilty  of  a  violation 
thereof,  but  they  cannot  impose  forfeiture 
of  property  or  rights,  without  express 
legislative  authority.  State  v.  Ferguson, 
33  N.  H.  424;  Phillips  t;.  Allen,  41  Pa. 
St.  481.  Nor  can  municipal  corporations, 
by  their  by-laws,  take  into  their  own 
hands  the  punishment  of  offences  against 
the  general  laws  of  the  State.  See  Chari- 
ton  v.  Barber,  64  Iowa,  360,  6  N.  W.  528, 
37  Am.  Rep.  209 ;  Kirk  v.  Nowill,  1  T.  R. 
118;  White  v.  Tallman,  26  N.  J.  67 ;  Hart 
v.  Albany,  9  Wend.  571 ;  Peoria  v.  Cal- 
houn,  29  111.  317;  St.  Paul  v.  Coulter,  12 


CH.  VIII.]  THE   GRADES   OF  MUNICIPAL  GOVERNMENT.  293 

Delegation  of  Municipal  Powers. 

Another  and  very  important  limitation  which  rests  upon  mu- 
nicipal powers  is  that  they  shall  be  executed  by  the  municipality 
itself,  or  by  such  agencies  or  officers  as  the  statute  has  pointed 
out.  So  far  as  its  functions  are  legislative,  they  rest  in  the  dis- 
cretion and  judgment  of  the  municipal  body  intrusted  with  them, 
and  that  body  cannot  refer  the  exercise  of  the  power  to  the  dis- 
cretion and  judgment  of  its  subordinates  or  of  any  other  author- 
ity.1 So  strictly  is  this  rule  applied,  that  when  a  city  charter 
authorized  the  common  council  of  the  city  to  make  by-laws  and 
ordinances  ordering  and  directing  any  of  the  streets  to  be  pitched, 
levelled,  paved,  flagged,  &c.,  or  for  the  altering  or  repairing  the 
same,  "  within  such  time  and  in  such  manner  as  they  may  pre- 
scribe under  the  superintendence  and  direction  of  the  city  superin- 
tendent," and  the  common  council  passed  an  ordinance  directing 
a  certain  street  to  be  pitched,  levelled,  and  flagged,  "  in  such 
manner  as  the  city  superintendent,  under  the  direction  of  the 
committee  on  roads  of  the  common  council,  shall  direct  and  re- 
quire," the  ordinance  was  held  void,  because  it  left  to  the  city 
superintendent  and  the  committee  of  the  common  council  the 
decision  which,  under  the  law,  must  be  made  by  the  council  itself. 
The  trust  was  an  important  and  delicate  one,  as  the  expenses  of 
the  improvement  were,  by  the  statute,  to  be  paid  by  the  owners 
of  the  property  in  front  of  which  it  was  made.  It  was  in  effect  a 
power  of  taxation  ;  and  taxation  is  the  exercise  of  sovereign 

Minn.  41.  In  Chicago,  where  there  is  tive  function  upon  the  mayor.  Davis  v. 
both  a  city  and  a  town  organization,  it  Massachusetts,  167  U.  S.  43,  17  Sup.  Ct. 
has  been  held  competent  for  both  to  re-  Hep.  731,  aff.  162  Mass.  610,  39  N.  E. 
quire  those  who  carry  on  a  noisome  trade  113,  26  L.  R.  A.  712,  44  Am.  St.  389. 
to  take  out  a  license.  Chicago  Packing,  Making  grant  of  privilege  depend  upon 
&c.  Co.  v.  Chicago,  88  111.  221,  30  Am.  consent  of  majority  of  lot  owners  in  the 
Rep.  545.  block  in  which  the  privilege  is  to  be 
1  A  council  may  by  ordinance  adopt  a  exercised  is  not  a  delegation  of  power, 
code  compiled  by  a  city  attorney.  Gar-  Chicago  v.  Stratton,  162  III.  494,  44  N.  E. 
rett  v.  Janes,  65  Md.  260,  3  Atl.  597;  853,  35  L.  R.  A.  84,  53  Am.  St.  325; 
Western  &  A.  R.  R.  Co.  v.  Young,  83  contra,  St.  Louis  v.  Russell,  116  Mo.  248, 
Ga.  512,  10  S.  E.  197.  [Person  desiring  22  S.  W.  470,  20  L.  R.  A.  721,  and 
to  move  a  building  through  the  streets  note  on  delegation  of  municipal  power, 
may  be  required  to  obtain  permission  of  Power  to  prescribe  width  and  other  fea- 
mayor.  Wilson  v.  Eureka  City,  173  U.S.  tures  of  sidewalks  cannot  be  delegated. 
32,  19  Sup.  Ct.  Rep.  317,  aff.  15  Utah,  53,  McCrowell  v.  Bristol,  89  Va.  652,  16 
48  Pac.  41,  150,  62  Am.  St.  904.  And  it  S.  E.  867,  20  L.  R.  A.  653.  Nor  can  that 
is  not  a  delegation  of  legislative  power  to  fix  street-grade.  Zabel  v.  Louisville 
to  require  that  "no  person  shall,  in  or  B.  O.  Home,  92  Ky.  89,  17  S.  W.  212,  13 
upon  any  of  the  public  grounds,  make  L.  R.  A.  668.  Nor  that  to  regulate  liquor- 
any  public  address,  .  .  .  except  in  ac-  selling.  State  v.  Trenton,  51  N.  J.  L. 
cordance  with  a  permit  from  the  mayor,"  498,  18  Atl.  116,  5  L.  R.  A.  352.^ 
but  merely  a  casting  of  an  administra- 


294 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


authority ;  and  nothing  short  of  the  most  positive  and  explicit 
language  could  justify  the  court  in  holding  that  the  legislature 
intended  to  confer  such  a  power,  or  permit  it  to  be  conferred,  on 
a  city  officer  or  committee.  The  statute  in  question  not  only  con- 
tained no  such  language,  but,  on  the  contrary,  clearly  expressed 
the  intention  of  confining  the  exercise  of  this  power  to  the  common 
council,  the  members  of  which  were  elected  by  and  responsible  to 
those  whose  property  they  were  thus  allowed  to  tax.1 

This  restriction,  it  will  be  perceived,  is  the  same  which  rests 
upon  the  legislative  power  of  the  State,  and  it  springs  from  the 
same  reasons.  The  people  in  the  one  case  in  creating  the  legisla- 
tive department,  and  the  legislature  in  the  other  in  conferring  the 
corporate  powers,  have  selected  the  depositary  of  the  power  which 
they  have  designed  should  be  exercised,  and  in  confiding  it  to 
such  depositary  have  impliedly  prohibited  its  being  exercised  by 
any  other  agency.  A  trust  created  for  any  public  purpose  cannot 
be  assignable  at  the  will  of  the  trustee.2 


1  Thompson  v.  Schermerhorn,  6  N.  Y. 
92.     See  also  Smith  ».'.  Morse,  2  Cal.  524 ; 
Oakland  ».  Carpentier,  13  Cal.540;  Whyte 
v.  Nashville,  2  Swan,  364  ;  East  St.  Louis 
v.  Wehrung,  50  111.  28;  Ruggles  v.  Col- 
lier, 43  Mo.  353;  State  v.  Jersey  City,  25 
N.  J.  309;  Hydes  v.  Joyes,  4  Bush,  464; 
Lyon  v.  Jerome,  26  Wend.  485;  State  v. 
Paterson,  34  N.  J.  168 ;   State  v.  Fiske, 
9  R.  I.  94 ;  Kinmundy  v.  Mahan,  72  111. 
462 ;  Davis  v.  Reed,  65  N.  Y.  566 ;  Super- 
visors of  Jackson  v.   Brush,  77   111.  59; 
Thomson  v.  Booneville,  61  Mo.  282  ;  In  re 
Quong  Woo,  13  Fed.  Rep.  229;   Cornell 
t?.  State,  6  Lea,  624;  Benjamin  v.  Web- 
ster, 100  Ind.   15;    Minneapolis  Gaslight 
Co.    v.  Minneapolis,    36    Minn.    159,    30 
N.  W.   450;    Dillon,   Mun.   Corp.   §  60. 
Compare  In  re  Guerrero,  69  CaL  88,  10 
Pac.  261. 

2  The  charter  of  Washington  gave  the 
corporation  authority  "  to  authorize  the 
drawing  of  lotteries,  for  effecting  any  im- 
portant improvement  in  the  city,  which 
the   ordinary   funds  or  revenue  thereof 
will    not  accomplish ;  provided  that  the 
amount   raised   in   each   year   shall    not 
exceed  ten   thousand  dollars.     And  pro- 
vided   also   that   the   object    for    which 
the    money    is    intended    to    be    raised 
shall  be  first  submitted  to  the  President 
of  the  United   States,   and   shall  be  ap- 
proved by  him."     Marshall,  Ch.  J.,  speak- 
ing of  this  authority,  says :    "  There  is 
great   weight  in   the   argument   that    it 


is  a  trust,  and  an  important  trust,  con- 
fided to  the  corporation  itself,  for  the 
purpose  of  effecting  important  improve- 
ments in  the  city,  and  ought,  therefore, 
to  be  executed  under  the  immediate 
authority  and  inspection  of  the  corpora- 
tion. It  is  reasonable  to  suppose  that 
Congress,  when  granting  a  power  to 
authorize  gaming,  would  feel  some  solici- 
tude respecting  the  fairness  with  which 
the  power  should  be  used,  and  would  take 
as  many  precautions  against  its  abuse  as 
was  compatible  with  its  beneficial  exer- 
cise. Accordingly,  we  find  a  limitation 
upon  the  amount  to  be  raised,  and  on  the 
object  for  which  the  lottery  may  be  au- 
thorized. It  is  to  be  for  any  important 
improvement  in  the  city,  which  the  ordi- 
nary funds  or  revenue  thereof  will  not 
accomplish  ;  and  is  subjected  to  the  judg- 
ment of  the  President  of  the  United 
States.  The  power  thus  cautiously 
granted  is  deposited  with  the  corpora- 
tion itself,  without  an  indication  that  it 
is  assignable.  It  is  to  be  exercised,  like 
other  corporate  powers,  by  the  agents  of 
the  corporation  under  its  control.  While 
it  remains  where  Congress  has  placed  it, 
the  character  of  the  corporation  affords 
some  security  against  its  abuse,  —  some 
security  that  no  other  mischief  will  result 
from  it  than  is  inseparable  from  the  thing 
itself.  But  if  the  management,  control, 
and  responsibility  may  be  transferred  to 
any  adventurer  who  will  purchase,  all  the 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  295 

Irrepealable  Legislation, 

Equally  incumbent  upon  the  State  legislature  and  these  munic- 
ipal bodies  is  the  restriction  that  they  shall  adopt  no  irrepealable 
legislation.  No  legislative  body  can  so  part  with  its  powers  by 
any  proceeding  as  not  to  be  able  to  continue  the  exercise  of  them. 
It  can  and  should  exercise  them  again  and  again,  as  often  as  the 
public  interests  require.1  Such  a  body  has  no  power,  even  by 
contract,  to  control  and  embarrass  its  legislative  powers  and 
duties.  On  this  ground  it  has  been  held,  that  a  grant  of  land 
by  a  municipal  corporation,  for  the  purposes  of  a  cemetery,  with 
a  covenant  for  quiet  enjoyment  by  the  grantee,  could  not  preclude 
the  corporation,  in  the  exercise  of  its  police  powers,  from  pro- 
hibiting any  further  use  of  the  land  for  cemetery  purposes,  when 
the  advance  of  population  threatened  to  make  such  use  a  public 
nuisance.2  So  when  "  a  lot  is  granted  as  a  place  of  deposit  for 
gunpowder,  or  other  purpose  innocent  in  itself  at  the  time;  it 
is  devoted  to  that  purpose  till,  in  the  progress  of  population,  it 
becomes  dangerous  to  the  property,  the  safety,  or  the  lives  of  hun- 
dreds ;  it  cannot  be  that  the  mere  form  of  the  grant,  because  the 
parties  choose  to  make  it  particular  instead  of  general  and  abso- 
lute, should  prevent  the  use  to  which  it  is  limited  being  regarded 
and  treated  as  a  nuisance,  when  it  becomes  so  in  fact.  In  this 
way  the  legislative  powers  essential  to  the  comfort  and  preserva- 
tion of  populous  communities  might  be  frittered  away  into  perfect 
insignificance.  To  allow  rights  thus  to  be  parcelled  out  and 
secured  beyond  control  would  fix  a  principle  by  which  our  cities 
and  villages  might  be  broken  up.  Nuisances  might  and  undoubt- 
edly would  be  multiplied  to  an  intolerable  extent."3 

And  on  the  same  ground  it  is  held  that  a  municipal  corpora- 
tion, having  power  to  establish,  make,  grade,  and  improve  streets, 

security  for  fairness  which  is  furnished  But   after   telephone    poles    have    been 

by  character  and  responsibility  is  lost."  erected  by  a  company  in  certain  streets 

Clark  v.  Washington,  12  Wheat.  40,  64.  designated  by  the  city,  it  cannot  revoke 

1  East  Hartford  v.  Hartford  Bridge  Co.,  the  designation  at  its  mere  will.    Hudson 
10  How.  511 ;  Dillon,  Mun.  Corp.  §  61.  Tel.  Co   v.  Jersey  City,  49  N.  J.  L.  303, 

2  Brick  Presbyterian  Church  v.  City  8  Atl.  123. 

of  New  York,  5  Cow.  538 ;  New  York  r.  8  Coats  v.  Mayor,  &c.  of  New  York, 
Second  Avenue  R.  R.  Co.,  32  N.  Y.  261.  7  Cow.  585;  Davenport  v.  Richmond,  81 
Compare  Kincaid's  Appeal,  66  Pa.  St.  Va.  636.  See  also  Davis  v.  Mayor,  &c. 
411,5  Am.  Rep.  377.  Permission  to  build  of  New  York,  14  N.  Y.  506;  Attorney- 
out  over  and  under  a  sidewalk  is  a  mere  General  v.  Mayor,  &c.  of  New  York,  3 
revocable  license.  Winter  v.  City  Coun-  Duer,  119;  State  v.  Graves,  19  Md.  351; 
cil,  83  Ala.  589,  3  So.  235.  fJSo  with  Goszler  v.  Georgetown,  6  Wheat.  593; 
awnings.  Augusta  v.  Burum,  93  Ga.  68,  Louisville  City  R.  R.  Co.  v.  Louisville, 
19  S.  E.  820,  26  L.  R.  A.  340,  and  note,  on  8  Bush,  415. 
right  to  maintain  awnings  in  streets.] 


296 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


does  not,  by  once  establishing  the  grade,  preclude  itself  from 
changing  it  as  the  public  needs  or  interest  may  seem  to  require, 
notwithstanding  the  incidental  injury  which  must  result  to  those 
individuals  who  have  erected  buildings  with  reference  to  the  first 
grade.1  So  a  corporation  having  power  under  the  charter  to  estab- 
lish and  regulate  streets  cannot  under  this  authoritv,  without 


1  Callendar  v.  Marsh,  1  Pick.  417; 
Griggs  v.  Foote,  4  Allen,  195;  Graves  v. 
Otis,  2  Hill,  466;  Green  v.  Reading,  9 
Watts,  382,  36  Am.  Dec.  127 ;  O'Connor 
v.  Pittsburg,  18  Pa.  St.  187 ;  Reading  v. 
Keppleman,  61  Pa.  St.  233;  Skinner  v. 
Hartford  Bridge  Co.,  29  Conn.  523;  Fel- 
lows v.  New  Haven,  44  Conn.  240,  26 
Am.  Rep.  447 ;  La  Fayette  v.  Bush,  19 
Ind.  326;  La  Fayette  v.  Fowler,  34  Ind. 
140;  Creal  v.  Keokuk,  4  Greene  (Iowa), 
47;  Hendershott  v.  Ottumwa,  46  Iowa, 
658;  Murphy  v.  Chicago,  29  111.  279; 
Quincy  v.  Jones,  76  111.  231 ;  Rounds  v. 
Mumford,  2  R.  I.  154;  Rome  r.  Oinberg, 
28  Ga.  46;  Roll  v.  Augusta,  34  Ga.  326; 
Macon  v.  Hill,  58  Ga.  595;  Reynolds  v. 
Shreveport,  13  La.  Ann.  426;  White 
v.  Yazoo  City,  27  Miss.  357;  Humes  v. 
Mayor,  &c.,  1  Humph.  403  ;  St.  Louis  v. 
Gurno,  12  Mo.  414 ;  Taylor  v.  St.  Louis, 
14  Mo.  20 ;  Schattner  v.  Kansas  City,  35 
Mo.  162;  Keasy  v.  Louisville,  4  Dana, 
154,  29  Am.  Dec.  395 ;  Blount  v.  Janes- 
ville,  31  Wis.  648;  Nevins  v.  Peoria,  41 
111.  502;  Shawneetown  v.  Mason,  82  111. 
337;  Weymann  v.  Jefferson,  61  Mo.  55. 
Compare  Louisville  v.  Rolling  Mill  Co., 
3  Bush,  416;  Denver  v.  Vernia,  8  Col. 
399,  8  Pac.  656.  No  legal  damage  is 
done  by  establishing  a  grade  where  none 
had  existed.  Gardiner  v.  Johnston,  16 
R.  I.  94,  12  Atl.  888.  A  city  having 
power  to  grade  and  level  streets  is  not 
liable  for  consequent  damages  to  persons 
whose  lands  are  not  taken.  Radcliffe's 
Ex'rs  v.  Brooklyn,  4  N.  Y.  195;  Smith  v. 
Washington,  20  How.  135;  Snyder  v. 
Rockport,  6  Ind.  237 ;  Pontiac  r.  Carter, 
32  Mich.  104;  Cole  v.  Muscatine,  14 
Iowa,  296;  Russell  v.  Burlington,  30 
Iowa,  262 ;  Burlington  t.  Gilbert,  31  Iowa, 
356;  Roberts  v.  Chicago,  26  111.  249; 
Delphi  v.  Evans,  36  Ind.  90;  Simmons 
v.  Camden,  26  Ark.  276;  7  Am.  Rep. 
620;  Dorman  v.  Jacksonville,  13  Fla. 
638,7  Am.  Rep.  253;  Dore  v.  Milwaukee, 
42  Wis.  108 ;  Lee  v.  Minneapolis,  22  Minn. 
13;  Lynch  v.  New  York,  76  N.  Y.  60; 


Cheever  v.  Shedcl,  13  Blatch.  258.  The  law 
would  seem  to  be  otherwise  declared  in 
Ohio.  See  Rhodes  v.  Cincinnati,  10  Ohio, 
160;  McCombs  v.  Akron,  15  Ohio,  474; 
s.  c.  18  Ohio,  229 ;  Crawford  v.  Delaware, 
7  Ohio  St.  459;  Akron  v.  Chamberlain 
Co.,  34  Ohio  St.  328 ;  32  Am.  Rep.  367 ; 
Cohen  v.  Cleveland,  43  Ohio  St.  190. 
See  also  Nashville  v.  Nichol,  59  Tenn. 
338.  It  is  also  otherwise  in  Illinois 
under  its  present  Constitution.  Elgin  v. 
Eaton,  83  111.  535;  Rigney  ».  Chicago, 
102  111.  64.  Under  like  constitutional 
provisions  a  like  rule  has  been  laid  down. 
Reardon  v.  San  Francisco,  66  Cal.  492, 
6  Pac.  317 ;  Moore  v.  Atlanta,  70  Ga.  611 ; 
Harmon  v.  Omaha,  17  Neb.  548,  23  N.  W. 
503;  Werth  v.  Springfield,  78  Mo.  107. 
But  in  Alabama  not  every  change  in 
grade  gives  ground  for  recovery.  Mont- 
gomery v.  Townsend,  80  Ala.  489.  By 
statute  in  Indiana  a  change  of  grade 
causing  special  injury  and  damage  war- 
rants a  recovery.  Lafayette  v.  Nagle, 
113  Ind.  425,  15  N.  E.  1.  The  Iowa 
statute  is  similar.  Phillips  v.  Council 
Bluffs,  63  Iowa,  576,  19  N.  \V.  672.  [Mil- 
lard  v.  Webster  City,  113  Iowa,  220,  84 
N.  W.  1044  ;  Richardson  v.  Webster  City, 
111  Iowa,  427,  82  N.  W.  920.]  Compare 
Alexander  v.  Milwaukee,  16  Wis.  247. 
[City  liable  in  Kansas.  Leaven  worth  v. 
Duffy,  63  Kan.  884,  62  Pac.  433.]  Courts 
will  not  undertake  to  control  municipal 
discretion  in  the  matter  of  improving 
streets.  Dunham  v.  Hyde  Park,  75  LI. 
371 ;  Brush  v.  Carbondale,  78  111.  74.  The 
owner  of  a  lot  on  a  city  street  acquires  no 
prescriptive  right  to  collateral  support  for 
his  buildings  which  can  render  the  city 
liable  for  injuries  caused  by  grading  the 
street.  Mitchell  v.  Rome,  49  Ga.  19,  15 
Am.  Rep.  669 ;  Quincy  r.  Jones,  76  111. 
231,  20  Am.  Rep.  243.  Contra,  Nichols 
r.  Duluth,  40  Minn.  389,  42  N.  W.  84. 
But  the  failure  to  use  due  care  and  pru- 
dence in  grading  may  render  the  city 
liable.  Bloomington  v.  Brokaw,  77  I1L 
194. 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL  GOVERNMENT.  297 

explicit  legislative  consent,  permit  individuals  to  lay  down  a  rail- 
way in  one  of  its  streets,  and  confer  privileges  exclusive  in  their 
character  and  designed  to  be  perpetual  in  duration,  (a)  In  a  case 

(a)  £Nor  can  it  contract  away  the  power  of  the  State  to  oust  the  corporation 
grantee  from  its  privileges.  State  v.  East  Fifth  St.  Ry.  Co.,  140  Mo.  539,  41  S.  W. 
955,  38  L.  R.  A.  218,  62  Am.  St.  742.  Ordinance  giving  right  to  lay  double  tracks 
may  be  repealed.  Lake  Roland  El.  R.  Co.  v.  Baltimore,  77  Md.  352,  26  Atl.  610,  20 
L.  R.  A.  126.  For  other  cases  denying  power  to  make  exclusive  grants,  see  Detroit 
Citizens'  S.  R.  Co.  v.  Detroit,  110  Mich.  384,  68  N.  W.  304,  35  L.  R.  A.  859,  64  Am. 
St.  350;  Vincennes  v.  Citizens'  Gas  L.  &  C.  Co.,  132  Ind.  114,  31  N.  E.  573,  16  L.  R. 
A.  485;  Altgelt  v.  San  Antonio,  81  Tex.  436,  17  S.  W.  75,  13  L.  R.  A.  383,  and  note; 
Syracuse  W.  Co.  v.  Syracuse,  116  N.  Y.  167,  22  N.  E.  381,  5  L.  R.  A.  546.  Even 
where  a  company  has  a  right,  under  a  contract,  to  place  electric  wires  beneath  the 
surface  of  the  streets,  the  right  is  subject  to  such  reasonable  regulations  as  the  city 
deems  best  to  make  for  the  public  safety  and  convenience.  Missouri  v.  Murphy, 
170  U.  S.  78,  18  Sup.  Ct.  Rep.  505,  aff.  130  Mo.  10,  31  S.  W.  594,  31  L.  R.  A.  798. 
Upon  power  of  city  to  allow  subway  under  street  for  wires,  State  t;.  Murphy,  134 
Mo.  548,  35  S.  W.  1132,  66  Am.  St.  515,  34  L.  R.  A.  369,  and  note;  also  note  to 
State  v.  Murphy,  31  L.  R.  A.  798.  Duty  to  keep  streets  safe  :  West.  U.  Tel.  Co.  v. 
State,  82  Md.  293,  33  Atl.  763,  51  Am.  St.  464,  31  L.  R.  A.  572,  and  note.  An  ordi- 
nance authorizing  a  railroad  company  to  build  bridges  of  a  certain  pattern  over  its 
roadway,  and  providing  that  the  beginning  to  erect  such  bridges  should  be  deemed 
an  acceptance  of  the  terms  of  the  ordinance,  and  a  supersession  of  all  contracts  exist- 
ing prior  thereto,  did  not  give  rise  to  a  contract,  but  was  a  mere  license,  revocable 
at  any  time.  Wabash  R.  Co.  v.  Defiance,  167  U.  S.  88,  17  Sup.  Ct.  Rep.  748,  aff. 
62  Ohio  St.  262,  40  N.  E.  89.  Upon  liability  for  cost  of  changing  grade  at  railroad 
crossing,  see  Kelly  v.  Minneapolis,  57  Minn.  294,  59  N.  W.  304,  26  L.  R.  A.  92,  and 
note,  47  Am.  St.  605.  Upon  right  to  regulate  the  placing  and  use  of  telegraph,  tele- 
phone, and  other  electric  wires  in  and  above  streets,  see  St.  Louis  v.  Western  U. 
Tel.  Co.,  148  U.  S.  92,  13  Sup.  Ct.  Rep.  485.  City  cannot  authorize  the  erection  in 
its  streets  of  what  amounts  to  a  private  nuisance.  Chicago  G.  W.  R.  Co.  v.  First 
M.  E.  Church,  42  C.  C.  A.  178, 102  Fed.  Rep.  85,  50  L.  R.  A.  488;  Baltimore  &  P.  R. 
Co.  v.  Fifth  Bapt.  Church,  108  U.  S.  317,  2  Sup.  Ct.  Rep.  719.  City  cannot  levy  a 
wheel  tax  upon  all  vehicles  used  on  streets,  where  the  property  has  already  been 
assessed  for  taxation  under  the  general  property  tax.  Chicago  v.  Collins,  175  111. 
445,  51  N.  E.  907,  49  L.  R.  A.  408,  67  Am.  St.  224.  See  also  Davis  v.  Petrinovich, 
112  Ala.  654,  21  So.  344,  36  L.  R.  A.  615.  Where  a  city  is  bound  to  maintain  side- 
walks upon  its  streets  in  a  safe  condition,  the  obligation  extends  to  boulevards  also, 
even  though  they  are  primarily  under  the  control  of  park  and  boulevard  commis- 
sioners. Burridge  v.  Detroit,  117  Mich.  557,  76  N.  W.  84,  42  L.  R.  A.  684,  72  Am. 
St.  582.  A  street  may  be  set  apart  for  use  exclusively  as  a  pleasure  driveway,  and 
heavily  loaded  vehicles  excluded  from  it.  Cicero  Lumber  Co.  v.  Cicero,  176  111.  9, 
51  N.  E.  758,  42  L.  R.  A.  696,  68  Am.  St.  155.  Upon  municipal  power  over  nui- 
sances affecting  highways  and  waters,  see  Hagerstown  v.  Witmer,  86  Md.  293,  37 
Atl.  965,  39  L.  R.  A.  649,  and  note  ;  over  nuisances  in  highways  caused  by  street  rail- 
roads and  other  electrical  companies,  note  to  39  L.  R.  A.  609.  City  cannot  arbi- 
trarily tear  up  and  remove  a  track  which  has  been  laid  under  permission  granted 
by  valid  ordinance.  Some  notice  and  opportunity  to  be  heard  must  first  be  given. 
Cape  May  v.  Cape  M.,  Del.  Bay  &  S.  P.  R.  Co.,  60  N.  J.  L.  224,  37  Atl.  892,  39 
L.  R.  A.  609.  Upon  regulation  of  speed  of  vehicles  in  streets,  see  note  36  L.  R.  A. 
305.  Reasonable  license  fees  may  be  exacted  for  use  of  streets  by  vehicles,  and  fact 
that  vehicles  are  owned  outside  city  and  only  occasionally  used  within  it  is  immate- 
rial. Tomlinson  v.  Indianapolis,  144  Ind.  142,  43  N.  E.  9,  36  L.  R.  A.  413,  and  note ; 
Mason  v.  Cumberland,  92  Md.  451,  48  Atl.  136.  Fenders  may  be  required  on  street 
cars.  State  v.  Cape  May,  59  N.  J.  L.  396,  36  Atl.  696,  36  L.  R.  A.  653.  And  speed 
of  street  cars  may  be  regulated.  Ibid.,  59  N.  J.  L.  393,  36  Atl.  679,  36  L.  R.  A.  656. 


298  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

where  this  was  attempted,  it  has  been  said  by  the  court :  "  The 
corporation  has  the  exclusive  right  to  control  and  regulate  the 
use  of  the  streets  of  the  city.  In  this  respect  it  is  endowed  with 
legislative  sovereignty.  The  exercise  of  that  sovereignty  has  no 
limit,  so  long  as  it  is  within  the  objects  and  trusts  for  which  the 
power  is  conferred.  An  ordinance  regulating  a  street  is  a  legis- 
lative act,  entirely  beyond  the  control  of  the  judicial  power  of 
the  State.  But  the  resolution  in  question  is  not  such  an  act. 
Though  it  relates  to  a  street,  and  very  materially  affects  the 
mode  in  which  that  street  is  to  be  used,  yet  in  its  essential  fea- 
tures it  is  a  contract.  Privileges  exclusive  in  their  nature  and 
designed  to  be  perpetual  in  their  duration  are  conferred.  Instead 
of  regulating  the  use  of  the  street,  the  use  itself  to  the  extent 
specified  in  the  resolution  is  granted  to  the  associates.  For  what 
has  been  deemed  an  adequate  consideration,  the  corporation  has 
assumed  to  surrender  a  portion  of  their  municipal  authority,  and 
has  in  legal  effect  agreed  with  the  defendants  that,  so  far  as  they 

Cars  may  be  required  to  stop  before  crossing  streets.  Ibid.,  59  N.  J.  L.  404,  36  Atl. 
678,  36  L.  R.  A.  657.  Railroad  cannot  under  general  power  to  regulate  streets  be 
compelled  to  erect  gates  and  keep  watchman  at  crossing.  Pittsburgh,  C.  C.  &  St. 
L.  R.  Co.  v.  Crown  Point,  146  Ind.  421,  45  N.  E.  587,  35  L.  R.  A.  684.  City  cannot 
divest  itself  of  power  to  regulate  use  of  streets.  State  v.  Murphy,  134  Mo.  548,  35 
S.  W.  1142,  34  L.  R.  A.  369,  56  Am.  St.  515;  and  that  the  municipality  holds  streets, 
parks,  and  the  like  in  trust  for  the  public,  see  St.  Paul  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  63  Minn.  330,  63  N.  W.  267,  65  N.  W.  649,  68  N.  W.  458,  34  L.  R.  A.  184.  See 
also  Columbus  Gas  Light  and  Coke  Co.  v.  Columbus,  50  Ohio,  65,  33  N.  E.  292,  40 
Am.  St.  648,  19  L.  R.  A.  510.  On  power  to  regulate  use  of  streets  by  electric  com- 
panies, see  State  v.  Murphy,  130  Mo.  10,  31  S.  W.  594,  31  L.  R.  A.  798,  and  note  in 
L.  R.  A.  Rights  of  owners  of  abutting  property  to  access  and  to  light  and  air  cannot 
be  materially  impeded.  Block  ».  Salt  Lake  R.  T.  Co.,  9  Utah,  31,  33  Pac.  229,  24 
L.  R.  A.  610;  Lockwood  v.  Wabash  R.  Co.,  122  Mo.  86,  26  S.  W.  698,  24  L.  R.  A. 
516,  43  Am.  St.  547 ;  Schopp  v.  St.  Louis,  117  Mo.  131,  22  S.  W.  898,  20  L.  R.  A.  783; 
Moose  v.  Carson,  104  N.  C.  431,  10  S.  E.  689,  7  L.  R.  A.  548,  and  note,  17  Am.  St. 
681 ;  Gargan  v.  Louisville,  N.  A.  &  C.  R.  Co.,  89  Ky.  212,  12  S.  W.  259,  6  L.  R.  A. 
340.  Residents  may  be  required  to  keep  the  sidewalks  in  front  of  their  premises 
free  from  snow  and  ice.  Carthage  v.  Frederick,  122  N.  Y.  268,  25  N.  E.  480,  10 
L.  R.  A.  178,  and  note,  19  Am.  St.  490.  Contractor  cannot  be  granted  right  to  place 
boxes  upon  streets  and  use  them  for  posting  bills,  even  though  they  are  made  and 
maintained  without  cost  to  city,  and  according  to  specifications  of  board  of  public 
improvements,  and  designed  specially  for  the  reception  of  litter  and  refuse  tliat 
would  otherwise  be  cast  into  the  streets.  State  v.  St.  Louis,  161  Mo.  371,  61  S.  \V. 
658.  For  other  cases  upon  regulation  of  streets,  see  Argentine  v.  Atchison  T  & 
S.  F.  Ry.  Co.,  55  Kan.  730,  41  Pac.  946,  30  L.  R.  A.  255;  Mt.  Carmel  v.  Shaw,  155 
111.  37,  39  N.  E.  584,  27  L.  R.  A.  580;  Indianapolis  v.  Consumers'  Gas  Co.,  140  Ind. 
107,  39  N.  E.  433,  49  Am.  St.  183,  27  L.  R.  A.  514;  Tate  v.  Greensboro  114  N.  C. 
392,  19  S.  E.  767,  24  L.  R.  A.  671 ;  Savage  v.  Salem,  23  Oreg.  381,  31  Pac.  832,  37 
Am.  St.  688,  24  L.  R.  A.  787;  New  Haven  v.  New  Haven  &  D.  Ry.  Co.,  62  Conn  252, 
25  Atl.  316,  18  L.  R.  A.  256;  People  v.  Ft.  Wayne  &  E.  Ry.  Co.,  92  Mich.  522,  52 
N.  W.  1010,  16  L.  R.  A.  752;  Chase  v.  Oshkosh,  81  Wis.  313,  51  N.  W.  560,  29  Am. 
St.  898,  15  L.  R.  A.  553,  and  note  (shade  trees) ;  American  R.  Tel.  Co.  v.  Hess,  125 
N.  Y.  641,  26  N.  E.  919,  21  Am.  St.  764,  13  L.  R.  A.  454 ;  State  v.  Trenton,  53  N.  J.  L. 
132,  20  Atl.  1076,  11  L.  R.  A.  410;  note  to  8  L.  R.  A.  828. } 


CH.  Till.]          THE   GRADES    OF   MUNICIPAL   GOVERNMENT. 


299 


may  have  occasion  to  use  the  street  for  the  purpose  of  construct- 
ing and  operating  their  railroad,  the  right  to  regulate  and  control 
the  use  of  that  street  shall  not  be  exercised.  ...  It  cannot  be 
that  powers  vested  in  the  corporation  as  an  important  public 
trust  can  thus  be  frittered  away,  or  parcelled  out  to  individuals  or 
joint-stock  associations,  and  secured  to  them  beyond  control."  1 

So,  it  has  been  held  that  the  city  of  Philadelphia  exercised  a 
portion  of  the  public  right  of  eminent  domain  in  respect  to  the 
streets  within  its  limits,  subject  only  to  the  higher  control  of  the 
State  and  the  use  of  the  people ;  and  therefore  a  written  license 
granted  by  the  city,  though  upon  a  valuable  consideration,  author- 
izing the  holder  to  connect  his  property  with  the  city  railway  by 
a  turnout  and  track,  was  not  such  a  contract  as  would  prevent 
the  city  from  abandoning  or  removing  the  railway  whenever,  in 
the  opinion  of  the  city  authorities,  such  action  would  tend  to  the 
benefit  of  its  police.2 


1  Milhau  v.  Sharp,  17  Barb.  435;  s.  c. 
28  Barb.  228,  and  27  N.  Y.  611 ;  Bir- 
mingham, &c.  St.  Ry.  Co.  v.  Birming- 
ham St.  Ry.  Co.,  79  Ala.  465;  Nash  v. 
Lowry,  37  Minn.  261 ;  Jackson,  &c.  R.  Co. 
v.  Intersta'e,  &c.  Co.,  24  Fed.  Rep.  306. 
See  also  Davis  v.  Mayor,  &c.  of  New  York, 
14  N.  Y.  506 ;  State  ;--.  Mayor,  &c.,  3  Duer, 
119 ;  State  o.  Graves,  19  Md.  351  ;  £De- 
troit  Citizens'  Street  R.  Co.  v.  Detroit 
Ry.,  171  U.  S.  48,  18  Sup.  Ct.  Rep.  732. 
Upon  municipal  power  to  impose  condi- 
tions in  granting  right  to  street  railway 
to  occupy  streets,  &c ,  see  Galveston  & 
W.  R.  Co.  v.  Galveston,  90  Tex.  398,  39 
S.  W.  96,  36  L.  R.  A.  33,  and  note  ;  rights 
of  street  railways  to  use  streets,  People  v. 
Newton,  112  N.  Y.  396,  19  N.  E.  831, 
3  L.  R.  A.  174,  and  note ;  and  Adams  v. 
Chicago,  B.  &  N.  R.  Co.,  39  Minn.  286, 
39  N.  W.  629,  1  L.  R.  A.  493,  and  note, 
12  Am.  St.  644;  upon  general  relations 
between  street  railways  and  municipali- 
ties, note  to  43  L.  ed.  U.  S.  67.  Right  to 
lay  tracks  is  subject  to  regulation  by 
subsequent  ordinance.  Baltimore  v,  Bal- 
timore Tr.  &  G.  Co.,  166  U.  S.  673,  17 
Sup.  Ct.  Rep.  696.  See  also  Clarksburg 
El.  L.  Co.  v.  Clarksburg,  47  W.  Va.  739, 
35  S.  E.  994,  50  L.  R.  A.  142 ;  Cleveland 
v.  Augusta,  102  Ga.  233,  29  S.  E.  584,  43 
L.  R.  A.  638.  City  cannot  authorize  the 
permanent  occupation  of  a  portion  of  the 
street  for  a  private  purpose,  as  by  an 
awning.  Resolution  authorizing  such  is 
revocable  at  any  time,  although  the  li- 


censee may  have  spent  a  large  sum  in 
the  erection  of  the  awning.  Hibbard,  S., 
B.  &  Co.  v.  Chicago,  173  111.  91,  50  N.  E. 
256,  40  L.  R.  A.  621.  j  Compare  Chicago, 
&c.  R.  R.  Co.  v.  People,  73  III.  541.  Nor 
can  an  exclusive  privilege  be  granted  to  a 
gas  company  to  use  the  streets.  Gas  Co. 
v.  Parkersburg,  30  W.  Va.  435,  4  S.  E. 
650;  Cincinnati  Gaslight  Co.  v.  Avondale, 
43  Ohio  St.  257,  1  N.  E.  527;  Citizens' 
Gas,  &c.  Co.  v.  El  wood,  114  Ind.  332,  16 
N.  E.  624.  QA  grant  of  an  "exclusive 
privilege  of  laying  pipes  for  carrying  gas 
in  said  city,"  &c.,  does  not  prevent  a  city's 
erecting  its  own  gasworks,  particularly 
where  the  legislature  in  incorporating 
the  gas  company  reserved  the  power  to 
amend,  alter,  ror  repeal  its  charter,  and 
later  authorized  the  city  to  construct  its 
own  gasworks.  Hamilton  Gaslight  &  C. 
Co.  v.  Hamilton,  146  U.  S.  258, 13  Sup.  Ct. 
Rep.  90.]  The  consent  of  the  legislature 
in  any  such  case  would  relieve  it  of  all 
difficulty,  except  so  far  as  questions 
might  arise  concerning  the  right  of  indi- 
viduals to  compensation,  as  to  which,  see 
post,  ch.  15.  In  Milhau  v.  Sharp,  supra, 
it  was  also  held  that  a  corporation,  with 
authority  "  from  time  to  time  to  regulate 
the  rates  of  fare  to  be  charged  for  the 
carriage  of  persons,"  could  not  by  reso- 
lution divest  itself  thereof  as  to  the  car- 
riages employed  on  a  street  railway. 

2  Branson  v.  Philadelphia,  47  Pa.  St. 
329.  Compare  Louisville  City  R.  R.  Co. 
v.  Louisville,  8  Bush,  415.  [^And  see 


300  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

While  thus  held  within  the  limitations  which  govern  the  legis- 
lative authority  of  the  State,  these  corporations  are  also  entitled 
to  the  protections  and  immunities  which  attend  State  action,  and 
which  exempt  it  from  liability  to  those  who  may  incidentally  suffer 
damage  in  consequence,  (a)  As  no  State  does  or  can  undertake 
to  protect  its  people  against  incidental  injuries  resulting  from  its 
adopting  or  failing  to  adopt  any  proposed  legislative  action,  so  no 
similar  injury  resulting  from  municipal  legislative  action  or  non- 
action  can  be  made  the  basis  of  a  legal  claim  against  a  municipal 
corporation.  The  justice  or  propriety  of  its  opening  or  discon- 
tinuing a  street,  of  its  paving  or  refusing  to  pave  a  thoroughfare 
or  alley,  of  its  erecting  a  desired  public  building,  of  its  adopting  one 
plan  for  a  public  building  or  work  rather  than  another,  or  of  the 
exercise  of  any  other  discretionary  authority  committed  to  it  as  a 
part  of  the  governmental  machinery  of  the  State,  is  not  suffered 
to  be  brought  in  question  in  an  action  at  law,  and  submitted  to 
the  determination  of  court  and  jury.1  If,  therefore,  a  city  tern- 
Stevens  v.  Muskegon,  111  Mich.  72,  69  of  every  failure  in  the  perfect  and  in- 
N.  W.  227,  36  L.  R.  A.  777.]  fallible  execution  of  those  laws.  There 

1  In  Griffin  v.  New  York,  9  N.  Y.  456,  is  no  authority  for  such  a  doctrine,  and 
459,  in  which  it  was  held  that  an  action  we  are  satisfied  it  does  not  exist."  QSee 
would  not  lie  against  a  city  for  injury  also  Evansville  v.  Senhenn,  151  Ind.  42, 
occasioned  by  a  failure  to  keep  its  streets  47  N.  E.  634,  51  N.  E.  88,  41  L.  R.  A.  728, 
free  from  obstructions,  the  following  re-  68  Am.  St.  218.]  Where  a  city  under 
marks  are  made :  "  The  functions  of  a  proper  authority  has  vacated  part  of  a 
common  council  as  applied  to  this  subject  street,  an  abutter  on  another  part  of  it 
are  those  of  a  local  legislature  within  cer-  has  no  ground  of  complaint.  Whitsett  i>. 
tain  limits,  and  are  not  of  a  character  to  Union  I).  &  R.  Co.,  10  Col.  243,  15  Pac. 
render  the  city  responsible  for  the  manner  3-39.  A  court  cannot  control  the  discre- 
in  which  the  authority  is  exercised,  or  in  tion  of  a  city  in  opening  and  working 
which  the  ordinances  are  executed,  any  streets.  Bauman  v.  Detroit,  58  Mich, 
more  than  the  State  would  be  liable  for  444,  25  N.  W.  391.  So,  where  a  city  was 
the  want  of  adequate  administrative  laws,  sued  for  an  injury  sustained  in  the  de- 
or  from  any  imperfections  in  the  manner  struction  of  property  by  a  mob,  in  con- 
of  carrying  them  out."  "  A  doctrine  that  sequence  of  the  failure  of  officers  to  give 
should  hold  the  city  pecuniarily  liable  in  adequate  protection,  the  court,  in  holding 
such  a  case  would  oblige  its  treasury  to  that  the  action  will  not  lie,  say :  "  It  is 
make  good  to  every  citizen  any  loss  not  the  policy  of  the  government  to  in- 
which  he  might  sustain  for  the  want  of  demnify  individuals  for  losses  sustained 
adequate  laws  upon  every  subject  of  either  from  the  want  of  proper  laws,  or 
municipal  jurisdiction,  and  on  account  from  the  inadequate  enforcement  of 

(a)  [[A  municipal  corporation  is  not  liable  in  an  action  for  false  imprisonment 
where  imprisonment  was  under  a  judgment  for  violation  of  an  ordinance,  even 
though  the  judgment  was  erroneous  or  even  void.  Bartlett  r.  Columbus,  101  Ga. 
300,  28  S.  E.  599,  44  L.  R.  A.  795.  Nor  for  the  destruction  of  property  in  time  of 
flood  in  order  to  prevent  still  greater  loss.  Aitken  i\  Wells  Hiver,  70  Vt.  308,  40 
Atl.  829,  41  L.  R.  A.  566,  67  Am.  St.  G72.  Nor  for  injury  resulting  from  the  negli- 
gence of  the  employer  of  a  public  institution  maintained  by  the  county  as  a  govern- 
mental agency  (reform  school).  McAndrews  v.  Hamilton  County,  105  Tenn.  399, 
68  S.  W.  483.] 


CH.  VIII.]  THE    GRADES   OF   MUNICIPAL   GOVERNMENT. 


301 


porarily  suspends  useful  legislation ; l  or  orders  and  constructs 


laws."  Western  College  v.  Cleveland, 
12  Ohio  St.  375,  377.  QBut  liability  for 
such  losses  may  be  cast  by  statute  on 
municipalities.  Chicago  v.  Manhattan 
Cement  Co.,  178  111.  372,  53  N.  E.  68,  45 
L.  K.  A.  848,  69  Am.  St.  321.]  A  city  is 
not  liable  for  the  destruction  of  a  house 
by  fire  set  by  sparks  from  an  engine 
which  was  by  its  ordinances  a  nuisance 
subject  to  abatement.  "  In  the  exercise 
of  such  powers  a  city  is  not  bound  to  act 
unless  it  chooses  to  act."  Davis  v.  Mont- 
gomery, 51  Ala.  139,  23  Am.  Rep.  545. 
Nor  for  failure  to  enforce  a  fire  limits 
ordinance  whereby  adjoining  property 
is  burned.  Hines  v.  Charlotte,  72  Mich. 
278,  40  N.  W.  333.  Nor  for  failure  to  pro- 
hibit manufacture  of  fireworks.  McDade 
v.  Chester,  117  Pa.  St.  414,  12  Atl.  421. 
Nor  is  it  liable  for  neglect  to  construct 
a  proper  system  of  drainage,  in  conse- 
quence of  which  plaintiff's  store  was  over- 
flowed in  an  extraordinary  rain.  Carr  v. 
Northern  Liberties,  35  Pa  St.  324 ;  Flagg 
v.  Worcester,  13  Gray,  601. 

A  city  is  not  liable  for  the  failure  to 
provide  a  proper  water  supply  for  the 
extinguishment  of  fires:  Grant  v.  Erie, 
69  Pa.  St.  420,  8  Am.- Rep.  272';  Tainter 
v.  Worcester,  123  Mass.  311,  25  Am.  Rep. 
90;  Wright  v.  Augusta,  78  Ga.  241,  Black 
v.  Columbia,  19  S.  C.  412;  Vanhorn  v. 
Des  Moines,  63  Iowa,  447,  19  N.  W.  293; 
Mendel  v.  Wheeling,  28  W.  Va.  233; 
pSutterworth  v.  Henrietta,  —  Tex.  Civ. 
Ap.  — ,  61  S.  W.  975,  (Mar.  23,  1901)  Q 
nor  for  the  inefficiency  of  its  firemen  : 
Wheeler  v.  Cincinnati,  19  Ohio  St.  19,  2 
Am.  Rep.  368;  Patch  r.  Covington,  17  B. 
Mou.  722;  Greenwood  v.  Louisville,  13 
Bush,  226,  26  Am.  Rep.  263 ;  Hafford  v. 
New  Bedford,  16  Gray,  297 ;  Fisher  v. 
Boston,  104  Mass.  87,  6  Am.  Rep.  196; 
Jewett  v.  New  Haven,  38  Conn.  368  ;  Tor- 
hush  v.  Norwich,  38  Conn.  225,  9  Am. 
Rep.  395;  Howard  v.  San  Francisco,  51 
Cal.  52  ;  Heller  v.  Sedalia,  53  Mo.  159,  14 
Am.  Rep.  444;  McKenna  v.  St.  Louis,  6 
Mo.  App.  320;  Robinson  v.  Evansville,  87 
Ind.  334;  nor  for  not  preventing  "coast- 


ing" in  its  streets,  to  the  injury  of  in- 
dividuals :  Shepherd  v.  Chelsea,  4  Allen, 
113;  Pierce  v.  New  Bedford,  129  Mass. 
534;  Ray  o.  Manchester,  46  N.  H.  69; 
Altvaterv.  Baltimore,  31  Md.  462;  Huteh- 
inson  v.  Concord,  41  Vt.  271;  Calwell  v. 
Bbone,  51  Iowa,  687,  2  N.  W.  614,  33  Am. 
Rep.  154;  Schultz  r.  Milwaukee,  49  Wis. 
254,  5  N.  W.  342,  35  Am.  Rep.  779;  Bur- 
ford  v.  Grand  Rapids,  53  Mich.  98,  18  N. 
W.  571 ;  Weller  v.  Burlington.  60  Vt.  28, 
12  Atl.  215;  Lafayette  v.  Timberlake,  88 
Ind.  330;  Q Wilmington  v.  Van  De  Grift, 
1  Marvel  (Del.),  6,  29  Atl.  1047,  25  L.  R. 
A.  538,  65  Am.  St.  256 ;]  but  see  Taylor 
v.  Cumberland,  64  Md.  68,  20  Atl.  1027; 
nor  for  fitting  a  path  for  "  coasting  "  in 
public  grounds,  where  a  collision  occurs 
with  a  person  passing  it :  Steele  v.  Bos- 
ton, 128  Mass.  583;  [jior  for  not  prevent- 
ing the  running  at  large  of  dogs  when 
hydrophobia  is  epidemic:  Smith  v.  Selins- 
grove,  199  Pa.  615,  49  Atl.  213  ;J  nor  for 
failure  to  light  the  streets  sufficiently: 
Freeport  v.  Isbell,  83  111.  440,  25  Am. 
Rep.  407;  Miller  v.  St.  Paul,  38  Minn. 
134,  36  N.  W.  271 ;  see  Randall  v.  Rail- 
road Co.,  106  Mass.  276,  8  Am.  Rep.  327 ; 
nor  for  granting  to  a  railroad  a  right  of 
way  along  one  of  its  streets  :  Davenport 
v.  Stevenson,  34  Iowa,  225 ;  Frith  v.  Du- 
buque,  45  Iowa,  406 ;  Stevenson  v.  Lex- 
ington, 69  Mo.  157 ;  nor  for  failure  to 
compel  such  railroad  to  maintain  safety 
gates :  Kistner  v.  Indianapolis,  100  Ind. 
210;  nor  for  failure  to  enact  proper  or- 
dinances for  keeping  its  sidewalks  in 
repair,  or  to  enforce  them  if  enacted : 
Cole  v.  Medina,  27  Barb.  218 ;  [contra,  Mc- 
Devitt  v.  St.  Paul,  66  Minn.  14,  68  N.  W. 
178,  33  L.  R.  A.  601;  nor  for  failure  to 
prohibit  bicycle  riding  upon  sidewalks : 
Jones  v.  Williamsburg,  97  Va.  722,  34 
S.  E.  883,  47  L.  R.  A.  294 ;]  nor  for  failure 
to  build  footwalks  adjoining  a  bridge : 
Lehigh  Co.  v.  Hoffort,  116  Pa.  St.  119,  9 
Atl.  177;  nor  for  allowing  a  shooting- 
gallery  to  be  maintained :  Hubbell  v. 
Viroqua,  67  Wis.  343,  30  N.  W.  847  ;  nor 
for  permitting  cannon  firing:  Wheeler  v. 


1  Such  as  an  ordinance  forbidding  fire- 
works within  a  city  :  Hill  r.  Charlotte,  72 
N.  C.  55,  21  Am.  Rep.  451 ;  or  forbidding 
cattle  running  at  large:  Rivers  v.  Augusta, 
65  Ga.  376,  38  Am.  Rep.  787.  A  city  is 


not  liable  for  a  loss  by  fire  which  might 
have  been  prevented  if  the  city  had  not 
been  cut  off  the  water  from  one  of  its 
hydrants.  Tainter  v.  Worcester,  123 
Mass.  311. 


302 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


public  works,  from  which  incidental  injury  results  to  individuals;1 
or  adopts  unsuitable  or  insufficient  plans  for  public  bridges,  build- 
ings, sewers,  or  other  public  works;2  or  in  any  other  manner, 


Plymouth,  116  Ind.  158,  18  N.  E.  532; 
Lincoln  v.  Boston,  148  Mass.  578,  20  N.  E. 
329;  Robinson  v.  Greenville,  42  Ohio  St. 
625;  rjO'Rourk  v.  Sioux  Falls,  4  S.  I).  47, 
54  N.W.  1044,  19  L.  R.  A.  789  ;  46  Am.  St. 
700  ;3  nor  the  discharge  of  fireworks  :  Ball 
v.  Woodbine,  61  Iowa,  83,  15  N.  W.  846; 
[JBartlett  v.  Clarksburg,  45  W.  Va.  393, 
31  S.  E.  918,  43  L.  R.  A.  295,  72  Am.  St. 
817 ;  Aron  v.  Wausau,  98  Wis.  592,  74  N. 
W.  354,  40  L.  R.  A.  733  ;  Love  v.  Raleigh, 
116  N.  C.  296,  21  S.  E.  503,  28  L.  R.  A.  192; 
Fifield  v.  Phoenix,  —  Ariz.  — ,  36  1'ac.  916, 

24  L.  R.  A.  430 ;]  nor  for  damage  done 
on  adjoining  property  by  its  failure  to 
remove  a  dangerous  wall :  Kiley  v.  Kansas 
City,  87  Mo.  103;  Anderson  v.  East,  117 
Ind.  126,  19  N.  E.  726;  Cain  v.  Syracuse, 
95  N.  Y.  83;  otherwise  for  injury  there- 
from to  a  person  on  the  street.     Duffy  v. 
Dubuque,  63  Iowa,  171,  18  N.   W.  900. 
QBut  the  city  as  owner  of  vacant  lots  is 
subject  to  same  duties  in  regard  thereto 
as  a  private  owner.     Pekin  v.  McMalion, 
154  III.  141,  39  N.  E.  481,  27  L.  R.  A.  20(5, 
45  Am.   St.   114.     And   where   the  city 
permits  cattle  to  roam  the  streets  to  such 
an  extent  that  they  amount  to  a  nuisance, 
it  may  be  liable  for  an  injury  to  a  person 
on  the  street,  caused  by  a  cow  running  at 
large.   Cochrane  v.  Frostburg,  81  Md.  54, 
31  Atl.  703,  27  L.  R.  A.  728,  48  Am.  St. 
479,  and  see  note  in  L.  R.  A.    But  city  is 
not  responsible  for  defective  condition  of 
a  bathing  beach,  the  duty  to   maintain 
which  is  thrust  upon  it  by  law.    McGraw 
v.  Dist.  of  Columbia,  3  App.  D.  C.  405, 

25  L.  R.  A.  691.     Where  it  lawfully  acts 
as  private  contractor  in  furnishing  water 
to   steam-heating  plant,   it  is  liable   for 
breach.     Watson  v.  Needham,  161  Mass. 
404,  37  N.  E.  204,  24  L.  R.  A.  287.] 

1  Brewstery.  Davenport,  51  Iowa,  427, 
1  N.  W.  737 ;  Wehn  v.  Commissioners,  5 
Neb.  491,  25  Am.  Rep.  497  (case  of  a  jail, 
complained  of  as  offensive  in  the  neigh- 
borhood) ;  Carroll  v.  St.  Louis,  4  Mo.  App. 
191;  Saxton  v.  St.  Joseph,  60  Mo.  153; 
Wicks  v.  De  Witt,  54  Iowa.  130,  6  N.  W. 
176 ;  White  v.  Yazoo  City,  27  Miss.  357 ; 
Vincennes  v.  Richards,  23  Ind.  381 ;  High- 
way Com'rs  v.  Ely,  54  Mich.  173, 19  N.  W. 
940;  Fort  Worth  v.  Crawford,  64  Tex. 


202.  There  can  be  no  recovery  for  an 
injury  caused  by  blasting  in  the  course 
of  a  public  work,  in  the  absence  of  neg- 
ligence in  the  city's  agent.  Blumb  v. 
Kansas  City,  84  Mo.  112;  Murphy  v. 
Lowell,  128  Mass.  396.  Contra,  Joliet  v. 
Harwood,  86  111.  110.  QNor,  except  by 
force  of  statute,  even  in  case  of  negligence. 
Howard  v.  Worcester,  153  Mass.  426,  27 
N.  E.  11,  12  L.  R.  A.  160.  Determination 
of  city  council  that  poles  for  electric  light 
wires  shall  be  erected  in  street  cannot  be 
questioned.  Palmer  v.  Larchmont  El.  Co., 
158  N.  Y.  231,  52  N.  E.  1092,  43  L.  R.  A. 
672.;] 

-  Mills  v.  Brooklyn,  32  N.  Y.  489; 
Carr  v.  Northern  Liberties,  35  Pa.  St. 
324;  Fair  v.  Philadelphia,  88  Pa.  St. 
309;  Collins  v.  Philadelphia,  93  Pa.  St. 
272;  Lynch  v.  New  York,  76  N.  Y.  60; 
Larkin  v.  Saginaw,  11  Mich.  88;  Detroit 
v.  Beckman,  34  Mich.  125 ;  Lansing  v. 
Toolan,  37  Mich.  152 ;  Davis  v.  Jackson, 
61  Mich.  530,  28  N.  W.  526;  Foster  v. 
St.  Louis,  4  Mo.  App.  564 ;  Denver  v. 
Capelli,  4-  Col.  25,  34  Am.  Rep.  62  ;  Allen 
v.  Chippewa  Falls,  52  Wis.  430,  9  N.  W. 
284;  McClure  v.  Redwing,  28  Minn.  186,  9 
N.  W.  767  ;  French  v.  Boston,  129  Mass. 
692,  37  Am.  Rep.  393;  Johnston  v.  Dist. 
Columbia,  118  U.  S.  19,  6  Sup.  Ct.  Rep. 
p.  923 ;  QHughes  v.  Auburn,  161  N.  Y.  96, 
55  N.  E.  389,  46  L.  R.  A.  636.]  A  city 
is  not  liable  if  in  rebuilding  a  walk  an 
abutter  follows  the  original  plan.  Urqu- 
hart  v.  Ogdensburg,  91  N.  Y.  67.  But  if 
he  deviates  from  it,  the  fact  that  the  city 
suffers  the  walk  to  remain  does  not  con- 
stitute an  adoption  of  it.  Ibid.  97  N.  Y. 
238.  In  Kansas  a  city  may  be  liable  if 
the  plan  is  manifestly  unsafe.  Gould  a. 
Topeka,  32  Kan.  485,  4  Pac.  822.  In 
Indiana  it  is  liable  for  negligence  in  plan, 
but  not  for  mere  errors  of  judgment. 
Seymour  v.  Cummins,  119  Ind.  148,  21 
N.  E.  549,  6  L.  R.  A.  126,  and  note ;  Rice  v. 
Evansville,  108  Ind.  7,  9  N.  E.  139; 
Terre  Haute  r.  Hudnut,  112  Ind.  542, 
13  N.  E.  686.  In  Hill  r.  Boston,  122 
Mass.  344,  23  Am.  Rep.  332,  a  child 
attending  one  of  the  public  schools  in 
the  third  story  of  a  school  building  fell 
over  the  railing  to  the  staircase,  and 


CH.  VIII.]  THE    GRADES    OF   MUNICIPAL   GOVERNMENT.  303 

through  the  exercise  or  failure  to  exercise  its  political  authority, 
causes  incidental  injury  to  individuals,  an  action  will  not  lie  for 
such  injury.  The  reason  is  obvious.  The  maintenance  of  such 
an  action  would  transfer  to  court  and  jury  the  discretion  which 
the  law  vests  in  the  municipality,  but  transfer  them  not  to  be  exer- 
cised directly  and  finally,  but  indirectly  and  partially  by  the  retro- 
active effect  of  punitive  verdicts  upon  special  complaints.  The 
probable  consequence  is  well  stated  in  a  case  in  which  action  was 
brought  against  a  city  for  neglect  to  construct  a  proper  system  of 
drainage.  "  Any  street  may  be  complained  of  as  being  too  steep 
or  too  level ;  gutters  as  being  too  deep  or  too  shallow ;  or  as  being 
pitched  in  a  wrong  direction ;  and  there  may  be  evidence  that 
these  things  were  carelessly  resolved  upon,  and  than  a  tribunal 
that  is  foreign  to  the  municipal  system  will  be  allowed  to  inter- 
vene and  control  the  town  officers.  And  the  end  is  not  yet ;  for 
if  a  regulation  be  altered  to  suit  the  views  of  one  jury,  the  altera- 
tion may  give  rise  to  another  case,  in  which  the  new  regulation 
will  be  likewise  condemned.  This  theory  is  so  vicious  that  it 
cannot  possibly  be  admitted."  1  The  alternative  is  —  and  the 
only  course  consistent  with  principle  —  to  leave  the  municipal 
corporation  to  judge  finally  in  the  exercise  of  such  political  power 

brought  suit  for  the  consequent  injury,  that  a  riparian  proprietor  cannot  use  it  in 
alleging  that  the  railing  was  made  dan-  his  business  as  he  has  been  accustomed 
gerously  low.  The  court  held  no  such  to  do,  he  cannot  recover  against  the  city 
action  maintainable,  and  asserted  the  for  the  pollution,  so  far  as  it  is  attribut- 
"  general  doctrine  that  a  private  action  able  to  the  plan  of  sewerage  adopted  by 
cannot  be  maintained  against  a  town  or  the  city,  but  he  can  recover  so  far  as  it  is 
other  quasi  corporation  for  a  neglect  of  attributable  to  the  improper  construction 
corporate  duty,  unless  such  action  is  given  or  unreasonable  use  of  the  sewers,  or  the 
by  statute ; "  citing  White  v.  Phillipston,  negligence  or  other  fault  of  the  city  in 
10  Met.  108;  Sawyer  v.  Northfield,  7  the  care  and  management  of  them.  Merri- 
Cush.  490;  Reed  v.  Belfast,  20  Me.  246;  field  v.  Worcester,  110  Mass.  216,  14  Am. 
Eastman  v.  Meredith,  36  N.  H.  284 ;  Hyde  Hep.  592,  citing  Emery  v.  Lowell,  104 
».  Jamaica,  27  Vt.  443;  Chidsey  v.  Can-  Mass.  13;  Child  v.  Boston,  4  Allen,  41. 
ton,  17  Conn.  475;  Taylor  v.  Peckham,  8  QSee  also  Atlanta  v.  Warnock,  91  Ga. 
R.  I.  349,  6  Am.  Rep.  678;  Bartlett  v.  210,  18  S.  E.  135,  23  L.  R.  A.  301,  and 
Crozier,  17  Johns.  439;  Freeholders  v.  note,  44  Am.  St.  17;  Bulger  v.  Eden,  82 
Sussex,  18  N.  J.  108;  Warbiglee  ».  Los  Me.  352,  19  Atl.  829,  9  L.  R.  A.  205,  and 
Angeles,  45  Cal.  36 ;  Highway  Commis-  note.]  But  a  city  may  not  empty  a  sewer 
sioners  v.  Martin,  4  Mich.  557,  and  a  great  into  a  mill  pond  without  acquiring  the 
number  of  other  cases.  It  is  also  said  in  right  in  some  lawful  way.  Vale  Mills 
the  same  case  that,  in  Massachusetts,  the  v.  Nashua,  63  N.  H.  136.  fjAnd  that  a 
same  doctrine  is  applied  to  incorporated  city  may  be  liable  for  establishing  a  pest- 
cities.  See  further  Hyde  v.  Jamaica,  27  house  near  the  residence  of  a  person,  see 
Vt.  443;  State  i:  Burlington,  36  Vt.  621 ;  Clayton  v.  Henderson,  103  Ky.  228,  44  S. 
Chidsey  v.  Canton,  17  Conn.  475 ;  Taylor  W.  667,  44  L.  R.  A.  474.] 
v.  Peckham,  8  R.  I.  349,  5  Am.  Rep.  578.  1  Carr  v.  Northern  Liberties,  35  Pa. 
If  the  water  of  a  stream  becomes  polluted  St.  324,  329.  See  Detroit  v.  Beckman,  34 
by  the  emptying  into  it  of  city  sewers,  so  Mich.  125. 


304 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


as  has  been  confided  to  it.1  And  as  the  State  is  not  responsible 
for  the  acts  or  neglects  of  public  officers  in  respect  to  the  duties 
imposed  upon  them  for  the  public  benefit,  so  one  of  these  corpora- 
tions is  not  liable  to  private  suits  for  either  the  non-performance 
or  the  negligent  performance  of  the  public  duties  which  it  is  re- 


1  Louisville  v.  Hyatt,  2  B.  Mon.  177, 
36  Am.  Dec.  594.  Cities  are  under  a 
political  obligation  to  open  such  streets 
and  build  such  market-houses  as  the 
convenience  of  the  community  requires ; 
but  they  cannot  be  compelled  to  per- 
form these  duties,  or  be  held  responsible 
for  non-performance.  Joliet  v.  Verley, 
35  111.  58.  See,  further,  Little  Rock  v. 
Willis,  27  Ark.  572;  Duke  v.  Rome,  20 
Ga.  635;  Tate  v.  Railroad  Co.,  64  Mo. 
149 ;  Bennett  i>.  New  Orleans,  14  La. 
Ann.  120;  Commissioners  v.  Duckett,  '20 
Mil.  468;  Randall  v.  Eastern  R.  Corp., 
106  Mass.  276 ;  Hughes  v.  Baltimore, 
Taney,  213;  Weightman  v.  Washington, 
1  Black,  39.  A  city  is  not  liable  to  an 
abutter  for  allowing  a  street  to  be  used 
for  market  purposes.  Henkel  v.  Detroit, 
49  Mich.  249,  13  N.  W.  611.  But  this 
doctrine  does  not  deprive  an  individual 
of  remedy  when  by  reason  of  the  negli- 
gent construction  of  a  public  work  his 
property  is  injured,  or  when  the  neces- 
sary result  of  its  construction  is  to  flood 
or  otherwise  injure  his  property  in  a  man- 
ner that  would  render  a  private  individ- 
ual liable.  See  Van  Pelt  v.  Davenport, 
40  Iowa,  308,  20  Am.  Rep.  622,  and  note, 
p.  626 ;  Merrifield  v.  Worcester,  110  Mass. 
216,  14  Am.  Rep.  692 ;  Mayo  v.  Spring- 
field, 136  Mass.  10  ;  Weyrnan  v.  Jefferson, 
61  Mo.  65 ;  Broadwell  v.  Kansas  City,  75 
Mo.  213 ;  Union  v.  Durkes,  38  N.  J.  21 ; 
Hewison  v.  New  Haven,  37  Conn.  475, 
9  Am.  Rep.  342;  Mines  v.  Lockport,  60 
N.  Y.  236  ;  Hardy  v.  Brooklyn,  90  N.  Y. 
435 ;  Weightman  v.  Washington,  1  Black, 
39;  Simmer  v.  St.  Paul,  23  Minn.  408; 
Ross  v.  Clinton,  46  Iowa,  606 ;  Inman  0. 
Tripp,  11  R.  I.  620;  Damour  v.  Lyons 
City,  44  Iowa,  276 ;  Thurston  v.  St. 
Joseph,  61  Mo.  510,  11  Am.  Rep.  463; 
Little  Rock  v.  Willis,  27  Ark.  572 ;  Prince- 
ton v.  Gieske,  93  Ind.  102;  Denver  v. 
Rhodes,  9  Col.  654,  13  Pac.  729;  Keating 
r.  Cincinnati,  38  Ohio  St.  141;  Mayor, 
&c.  Savannah  v.  Spears,  66  Ga.  304. 
[Miles  v.  Worcester,  154  Mass.  611,  28 
N.  E.  676,  13  L.  R.  A.  841,  26  Am.  St. 


264.]  A  city  is  liable  for  negligence 
in  repairing  a  sewer.  Fort  Wayne  v. 
Coombs,  107  Ind  75,  7  N.  K.  743;  Kranz 
v.  Mayor.  &c.  of  Baltimore,  64  Md.  491, 
2  Atl.  908;  Stanchfield  v.  Newton,  142 
Mass.  110,  7  N.  E.  703.  And  a  State 
may  be,  if  it  has  assumed  to  make  one. 
Ballou  v.  State,  111  N.  Y.  496,  18  N.  E. 
627.  If  a  city  cuts  a  sewer  in  such  a 
manner  as  to  cause  the  collection  of  a 
large  quantity  of  water  which  otherwise 
would  not  have  flowed  there,  and  to  cast 
it  upon  the  premises  of  an  individual  to 
his  injury,  this  is  a  trespass  for  which 
the  city  is  liable.  Ashley  v.  Port  Huron, 
35  Mich.  296,  citing  many  cases.  See 
also  Bloomington  v.  Brokaw,  77  III.  194 ; 
Elgin  v.  Kimball,  90  111.  356;  Dixon  v. 
Baker,  65  111.  518,  16  Am.  Rep.  591; 
Rowe  v.  Portsmouth,  66  N.  H.  291,  22 
Am.  Rep.  464 ;  Burton  v.  Chattanooga, 
7  Lea,  739;  Rhodes  v.  Cleveland,  10  Ohio, 
159,  36  Am.  Dec.  82;  West  Orange  v. 
Field,  37  N.  J.  Eq  600;  Crawfordsville  v. 
Bond,  96  Ind.  236;  Lehn  v.  San  Fran- 
cisco, 66  Cal.  76,  4  Pac.  965 ;  Rychlicki 
v.  St.  Louis,  98  Mo.  497,  11  S.  W.  1001; 
Blakely  v.  Devine,  36  Minn.  53,  25  N.  W. 
342 ;  Seifert  v.  Brooklyn,  101  N.  Y.  136, 
4  N.  E.  321.  Olbany  ».  Sikes,  94  Ga. 
30,  20  S.  E.  257,  26  L.  R.  A.  653.]  As 
to  the  liability  for  increasing  the  flow 
of  surface  water  on  land  by  grading 
streets,  compare  Bronson  r.  Wallingford, 
64  Conn.  513,  9  Atl.  393;  Stewart  v.  Clin- 
ton, 79  Mo.  603;  Kehrer  v.  Richmond, 
81  Va.  745 ;  Meth.  Ep.  Ch.  v.  Wyandotte, 
31  Kan.  721,  3  Pac.  527  ;  Morris  v.  Coun- 
cil Bluffs,  67  Iowa,  343,  25  N.  W.  274; 
Kennison  v.  Beverly,  146  Mass.  467,  16 
N.  E.  278 ;  Heth  v.  Fond  du  Lac,  63  Wis. 
228,  23  N.  W.  495 ;  [Jordan  v.  Benwood, 
42  W.  Va.  312,  26  S.  E.  266,  36  L.  R.  A. 
619,  57  Am.  St.  859;]  where  it  was 
denied,  with  Peters  v.  Fergus  Falls,  35 
Minn.  549,  29  N.  W.  586;  Gray  v.  Knox- 
viile,  85  Tenn.  90,  1  S.  W.  622 ;  Gilluly 
v.  Madison,  63  Wis.  618,  24  N.  W.  137 ; 
Addy  v.  Janesville,  70  Wis.  401, 35  N.  W. 
931,  where  it  was  sustained. 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


305 


quired  to  assume,  and  does  assume,  for  the  general  public,  and 
from  which  the  corporation  itself  receives  neither  profit  nor  special 
privilege.1  And  the  same  presumption  that  legislative  action  has 


i  Eastman  v.  Meredith,  36  N.  H.  284  ; 
Hill  v.  Boston,  122  Mass.  344,  23  AID. 
Rep.  332.  QMarkey  v.  Queens  County, 
154  N.  Y.  675,  49  N.  E.  71,  39  L.  R.  A. 
46;  Moran  v.  Pullman  Palace  Car  Co., 
134  Mo.  641,  36  S.  W.  659,  33  L.  R.  A. 
755,  56  Am.  St.  543 ;  Snider  v.  St.  Paul, 
51  Minn.  466,  53  N.  W.  763,  18  L.  R.  A. 
151.3  Nor  does  it  change  the  rule  that 
the  duty  is  not  specially  imposed,  but 
is  assumed  under  a  general  law.  Wixon 
r.  Newport,  13  It.  I.  454.  A  city  is 
not  liable  for  the  negligent  management 
of  its  hospitals :  Richmond  v.  Long,  17 
Gratt.  375 ;  Benton  v.  Trustees,  &c., 
140  Mass.  13,  1  N.  E.  836 ;  [>r  for  the 
administration  of  impure  vaccine  virus 
under  an  ordinance  compelling  vaccina- 
tion :  Wyatt  v.  Rome,  105  Ga.  312,  31 
S.  E.  188,  42  L.  It.  A.  180,  70  Am.  St. 
41 ;  or  for  an  injury  arising  from  defective 
machinery  in  an  asylum  which  the  State 
compelled  it  to  maintain  :  Hughes  i>. 
County  of  Monroe,  147  N.  Y.  49,  41  N.  E. 
407,  39  L.  R.  A.  33.  See  also  Frcel  v. 
School  City  of  Crawfordsville,  142  Ind. 
27,  41  N.  E.  312,  37  L.  R.  A.  301,  and  note 
thereto  in  L.  It.  A.  But  it  is  liable  for 
injury  to  the  health  of  a  prisoner  whom 
it  confines  in  a  damp,  cold,  filthy  prison. 
Shields  v.  Durham,  118  N.  C.450,"  24  S.  E. 
794,  36  L.  R.  A.  293,  and  note.]  A 
county  is  not  liable  for  personal  injuries 
sustained  by  reason  of  the  imperfect  con- 
struction of  its  court-house.  Kincaid  v. 
Hardin,  53  Iowa,  430,  50  N.  W.  589,  36 
Am.  Rep.  236  ;  Hollenbeck  v.  Winnebaeo 
Co.,  95  111.  148,  35  Am.  Rep.  151.  See 
further,  Little  r.  Madison,  49  Wis.  605, 
6  N.  W.  249,  35  Am.  Rep.  793 ;  Dawson 
v.  Aurelius,  49  Mich.  479,  13  N.  W.  824. 
And  compare  post,  353-362,  an'1  notes. 
A  city  is  not  liable  for  the  torts  of  its 
police  officers  :  Cook  v.  Macon,  54  Ga. 
468;  M'Elroy  v.  Albany,  65  Ga.  387,  88 
Am.  Rep.  791  ;  Grumbine  v.  Washing- 
ton. 2  McArthur,  578.  29  Am.  Rep.  626; 
Ilarman  v.  Lynchbnrg,  33  Gratt.  37  ;  But- 
trick  v.  Lowell,  1  Allen,  172;  Elliott  v. 
Philadelphia,  75  Pa.  St.  347  ;  Norristown 
v.  Fitzpatrick,  94  Pa.  St.  121  ;  Calwell  v. 
Boone,  51  Iowa,  687,  2  N.  W.  614  ;  Atta- 
way  v.  Cartersville,  68  Ga.  740 ;  Worley 


v.  Columbia,  88  Mo.  106;  or  for  their 
neuligence :  Pollock's  Adm'r  t1.  Louis- 
ville, 13  Bush,  221,  26  Am.  Rep.  260,  and 
note;  Little  v.  Madison,  49  Wis.  605,  6 
N.  W.  249,  35  Am.  Rep.  793;  Jolly  v. 
Hawesville,  89  Ky.  279,  12  S.  W.  Rep. 
313;  but  see  contra,  Carrington  v.  St. 
Louis,  89  Mo.  208,  1  S.  W.  240;  or  for 
the  negligence  of  its  firemen  :  Burrill  v. 
Augusta,  78  Me.  118,  3  All.  177;  Welsh 
v.  Rutland,  56  Vt.  228;  Wilcox  v.  Chi- 
cago, 107  III.  334;  Grube  v.  St.  Paul,  34 
Minn.  402,  26  N.  W.  228;  [JGillespie  v. 
Lincoln,  35  Neb.  34,  52  N.  W.  811,  16 
L.  R.  A.  349;  Dodge  v.  Granger,  17  R.  I. 
664,  24  All.  100,  15  L.  R.  A.  781,  and 
note,  83  Am.  St.  901 ;  or  bridge-tender  : 
Corning  v.  Saginaw,  116  Mich.  74,  74 
N.  W.  307,  40  L.  R.  A.  526;  or  for 
insufficiency  of  municipal  water-works: 
Springfield  F.  &  M.  Ins.  Co.  c.  Keeseville, 
148  N.  Y.  46,  42  N.  E.  405,  ::0  L.  It.  A. 
660,  51  Am.  St.  667 ;  nor  for  negligence 
in  not  maintaining  proper  poles  in  fire- 
signal  system  :  Pettingell  v.  Chelsea,  161 
Mass.  368,  37  N.  E.  380,  24  L.  R.  A. 
426 ;]  or  for  the  torts  of  other  officers ; 
Hunt  v.  Boonville,  65  Mo.  620,  27  Am. 
Rep.  299;  Wallace  v.  Menasha,  48  Wis. 
79,  4  N.  W.  101,  33  Am.  Rep.  804;  Trus- 
tees r.  Schroeder,  58  111.  353 ;  Cumberland 
v.  Willison,  50  Md.  138;  Cooney  v.  Hart- 
land,  95  111.  516 ;  Corsicana  v.  White,  67 
Tex.  382;  [Gray  „.  Griflin,  111  Ga.  361, 
36  S.  E.  792,  51  L.  R.  A.  131 Q  or  for 
their  errors  or  neglects :  Wallace  v. 
Menasha,  48  Wis.  79,  4  N.  W.  101,  83 
Am.  Rep.  804;  Collins  v.  Philadelphia, 
93  Pa.  St.  272 ;  Hart  v.  Bridgeport,  13 
Blatch.  289;  McCarthy  v.  Boston,  135 
Mass  197;  Tindley  v.  Salem,  137  Mass. 
171;  Summers  r.  Com'rs  Daviess  Co., 
103  Ind.  262,  2  N.  E.  725;  Abbett  v. 
Com'rs  Johnson  Co..  114  Ind.  61, 16  N.  E. 
127  ;  Wakefield  v.  Newport,  60  N.  H.  374 ; 
Condict  v.  Jersey  City,  46  N.  J.  L.  157 ; 
Donnelly  v.  Tripp,  12  It  I.  97  ;  fJBd.  of 
Com'rs  Jasper  Co.  v.  Allman,  142  Ind. 
573,  42  N.  E.  206,  39  L.  It.  A.  58;  A'llern 
v.  Iowa  St.  Agr'l  Socie'y,  91  Iowa,  97,  58 
N.  W.  1092,  24  L.  R.  A.  655 ;  Williamson 
v.  Louisville  Ind.  School.  95  Ky.  251,  24 
S.  W.  1065,  23  L.  R.  A.  200,  and  note,  44 


20 


306 


CONSTITUTIONAL   LIMITATIONS. 


[CH.    VIII. 


been  devised  and  adopted  on  adequate  information  and  under  the 
influence  of  correct  motives,  will  be  applied  to  tbe  discretionary 
action  of  municipal  bodies,  and  of  the  State  legislature,  and  will 
preclude,  in  the  one  case  as  in  the  other,  all  collateral  attack.1 

Among  the  implied  powers  of  such  an  organization  appears  to 
be  that  of  defending  and  indemnifying  its  officers  where  they  have 
incurred  liability  in  the  bona  fide  discharge  of  their  duty.  It  has 
been  decided  in  a  case  where  irregularities  had  occurred  in  the 
assessment  of  a  tax,  in  consequence  of  which  the  tax  was  void, 
and  the  assessors  had  refunded  to  the  persons  taxed  the  moneys 
which  had  been  collected  and  paid  into  the  town,  county,  and  State 


Am.  St.  243  ;  Whitfield  v.  Paris,  84  Tex. 
481,  19  S.  W.  566,  15  L.  R.  A.  783,  and 
note,  31  Am.  St.  69;  Brown  v.  Guyan- 
dotte,  34  W.  Va.  299,  12  S.  E.  707,  11 
L.  R.  A.  121  ;  Culver  v.  Streator,  130  111. 
238,  22  N.  E.  810,  6  L.  R.  A.  270;]  but 
see  Sprague  v.  Tripp,  13  R.  I.  38;  or  for 
illegal  action  of  officers  under  an  illegal  or- 
dinance. Trammell  c.Russellville,34  Ark. 
105,  36  Am.  Rep.  I;  fjlloggard  v.  Mon- 
roe, 51  La.  Ann.  683,  25  So.  349,  44  L.  R. 
A.  477-3  But  it  is  liable  if  in  obedience 
to  orders  an  officer  acts  under  such  ordi- 
nance. Durkee  v.  Kenosha,  59  Wis.  123, 
17  N.  W.  677.  fJSchussler  v.  Hennepin 
Co.  Com'rs,  67  Minn.  412,  70  N.  W.  6,  64 
Am.  St.  424,  39  L.  R.  A.  75.]  And  it 
may  be  liable  if  the  negligent  person  is 
to  be  regarded  as  its  servants,  and  not  as 
a  public  officer.  Mulcairns  v.  Janesville, 
67  Wis.  24,  29  N.  W.  565 ;  Waldron  v. 
Haverhill,  143  Mass.  582,  10  N.  E.  481 ; 
Perkins  v.  Lawrence,  136  Mass.  305; 
Semple  v.  Vicksburg,  62  Miss.  63.  In 
the  management  of  the  private  property 
held  by  the  corporation  for  its  own  profit 
or  advantage,  it  is  held  to  the  same  re- 
sponsibility with  private  citizens.  Moul- 
ton  v.  Scarborough,  71  Me.  267,  36  Am. 
Rep.  308,  and  cases  cited ;  Rowland  v. 
Kalamazoo  Supts.,  49  Mich.  553,  14  N. 
W.  494.  QBut  not  where  the  acquisition 
and  holding  of  such  property  is  ultra 
vires.  Duncan  v.  Lynchburg,  —  Va.  — , 
34  S.  E.  964,  48  L.  R.  A.  831.  Liable 
for  negligent  management  of  city  water- 
works. Esberg-Gunst  Cigar  Co.  v.  Port- 
land, 34  Oreg.  282, 54  Pac.  664,  43  L.  R.  A. 
435, 75  Am.  St.  651  ;  Augusta  v.  Mackey, 
113  Ga.  64,  38  S.  E.  339,  and  of  market 
buildings  which  ir.  may  erect,  but  is  not 
compelled  to  :  Barron  v.  Detroit,  94  Mich. 


601,  54  N.  W.  273,  19  L.  R.  A.  452,  and 
note,  34  Am.  St.  366.]  So  if  the  city 
lets  a  public  building  for  hire,  it  is  liable 
for  negligence  in  managing  it.  Worden 
v.  New  Bedford,  131  Mass.  23.  See  also 
Toledo  v.  Cone,  41  Ohio  St.  149,  fjand 
note  to  39  L.  R.  A.  33,  upon  liabilities  of 
counties  in  actions  for  torts  and  negli- 
gence. The  same  doctrine  of  immunity 
from  private  suit  applies  to  public  officers 
who  are  compelled  to  serve  without  com- 
pensation where  their  duties  are  quasi- 
judicial.  Daniels  v.  Hathaway,  65  Vt. 
247, 26  All.  970,  21  L.  R.  A.  377.  Mayor 
duly  acting  as  court  is  not  liable  for 
maliciously  issuing  an  erroneous  order. 
Scott  r.  Fishblate,  117  N.  C.  265,  23 
S.  E.  436,  30  L.  R.  A.  696.  Statute  made 
municipality  liable  for  injuries  done  by 
"  riotous  or  tumultuous  assemblages  of 
people."  Held,  not  necessary  that  there 
should  be  any  common  intent,  in  those 
composing  such  assemblage,  to  injure  in 
order  that  municipality  be  liable.  Madi- 
son ville  v.  Bishop,  — Ky.  — ,  67  S.  W. 
269,  57  L.  R.  A.  130.  See  also  Aron  v. 
Wausau,  98  Wis.  592,  74  N.  W.  354,  40 
L.  R.  A.  733;  Scanlon  v.  Wedger,  156 
Mass.  462,  31  N.  E.  642,  16  L.  R.  A. 
395.] 

1  Milhau  v.  Sharp,  15  Barb.  193 ;  New 
York,  &c.  R.  R.  Co.  v.  New  York,  1  Hil- 
ton, 662 ;  Buell  v.  Ball,  20  Iowa,  282 ; 
Freeport  v.  Marks,  59  Pa  St.  253.  Com- 
pare State  v.  Cincinnati  Gas  Co.,  18  Ohio 
St.  262.  See  cases  ante,  pp.  257-260. 
fJBut  in  Weston  v.  Syracuse,  158  N.  Y. 
274,  53  N.  E.  12,  43  L."  R.  A.  678,  70  Am. 
St.  472.  it  was  held  that  a  resolution  ac- 
cepting an  imperfect  sewer  was  void  be- 
cause secured  by  fraud  and  corruption.] 


CH.  Till.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  307 

treasuries,  that  the  town  had  authority  to  vote  to  raise  a  sum  of 
money  in  order  to  refund  to  the  assessors  what  had  been  so  paid 
by  them,  and  that  such  vote  was  a  legal  promise  to  pay,  on  which 
the  assessors  might  maintain  action  against  the  town.  "  The 
general  purpose  of  this  vote,"  it  was  said,  "  was  just  and  wise. 
The  inhabitants,  finding  that  three  of  their  townsmen,  who  had 
been  elected  by  themselves  to  an  office,  which  they  could  not, 
without  incurring  a  penalty,  refuse  to  accept,  had  innocently  and 
inadvertently  committed  an  error  which,  in  strictness  of  law,  an- 
nulled their  proceedings,  and  exposed  them  to  a  loss  perhaps  to 
tl)e  whole  extent  of  their  property,  if  all  the  inhabitants  individ- 
ually should  avail  themselves  of  their  strict  legal  rights,  —  find- 
ing also  that  the  treasury  of  the  town  had  been  supplied  by  the 
very  money  which  these  unfortunate  individuals  were  obliged  to 
refund  from  their  own  estates,  and  that,  so  far  as  the  town  tax 
went,  the  very  persons  who  had  rigorously  exacted  it  from  the 
assessors,  or  who  were  about  to  do  it,  had  themselves  shared  in 
due  proportion  the  benefits  and  use  of  the  money  which  had  been, 
paid  into  the  treasury,  in  the  shape  of  schools,  highways,  and 
various  other  objects  which  the  necessities  of  a  municipal  institu- 
tion call  for,  —  concluded  to  reassess  the  tax,  and  to  provide  for 
its  assessment  in  a  manner  which  would  have  produced  perfect 
justice  to  every  individual  of  the  corporation,  and  would  have  pro- 
tected the  assessors  from  the  effects  of  their  inadvertence  in  the 
assessment  which  was  found  to  be  invalid.  The  inhabitants  of 
the  town  had  a  perfect  right  to  make  this  reassessment,  if  they 
had  a  right  to  raise  the  money  originally.  The  necessary  sup- 
plies to  the  treasury  of  a  town  cannot  be  intercepted,  because  of 
an  inequality  in  the  mode  of  apportioning  the  sum  upon  the  indi- 
viduals. Debts  must  be  incurred,  duties  must  be  performed,  by 
every  town  ;  the  safety  of  each  individual  depends  upon  the 
execution  of  the  corporate  duties  and  trusts.  There  is  and  must 
be  an  inherent  power  in  every  town  to  bring  the  money  necessary 
for  the  purposes  of  its  creation  into  the  treasury  ;  and  if  its  course 
is  obstructed  by  the  ignorance  or  mistakes  of  its  agents,  they  may 
proceed  to  enforce  the  end  and  object  by  correcting  the  means ; 
and  whether  this  be  done  by  resorting  to  their  original  power  of 
voting  to  raise  money  a  second  time  for  the  same  purposes,  or  by 
directing  to  reassess  the  sum  before  raised  by  vote,  is  immaterial ; 
perhaps  the  latter  mode  is  best,  at  least  it  is  equally  good."1 

1  Per  Parker,  Ch.  J.,  in  Nelson  v.  Mil-  ers   v.   Lucas,   93   U.   S.    108 ;    State   v. 

ford,  7  Pick.  18,  23.     See  also  Baker  v.  Hammonton,  38  N.  J.  430,  20  Am.  Hep. 

Windham,  13  Me.  74;  Fuller  r.  Groton,  404;  Miles  v.  Albany,  59  Vt.  79,  7  Atl. 

11   Gray,   340  ;    Board   of    Commission-  601.   The  duty,  however,  must  have  been 


308 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


It  has  also  been  held  competent  for  a  town  to  appropriate 
money  to  indemnify  the  school  committee  for  expenses  incurred 
in  defending  an  action  for  an  alleged  libel  contained  in  a  report 
made  by  them  in  good  faith,  and  in  which  action  judgment  had 
been  rendered  in  their  favor.1  And  although  it  should  appear 
that  the  officer  had  exceeded  kis  legal  right  and  authority,  yet,  if 
he  has  acted  in  good  faith  in  an  attempt  to  perform  his  duty,  the 
town  has  the  right  to  adopt  his  act  and  to  bind  itself  to  indemnify 
him.2  And  perhaps  the  legislature  may  even  have  power  to  corn- 


one  authorized  by  law,  and  the  matter 
one  in  which  the  corporation  had  an  in- 
terest. Gregory  r.  Bridgeport,  41  Conn. 
76,  19  Am.  Rep.  485.  In  Bristol  r.  John- 
son, 34  Mich.  123,  it  appeared  that  a 
township  treasurer  had  been  robbed  of 
town  moneys,  but  had  accounted  to  the 
township  therefor.  An  act  of  the  legis- 
lature was  then  obtained  for  refunding 
this  sum  to  him  by  tax.  Held,  not  jus- 
tified by  the  constitution  of  the  State, 
which  forbids  the  allowance  of  demands 
against  the  public  by  the  legislature.  See 
People  v.  Supervisor  of  Onondaga,  16 
Mich.  254.  fJNo  indemnity  can  be  given 
an  officer  for  a  loss  arising  through  his 
negligence.  Thorndike  v.  Camden,  82 
Me.  39,  19  Atl.  95,  7  L.  R.  A.  463.  Where 
local  improvements  within  the  power  of 
the  legislature  to  authorize  are  made 
under  an  act  later  adjudged  unconstitu- 
tional, and  the  assessment  made  there- 
under fails,  the  legislature  may  authorize 
a  reassessment  of  the  cost  of  the  im- 
provement. Chester  v.  Black,  132  Pa.  568, 
19  Atl.  276,  6  L.  R.  A.  802,  and  note.] 

A  municipal  corporation,  it  is  said, 
may  offer  rewards  for  the  detection  of 
offenders  within  its  limits  ;  but  its  prom- 
ise to  reward  aii  officer  for  that  which 
without  such  reward,  it  was  his  duty  to 
do,  is  void.  Dillon,  Mun.  Corp.  §  91,  and 
cases  cited.  And  see  note,  p.  310  post. 

1  Fuller  v.  Groton,  11  Gray,  340.     See 
also  Hadsell  v.  Inhabitants  of  Hancock, 
3  Gray,  526  ;  Pike  i\  Middleton,  12  N.  H. 
278. 

2  A  surveyor  of  highways  cut  a  drain 
for  the  purpose  of  raising  a  legal  qiiestion 
as  to  the  bounds  of  the  highway,  and  the 
town   appointed   a  committee  to  defend 
an  action  brought  against  the  surveyor 
therefor,  and  voted  to  defray  the  expenses 
incurred  by  the  committee.  By  the  court: 
"  It  is  the  duty  of  a  town  to  repah  all 


highways  within  its  bounds,  at  the  ex- 
pense of  the  inhabitants,  so  that  the  same 
may  be  safe  and  convenient  for  travellers; 
and  we  think  it  has  the  power,  as  incident 
to  this  duty,  to  indemnify  the  surveyor, 
or  other  agent,  against  any  charge  or  lia- 
bility he  may  incur  in  the  bona  fide  dis- 
charge of  this  duty,  although  it  may  turn 
out  on  investigation  that  he  mistook  his 
legal  rights  and  authority.  The  act  by 
which  the  surveyor  incurred  a  liability 
was  the  digging  a  ditch,  as  a  drain  for 
the  security  of  the  highway ;  and  if  it 
was  done  for  the  purpose  of  raising  a 
legal  question  as  to  the  bounds  of  the 
highway,  as  the  defendants  offered  to 
prove  at  the  trial,  the  town  had,  never- 
theless, a  right  to  adopt  the  act,  for 
they  were  interested  in  the  subject,  being 
bound  to  keep  the  highway  in  repair. 
They  had,  therefore,  a  right  to  deter- 
mine whether  they  would  defend  the 
surveyor  or  not ;  and  having  determined 
the  question,  and  appointed  the  plaintiffs 
a  committee  to  carry  on  the  defence,  they 
cannot  now  be  allowed  to  deny  their  lia- 
bility, after  the  committee  have  paid  the 
charges  incurred  under  the  authority  of 
the  town.  The  town  had  a  right  to  act 
on  the  subject-matter  which  was  within 
their  jurisdiction  ;  and  their  votes  are 
binding  and  create  a  legal  obligation,  al- 
though they  were  under  no  previous  obli- 
gation to  indemnify  the  surveyor.  That 
towns  have  an  authority  to  defend  and 
indemnify  their  agents  who  may  incur 
a  liability  by  an  inadvertent  error,  or  in 
the  performance  of  their  duties  imposed 
on  them  by  law,  is  fully  maintained  by 
the  case  of  Nelson  v.  Milford,  7  Pick.  18." 
Bancroft  r.  Lynnfield,  18  Pick.  566,  568. 
And  see  Briggs  v.  Whipple,  6  Vt.  95 ; 
Sherman  v.  Carr,  8  R.  I.  431.  A  collector 
may  he  indemnified  for  public  money 
stolen  from  him.  Fields  v.  Highland  Co. 


CH.  VIII.]  THE    GRADES    OF   MUNICIPAL   GOVERNMENT. 


309 


pel  the  town,  in  such  a  case,  to  reimburse  its  officers  the  expenses 
incurred  by  them  in  the  honest  but  mistaken  discharge  of  what 
they  believed  to  be  their  duty,  notwithstanding  the  town,  by  vote, 
has  refused  to  do  so.1 

Construction  of  Municipal  Powers, 

The  powers  conferred  upon  municipalities  must  be  construed 
with  reference  to  the  object  of  their  creation,  namely,  as  agencies 
of  the  State  in  local  government.2  The  State  can  create  them 
for  no  other  purpose,  and  it  can  confer  powers  of  government  to 
no  other  end,  without  at  once  coming  in  conflict  with  the  consti- 
tutional maxim,  that  legislative  power  cannot  be  delegated,  or 
with  other  maxims  designed  to  confine  all  the  agencies  of  gov- 
ernment to  the  exercise  of  their  proper  functions.  And  wherever 
the  municipality  shall  attempt  to  exercise  powers  not  within  the 
proper  province  of  local  self-government,  whether  the  right  to  do 
so  be  claimed  under  express  legislative  grant,  or  by  implication 
from  the  charter,  the  act  must  be  considered  as  altogether  ultra 
vires,  and  therefore  void. 


Commissioners,  36  Ohio  St.  476.     Com- 
pare Bristol  v.  Johnson,  34  Mich.  123. 

1  Guilford  v.  Supervisors  of  Chenango, 
13  N.  Y.  143.     See  this  case  commented 
upon  by  Lyon,  J.,  in  State  v.  Tappan,  29 
Wis.  664,  680.     On  the  page  last  men- 
tioned it  is  said :   "  We  have  seen  no  case, 
except  in  the  courts  of  New  York,  which 
holds  that  such  moral  obligation  gives  the 
legislature  power  to  compel  payment." 
The  case  in  New  York  is  referred  to  as 
authority  in   New  Orleans  v.  Clark,  95 
U.  S.  644.    Where   officers   make   them- 
selves liable  to  penalties  for  refusal   to 
perform  duty,  the  corporation  has  no  au- 
thority to  indemnify  them.     Halstead  v. 
Mayor,  &c.  of  New*  York,  3  N.  Y.  430; 
Merrill  v.  Plainfield,  45  N.  H.  126      See 
Frost  v.  Belmont,  6  Allen,  152 ;  People  v. 
Lawrence,  6  Hill,  244 ;   Vincent  v.  Nan- 
tucket,  12  Cush.  103. 

2  A   somewhat   peculiar  question   was 
involved  in  the  case  of  Jones   v.  Rich- 
mond, 18  Gratt.  517.     In  anticipation  of 
the  evacuation  of  the  city  of  Richmond 
by  the  Confederate  authorities,  and  under 
the  apprehension  that  scenes  of  disorder 
might  follow  which  would  be  aggravated 
by  the  opportunity  to  obtain  intoxicating 
liquors,  the  common  council  ordered  the 
seizure  and  destruction  of  all  such  liquors 


within  the  city,  and  pledged  the  faith  of 
the  city  to  the  payment  of  the  value. 
The  Court  of  Appeals  of  Virginia  after- 
wards decided  that  the  city  might  be  held 
liable  on  the  pledge  in  an  action  of  as- 
sumpsit.  Rives, 3.,  says:  " By  its  charter 
the  council  is  specially  empowered  to 
'  pass  all  by-laws,  rules,  and  regulations 
which  they  shall  deem  necessary  for  the 
peace,  comfort,  convenience,  good  order, 
good  morals,  health,  or  safety  of  said  city, 
or  of  the  people  or  property  therein.'  It 
is  hard  to  conceive  of  larger  terms  for  the 
grant  of  sovereign  legislative  powers  to 
the  specified  end  than  those  thus  em- 
ployed in  the  charter;  and  they  must  be 
taken  by  necessary  and  unavoidable  in- 
tendment  to  comprise  the  powers  of  emi- 
nent domain  within  these  limits  of  pre- 
scribed jurisdiction.  There  were  two 
modes  open  to  the  council:  first,  to  direct 
the  destruction  of  these  stores,  leaving 
the  question  of  the  city's  liability  therefor 
to  be  afterwards  litigated  and  determined  ; 
or  secondly,  assuming  their  liability,  to 
contract  for  the  values  destroyed  under 
their  orders.  Had  they  pursued  the  first 
mode,  the  corporation  would  have  been 
liable  in  an  action  of  trespass  for  the 
damages ;  but  they  thought  proper  to 
adopt  the  latter  mode,  make  it  a  matter  of 


310 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


A  reference  to  a  few  of  the  adjudged  cases  will  perhaps  best 
illustrate  this  principle.  The  common  coiincil  of  the  city  of 
Buffalo  undertook  to  provide  an  entertainment  and  ball  for  its 
citizens  and  certain  expected  guests  on  the  4th  of  July,  and  for 
that  purpose  entered  into  contract  with  a  hotel-keeper  to  provide 
the  entertainment  at  his  house,  at  the  expense  of  the  city.  The 
entertainment  was  furnished  and  in  part  paid  for,  and  suit  was 
brought  to  recover  the  balance  due.  The  city  had  authority  under 
its  charter  to  raise  and  expend  moneys  for  various  specified  pur- 
poses, and  also  "  to  defray  the  contingent  and  other  expenses  of 
the  city."  But  providing  an  entertainment  for  its  citizens  is  no 
part  of  municipal  self-government,  and  it  has  never  been  consid- 
ered, where  the  common  law  has  prevailed,  that  the  power  to  do 
so  pertained  to  the  government  in  any  of  its  departments.  The 
contract  was  therefore  held  void,  as  not  within  the  province  of 
the  city  government.1 


contract,  and  approach  their  citizens,  not 
as  trespassers,  but  with  the  amicable  prof- 
fer of  a  formal  receipt  and  the  plighted 
faith  of  the  city  for  the  payment.  In  this 
they  seem  to  me  to  be  well  justified." 
Judge  Dillon  doubts  the  soundness  of  this 
decision.  Dillon,  Mun.  Corp.  §  871,  note. 
The  case  seems  to  us  analogous  in  princi- 
ple to  that  of  the  destruction  of  buildings 
to  stop  the  progress  of  a  fire.  In  each 
case  private  property  is  destroyed  to  an- 
ticipate and  prevent  an  impending  public 
calamity.  [Jones  v.  Richmond  is  over- 
ruled in  Wallace  v.  Richmond,  94  Va. 
204,  26  S.  E.  586,  36  L.  R.  A.  554.]  See 
post,  pp.  757,  867,  868.  [Village  may  of- 
fer reward  for  arrest  and  conviction  of 
incendiaries.  People  v.  Holly,  119  Mich. 
637,  78  N.  W.  665, 44  L.  R.  A.  677,  75  Am. 
St.  435-3 

1  Hodges  v.  Buffalo,  2  Denio,  110.  See 
also  the  case  of  New  London  v.  Brainard, 
22  Conn.  552,  which  follows  and  approves 
this  case.  The  cases  differ  in  this  only  : 
that  in  the  first,  suit  was  brought  to  en- 
force the  illegal  contract,  while  in  the 
second  the  city  was  enjoined  from  paying 
over  moneys  which  it  had  appropriated 
for  the  purposes  of  the  celebration.  The 
cases  of  Tash  v.  Adams,  10  Cush.  252 ; 
Hood  v.  Lynn,  1  Allen,  103,  and  Austin  v. 
Coggeshall,  12  R.  I.  329,  34  Am.  Rep.  648, 
are  to  the  same  effect.  A  town,  it  has 
been  held,  cannot  lawfully  be  assessed  to 
pay  a  reward  offered  by  a  vote  of  the 
town  for  the  apprehension  and  conviction 


of  a  person  supposed  to  have  committed 
murder  therein.  Gale  v.  South  Berwick, 
51  Me.  174.  See  also  Hawk  v.  Marion 
County,  48  Iowa,  472 ;  Hanger  v.  Des 
Moines,  52  Iowa,  193,  2  N.  W.  1105;  35 
Am.  Rep.  266  ;  Board  of  Commissioners  ». 
Bradford,  72  Ind.  455,  37  Am.  Rep. 
174;  Patton  v.  Stephens,  14  Bush,  324. 
Contra,  Borough  of  York  v.  Forscht,  23 
Pa.  St.  391 ;  and  see,  People  v.  Holly, 
supra.  As  to  the  power  of  a  municipality 
to  bind  itself  by  the  offer  of  a  reward, 
see,  further,  Crawshaw  v.  Roxbury,  7 
Gray,  374 ;  Lee  v.  Flemingsburgh,  7 
Dana,  28 ;  Loveland  v.  Detroit,  41  Mich. 
367,  1  N.  W.  952 ;  Janvrin  v.  Exeter,  48 
N.  H.  83;  Murphy  v.  Jacksonville,  18  Fla. 
318.  An  officer  cannot  claim  an  offered 
reward  for  merely  doing  his  duty.  Pool  v. 
Boston,  5  Cush,  219.  See  Stamp  v.  Cass 
County,  47  Mich.  330, 11  N.  W.  183.  Nor, 
under  its  general  authority  to  raise 
money  for  "  necessary  town  charges,"  is 
a  town  authorized  to  raise  and  expend 
moneys  to  send  lobbyists  to  the  legisla- 
ture. Frankfort  v.  Winterport,  54  Me. 
250;  Mead  v.  Acton,  139  Mass.  341,  1  N. 
E.  413.  Nor,  under  like  authority,  to 
furnish  a  uniform  for  a  volunteer  mili- 
tary company.  Claflin  v.  Hopkinton,  4 
Gray,  502.  Under  power  to  raise  money 
for  celebration  of  holidays  and  "other 
public  purposes,"  it  may  raise  it  for  pub- 
lic concerts.  Hubbard  v.  Taunton,  140 
Mass.  467,  5  N.  E.  167.  Where  a  munic- 
ipal corporation  enters  into  a  contract 


CH.  VIII.]  THE   GRADES    OF   MUNICIPAL   GOVERNMENT.  311 

The  supervisors  of  the  city  of  New  York  refused  to  perform  a 
duty  imposed  upon  them  by  la\v,  and  were  prosecuted  severally 
and  judgment  recovered,  for  the  penalty  which  the  law  imposed 
for  such  refusal.  The  board  of  supervisors  then  assumed,  on  be- 
half of  the  city  and  county,  the  payment  of  these  judgments, 
together  with  the  costs  of  defending  the  suits,  and  caused  drafts 
to  be  drawn  upon  the  treasurer  of  the  city  for  these  amounts.  It 
was  held  that  these  drafts  upon  the  public  treasury  to  indemnify 
officers  for  disregard  of  duty  were  altogether  unwarranted  and 
void,  and  that  it  made  no  difference  that  the  officers  had  acted 
conscientiously  in  refusing  to  perform  their  duty,  and  in  the  hon- 
est belief  that  the  law  imposing  the  duty  was  unconstitutional. 
The  city  had  no  interest  in  the  suits  against  the  supervisors,  and 
appropriating  the  public  funds  to  satisfy  the  judgments  and  costs 
was  not  within  either  the  express  or  implied  powers  conferred 
upon  the  board.1  It  was  in  fact  appropriating  the  public  money 
for  private  purposes,  and  a  tax  levied  therefor  must  consequently 
be  invalid,  on  general  principles  controlling  the  right  of  taxation, 
which  will  be  considered  in  another  place.  In  an  Iowa  case  it  is 
said  :  "No  instance  occurs  to  us  in  which  it  would  be  competent 
for  [a  municipal  corporation]  to  loan  its  credit  or  make  its  accom- 
modation paper  for  the  benefit  of  citizens,  to  enable  them  to 
execute  private  enterprises  ; "  2  and  where  it  cannot  loan  its  credit 
to  private  undertakings,  it  is  equally  without  power  to  appropriate 
the  moneys  in  its  treasury  for  such  purposes,  or  by  the  conduct  of 
its  officers  to  subject  itself  to  implied  obligations.3 

ultra  vires,  no  implied  contract  arises  to  shen,  11  Pick.  396 ;  Merrill  v.  Plainfield, 

compensate  the  contractor  for  anything  45  N.  H.  126. 

he  may   have   done   under    it,  notwith-         2  Clark  r.  Des  Moines,  19  Iowa,  199, 

standing  the  corporation  may  have  reaped  224;  Carter  v.  Dubuque,  35  Iowa,  416. 

a  benefit  therefrom.     McSpedon  o.  New  See  Tyson  v.  School  Directors,  51  Pa.  St. 

York,  7  Bosw.  601;  McDonald  /-.  Mayor,  9;  Freeland  v.   Hastings,   10  Allen,  570; 

68  N.  Y.  23 ;  Zottman  v.  San  Francisco,  Thompson  v.  Pittston,  59  Me.  545 ;  Kelly 
20  Cal.96 ;  Niles  Water  Works  v.  Mayor,  v.  Marshall,  69  Pa.  St.  319;  Allen  v.  Jay, 

69  Mich.  311,  26  N.   W.  625.    Compare  60  Me.  124,  Am.  Law  Reg.,  Aug.,  1873 
East  St.  Louis  r.  East  St.  L.,  &c.  Co.,  19  with  note  by  Judge   Redfield,   11   Am. 
111.  A  pp.  44;  Montgomery  v.  Montgom-  Rep.  185. 

ery  Water  Works,  79  Ala.  233.     ^County  3  "  In   determining   whether  the  sub- 

cannot  lease  rooms  of  court-house  to  be  ject-matter  is  within  the  legitimate  au- 

used  for  private  purposes.     State  v.  Hart,  thority  of  the  town,  one  of  the  tests  is  to 

144  Ind.  107,  43  N.  E.  7,  33  L.  R.  A.  118;  ascertain  whether  the  expenses  were  in- 

upon  lease  of  public  buildings  for  private  curred  in  relation  to  a  subject  specially 

purposes,  see  note  to  this  case  in  L.  R.  A]  placed  by  law  in  other  hands.  ...     It  is 

1  Halstead  v.  Mayor,  &c.  of  New  York,  a  decisive  test  against  the  validity  of  all 

3  N.  Y.  430.     See  a  similar  cnse  in  People  grants   of  money  by  towns   for  objects 

v.  Lawrence,  6  Hill,  244.     See  also  Car-  liable  to  that  objection,  but  it  does  not 

roll  v.  St.  Louis,  12  Mo.  444 ;  Vincent  v.  settle  questions  arising  upon  expenditures 

Nantucket,  12  Cush.  103 ;  Parsons  v.  Go-  for  objects  not  specially  provided  for.  In 


312  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

The  powers  conferred  upon  the  municipal  governments  must 
also  be  construed  as  confined  in  their  exercise  to  the  territorial 
limits  embraced  within  the  municipality  ;  (a)  and  the  fact  that 
these  powers  are  conferred  in  general  terms  will  not  warrant  their 
exercise  except  within  those  limits.  A  general  power  "to  pur- 
chase, hold,  and  convey  estate,  real  and  personal,  for  the  public 
use  "  of  the  corporation,  will  not  authorize  a  purchase  outside  the 
corporate  limits  for  that  purpose.1  Without  some  special  pro- 
vision they  cannot,  as  of  course,  possess  any  control  or  rights 
over  lands  lying  outside ; 2  and  the  taxes  they  levy  of  their  own 
authority  and  the  moneys  they  expend,  must  be  for  local  purposes 
only.3 

But  the  question  is  a  very  different  one  how  far  the  legislature 
of  the  State  may  authorize  the  corporation  to  extend  its  action  to 
objects  outside  the  city  limits,  and  to  engage  in  enterprises  of  a 
public  nature  which  may  be  expected  to  benefit  the  citizens  of 
the  municipality  in  common  with  the  people  of  the  State  at  large, 
and  also  in  some  special  and  peculiar  manner,  but  which  never- 
theless are  not  under  the  control  of  the  corporation,  and  are  so 
far  aside  from  the  ordinary  purposes  of  local  governments  that 
assistance  by  the  municipality  in  such  enterprises  would  not 
be  warranted  under  any  general  grant  of  power  for  municipal 

such  cases  the  question  still  will  recur,  2  Per  Kent,  Chancellor,  Denton  v. 
whether  the  expenditure  was  within  the  Jackson,  2  Johns.  Ch.  320.  And  see 
jurisdiction  of  the  town.  It  may  be  safely  Bullock  r.  Curry,  2  Met.  (Ky.)  171; 
assumed  that,  if  the  subject  of  the  ex-  Weaver  v.  Cherry,  8  Ohio,  u.  s.  664 ; 
penditure  be  in  furtherance  of  some  duty  North  Hempstead  ?>.  Hempstead,  Hopk. 
enjoined  by  statute,  or  in  exoneration  of  288;  Concord  v.  Boscawen,  17  N.  H.465; 
the  citizens  of  the  town  from  a  liability  to  Coldwater  v.  Tucker,  36  Mich.  474.  A 
a  common  burden,  a  contract  made  in  city  may  be  authorized  to  take  land  out- 
reference  to  it  will  be  valid  and  binding  side  for  a  park.  Matter  of  Application  of 
upon  the  town."  Allen  v.  Taunton,  19  Mayor,  99  N.  Y.  669.  QBut  neither  the 
Pick.  485,  487.  See  Tucker  v.  Virginia  legislature  of  the  home  state  nor  that  of 
City,  4  Nev.  20.  It  is  no  objection  to  the  a  sister  state  can  authorize  the  city  to 
validity  of  an  act  which  authorizes  an  ex-  construct  and  control  a  highway  in  the 
penditure  for  a  town-hall  that  rooms  to  sister  state.  Becker  v.  La  Crosse,  99 
be  rented  for  stores  are  contained  in  it.  Wis.  414,  76  N.  W.  84,  40  L.  R.  A.  829, 
White  v.  Stamford,  37  Conn.  578.  67  Am.  St.  874.] 

1  Riley  v.  Rochester,  9  N.  Y.  64.     It  is          3  In  Parsons  v.  Goshen,  11  Pick.  396. 

competent  for  a  municipal  corporation  to  the  action  of  a  town  appropriating  money 

purchase    land   outside   to   supply    itself  in  aid  of  the  construction  of  a  county 

with   water.     Newman   v.  Ashe,  9  Bax.  road  was  held  void  and  no  protection  to 

380.    Or  to  provide  drainage.    Coldwater  the   officers  who   had   expended  it.     See 

v.  Tucker,  36   Mich.  474,  24  Am.  Rep.  also  Concord  v.  Boscawen,  17  N.  H.  465. 

601.   See  Rochester  v.  Rush,  80  N.  Y.  302 ;  A  town  cannot  lay  a  tax  for  the  benefit 

Houghton  v.   Huron  Copper   M.  Co.,  57  of  a  cemetery  which  it  does  not  control. 

Mich.  547,  24  N.  W.  820.  Luques  v.  Dresden,  77  Me.  186. 

(a)  fJState  v.  Eason,  114  N.  C.  787,  19  S.  E.  88,  41  Am.  St.  811,  23  L.  R.  A.  620, 
and  note  upon  boundary  of  municipality  upon  navigable  stream.] 


CH.  VIII.]          THE    GRADES   OF   MUNICIPAL   GOVERNMENT.  313 

government.  For  a  few  years  past  the  sessions  of  the  legisla- 
tive bodies  of  the  several  States  have  been  prolific  in  legislation 
which  has  resulted  in  flooding  the  country  with  municipal  secur- 
ities issued  in  aid  of  works  of  public  improvement,  to  be  owned, 
controlled,  and  operated  by  private  parties,  or  by  corporations 
created  for  the  purpose ;  the  works  themselves  being  designed 
for  the  convenience  of  the  people  of  the  State  at  large,  but  being 
nevertheless  supposed  to  be  specially  beneficial  to  certain  locali- 
ties because  running  near  or  through  them,  and  therefore  justify- 
ing, it  is  supposed,  the  imposition  of  a  special  burden  by  taxation 
upon  such  localities  to  aid  in  their  construction.1  We  have 
elsewhere2  referred  to  cases  in  which  it  has  been  held  that  the 
legislature  may  constitutionally  authorize  cities,  townships,  and 
counties  to  subscribe  to  the  stock  of  railroad  companies,  or  to 
loan  them  their  credit,  and  to  tax  their  citizens  to  pay  these 
subscriptions,  or  the  bonds  or  other  securities  issued  as  loans, 
where  a  peculiar  benefit  to  the  municipality  was  anticipated 
from  the  improvement.  The  rulings  in  these  cases,  if  sound, 
must  rest  upon  the  same  right  which  allows  such  municipalities 
to  impose  burdens  upon  their  citizens  to  construct  local  streets 
or  roads,  and  they  can  only  be  defended  on  the  ground  that  "the 
object  to  be  accomplished  is  so  obviously  connected  with  the 
[municipality]  and  its  interests  as  to  conduce  obviously  and  in 
a  special  manner  to  their  prosperity  and  advancement."8  But 

1  In  Merrick   v.  Inhabitants  of  Am-  writers  last  named  in  note  to  the  case 
herst,  12  Allen,  500,  it  was  held  compe-  of  People  v.  Township  Board  of  Salem, 
tent   for   the   legislature   to  authorize  a  9  Am.  Law  Reg.  487.     And  Judge  Dillon 
town  to  raise  money  by  taxation  for  a  well  remarks  in  his  Treatise  on  Municipal 
State  agricultural  college,  to  be  located  Corporations  (§  104)  that,  "regarded  in 
therein.     The  case,  however,  we  think,  the  light  of  its  effects,  there  is  little  hesi- 
stands  on  different  reasons   from   those  tation  in  affirming  that  this  invention  to 
where  aid  has  been  voted  by  municipali-  aid  private  enterprises  has  proved  itself 
ties  to  public  improvements.     See  it  ex-  baneful  in  the  last  degree." 

plained  in  Jenkins  v.  Andover,  103  Mass.  If  we  trace  the  beginning  of  this  legis- 

94.    And  see  similar  cases  referred  to,  lation,  we  shall  find  it  originating  at  a 

post,  p.  332,  note.  time  when  there  had  been  little  occasion 

2  Ante,  pp.  166-168.  to  consider  with  care  the  limitations  to 
8  Talbot  v.  Dent,  9  B.  Monr.  626.    See  the  functions  of  municipal  government, 

Hasbrouck    v.  Milwaukee,    13    Wis.   37.  because  as  yet  those  functions  had  been 

It  seems  not  inappropriate  to  remark  in  employed  with  general  caution  and  pru- 

this  place   that  the   three  authors  who  dence,  and  no  disposition  had  been  mani- 

have  treated  so  ably  of  municipal  con-  fested  to  stretch  their  powers  to  make 

stitutional  law   (Mr.   Sedgwick,   Stat.  &  them  embrace  matters  not  usually  recog- 

Const.  Law,  464),  of  railway  law  (Judge  nized  as  properly  and  legitimately  falling 

Redfield),  and  of  municipal  corporations  within  them,  or  to  make  use  of  the  mu- 

(Judjie  Dillon),  have  all  united  in  con-  nicipal  machinery  to  further  private  ends, 

demning  this  legislation  as  unsound  and  Nor  did    the   earliest    decisions    attract 

unwarranted  by  the  principles  of  consti-  much    attention,   for    they   referred    to 

tutional  law.    See  the  views  of  the  two  matters  somewhat  local,  and  the  spirit  of 


314 


CONSTITUTIONAL  LIMITATIONS. 


[CII.  VIII. 


there  are  authorities  which  dispute  their  soundness,  and  it  can- 
not be  denied  that  this  specie  of  legislation  has  been  exceedingly 


speculation  was  not  as  yet  rife.  When  the 
construction  of  railways  and  canals  was 
first  entered  upon  by  an  expenditure  of 
public  funds  to  any  considerable  extent, 
the  States  themselves  took  them  in 
charge,  and  for  a  time  appropriated  large 
sums  and  incurred  immense  debts  in 
enterprises,  some  of  which  were  of  high 
importance  and  others  of  little  value,  the 
cost  and  management  of  which  threatened 
them  at  length  with  financial  disaster, 
bankruptcy,  and  possible  repudiation. 
No  long  experience  was  required  to  dem- 
onstrate that  railways  and  canals  could 
not  be  profitably,  prudently,  or  safely 
managed  by  the  shifting  administrations 
of  State  government ;  and  many  of  the 
States  not  only  made  provision  for  dis- 
posing of  their  interest  in  works  of  public 
improvement,  but,  in  view  of  a  bitter 
experience  of  the  evils  already  developed 
in  undertaking  to  construct  and  control 
them,  they  amended  their  constitutions  so 
as  to  prohibit  the  State,  when  again  the 
fever  of  speculation  should  prevail,  from 
engaging  anew  in  such  undertakings. 

All  experience  shows,  however,  that 
men  are  abundant  who  do  not  scruple  to 
evade  a  constitutional  provision  which 
they  find  opposed  to  their  desires,  if  they 
can  possibly  assign  a  plausible  reason  for 
doing  so ;  and  in  the  case  of  the  provi- 
sions before  referred  to,  it  was  not  long 
before  persons  began  to  question  their 
phraseology  very  closely,  not  that  they 
might  arrive  at  the  actual  purpose,  — 
which  indeed  was  obvious  enough,  —  but 
to  discover  whether  that  purpose  might 
not  be  defeated  without  a  violation  of  the 
express  terms.  The  purpose  clearly  was 
to  remand  all  such  undertakings  to  pri- 
vate enterprise,  and  to  protect  the  citi- 
zens of  the  State  from  being  taxed  to  aid 
them;  but  while  the  State  was  forbidden 
to  engage  in  such  works,  it  was  unfor- 
tunately not  expressly  declared  that 
the  several  members  of  the  State,  in 
their  corporate  capacity,  were  also  for- 
bidden to  do  so.  The  conclusion  sought 
and  reached  was  that  the  agencies  of  the 
State  were  at  liberty  to  do  what  was  for- 
bidden to  the  State  itself,  and  the  burden 
of  debt  which  the  State  might  not  directly 
impose  upon  its  citizens,  it  might  indi- 


rectly place  upon  their  shoulders  by  the 
aid  of  municipal  action. 

The  legislation  adopted  under  this 
construction  some  of  the  courts  felt 
compelled  to  sustain,  upon  the  accepted 
principle  of  constitutional  law  that  no 
legislative  authority  is  forbidden  to  the 
legislature  unless  forbidden  in  terms; 
and  the  voting  of  municipal  aid  to  rail- 
roads became  almost  a  matter  of  course 
wherever  a  plausible  scheme  could  be 
presented  by  interested  parties  to  invite 
it.  In  some  localities,  it  is  true,  vigorous 
protest  was  made ;  but  as  the  handling 
of  a  large -amount  of  public  money  was 
usually  expected  to  make  the  fortune 
of  the  projectors,  whether  the  enterprise 
proved  successful  or  not,  means  either 
fair  or  unfair  were  generally  found  to 
overcome  all  opposition.  Towns  some- 
times voted  large  sums  to  railroads  on  the 
ground  of  local  benefit  where  the  actual 
and  inevitable  result  was  local  injury,  and 
the  projectors  of  one  scheme  succeeded 
in  obtaining  and  negotiating  the  bonds 
of  one  municipality  to  the  amount  of  a 
quarter  of  a  million  dollars,  which  are 
now  being  enforced,  though  the  work 
they  were  to  aid  was  never  seriously  be- 
gun. A  very  large  percentage  of  all  the 
aid  voted  was  paid  to  "work  up  the  aid," 
sacrificed  in  discounts  to  purchasers  of 
bonds,  expended  in  worthless  undertak- 
ings, or  otherwise  lost  to  the  taxpayers  ; 
and  the  cases  might  almost  be  said  to  be 
exceptional  in  which  municipalities,  when 
afterwards  they  were  called  upon  to  meet 
their  obligations,  could  do  so  with  a  feel- 
ing of  having  received  the  expected  con- 
sideration. Some  State  and  territorial 
governors  did  noble  work  in  endeavoring 
to  stay  this  reckless  legislative  and  mu- 
nicipal action,  and  some  of  the  States  at 
length  rendered  such  action  impossible 
by  constitutional  provisions  so  plain  and 
positive  that  the  most  ingenious  mind 
was  unable  to  misunderstand  or  pervert 
them. 

When  the  United  States  entered  upon 
a  scheme  of  internal  improvement,  the 
Cumberland  road  was  the  first  important 
project  for  which  its  revenues  were  de- 
manded. The  promises  of  this  enterprise 
were  of  continental  magnificence  and 


CH.  VIII.]          THE   GRADES    OF   MUNICIPAL   GOVERNMENT. 


315 


mischievous  in  its  results,  that  it  has  created  a  great  burden  of 
public  debt,  for  which  in  a  large  number  of  cases  the  anticipated 


importance,  but  they  ended,  after  heavy 
national  expenditures,  in  a  road  no  more 
national  than  a  thousand  others  which  the 
road-masters  in  the  several  States  have 
constructed  with  the  local  taxes ;  and  it 
was  finally  abandoned  to  the  States  as  a 
common  highway.  When  next  a  great 
national  scheme  was  broached,  the  aid  of 
the  general  government  was  demanded 
by  way  of  subsidies  to  private  corpora- 
tions, who  presented  schemes  of  works 
of  great  public  convenience  and  utility, 
which  were  to  open  up  the  new  Territories 
to  improvement  and  settlement  sooner 
than  the  business  of  the  country  would 
be  likely  to  induce  unaided  private  capi- 
tal to  do  it,  and  which  consequently  ap- 
pealed to  the  imagination  rather  than  to 
facts  to  demonstrate  their  importance, 
and  afforded  abundant  opportunity  for 
sharp  operators  to  call  to  their  assistance 
the  national  sentiment,  then  peculiarly 
strong  and  active  by  reason  of  the  at- 
tempt recently  made  to  overthrow  the 
government,  in  favor  of  projects  whose 
national  importance  in  many  cases  the 
imagination  alone  could  discover.  The 
general  result  was  the  giving  away  of 
immense  bodies  of  land,  and  in  some 
cases  the  granting  of  pecuniary  aid,  with 
a  recklessness  and  often  with  an  appear- 
ance of  corruption  that  at  length  startled 
the  people,  and  aroused  a  public  spirit 
before  which  the  active  spirits  in  Con- 
gress who  had  promoted  these  grants, 
and  sometimes  even  demanded  them  in 
the  name  of  the  poor  settler  in  the  wilder- 
ness who  was  unable  to  get  his  crops  to 
market,  were  compelled  to  give  way. 
The  scandalous  frauds  connected  with 
the  Pacific  Railway,  which  disgraced  the 
nation  in  the  face  of  the  world,  and  the 
great  and  disastrous  financial  panic  of 
1873,  were  legitimate  results  of  such 
subsidies ;  but  the  pioneer  in  the  wilder- 
ness had  long  before  discovered  that  land 
grants  were  not  always  sought  or  taken 
with  a  view  to  an  immediate  appropria- 
tion to  the  roads  for  the  construction  of 
which  they  were  nominally  made,  but  that 
the  result  in  many  cases  was  that  large 
tracts  were  thereby  kept  out  of  the  mar- 
ket and  from  taxation,  which  otherwise 
would  have  been  purchased  and  occupied 


by  settlers  who  would  have  lessened  his 
taxes  by  contributing  their  share  to  the 
public  burdens.  The  grants,  therefore, 
in  such  cases,  instead  of  being  at  once 
devoted  to  improvements  for  the  benefit 
of  settlers,  were  in  fact  kept  in  a  state  of 
nature  by  the  speculators  who  had  se- 
cured them,  until  the  improvements  of 
settlers  in  their  vicinity  could  make  the 
grantees  wealthy  by  the  increase  in  value 
which  such  improvements  gave  to  the 
land  near  them.  In  saying  this  the  ad- 
mission is  freely  made  that  in  many  cases 
the  grants  were  promptly  and  honestly 
appropriated  in  accordance  with  their 
nominal  purpose  ;  but  the  general  verdict 
now  is  that  the  system  was  necessarily 
corruptive  and  tended  to  invite  fraud, 
and  that  some  persons  of  influence  man- 
aged to  accumulate  great  wealth  by 
grants  indirectly  secured  to  themselves 
under  the  unfounded  pretence  of  a  desire 
to  aid  and  encourage  the  pioneers  in  the 
wilderness. 

Some  States  also  have  recently  in 
their  corporate  capacity  again  engaged 
in  issuing  bonds  to  subsidize  private 
corporations,  with  the  natural  result  of 
serious  State  scandals,  State  insolvency, 
public  discontent,  and  in  some  cases,  it 
would  seem,  almost  inevitable  repudia- 
tion. Their  governments,  amid  the  dis- 
orders of  the  times,  have  fallen  into  the 
bands  of  strangers  and  novices,  and  the 
hobby  of  public  improvement  has  been 
ridden  furiously  under  the  spur  of  indi- 
vidual greed. 

It  has  often  been  well  remarked  that 
the  abuse  of  a  power  furnishes  no  argu- 
ment against  its  existence ;  but  a  system 
so  open  to  abuses  may  well  challenge  at- 
tention to  its  foundations.  And  when 
those  foundations  are  examined,  it  is  not 
easy  to  find  for  them  any  sound  support 
in  the  municipal  constitutional  law  of 
this  country.  The  same  reasons  which 
justify  subsidies  to  the  business  of  com- 
mon carriers  by  railway  will  support 
taxation  in  aid  of  any  private  business 
whatsoever. 

It  is  sometimes  loosely  said  that  rail- 
way companies  are  public  corporations, 
but  the  law  does  not  so  regard  them.  It 
is  the  settled  doctrine  of  the  law  that, 


316 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


benefit  was  never  received,  and  that,  as  is  likely  to  be  the  case 
where  municipal  governments  take  part  in  projects  foreign  to 


like  banks,  mining  companies,  and  man- 
ufacturing companies,  they  are  mere 
private  corporations,  supposed  to  be  or- 
ganized for  the  benefit  of  the  individual 
corporators,  and  subject  to  no  other  pub- 
lic supervision  or  control  than  any  other 
private  association  for  business  purposes 
to  which  corporate  powers  have  been 
granted.  Darmouth  College  v.  Wood- 
ward, 4  Wheat.  518;  Bonaparte  v.  Cam- 
den  &  Amboy  R.  R.  Co.,  Baldw.  216; 
Eustis  v.  Parker,  1  N.  H.  273 ;  Ohio,  £c. 
R.  R.  Co.  v..  Ridge,  5  Blackf.  78;  Cox  v. 
Louisville,  &c.  R  R.  Co.,  48  Ind.  178,  189 ; 
Roanoke,  &c.  R.  R.  Co.  v.  Davis,  2  Dev. 
&  Bat.  451 ;  Dearborn  v.  Boston,  C.  &  M. 
R.  R.  Co.,  4  Fost.  179 ;  Trustees,  &c.  v. 
Auburn,  &c.  R.  R.  Co.,  3  Hill,  567 ;  Tins- 
man  v.  Belvidere,  &c.  R.  R.  Co.,  26  N.  J. 
148 ;  Thorpe  v.  Rutland,  &c.  R.  R.  Co., 
27  Vt.  140 ;  Alabama  R.  R.  Co.  ».  Kidd, 
29  Ala.  221 ;  Turnpike  Co.  v.  Wallace,  8 
Watts,  316 ;  Seymour  r.  Turnpike  Co.,  10 
Ohio,  477 ;  Ten  Eyck  v.  D.  &  R.  Canal,  3 
Harr.  200;  Atlantic,  &c.  Telegraph  Co. 
w.  Chicago,  &c.  R.  R.  Co.,  6  Biss.  158; 
A.  &  A.  on  Corp.  §§  30-36;  Redf.  on 
Railw.  c.  3,  §  1 ;  Pierce  on  Railroads,  19, 
20.  Taxation  to  subsidize  them  cannot 
therefore  be  justified  on  the  ground  of 
any  public  character  they  possess,  any 
more  than  to  subsidize  banks  or  mining 
companies.  fJThis  doctrine  seems  not 
now  to  be  generally  recognized.  See  Fol- 
som  v.  Township  Ninety-Six,  159  U.  S. 
611,  16  Sup.  Ct.  Rep.  174,  and  cases 
therein  cited.  That  railroad  corporations 
are  quasi-public,  see  Central  Transp.  Co. 
v.  Pullman's  P.  C.  Co.,  139  U.  S.  24,  11 
Supt.  Ct.  Rep.  478 ;  State  v.  Minnesota 
T.  R.  Co.,  80  Minn.  108,  83  N.  W.  32,  60 

L.  R.  A.  606.3  II  is  truly  8aid  tnat  it; 
has  long  been  the  settled  doctrine  that 
the  right  of  eminent  domain  may  be  em- 
ployed in  their  behalf,  and  it  has  some- 
times been  insisted  with  much  earnestness 
that  wherever  the  State  may  aid  an  en- 
terprise under  the  right  of  eminent  do- 
main, it  may  assist  it  by  taxation  also. 
But  the  right  of  taxation  and  the  right  of 
eminent  domain  are  by  no  means  co- 
extensive, and  do  not  rest  wholly  upon 
like  reasons.  The  former  compels  the 
citizen  to  contribute  his  proportion  of 


the  public  burden ;  the  latter  compels 
him  to  part  with  nothing  for  which  he  is 
not  to  receive  pecuniary  compensation. 
The  tax  in  the  one  case  is  an  exaction, 
the  appropriation  in  the  other  is  only  a 
forced  sale.  To  take  money  for  private 
purposes  under  pretence  of  taxation  is, 
as  has  been  often  said,  but  robbery  and 
plunder;  to  appropriate  under  the  right 
of  eminent  domain  for  a  private  corpora- 
tion robs  no  one,  because  the  corporation 
pays  for  what  is  taken,  and  in  some 
cases,  important  to  the  welfare  and  pros- 
perity of  the  community,  and  where  a 
public  convenience  is  to  be  provided,  —  as 
in  the  case  of  a  grist  mill,  —  it  has  long 
been  held  competent  to  exercise  the  one 
power,  while  the  other  was  conceded  to 
be  inadmissible.  Few  persons  would  at- 
tempt to  justify  a  tax  in  aid  of  a  mill- 
owner,  on  the  ground  that  laws  appro- 
priating lands  for  his  benefit,  but  at  his 
expense,  have  been  supported. 

The  truth  is,  the  right  to  tax  in  favor 
of  private  corporations  of  any  description 
must  rest  upon  the  broad  ground  that  the 
power  of  the  legislature,  subject  only  to 
the  express  restrictions  of  the  constitu- 
tion, is  supreme,  and  that,  in  the  lan- 
guage of  some  of  the  cases,  "  if  there  be 
the  least  possibility  that  making  the  gift 
will  be  promotive  in  any  degree  of  the 
public  welfare,  it  becomes  a  question  of 
policy,  and  not  of  natural  justice,  and  the 
determination  of  the  legislature  is  con- 
clusive." (Post,  p.  698.)  But  nothing 
is  better  settled  on  authority  than  that 
this  strong  language,  though  entirely  true 
when  it  refers  to  the  making  provision 
for  those  things  which  it  falls  within  the 
province  of  government  to  provide  for  its 
citizens,  or  to  the  payment  for  services 
performed  for  the  State,  or  the  sat- 
isfaction of  legal,  equitable,  or  moral 
obligations  resting  upon  it,  is  wholly 
inadmissible  when  the  purpose  is  to  im- 
pose a  burden  upon  one  man  for  the 
benefit  of  another.  Many  such  cases 
might  be  suggested  in  which  there  would 
not  only  be  a  '•  possibility,"  but  even  a 
strong  probability,  that  a  small  burden 
imposed  upon  the  public  to  set  an  indi- 
vidual up  in  business,  or  to  build  him  a 
house,  or  otherwise  make  him  coraforta- 


CI1.  VIII.]          THE   GKADES    OF    MUNICIPAL   GOVERNMENT. 


317 


the  purposes  of  their  creation,  it  has  furnished  unusual  facilities 
for  fraud  and  public  plunder,  and  led  almost  inevitably,  at  last, 


ble,  would  be  promotive  of  the  public 
welfare;  but  in  law  the  purpose  of  any 
such  burden  is  deemed  private,  and  the 
incidental  benefit  to  the  public  is  not 
recognized  as  an  admissible  basis  of 
taxation. 

In  Allen  v.  Inhabitants  of  Jay,  60  Me. 
124,  11  Am.  Rep.  185,  it  became  uec- 
essary  to  reaffirm  a  doctrine,  often  de- 
clared by  the  courts,  that  however  great 
was  the  power  to  tax,  it  was  exceeded, 
and  the  legislature  was  attempting  the 
exercise  of  a  power  not  legislative  in  its 
character,  when  it  undertook  to  impose  a 
burden  on  the  public  for  a  private  pur- 
pose. And  it  was  also  held  that  the  rais- 
ing of  money  by  tax  in  order  to  loan  the 
same  to  private  parties  to  enable  them 
to  erect  mills  and  manufactories  in  such 
town,  was  raising  it  for  a  private  purpose, 
and  therefore  illegal.  Appleton,  Ch.  J., 
most  truly  remarks  in  that  case,  that  "  all 
security  of  private  rights,  all  protection 
of  private  property,  is  at  an  end,  when 
one  is  compelled  to  raise  money  to  loan 
at  the  will  of  others  for  their  own  use  and 
benefit,  when  the  power  is  given  to  a 
majority  to  lend  or  give  away  the  prop- 
erty of  an  unwilling  minority."  And  yet 
how  plain  it  is  that  the  benefit  of  the 
local  public  might  possibly  have  been 
promoted  by  the  proposed  erections.  See, 
to  the  same  effect,  Loan  Association  v. 
Topeka,  20  Wall.  655,  where  the  whole 
subject  is  carefully  considered  and  pre- 
sented with  clearness  and  force,  in  an 
opinion  by  Mr.  Justice  Miller ;  also  Com- 
mercial Bank  v.  lola,  2  Dill.  C.  C.  355 ; 
9  Kan.  689;  Weismer  v.  Douglas,  64 
N.  Y.  91,  21  Am.  Rep.  586;  Parkers- 
burg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct. 
Rep.  442;  Cole  v.  La  Grange,  113  U.  S. 
1,  5  Sup.  Ct.  Rep.  416,  and  cases  cited  ; 
Mather  v.  Ottawa,  114  111.  659,  3  N.  E. 
216. 

These  cases  are  not  singular  :  they  are 
representative  cases  ;  and  they  are  cited 
only  because  they  are  among  he  most 
recent  expressions  of  judicial  opinion  on 
the  subject.  With  them  may  be  placed 
Lowell  v.  Boston,  111  Mass  454,  15  Am. 
Rep.  39,  in  which  the  Supreme  Court  of 
Massachusetts,  after  the  great  fire  of 
1872  in  Boston,  denied  the  power  of  the 


Commonwealth  to  permit  taxation  in 
order  to  loan  the  moneys  out  to  the  per- 
sons who  had  suffered  by  the  fire.  Like 
decisions  are  found  in  State  r.  Osawkee, 
14  Kan.  418,  and  Feldman  i'.  City  Coun- 
cil, 23  S.  C.  57.  These  decisions  of  emi- 
nent tribunals  indicate  a  limit  to  legisla- 
tive power  in  the  matter  of  taxation,  and 
hold,  what  has  been  decided  very  many 
times  before,  that  it  is  not  necessary  the 
constitution  should  forbid  expressly  the 
taxing  for  private  purposes,  since  it  is 
implied  in  the  very  idea  of  taxation  that 
the  purpose  must  be  public,  and  a  taking 
for  any  other  purpose  is  unlawful  confis- 
cation. Cooley  on  Taxation,  67  et  seq. 

One  difference  there  undoubtedly  is 
between  the  case  of  a  railroad  corporation 
and  a  manufacturing  corporation;  that 
there  are  precedents  in  favor  of  taxing 
for  the  one  and  not  for  the  other.  But  if 
the  precedents  are  a  departure  from 
sound  principle,  then,  as  in  every  other 
case  where  principle  is  departed  from, 
evils  were  to  have  been  expected.  A 
catalogue  of  these  would  include  the 
squandering  of  the  public  domain ;  the 
enrichment  of  schemers  whose  policy  it 
has  been,  first,  to  obtain  all  they  can  by 
fair  promises,  and  then  avoid  as  far  and 
as  long  as  possible  the  fulfilment  of  the 
promises  ;  the  corruption  of  legislation  ; 
the  loss  of  State  credit ;  great  public 
debts  recklessly  contracted  for  moneys 
often  recklessly  expended ;  public  dis- 
content because  the  enterprises  fostered 
from  the  public  treasury  and  on  the  pre- 
tence of  public  benefit  are  not  believed 
to  be  managed  in  the  public  interest; 
and,  finally,  great  financial  panic,  col- 
lapse, and  disaster.  At  such  a  cost  has 
the  strong  expression  of  dissent  which  all 
the  while  has  accompanied  these  prece- 
dents been  disregarded  and  set  aside. 
£  Where  legislature  is  prohibited  from 
making  a  gift  to  any  private  person  or 
corporation,  it  cannot  release  a  debt  due 
to  State  from  such  person  or  corporation : 
Matter  of  Stanford,  126  Cal.  112,  54  Pac. 
259,  58  Pac.  462,  45  L.  R.  A.  788,  an  ap- 
propriation for  "  relief  "  of  a  street  con- 
tractor is  void.  Conlin  v.  San  Francisco, 
99  Cal.  17,  33  Pac.  753,  21  L.  R.  A.  474, 
37  Am.  St.  17 ;  so  one  for  benefit  of  suf- 


318 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIIL 


to  discontent;  sometimes  even  to  disorder  and  violence.  In 
some  of  the  recent  revisions  of  State  constitutions,  the  legisla- 
ture has  been  expressly  prohibited  from  permitting  the  munici- 
palities to  levy  taxes  or  incur  debts  in  aid  of  works  of  public 
improvement,  or  to  become  stockholders  in  private  corporations.1 
Assuming  that  any  such  subscriptions  or  securities  may  be 
authorized,  the  first  requisite  to  their  validity  would  seem, 
then,  to  be  a  special  legislative  authority  to  make  or  issue  them; 
an  authority  which  does.iiot  reside  in  the  general  words  in  which 
the  powers  of  local  self-government  are  usually  conferred,2  and 


ferers  from  flood :  Pattjr  v.  Golgan,  97 
Cal.  251,  31  Pac.  1133,  18  L.  R.  A.  744 ; 
and  one  for  relief  of  employee  of  State 
injured  through  negligence  of  his  superior 
officer:  Bourn  v.  Hart,  93  Cal.  321,  28 
Pac.  951,  15  L.  R.  A.  431,  27  Am.  St. 
203.3 

1  The  following  States  have  such  pro- 
visions in  their  constitutions :  Colorado, 
Connecticut,  Illinois,  Mississippi,  Mis- 
i  souri,  and  New  Hampshire.  Many  of  the 
State  constitutions  expressly  forbid  State 
aid  to  private  corporations  of  any  sort, 
and  it  is  probable  that  their  provisions 
are  broad  enough  in  some  cases  to  pro- 
hibit aid  by  the  municipalities  also. 
FJUpon  what  is  an  indebtedness  within 
constitutional  and  statutory  restrictions 
upon  indebtedness  of  municipal  corpora- 
tions, see  Beard  v.  Hopkinsville,  95  Ky. 
239,  24  S.  W.  872,  44  Am.  St.  222,  23 
L.  R.  A.  402,  and  note ;  South  Bend  v. 
Reynolds,  155  Ind.  70,  67  N.  E.  706,  49 
L.  R.  A.  795 ;  La  Porte  v.  Gamewell  F. 
A.  T.  Co.,  146  Ind.  466,  45  N.  E.  588,  58 
Am.  St.  359,  35  L.  R.  A.  686  ;  Brashear 
v.  Madison,  142  Ind.  685,  36  N.  E.  252,  42 
N.  E.  349,  33  L.  R.  A.  474 ;  Lamar  W.  & 
E.  L.  Co.  v.  Lamar,  128  Mo.  188,  31  S.  W. 
756,  32  L.  R.  A.  157  ;  McBean  v.  Fresno, 
112  Cal.  159,44  Pac.  358,  53  Am.  St.  191, 
31  L.  R.  A.  794  ;  Kelley  v.  Minneapolis, 
63  Minn.  125,  65  N.  W.  115;  Hodges  v. 
Crowley,  186  111.  305,  57  N.  E.  889. 

Where  the  constitution  denies  to  mu- 
nicipalities the  power  to  incur  debts  for 
any  except  necessary  expenses  unless 
specially  authorized  by  the  legislature 
and  by  popular  vote,  a  debt  for  the  pur- 
chase of  an  electric  lighting  plant  for  pub- 
lic purposes  is  within  the  restriction. 
Mayo  v.  Washington,  122  N.  C.  5,  29  S.  E. 
343,  40  L.  R.  A.  163.  The  prohibition 
mentioned  in  the  text  above  does  not  ex- 


tend to  construction  of  public  improve- 
ments which  shall  be  the  property  of  the 
municipality.  Sun  P.  &  P.  Assn.  v.  New 
York,  152  N.  Y.  257,  46  N.  E.  499,  37  L. 
R.  A.  788.  But  it  prevents  a  city  from 
becoming  part  owner.  Ampt  v.  Cincin- 
nati, 56  Ohio,  47,  46  N.  E.  69,  35  L.  R.  A. 
737,  and  note.  Prohibition  of  aid  to  any 
corporation  applies  only  to  private  cor- 
porations. Does  not  prevent  gift  to 
United  States.  Lancey  v.  King  Co.,  15 
Wash.  9,  45  Pac.  645,  34  L.  R.  A.  817.  ' 

Where  the  constitution  forbids  the  loan 
of  the  public  credit  for  private  benefit  a 
statute  authorizing  the  issue  of  bonds  to 
pay  for  a  local  improvement,  the  cost 
thereof  to  be  recovered  by  the  levy  of 
annual  instalments  upon  the  property 
benefited,  is  void.  Martin  v.  Tyler,  4 
N.  D.  278,  60  N.  W.  392, 25  L.  R.  A.  838. 

Upon  the  general  subject  of  municipal 
bonds,  when  they  may  be  issued,  for  what 
purposes,  etc.,  see  notes  to  37  L.  ed.  U.  S. 
145  and  34  L.  ed.  U.  S.  344.] 

«  Bullock  v.  Curry,  2  Met.  (Ky.)  171. 
A  general  power  to  borrow  money  or  in- 
cur indebtedness  to  aid  in  the  construc- 
tion of  "  any  road  or  bridge  "  must  be 
understood  to  have  reference  only  to  the 
roads  or  bridges  within  the  municipality. 
Stokes  v.  Scott  County,  10  Iowa,  166 ; 
State  v.  Wapello  County,  13  Iowa,  388 ; 
Lafayette  v.  Cox,  5  Ind.  38.  Power  to 
submit  to  village  voters  raising  money 
for  extraordinary  purposes  does  not  cover 
the  submission  of  railroad  aid.  Perrin  v. 
New  London,  67  Wis.  416,  30  N.  W.  623. 
There  are  decisions  in  the  Supreme  Court 
of  the  United  States  which  appear  to  be 
to  the  contrary.  The  city  charter  of 
Muscatine  conferred  in  detail  the  usual 
powers,  and  then  authorized  the  city  "  to 
borrow  money  for  any  object  in  its  dis- 
cretion," after  a  vote  of  the  city  in  favor 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


319 


one  also  which  must  be  carefully  followed  by  the  municipality 
in  all  essential  particulars,  or  the  subscription  or  security  will 
be  void.1  And  while  mere  irregularities  (a)  of  action,  not  going 
to  the  essentials  of  the  power,  would  not  prevent  parties  who 
had  acted  in  reliance  upon  the  securities  enforcing  them,  yet  as 


of  the  loan.  In  Meyer  v.  Muscatine,  1 
Wall.  384,  the  court  seem  to  have  con- 
strued this  clause  as  authorizing  a  loan 
for  any  object  whatever;  though  such 
phrases  are  understood  usually  to  be  con- 
fined in  their  scope  to  the  specific  objects 
before  enumerated;  or  at  least  to  those 
embraced  within  the  ordinary  functions 
of  municipal  governments.  See  Lafay- 
ette v.  Cox,  5  Ind.  38.  The  case  in  1 
Wallace  was  followed  in  Rogers  v.  Bur- 
lington, 3  Wall.  654,  four  justices  dissent- 
ing. See  also  Mitchell  v.  Burlington,  4 
Wall.  270.  See  also  cases  cited,  ante, 
p.  312,  notes.  A  municipal  corporation 
having  power  to  borrow  money,  it  is 
held,  may  make  its  obligations  payable 
wherever  it  shall  agree.  Meyer  v.  Mus- 
catine, 1  Wall.  384;  Lynde  v.  County,  16 
Wall.  6.  But  some  cases  hold  that  such 
obligations  can  only  be  made  payable  at 
the  corporation  treasury,  unless  there  is 
express  legislative  authority  to  make 
them  payable  elsewhere.  People  v.  Taze- 
well  County,  22  111.  147 ;  Pekin  v.  Rey- 
nolds, 31  III.  529.  If  the  power  to  issue 
bonds  is  given,  power  to  tax  to  meet 
them  is  impliedly  given,  unless  a  clear 
intent  to  the  contrary  is  shown.  Quincy 
v.  Jackson,  113  U.  S.  332,  5  Sup.  Ct. 
Rep.  544  ;  ^Scotland  Co.  Courts.  United 
States,  140  U.  S.  41,  11  Sup.  Ct.  Rep. 
697.  But  power  to  borrow  money  on  the 
credit  of  the  city  does  not  of  itself  in- 
clude power  to  issue  negotiable  bonds 
therefor.  Brenham  v.  German  Ameri- 
can Bank,  144  U.  S.  173,  540,  12  Sup.  Ct. 
Rep.  559,  975  ;  Merrill  v.  Monticello,  138 
U.  S.  673,  11  Sup.  Ct.  Rep.  441.] 

1  See  Harding  v.  Rockford,  &c.  R  R. 
Co.,  65  111.  90 ;  Dunnovan  K.  Green,  57  111. 
63;  Springfield,  &c.  R.  R,  Co.  v.  Cold 
Spring,  72  111.  603;  People  v.  County 
Board  of  Cass.,  77  111.  438 ;  Cairo,  &c.  R. 


R.  Co.  v.  Sparta,  77  111.  505 ;  George  v. 
Oxford,  16  Kan.  72  ;  Hamlin  v.  Meadville, 
6  Neb.  227 ;  McClure  v.  Oxford,  94  U.  S. 
429;  Bates  Co.  v.  Winters,  97  U.  S.  83; 
Buchanan  r.  Litchfield,  102  U.  S.  278; 
Bissell  v.  Spring  Valley,  110  U.  S.  162,  3 
Sup.  Ct.  Rep.  555.  QBonds  cannot  run  a 
longer  time  than  the  legislature  has 
given  permission  for.  Barnumt;  Okolona, 
148  U.  S.  393, 13  Sup.  Ct.  Rep.  638.  Strict 
compliance  with  all  conditions  necessary. 
Lytle  v.  Lansing,  147  U.  S.  59,  13  Sup. 
Ct.  Rep.  254;  Stewart  v.  Lansing,  104 
U.  S.  505 ;  People  v.  Van  Valkenburg,  63 
Barb.  105.  But  power  to  issue  interest- 
bearing  bonds  carries  with  it  power  to 
issue  negotiable  coupons  for  the  interest. 
Board  of  Ed.  v.  De  Kay,  148  U.  S.  591, 13 
Sup.  Ct.  Rep.  706.  Where  the  statute 
requires  that  the  bonds  shall  recite  the 
purposes  for  which  they  are  issued,  it  is 
not  sufficient  to  recite  that  they  are 
issued  by  virtue  of  a  specified  ordinance 
in  which  is  contained  a  statement  of  the 
purpose  for  which  the  bonds  are  to  be 
issued.  Bonds  containing  no  further  or 
more  specific  recital  of  purpose  are  void 
in  the  hands  of  every  holder.  Barnett  v. 
Denison,  145  U.  S.  135,  12  Sup.  Ct.  Rep. 
819.  Where  question  submitted  to  pop- 
ular vote  was  on  bonds  bearing  interest 
payable  annually,  making  interest  pay- 
able semiannually  invalidates  the  bonds. 
Skinner  v.  Santa  Rosa,  107  Cal.  469,  40 
Pac.  742,  29  L.  R.  A.  512.  Where  stat- 
ute prescribes  that  they  shall  be  payable 
"  in  gold  coin  or  lawful  money  of  the 
United  States,"  making  them  payable 
in  gold  coin  invalidates  them.  Ibid,  and 
see  note  hereto  in  L.  R.  A.  Place  of 
payment  of  coupons  cannot  be  varied. 
Middleton  v.  St.  Augustine,  42  Fla.  287, 
29  So.  421.] 


(a)  £Like  error  in  copying  a  single  word  in  the  title  of  a  statute,  or  a  misrecital 
of  the  name  of  the  obligor  corporation.  Board  of  Ed.  v.  De  Kay,  148  U.  S.  591,  13 
Sup.  Ct.  Rep.  706.  And  any  improper  or  fraudulent  action  taken  by  the  municipal- 
ity in  regard  to  the  proceeds  of  the  bonds  after  their  issue  cannot  invalidate  them. 
Cairo  v.  Zane,  149  U.  S.  122,  13  Sup.  Ct.  Rep.  803.] 


320 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


the  doings  of  these  corporations  are  matters  of  public  record, 
and  they  have  no  general  power  to  issue  negotiable  securities,1 
any  one  who  becomes  holder  of  such  securities,  even  though  they 
be  negotiable  in  form,  will  take  them  with  constructive  notice  of 
any  want  of  power  in  the  corporation  to  issue  them,  and  cannot 
enforce  them  when  their  issue  was  unauthorized.2 


1  Thomson  v.  Lee  County,  3  Wall.  327; 
Police  Jury  v.   Britton,    15   Wall.   566; 
Wells   v.   Supervisors,    102   U.    S.   625 ; 
Claiborne  Co.  v.  Brooks,  111   U.  S.  400, 
4  Sup.  Ct.  Rep.  489 ;  Carter  Co. '-.  Sinton, 
120  U.  S.  517,  7  Sup.  Ct.  Rep.  650;  Starin 
v.  Genoa,  23  N.  Y.  439 ;  People  v.  Super- 
visors, 11  Cal.  170 ;  Dively  v.  Cedar  Falls, 
21  Iowa,  565  ;  Smith  v.  Cheshire,  13  Gray, 
318;  People  v.  Gray,  23  Cal.  125.     See 
Thomas    v.    Richmond,   12    Wall.    349; 
Katzenberger  v.  Aberdeen,  121  U.  S.  172, 
7    Sup.   Ct.   Rep.  947  ;  Emery  v.   Maria- 
ville,  56  Me.  315;  Sherrard  v.  Lafayette 
Co.,  3  Dill.  236.     The  power  to  tax  in  aid 
of  railroads   does   not    necessarily   give 
power  to   issue  negotiable  bonds.     Con- 
cord v.  Robinson,  121  U.  S.  165,  7  Sup. 
Ct.  Rep.  937 ;  Kelly  v.  Milan,  127  U.  S. 
139,   8   Sup.   Ct.   Rep.   1101.     Compare 
Savannah  v.  Kelly.  108  U.  S.  184,  2  Sup. 
Ct.   Rep.  468;  Richmond  v.  McGirr,  78 
Ind.  192. 

2  There  is  considerable  confusion  in 
the  cases  on  this  subject.     If  the  corpo- 
ration has  no  authority  to  issue  negotia- 
ble paper,  or  if  the  officers  who  assume  to 
do  so  have  no  power  under  the  charter 
for  that  purpose,  there  can  be  no  doubt 
that  the  defence  of  want  of  power  mny 
be  made  by  the  corporation  in  any  suit 
brought    on    the    securities.      Smith    v. 
Cheshire,  13  Gray,  318;  Gould  v.  Sterling, 
23    N.  Y.   456;    Andover   r.   Grafton,    7 
N.  H.  298  ;  Clark  v,  Des  Moines,  19  Iowa, 
199  ;  M'Pherson  v.  Foster,  43  Iowa,  48  ; 
Bissell  v.   Kankakee,   64   111.   249;    Big 
Grove   v.  Wells,   65   111.   263;    Wade   v. 
La    Moille,    112    111.    79  ;     Elmwood   v. 
Marcy,  92  U.  S.  289  ;  Concord  v.  Ports- 
mouth Savings  Bank,  92  U.  S.  625;  St. 
Joseph  v.  Rogers,  16  Wall.  644 ;  Pendle- 
ton  Co.  v.   Amy,   13  Wall.  297;    Marsh 
v.  Fulton    Co.,  10  Wall.  676 ;  East  Oak- 
land 17.  Skinner,  94  U.  S.  255;  South  Ot- 
tawa v.  Perkins,  94  U.  S.  260;  McClure 
t7.   Oxford,  94  U.  S.   429.     [Where  un- 
authorized  bonds  were  issued   for  rail- 
way stock  the  purchaser  of  bonds  from 


the  railway  company  for  practically  full 
value  was,  after  failure  in  an  attempt  to 
enforce  the  bonds  against  the  town  issu- 
ing them,  subrogated  to  the  town's  right 
to  the  stock.  Illinois  G.  T.  R.  Co.  v. 
Wade,  140  U.  S.  65,  11  Sup.  Ct.  Rep.  709-3 
And  in  any  case,  if  the  holder  has  re- 
ceived the  securities  with  notice  of  any 
valid  defence,  he  takes  them  subject 
thereto.  [Lytle  v.  Lansing,  147  U.  S.  59, 
13  Sup.  Ct.  Rep.  254;  Stewart  v.  Lans- 
ing, 104  U.  S.  505.]  If  the  issue  is  with- 
out authority,  the  doctrine  of  protection 
to  a  purchaser  in  good  faith  has  no  ap- 
plication. Merchants'  Bank  v.  Bergen 
Co.,  115  U.  S.  384,  6  Sup.  Ct.  Rep.  88. 
But  where  the  corporation  has  power  to 
issue  negotiable  paper  in  some  cases,  and 
its  officers  have  assumed  to  do  so  in  cases 
not  within  the  charter,  whether  a  bona 
Jide  holder  would  be  chargeable  with 
notice  of  the  want  of  authority  in  the 
particular  case,  or  on  the  other  hand, 
would  be  entitled  to  rely  on  the  securities 
themselves  as  sufficient  evidence  that  they 
were  properly  issued  when  nothing  ap- 
peared  on  their  face  to  apprise  him  of  the 
contrary,  is  a  question  still  open  to  some 
dispute.  [Where  the  amount  of  indebt- 
edness is  limited  by  the  State  constitu- 
tion, and  the  indebtedness  has  not  yet 
reached  that  limit,  an  issue  of  bonds 
which  carries  it  beyond  that  limit  is  void 
in  tola.  No  question  of  estoppel  by  re- 
citals can  be  considered  in  such  case,  and 
the  holder  of  the  bonds  cannot  remit  the 
excess  above  the  constitutional  limit  and 
recover  upon  the  remainder.  Hedges  v. 
Dixon  County,  150  U.  S.  182,  14  Sup.  Ct. 
Rep.  71.  See  also  Sutliff  v.  Bd.  of  Co. 
Com.,  147  U.  S.  230, 13  Sup.  Ct.  Rep.  318; 
Nesbit  v.  Ind.  Dist.  of  Riverside,  144 
U.  S.  610,  12  Sup.  Ct.  Rep.  746.  But 
where  the  debt  arises  under  a  continuing 
contract  of  lease  and  the  annual  instal- 
ments, together  with  all  other  running 
expenses,  are  within  the  current  revenues 
of  the  city,  such  debt  does  not  pass  the 
prescribed  limit,  no  matter  how  great 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


321 


In  some  of  the  cases  involving  the  validity  of  the  subscriptions 
made  or  bonds  issued  by  municipal  corporations  in  aid  of  internal 


the  aggregate  during  the  life  of  the  con- 
tract. South  Bend  v.  Reynolds,  155  Ind. 
70,  67  N.  E.  706,  49  L.  It.  A.  796.  For 
other  cases  upon  limitation  of  indebted- 
ness, see  Kiehle  v.  South  Bend,  44  U.  S. 
App.  687,  36  L.  R.  A.  228;  Rauch  v. 
Chapman,  16  Wash.  668,  48  Pac.  253, 
36  L.  R.  A.  407,  68  Am.  St.  62;  Grand 
Island  &  N.  W.  It.  Co.  v.  Baker,  6  Wyo. 
369,  45  Pac.  494,  34  L.  R.  A.  835,  71  Am. 
St.  926 ;  Saleno  v.  Neosho,  127  Mo.  627, 
30  S.  W.  190,  27  L.  R.  A.  769,  48  Am.  St. 
653;  Brooke  v.  Philadelphia,  162  Pa.  123, 
29  Atl.  387,  24  L.  R.  A.  781 ;  Beard  v. 
Hopkinsville,  95  Ky.  239,  24  S.  W.  872, 
44  Am.  St.  222,  23  L.  R.  A.  402,  and  note ; 
Crowder  v.  Sullivan,  128  Ind.  486,  28  N. 
E.  94,  13  L.  R.  A.  647 ;  Quill  v.  Indian- 
apolis, 124  Ind.  292,  23  N.  E.  788,  7  L.  It.  A. 
681.] 

In  Stoney  v.  American  Life  Insurance 
Co.,  11  Paige,  686,  it  was  held  that  a  ne- 
gotiable security  of  a  corporation  which 
upon  its  face  appears  to  have  been  duly 
issued  by  such  corporation,  and  in  con- 
formity with  the  provisions  of  its  charter, 
is  valid  in  the  hands  of  a  bona  fide  holder 
thereof  without  notice,  although  such  se- 
curity was  in  fact  issued  for  a  purpose, 
and  at  a  place  not  authorized  by  the 
charter  of  the  company,  and  in  violation 
of  the  laws  -of  the  State  where  it  was 
actually  issued.  In  Gelpcke  v.  Dubuque, 
1  Wall.  175,  203,  the  law  is  stated  as  fol- 
lows:  "  When  a  corporation  has  power, 
under  any  circumstances,  to  issue  nego- 
tiable securities,  tlie  bonajide  holder  has  a 
right  to  presume  they  were  issued  under 
the  circumstances  which  give  the  requi- 
site authority,  and  they  are  no  more  liable 
to  be  impeached  for  any  infirmity  in  the 
hands  of  sucli  holder  than  any  other  com- 
mercial paper."  See  also  Commissioners 
of  Daviess  Co.  v.  Aspinwall,  21  How. 
364;  Bissell  v.  Jeffersonville,  24  How. 
287;  Lexington  v.  Butler,  14  Wall.  282  ; 
Moran  v.  Commissioners  of  Miami  Co.,  2 
Black,  722;  De  Voss  v.  Richmond,  18 
Gratt.  338;  San  Antonio  v.  Lane,  32 
Tex.  405 ;  State  v.  Commissioners,  37 
Ohio  St.  626.  In  Farmers'  &  Mechanics' 
Bank  v.  Butchers'  &  Drovers'  Bank,  16 
N.  Y.  125,  129,  it  is  said  :  "  A  citizen  who 
deals  directly  with  a  corporation,  or  who 

21 


takes  its  negotiable  paper,  is  presumed 
to  know  the  extent  of  its  corporate 
power.  But  when  the  paper  is,  upon  its 
face,  in  all  respects  such  as  the  corpora- 
tion has  authority  to  issue,  and  its  only 
defect  consists  in  some  extrinsic  fact,  — 
such  as  the  purpose  or  object  for  which 
it  was  issued,  —  to  hold  that  the  person 
taking  the  paper  must  inquire  as  to 
such  extraneous  fact,  of  the  existence  of 
which  he  is  in  no  way  apprised,  would 
obviously  conflict  with  the  whole  policy 
of  the  law  in  regard  to  negotiable  paper." 
In  Madison  &  Indianapolis  Railroad  Co. 
r.  The  Norwich  Savings  Society,  24  Ind. 
457,  this  doctrine  is  approved ;  and  a  dis- 
tinction made,  in  the  earlier  case  of  Smead 
v.  Indianapolis,  &c.  Railroad  Co.,  11  Ind. 
104,  between  paper  executed  ultra  vires 
and  that  executed  within  the  power  of 
the  corporation,  but,  by  an  abuse  of  the 
power  in  that  particular  instance,  was  re- 
pudiated. In  St.  Joseph  v.  Rogers,  16 
Wall.  644,  it  was  decided  that  where 
power  is  conferred  to  issue  bonds,  but 
only  in  a  particular  manner,  or  subject 
to  certain  regulations,  conditions,  or  quali- 
fications, and  the  bonds  are  actually 
issued  with  recitals  showing  compliance 
with  the  law,  the  proof  that  any  of  the 
recitals  are  incorrect  will  not  constitute 
a  defence  to  a  suit  on  the  bonds,  "if  it 
appears  that  it  was  the  sole  province  of 
the  municipal  officers  who  executed  the 
bonds  to  decide  whether  or  not  there  had 
been  an  antecedent  compliance  with  the 
regulation,  condition,  or  qualification 
which  it  is  alleged  was  not  fulfilled." 
And  see  Moran  v.  Commissioners  of  Miami 
Co.,  2  Black,  722;  Pendleton  Co.  v.  Amy, 
13  Wall.  297  ;  Chute  v.  Winegar,  15  Wall. 
355 ;  Colorna  v.  Eaves,  92  U.  S.484;  Venice 
v.  Murdoch,  92  U.  S.  494;  Marcy  v.  Os- 
wego,  92  U.  S.  637;  Humboldt  i>.  Long, 
92  U.  S.  642;  Douglas  Co.  v.  Bolles,  94 
U.  S.  104 ;  Johnson  Co.  v.  January,94  U.  S. 
202 ;  Scotland  Co.  v.  Thomas,  94  U.  S. 
682  ;  Wilson  v.  Salamanca,  99  U.  S.  499  ; 
Menasha  v.  Hazard,  102  U.  S.  81 ;  Lin- 
coln v.  Iron  Co.,  103  U.  S.  412 ;  Bonham 
v.  Needles,  103  U.  S.  648 :  [Cairo  v.  Zane, 
149  U.  S.  122,  13  Sup.  Ct.  Rep.  803.] 
That  neither  irregularities  in  issuing 
bonds  nor  fraud  in  obtaining  them  will 


322 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


improvements,  there  has  been  occasion  to  consider  clauses  in  the 
State  constitutions  designed  to  limit  the  power  of  the  legislature 


be  a  defence  in  the  hands  of  bona  fide 
holders,  see  foregoing  cases,  and  also 
Maxcy  v.  Williamson  Co.,  72  III.  207; 
Nicolay  v.  St.  Clair,  3  Dillon,  163 ;  East 
Lincoln  v.  Davenport,  94  U.  S.  801 ;  Cop- 
per v.  Mayor,  &c.,  44  N.  J.  L.  634 ;  Aber- 
deen v.  Sykes,  59  Miss.  236 ;  Lynchburg 
v.  Slaughter,  75  Va.  57.  [But  when  one 
in  whose  hands  the  bonds  are  invalid 
puts  them  in  course  of  trade  so  that 
they  get  into  the  hands  of  a  bona  fide 
holder  and  are  enforced  against  the  ob- 
ligor, he  is  liable  to  such  obligor  for  the 
tort.  Winona  &  St.  P.  R.  Co.  v.  Plain- 
view,  143  U.  S.  371, 12  Sup.  Ct.  Rep.  630.] 
See,  further,  that  there  may  be  an  estop- 
pel by  the  recitals  in  favor  of  a  bona  fide 
holder:  Ottawa  v.  Nat.  Bank,  105  U.  S. 
342;  Pana  v.  Bowler,  107  U.  S.  529, 
2  Sup.  Ct.  Rep.  704;  Sherman  Co.  v. 
Simons,  109  U.  S.  735,  3  Sup.  Ct.  Rep. 
602 ;  New  Providence  v.  Halsey,  117  U.  S. 
336,  6  Sup.  Ct.  Rep.  764;  Oregon  v.  Jen- 
nings, 119  U.  S.  74,  7  Sup.  Ct.  Hep.  124; 
State  r.  Montgomery,  74  Ala.  226 ;  Shurt- 
leff  v.  Wiscasset,  74  Me.  130;  QGunnison 
Co.  Com'rs  r.  Rollins  &  Sons,  173  U.  S. 
255,  19  Sup.  Ct.  Rep.  390;  Harper  Co. 
Com'rs  v.  Rose,  140  U.  S.  71,  11  Sup. 
Ct.  Rep.  710;  Chaffee  Co.  Com'rs  v. 
Potter,  142  U.  S.  355,  12  Sup.  Ct.  Rep. 
216;  Huron  v.  2d  Ward  Sav.  Bk.,  57 
U.  S.  App.  593,  86  Fed.  Rep.  272,  30 
C.  C.  A.  38,  49  L.  R.  A.  534;  Flagg  v. 
School  District  No.  70,  4  N.  D.  30,  58 
N.  W.  499,  25  L.  R.  A.  363 ;  Hutchinson 
&  S.  R.  Co.  v.  Fox,  48  Kan.  70,  28  Pac. 
1078,  15  L.  R.  A.  401.  Where  a  munici- 
pality is  authorized  by  statute  to  issue 
bonds  for  refunding  "binding,  subsisting, 
legal  obligations  of  such  "  municipality, 
and  in  accordance  therewith  it  issues  a 
series  of  bonds,  each  of  which  refers  to 
the  statute  and  recites  that  "  this  bond  is 
issued  for  the  purpose  of  funding  and 
retiring  certain  binding,  subsisting,  legal 
obligations  of  said  county  which  remain 
outstanding  and  unpaid,"  &c.,  without 
describing  such  outstanding  obligations 
more  particularly,  and  the  said  bonds 
comply  with  all  statutory  requirements 
of  form,  execution,  registration,  &c.,  they 
are  valid  in  the  hands  of  a  bona  fide 
holder  for  value  before  maturity,  even 


though  some  of  the  purported  obligations 
retired  by  their  issue  were  in  fact  invalid. 
Graves  v.  Saline  Co.,  161  U.  S.  359,  16 
Sup.  Ct.  Rep.  526.  See,  to  like  effect, 
Evansville  v.  Dennett,  161  U.  S.  434,  16 
Sup.  Ct.  Rep.  613;  Andes  v.  Ely,  158 
U.  S.  312,  15  Sup.  Ct.  Rep.  954.  But 
where  the  recitals  in  the  bonds  neither 
expressly  nor  by  necessary  implication 
import  a  compliance  with  conditions  prec- 
edent, it  is  open  to  the  municipality  to 
show  that  the  conditions  had  not  been 
performed  when  the  bonds  were  issued, 
and  have  never  since  been  performed. 
Citizens'  Sav.  &  Loan  Assn.  v.  Perry 
County,  156  U.  S.  692,  15  Sup.  Ct.  Rep. 
547.  Upon  power  to  issue  municipal 
bonds,  &c.,  see  note  to  39  L.  ed.  U.  S.  585. 
See  an  interesting  case  upon  municipal 
bonds  in  Knox  County  v.  Ninth  Nat.  Bk., 
147  U.  S.  91,  13  Sup.  Ct.  Rep.  267,  where 
it  became  necessary  to  determine  under 
which  of  two  legislative  authorizations 
the  bonds  were  actually  issued.]  Such 
estoppel  only  applies  to  matters  of  pro- 
cedure which  the  corporate  officers  had 
authority  to  determine  and  certify.  It 
cannot  supply  the  lack  of  statutory  au- 
thority :  Northern  Bank  v.  Porter  Town- 
ship, 110  U.  S.  608,  4  Sup.  Ct.  Rep.  254; 
Dixon  Co.  v.  Field,  111  U.  S.  83,  4  Sup. 
Ct.  Rep.  315;  School  District  v.  Stone, 
106  U.  S.  183, 1  Sup.  Ct.  Rep.  84 ;  Parkers- 
burg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct. 
Rep.  442;  Hayes  v.  Holly  Springs,  114 
U.  S.  120,  5  Sup.  Ct.  Rep.  785 ;  [Hedges 
v.  Dixon  County,  150  U.  S.  182,  14  Sup. 
Ct.  Rep.  71;  Sutliff  v.  Bd.  of  Co.  Com., 
147  U.  S.  230, 13  Sup.  Ct.  Rep.  318  ;  Cass 
County  ?.'.  Wilbarger  County,  — Tex.  Civ. 
A  p.—  ,60  S.  W.  988  (Jan.  12, 1901) ;]  nor 
avoid  the  effect  of  actual  knowledge  of 
invalidity.  Ottawa  v.  Carey,  108  U.  S. 
110,  2  Sup.  Ct.  Rep.  361.  QNor  can  receipt 
of  proceeds  of  issue  of  invalid  bonds  estop 
the  city  from  pleading  lack  of  authority 
to  issue  the  same.  Merrill  v.  Monticello, 
138  U.  S.  673,  11  Sup.  Ct.  Rep.  441. 
Where  unauthorized  issue  was  made  in 
aid  of  railway  company,  and  bonds  were 
sold  by  such  company  and  proceeds  used 
in  erection  of  railway  structures  within 
the  limits  of  the  town,  an  action  for 
"  money  had  and  received "  will  not  lie 


CH.  VIII.]          THE    GRADES   OF   MUNICIPAL  GOVERNMENT. 


323 


to  incur  indebtedness  on  behalf  of  the  State,  and  which  clauses, 
it  has  been  urged,  were  equally  imperative  in  restraining  indebt- 


against  the  town  to  recover  the  money 
paid  for  the  bonds.  Travellers'  Ins.  Co. 
v.  Johnson  City,  99  Fed.  Rep.  663,  49 
L.  R.  A.  123-3  A  holder  cannot  recover 
if  the  bonds  show  on  their  face  their  issue 
under  a  void  act:  Cole  v.  La  Grange, 
113  U.  S.  1,  5  Sup.  Ct.  Rep.  416;  or  show 
non-compliance  with  an  enabling  act : 
Gilson  v.  Dayton,  123  U.  S.  59,  8  Sup.  Ct. 
Rep.  66 ;  [Barnum  v.  Okolona,  148  U.  S. 
393,  13  Sup.  Ct.  Rep.  638;]  or  if,  when 
they  contain  no  recitals,  their  invalidity 
could  be  learned  from  the  records.  Mer- 
chants' Bank  v.  Bergen  Co.,  115  U.  S.  384, 
6  Sup.  Ct.  Rep.  88;  Daviess  Co.  v.  Dick- 
inson, 117  U.  S.  657,  6  Sup.  Ct.  Rep.  897  ; 
[Sutliff  v.  Bd.  of  Co.  Com.,  147  U.  S.  230, 
13  Sup.  Ct.  Kep.  318 ;  Boon  Township  v. 
Cummins,  142  U.  S.  366, 12  Sup.  Ct.  Rep. 
220;  Nat.  Life  Ins.  Co.  v.  Mead,  13  S.  D. 
37,  82  N.  W.  78, 48  L.  R.  A.  785,  79  Am.  St. 
876-3  In  Halsiead  v.  Mayor,  &c.  of  New 
York,  5  Barb.  218,  action  was  brought 
upon  warrants  drawn  by  the  corporation 
of  New  York  upon  its  treasurer,  not  in  the 
course  of  its  proper  and  legitimate  busi- 
ness. It  was  held  that  the  corporation 
under  its  charier  had  no  general  power 
to  issue  negotiable  paper,  though,  not 
being  prohibited  by  law,  it  might  do  so 
for  any  debt  contracted  in  the  course  of 
it8  proper  legitimate  business.  But  it 
was  also  held  that  any  negotiable  secu- 
rities not  issued  by  the  defendants  in 
their  proper  and  legitimate  business,  were 
void  in  the  hands  of  the  plaintiff,  although 
received  by  him  without  actual  notice  of 
their  consideration.  This  decision  was 
affirmed  in  3  N.  Y.  430.  In  Gould  v. 
Town  of  Stirling,  23  N.  Y.  456,  it  was 
held  that  where  a  town  had  issued  nego- 
tiable bonds,  which  could  only  be  issued 
when  the  written  assent  of  two-thirds  of 
the  resident  persons  taxed  in  the  town 
had  been  obtained  and  filed  in  the  county 
clerk's  office,  the  bonds  issued  without 
such  assent  were  invalid,  and  that  the 
purchaser  of  them  could  not  rely  upon 
the  recital  in  the  bonds  that  such  assent 
had  been  obtained,  but  must  ascertain  for 
himself  at  his  peril.  Say  the  court:  "One 
who  takes  a  negotiable  promissory  note 
or  bill  of  exchange,  purporting  to  be  made 
by  an  agent,  is  bound  to  inquire  as  to  the 


power  of  the  agent.  Where  the  agent  is 
appointed  and  the  power  conferred,  but 
the  right  to  exercise  the  power  has  been 
made  to  depend  upon  the  existence  of 
facts  of  which  the  agent  may  naturally  be 
supposed  to  be  in  an  especial  manner  cog- 
nizant, the  bona  fide  holder  is  protected ; 
because  he  is  presumed  to  have  taken  the 
paper  upon  the  faith  of  the  representa- 
tion of  the  agent  as  to  those  facts.  The 
mere  fact  of  executing  the  note  or  bill 
amounts  of  itself,  in  such  a  case,  to  a  rep- 
resentation by  the  agent  to  every  person 
who  may  take  the  paper  that  the  requisite 
facts  exist.  But  the 'holder  has  no  such 
protection  in  regard  to  the  existence  of 
the  power  itself.  In  that  respect  the  sub- 
sequent bona  fide  holder  is  in  no  better 
situation  than  the  payee,  except  in  so  far 
as  the  latter  would  appear  of  necessity  to 
have  had  cognizance  of  facts  which  the 
other  cannot  [must  ?]  be  presumed  to  have 
known."  And  the  case  is  distinguished 
from  that  of  the  Farmers'  &  Mechanics' 
Bank  v.  Butchers'  &  Drovers'  Bank,  16 
N.  Y.  125,  where  the  extrinsic  fact  affect- 
ing the  authority  related  to  the  state  of 
accounts  between  the  bank  and  one  of  its 
customers,  which  coulil  only  be  known  to 
the  toller  and  other  officers  of  the  bank. 
See  also  Brady  v.  Mayor,  &c.  of  New  York, 
2  Bosw.  173  ;  Hopple  v.  Brown  Township, 
13  Ohio  St.  311 ;  Veeder  v.  Lima,  19  Wis. 
280.  The  subject  is  reviewed  in  Clark  v. 
Des  Moines,  19  Iowa,  199.  The  action 
was  brought  upon  city  warrants,  nego- 
tiable in  form,  and  of  which  the  plaintiff 
claimed  to  be  bona  fide  assignee,  without 
notice  of  any  defects.  The  city  offered 
to  show  that  the  warrants  were  issued 
without  any  authority  from  the  city 
council  and  without  any  vote  of  the 
council  authorizing  the  same.  It  was 
held  that  the  evidence  should  have  been 
admitted,  and  that  it  would  constitute 
a  complete  defence.  See  further,  Head 
v.  Providence,  &c.  Co.,  2  Cranch,  127 ; 
Royal  British  Bank  v.  Turquand,  6  El. 
&  Bl.  327;  Knox  County  v.  Aspinwall, 
21  How.  539;  Bissell  v.  Jeffersonville,  24 
How.  287  ;  Sanborn  v.  Deerfield,  2  N.  H. 
251 ;  Alleghany  City  v.  McClurkan,  14 
Pa.  St.  81 ;  Morris  Canal  &  Banking 
Co.  v.  Fisher,  9  N.  J.  Eq.  667 ;  Clapp  v. 


324 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


edness  on  behalf  of  the  several  political  divisions  of  the  State. 
The  Constitution  of  Kentucky  prohibited  any  act  of  the  legisla- 
ture authorizing  any  debt  to  be  contracted  on  behalf  of  the  Com- 
monwealth, except  for  certain  specified  purposes,  unless  provision 
should  be  made  in  such  act  for  an  annual  tax  sufficient  to  pay 
such  debt  within  thirty  years;  and  the  act  was  not  to  have  effect 
unless  approved  by  the  people.  It  was  contended  that  this  pro- 
vision was  not  to  apply  to  the  Commonwealth  as  a  mere  ideal 
abstraction,  unconnected  with  her  citizens  and  her  soil,  but  to  the 
Commonwealth  as  composed  of  her  people,  and  their  territorial 


Cedar  Co.,  6  Iowa,  15;  Commissioners, 
£c.  v.  Cox,  6  Ind.  408;  Madison  &  In- 
dianapolis R.  R.  Co.  v.  Norwich  Savings 
Society,  24  Ind.  457 ;  Bird  v.  Daggett,  97 
Mass.  494.  It  is  of  course  impossible  to 
reconcile  these  cases.  In  Cagwin  v.  Han- 
cock, 84  N.  Y.  532,  5  Am.  &  Eng.  R.  R. 
Cas.  150,  on  a  review  of  the  New  York 
authorities  it  is  declared  to  be  the  law 
of  that  State  that  there  can  never  be  a 
bonajide  holder  of  town  bonds,  within  the 
meaning  of  the  law  applicable  to  nego- 
tiable paper,  as  such  bonds  are  always 
issued  under  special  statutory  authority, 
and  are  only  valid  when  the  statute  is 
complied  with.  To  the  same  effect  are 
Craig  v.  Andes,  93  N.  Y.  405,  and  Lyons 
v.  Chamberlain,  89  N.  Y.  578.  See  Fish 
v.  Kenosha,  26  Wis.  23.  That  the  powers 
of  the  agents  of  municipal  corporations 
are  matters  of  record,  and  the  corporation 
not  liable  for  an  unauthorized  act,  see  fur- 
ther Baltimore  v.  Eschbach,  18  Md.  276; 
Johnson  v.  Common  Council,  16  Ind.  227. 
That  bonds  voted  to  one  railroad  com- 
pany and  issued  to  another  are  void,  see 
Big  Grove  'v.  Wells,  65  111.  263.  Those 
who  deal  with  a  corporation  must  take 
notice  of  the  restrictions  in  its  charter,  or 
in  the  general  law,  regarding  the  making 
of  contracts.  Brady  »?.  Mayor,  &c.  of 
New  York,  2  Bosw.  173,  20  N.  Y.  312; 
Swift  v.  Williamsburg,  24  Barb.  427; 
Zabriskie  v.  Cleveland,  &c.  R.  R.  Co.,  23 
How.  381  ;  Hull  v.  Marshall  County,  12 
Iowa,  142;  Clark  v.  Des  Moines,  19  Iowa, 
199;  McPherson  v.  Foster,  43  Iowa,  48; 
Marsh  v.  Supervisors  of  Fulton  Co.,  10 
Wall.  676.  If  they  are  not  valid,  no 
subsequent  ratification  by  the  corporation 
can  make  •them  so.  Leavenworth  v.  Ran- 
kin,  2  Kan.  357.  If  bonds  are  voted  upon 
a  condition,  and  issued  before  the  condi- 
tion is  complied  with,  this,  as  to  bonajide 


holders,  is  a  waiver  of  the  condition. 
Cliiniquy  v.  People,  78  111.  670.  Compare 
Supervisors  of  Jackson  v.  Brush,  77  111. 
59. 

In  some  States,  after  paper  has  been 
put  afloat  under  laws  which  the  courts  of 
the  State  have  sustained,  it  is  very  justly 
held  that  the  validity  and  obligation  of 
such  paper  will  not  be  suffered  to  be  im- 
paired by  subsequent  action  of  the  courts 
overruling  the  former  conclusions.  See 
Gelpcke  ».  Dubuque,  1  Wall.  175 ;  Steines 
v.  Franklin  County,  48  Mo.  167 ;  Osage, 
&c.  R.  R.  Co.  v.  Morgan  County,  53  Mo. 
156  ;  Smith  v.  Clark  Co.,  54  Mo.  58 ;  State 
v.  Sutterfield,  54  Mo.  391 ;  Columbia  Co. 
v.  King,  13  Fla.  421 ;  Same  o.  Davidson, 
13  Fla.  482;  [McCullough  v.  Com.  of 
Va.,  172  U.  S.  102,  19  Sup.  Ct.  Rep.  134; 
Wilkes  County  v.  Coler,  180  U.  S.  606, 
21  Sup.  Ct.  Rep.  458.  Bonds  issued  by 
a  de  facto  municipal  corporation  are  valid 
and,  after  it  has  been  dissolved  for  the 
defect  in  its  organization,  they  may  be 
enforced  against  the  municipalities  into 
which  the  territory  of  the  de  facto  corpo- 
ration has  been  distributed.  Gatzow  v. 
Buening,  106  Wis.  1,  81  N.  W.  1003,  80 
Am.  St.  17,  49  L.  R.  A.  483.  Bonds 
issued  for  purpose  of  refunding  an  exist- 
ing indebtedness  cannot  be  considered  as 
increasing  the  indebtedness  of  the  munic- 
ipality. Nat.  Life  Ins.  Co.  v.  Mead,  13 
S.  D.  37,  82  N.  W.  78,  48  L.  R.  A.  785, 
79  Am.  St.  876  ;  contra,  Doon  Twp.  v. 
Cummins,  142  U.  S.  366,  12  Sup.  Ct.  Rep. 
220,  in  case  issue  is  not  in  exchange  for 
outstanding  evidence  of  indebtedness. 
Irregularities  in  the  conduct  of  the 
election  held  to  secure  a  popular  author- 
ization of  a  proposed  bond  issue  are  a 
sufficient  ground  for  enjoining  the  issue. 
Murphy  v.  San  Luis  Obispo,  119  Cal.  624, 
51  Pac.  1085,  39  L.  R.  A.  444.] 


CH.  VIII.]  THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


325 


organizations  of  towns,  cities,  and  counties,  which  make  up  the 
State,  and  that  it  embraced  in  principle  every  legislative  act 
which  authorized  a  debt  to  be  contracted  by  any  of  the  local 
organizations  of  which  the  Commonwealth  was  composed.  The 
courts  of  that  State  held  otherwise.  "The  clause  in  question," 
they  say,  "  applies  in  terms  to  a  debt  contracted  on  behalf  of  the 
Commonwealth  as  a  distinct  corporate  body ;  and  the  distinction 
between  a  debt  on  behalf  of  the  Commonwealth,  and  a  debt  or 
debts  on  behalf  of  one  county,  or  of  any  number  of  counties,  is  too 
broad  and  palpable  to  admit  of  the  supposition  that  the  latter  class 
of  debts  was  intended  to  be  embraced  by  terms  specifically  desig- 
nating the  former  only."  1  The  same  view  has  been  taken  by  the 
courts  of  Iowa,  .Wisconsin,  Illinois,  and  Kansas,  of  the  provisions 
in  the  constitutions  of  those  States  restricting  the  power  of  the 
legislature  to  contract  debts  on  behalf  of  the  State  in  aid  of  in- 
ternal improvements  ;2  but  the  decisions  of  the  first-named  State 
have  since  been  doubted,3  and  those  in  Illinois,  it  would  seem, 
overruled.4  In  Michigan  it  has  been  held  that  they  were  inap- 
plicable to  a  constitution  adopted  with  a  clear  purpose  to  preclude 
taxation  for  such  enterprises.6 


1  Slack  v.  Railroad  Co.,  13  B.  Monr.  1. 

2  Dubuque  County  v.  Railroad  Co.,  4 
Greene  (Iowa),  1 ;  Clapp  c.  Cedar  County, 
6  Iowa,  15;  Clark  r.  Janesville,  10  Wia. 
136;   Bushnell   v.   Beloit,   10   Wis.   195; 
Prettyman    v.    Supervisors,    19   111.   406; 
Robertson  v.  Rockford,  21  111.  451 ;  John- 
son v.  Stark  County,  24  111.  75 ;  Perkins 
v.  Lewis,  24  111.  208;  Butler  v.  Dunham, 
27  111.  474 ;  Leavenworth  Co.  v.  Miller,  7 
Kan.  479. 

8  State  v.  Wapello  County,  13  Iowa, 
388.  And  see  People  v.  Supervisor,  &c., 
16  Mich.  254. 

*  In  People  ».  Mayor,  &c.  of  Chicago, 
61  111.  17,  35,  it  is  held  expressly  that  the 
provision  of  the  State  constitution  pro- 
hibiting the  State  from  creating  a  debt 
exceeding  fifty  thousand  dollars  without 
the  consent  of  the  people  manifested  at  a 
general  election,  would  preclude  the  State 
from  creating  a  like  debt  against  a  mu- 
nicipal corporation,  except  upon  the  like 
conditions.  And  it  was  pertinently  said  : 
"  The  protection  of  the  whole  implies 
necessarily  the  protection  of  all  its  organ- 
ized parts,  and  the  whole  cannot  be  se- 
cure while  all  or  any  of  its  parts  are 
exposed  to  danger.  What  is  the  real 
value  of  this  provision  of  the  constitu- 


tion if  the  legislature,  inhibited  from  in- 
curring a  debt  beyond  fifty  thousand 
dollars  on  behalf  of  the  State,  may  force 
a  debt  tenfold  or  one  hundred-fold  greater 
—  for  there  is  no  limit  to  the  power  — 
upon  all  the  cities  of  the  State  ?  We  can 
perceive  none."  We  do  not  see  how  this 
can  be  reconciled  with  the  earlier  Illinois 
cases,  and  it  is  so  manifestly  right,  it  is 
hoped  the  learned  court  will  never  make 
the  attempt. 

6  The  following  extract  from  the  opin- 
ion in  Bay  City  v.  State  Treasurer,  23 
Mich.  499,  604,  is  upon  this  point:  "Our 
State  had  once  before  had  a  bitter  ex- 
perience of  the  evils  of  the  government 
connecting  itself  with  works  of  internal 
improvement.  In  a  time  of  inflation  and 
imagined  prosperity,  the  State  had  con- 
tracted a  large  debt  for  the  construction 
of  'a  system  of  railroads,  and  the  people 
were  oppressed  with  heavy  taxation  in 
consequence.  Moreover,  for  a  portion  of 
this  debt  they  had  not  received  what  they 
bargained  for,  and  they  did  not  recognize 
their  legal  or  moral  obligation  to  pay  for 
it.  The  good  name  and  fame  of  the  State 
suffered  in  consequence.  The  result  of  it 
all  was  that  a  settled  conviction  fastened 
itself  upon  the  minds  of  our  people,  that 


326 


CONSTITUTIONAL   LIMITATIONS. 


[CII.  VIII. 


Another  class  of  legislation,  which  has  recently  demanded  the 
attention  of  the  courts,  has  been  little  less  troublesome,  from  the 
new,  varied,  and  peculiar  questions  involved,  than  that  in  relation 


works  of  internal  improvement  should  be 
private  enterprises ;  that  it  was  not  with- 
in the  proper  province  of  government  to 
connect  itself  with  their  construction  or 
management,  and  that  an  imperative 
State  policy  demanded  that  no  more  bur- 
dens should  be  imposed  upon  the  people 
by  State  authority,  for  any  such  purpose. 
Under  this  conviction  they  incorporated 
in  the  constitution  of  1850,  under  the 
significant  title  of  '  Finance  and  Taxa- 
tion,' several  provisions  expressly  pro- 
hibiting the  State  from  being  a  party  to, 
or  interested  in,  any  work  of  internal  im- 
provement, or  engaged  in  carrying  on  any 
such  work,  except  in  the  expenditure  of 
grants  made  to  it ;  and  also  from  sub- 
scribing to,  or  being  interested  in,  the 
stock  of  any  company,  association,  or  cor- 
poration, or  loaning  its  credit  in  aid  of 
any  person,  association,  or  corporation. 
Art.  XIV.  §§  9,  8,  and  7. 

"  All  these  provisions  were  incorpo- 
rated by  the  people  in  the  constitution,  as 
precautions  against  injudicious  action  by 
themselves,  if  in  another  time  of  inflation 
and  excitement  they  should  be  tempted 
to  incur  the  like  burdensome  taxation  in 
order  to  accomplish  public  improvements 
in  cases  where  they  were  not  content  to 
wait  the  result  of  private  enterprise.  The 
people  meant  to  erect  such  effectual  bar- 
riers that  if  the  temptation  should  return, 
the  means  of  inflicting  the  like  injury 
upon  the  credit,  reputation,  and  pros- 
perity of  the  State  should  not  be  within 
the  reach  of  the  authorities.  They  be- 
lieved these  clauses  of  the  constitution 
accomplished  this  purpose  perfectly,  and 
none  of  its  provisions  had  more  influence 
in  recommending  that  instrument  to  the 
hearty  good-will  of  the  people. 

"  In  process  of  time,  however,  a  ma- 
jority in  the  legislature  were  found  willing, 
against  the  solemn  warning  of  the  execu- 
tive, to  resort  again  to  the  power  of  taxa- 
tion in  aid  of  internal  improvement.  It 
was  discovered  that  though  '  the  State ' 
was  expressly  inhibited  from  giving  such 
aid  in  any  form,  except  in  the  disposition 
of  grants  made  to  it,  the  subdivisions  of 
which  the  State  was  composed  were  not 
under  the  like  ban.  Decisions  in  other 


States  were  found  which  were  supposed 
to  sanction  the  doctrine  that,  under  such 
circumstances,  the  State  might  do  indi- 
rectly through  its  subdivisions  what  di- 
rectly it  was  forbidden  to  do.  Thus  a 
way  was  opened  by  which  the  whole 
purpose  of  the  constitutional  provisions 
quoted  might  be  defeated.  The  State 
could  not  aid  a  private  corporation  with 
its  credit,  but  it  might  require  each  of  its 
townships,  cities,  and  villages  to  do  so. 
The  State  could  not  load  down  its  people 
with  taxes  for  the  construction  of  a  pub- 
lic improvement,  but  it  might  compel  the 
municipal  authorities,  which  were  its 
mere  creatures,  and  which  held  their 
whole  authority  and  their  whole  life  at  its 
will,  to  enforce  such  taxes,  one  by  one, 
until  the  whole  people  were  bent  to  the 
burden. 

"  Now,  whatever  might  be  the  just  and 
proper  construction  of  similar  provisions 
in  the  constitutions  of  States  whose  his- 
tory has  not  been  the  same  with  our  own, 
the  majority  of  this  court  thought  when 
the  previous  case  was  before  us,  and  they 
still  think,  that  these  provisions  in  our 
constitution  do  preclude  the  State  from 
loaning  the  public  credit  to  private  cor- 
porations, and  from  imposing  taxation 
upon  its  citizens  or  any  portion  thereof 
in  aid  of  the  construction  of  railroads.  So 
the  people  supposed  when  the  constitu- 
tion was  adopted.  Constitutions  do  not 
change  with  the  varying  tides  of  public 
opinion  and  desire;  the  will  of  the  people 
therein  recorded  is  the  same  inflexible 
law  until  changed  by  their  own  delibera- 
tive action ;  and  it  cannot  be  permissible 
to  the  courts  that,  in  order  to  aid  eva- 
sions and  circumventions,  they  shall  sub- 
ject these  instruments,  which  in  the 
main  only  undertake  to  lay  down  broad 
general  principles,  to  a  literal  and  tech- 
nical construction,  as  if  they  were  great 
public  enemies  standing  in  the  way  of 
progress,  and  the  duty  of  every  good 
citizen  was  to  get  around  their  provisions 
whenever  practicable,  and  give  them  a 
damaging  thrust  whenever  convenient. 
They  must  construe  them  as  the  people 
did  in  their  adoption,  if  the  means  of  ar- 
riving at  that  construction  are  within 


CH.  VIII.]          THE  GRADES   OF   MUNICIPAL   GOVERNMENT.  327 

to  municipal  subscriptions  in  aid  of  internal  improvements.  As 
the  power  to  declare  war  and  to  conduct  warlike  operations  rests 
in  the  national  government,  and  that  government  is  vested  with 
unlimited  control  of  all  the  resources  of  the  country  for  those 
purposes,  the  duty  of  national  defence,  and,  consequently,  the 
duty  to  defend  all  the  citizens  as  well  as  all  the  property  of  all 
the  municipal  organizations  in  the  several  States,  rests  upon  the 
national  authorities.  This  much  is  conceded,  though  in  a  qual- 
fied  degree,  also,  and  subordinate  to  the  national  government,  a 
like  duty  rests  doubtless  upon  the  State  governments,  which  may 
employ  the  means  and  services  of  their  citizens  for  the  purpose. 
But  it  is  no  part  of  the  duty  of  a  township,  city,  or  county,  as 
such,  to  raise  men  or  money  for  warlike  operations,  nor  have  they 
any  authority,  without  express  legislative  sanction,  to  impose 
upon  their  people  any  burden  by  way  of  taxation  for  any  such 
purpose.1  Nevertheless,  when  a  war  arises  which  taxes  all  the 
energies  of  the  nation,  which  makes  it  necessary  to  put  into  the 
field  a  large  proportion  of  all  the  able-bodied  men  of  the  country, 
and  which  renders  imperative  a  resort  to  all  available  means  for 
filling  the  ranks  of  the  army,  recruiting  the  navy,  and  replenish- 
ing the  national  treasury,  the  question  becomes  a  momentous  one, 
whether  the  local  organizations  —  those  which  are  managed  most 
immediately  by  the  people  themselves  — may  not  be  made  im- 
portant auxiliaries  to  the  national  and  State  governments  in 
accomplishing  the  great  object  in  which  all  alike  are  interested 
so  vitally;  and  if  they  are  capable  of  rendering  important  assis- 
tance, whether  there  is  any  constitutional  principle  which  would 
be  violated  by  making  use  of  these  organizations  in  a  case  where 
failure  on  the  part  of  the  central  authority  would  precipitate 
general  dismay  and  ruin.  Indeed,  as  the  general  government, 
with  a  view  to  convenience,  economy,  and  promptness  of  action, 

their  power.     In  these  cases  we  thought  viding  for  the  erection  of  a  State  grain 

we  could  arrive  at  it  from  the  public  his-  elevator  and  warehouse  is  void.    Rippe  v. 

tory  of  the  times."  Becker,  66  Minn.  100,  57  N.  W.  331,  22 

The   State  cannot   provide    indirectly  L.  R.  A.  867.] 

for  payment  for  work  of  internal  improve-        1  Stetson  v.  Kempton,  13  Mass.   272; 

ment  by  authorizing  a  township  to  raise  Gove  v.  Epping,  41  N.  H.  539 ,  Crowell 

money  for  it  by  taxation.     Anderson  v.  v.   Hopkinton,  45   N.   H.  9 ;    Baldwin  v. 

Hill,  54  Mich.  477,  20  N.  W.  549.     [>ml  Nortli  Branford,  32  Conn.  47;  Webster 

see  Oren  «;.    Pingree,  120   Mich.  550,  79  r.    Hnrwinton,    32  Conn.  131.     See  also 

N.  W.  814,  46  L.  R.  A.  407,  where  an  act  Claflin  r.  Hopkinton,  4  Gray,  502;  Cover 

attempting  to  authorize  the  creation  of  a  v.  Baytown,  12  Minn.  124  ;  Fiske  v.  Haz- 

public  board  for  the  purpose  of  acquiring  zanl,  7  R.  I.  438;  Alley  v.  Edgecomb,  53 

and  operating  the  street  railways  of  De-  Me.  446 ;    People  v.  Supervisors  of   Co- 

troit   was  held    void.      Where  the  State  lumbia,  43   N.    Y.    130;   Walschlager  t%. 

cannot  engage  in  the  erection  of  works  Liberty,  23  Wis.  362;    Burrill  v.  Boston, 

of  internal   improvement,  a  statute  pro-  2  Cliff.  590. 


328      .  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

will  be  very  likely  to  adopt,  for  any  purposes  of  conscription,  the 
existing  municipal  divisions  of  the  States,  and  its  demand  for 
men  to  recruit  its  armies  will  assume  a  form  seeming  to  impose 
on  the  people  whose  municipal  organization  embraces  the  terri- 
tory covered  by  the  demand,  the  duty  of  meeting  it,  the  question 
we  have  stated  may  appear  to  be  one  rather  of  form  than  of  sub- 
stance, inasmuch  as  it  would  be  difficult  to  assign  reasons  why  a 
duty  resting  upon  the  citizens  of  a  municipality  may  not  be  con- 
sidered as  resting  upon  the  corporation  itself  of  which  they  are 
the  constituents,  and  if  so,  why  it  may  not  be  assumed  by  the 
municipality  itself,  and  then  be  discharged  in  like  manner  as  any 
other  municipal  burden,  if  the  legislature  shall  grant  permission 
for  that  purpose. 

One  difficulty  that  suggests  itself  in  adopting  any  such  doctrine 
is,  that,  by  the  existing  law  of  the  land,  able-bodied  men  between 
certain  specified  ages  are  alone  liable  to  be  summoned  to  the 
performance  of  military  duty ;  and  if  the  obligation  is  assumed 
by  the  municipal  organizations  of  the  State,  and  discharged  by 
the  payment  of  money  or  the  procurement  of  substitutes,  the 
taxation  required  for  this  purpose  can  be  claimed,  with  some 
show  of  reason,  to  be  taxation  of  the  whole  community  for  the 
particular  benefit  of  that  class  upon  whom  by  the  statutes  the 
obligation  rests.  When  the  public  funds  are  used  for  the  pur- 
pose,-it  will  be  insisted  that  they  are  appropriated  to  discharge 
the  liabilities  of  private  individuals.  Those  who  are  already  past 
the  legal  age  of  service,  and  who  have  stood  their  chance  of  being 
called  into  the  field,  or  perhaps  have  actually  rendered  the  re- 
quired service,  will  be  able  to  urge  with  considerable  force  that 
the  State  can  no  longer  honorably  and  justly  require  them  to 
contribute  to  the  public  defence,  but  ought  to  insist  that  those 
within  the  legal  ages  should  perform  their  legal  duty ;  and  if  any 
upon  whom  that  duty  rests  shall  actually  have  enrolled  them- 
selves in  the  army  with  a  view  to  discharge  it,  such  persons  may 
claim,  with  even  greater  reason,  that  every  consideration  of 
equality  and  justice  demands  that  the  property  they  leave  behind 
them  shall  not  be  taxed  to  relieve  others  from  a  duty  equally 
imperative. 

Much  may  be  said  on  both  sides  of  this  subject,  but  the  judicial 
decisions  are  clear,  that  the  people  of  any  municipal  corporation 
or  political  division  of  a  State  have  such  a  general  interest  in 
relieving  that  portion  of  their  fellow-citizens  who  are  liable  to 
the  performance  of  military  duty,  as  will  support  taxation  or 
render  valid  indebtedness  contracted  for  the  purpose  of  supplying 
their  places,  or  of  filling  any  call  of  the  national  authorities  for 


CH.  VIII.]          THE   GKADES   OF  MUNICIPAL   GOVERNMENT.  329 

men,  with  volunteers  who  shall  be  willing  to  enter  the  ranks  for 
such  pecuniary  inducements  as  may  be  offered  them.  The  duty 
of  national  defence,  it  is  held,  rests  upon  every  person  under  the 
protection  of  the  government  who  is  able  to  contribute  to  it,  and 
not  solely  upon  those  who  are  within  the  legal  ages.  The  statute 
which  has  prescribed  those  ages  has  for  its  basis  the  presumption 
that  those  between  the  limits  fixed  are  best  able  to  discharge  the 
burden  of  military  service  to  the  public  benefit,  but  others  are 
not  absolved  from  being  summoned  to  the  duty,  if  at  any  time 
the  public  exigency  should  seem  to  demand  it.  Exemption  from 
military  duty  is  a  privilege  rather  than  a  right,  and,  like  other 
statutory  privileges,  may  be  recalled  at  any  time  when  reasons  of 
public  policy  or  necessity  seem  to  demand  the  recall.1  Moreover, 
there  is  no  valid  reason,  in  the  nature  of  things,  why  those  who 
are  incapable  of  performing  military  service,  by  reason  of  age, 
physical  infirmity,  or  other  cause,  should  not  contribute,  in  pro- 
portion to  their  ability,  to  the  public  defence  by  such  means  as 
are  within  their  power;  and  it  may  well  happen  that  taxation, 
for  the  purpose  of  recruiting  the  armies  of  the  nation,  will  dis- 
tribute the  burden  more  equally  and  justly  among  all  the  citizens 
than  any  other  mode  which  could  be  devised.  Whether  it  will 
be  just  and  proper  to  allow  it  in  any  instance  must  rest  with  the 
legislature  to  determine;  but  it  is  unquestionably  competent, 
with  legislative  permission,  for  towns,  cities,  and  counties  to 
raise  money  by  loans  or  by  taxation  to  pay  bounty  moneys  to 
those  who  shall  volunteer  to  fill  any  call  made  upon  such  towns, 
cities,  or  counties  to  supply  men  for  the  national  armies.2 

1  See  post,  p.  546,  and  cases  cited  in  unteers   are  therefore  by  law   to  be  ac- 
note.  cepted  in  relief  of  the  municipality  from 

2  "The  power  to  create  a  public  debt,  a  compulsory  service  to  be   determined 
and  liquidate  it  by  taxation,  is  too  clear  by  lot  or  chance.    Does  this  relief  involve 
for  dispute.     The  question  is,  therefore,  the    public   welfare   or    interest  ?      The 
narrowed  to  a  single  point :   Is  the  pur-  answer  rises  spontaneously  in  the  breast 
pose  in  this  instance  a  public  one  1    Does  of  every  one  in  a  community  liable  to  the 
it  concern  the  common   welfare  and  in-  military  burden.     It  is  given,  not  by  the 
terest  of  the  municipality  ?      Let  us  see.  voice  of  him  alone  who  owes  the  service, 
Civil  war  was  raging,  and  Congress  pro-  but  swells  into  a  chorus  from  his  whole 
vided  in  the  second  section  of  the  act  of  family,  relatives,  and  friends.     Military 
24th  February,  1864,  that  the  quota  of  service  is  the  highest  duty  and  burden  the 
troops   of  each    ward   of  a   city,   town,  citizen  is  called  to  obey  or  to  bear.     It  in- 
township,    precinct,   &c.,    should    be    as  volves  life,  limb,  and  health,  and  is  there- 
nearly   as  possible  in  proportion  to  the  fore  a  greater  '  burden  '  than  the  taxation 
number  of  men  resident  therein  liable  to  of  property.    The  loss  or  the  injury  is  not 
render   military  service.     Section   three  confined  to   the   individual   himself,  but 
provided  that   all  volunteers   who   may  extends  to  all  the  relations  he  sustains, 
enlist  after  a  draft  shall  be  ordered,  shall  It  embraces  those  bound  to  him  in  the 
be  deducted  from  the  number  ordered  to  ties  of  consanguinity,  friendship,  and  in- 
be  drafted  in  such  ward,  town,  &c.     Vol-  terest ;    to  the   community   which  must 


330  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

Relief  of  the  community  from  an  impending  or  possible  draft  is 
not,  however,  the  sole  consideration  which  will  support  taxation 
by  the  municipal  corporations  of  the  State  to  raise  money  for  the 
purpose  of  paying  bounties  to  soldiers.  Gratitude  to  those  who 
have  entered  the  military  service,  whether  as  volunteers  or  drafted 
men,  or  as  substitutes  for  others  who  were  drafted  or  were  liable 
to  be,  is  a  consideration  which  the  State  may  well  recognize,  and 
it  may  compensate  the  service  either  by  the  payment  of  bounty 
moneys  directly  to  such  persons,  or  by  provision  for  the  support 
of  those  dependent  upon  them  while  they  shall  be  absent  from 
their  homes.  Whether  we  regard  such  persons  as  public  bene- 
factors, who,  having  taken  upon  themselves  the  most  severe  and 
dangerous  duty  a  citizen  is  ever  called  upon  to  perform,  have 
thereby  entitled  themselves  to  public  reward  as  an  incentive  to 
fidelity  and  courage,  or  as  persons  who,  having  engaged  in  the 
public  service  for  a  compensation  inadequate  to  the  toil,  priva- 
tion, and  danger  incurred,  are  deserving  of  the  bounty  as  a 
further  recognition  on  the  part  of  the  community  of  the  worth  of 
their  services,  there  seems  in  either  case  to  be  no  sufficient  reason 
to  question  the  right  of  the  legislature  to  authorize  the  municipal 
divisions  of  the  State  to  raise  moneys  in  any  of  the  usual  modes, 
for  the  purpose  of  paying  bounties  to  them  or  their  families,  in 
recognition  of  such  services.1  And  if  a  municipal  corporation 

furnish  support  to  his  family,  if  he  can-  lieve  it  from  a  burden  of  war.  It  is  not 
not,  and  which  loses  in  him  a  membei;  a  mere  gift  or  reward,  but  a  consideration 
whose  labor,  industry,  and  property  con-  for  services.  It  is  therefore  not  a  con- 
tribute to  its  wealth  and  its  resources ;  fiscation  of  one  man's  property  for 
who  assists  to  bear  its  burdens,  and  another's  use,  but  it  is  a  contribution 
whose  knowledge,  skill,  and  public  spirit  from  the  public  treasury  for  a  general 
contribute  to  the  general  good.  Clearly  good.  In  short,  it  is  simply  taxation  to 
the  loss  of  that  part  of  the  population  relieve  the  municipality  from  the  stern 
upon  whom  the  greatest  number  depend,  demands  of  war,  and  avert  a  public  bl- 
and who  contribute  most  to  the  public  jury  in  the  loss  of  those  who  contribute 
welfare  by  their  industry,  skill,  and  prop-  most  to  the  public  welfare."  Speer  v. 
erty,  and  good  conduct,  is  a  common  loss,  School  Directors  of  Blairsville,  50  Pa.  St. 
and  therefore  a  general  injury.  These  150,  159.  See  also  Waldo  v.  Portland, 
are  alike  subject  to  the  draft.  The  33  Conn.  363;  Bartholomew  v.  Harwin- 
blind  and  relentless  lot  respects  no  age,  ton,  33  Conn.  408 ;  Fowler  v.  Danvers,  8 
condition,  or  rank  in  life.  It  is,  there-  Allen,  80 ;  Lowell  v.  Oliver,  8  Allen,  247 ; 
fore,  clearly  the  interest  of  the  com-  Washington  County  v.  Berwick,  56  Pa. 
munity  that  those  should  serve  who  are  St.  466 ;  Trustees  of  Cass  v.  Dillon,  16 
willing,  whose  loss  will  sever  the  fewest  Ohio  St.  38:  State  v.  Wilkesville,  20  Ohio 
ties  and  produce  the  least  injury.  St.  288.  Also  Opinions  of  Justices,  52 
"  The  bounty  is  not  a  private  trans-  Me.  505,  in  which  the  view  is  expressed 
action  in  which  the  individual  alone  is  that  towns  cannot,  under  the  power 
benefited.  It  benefits  the  public  by  in-  to  raise  money  for  "necessary  town 
ducing  and  enabling  those  to  go  who  feel  charges,"  raise  and  pay  commutation 
they  can  best  be  spared.  It  is  not  volun-  moneys  to  relieve  persons  drafted  into 
tary  in  those  who  pay  it.  The  community  the  military  service  of  the  United  States. 
is  subject  to  the  draft,  and  it  is  paid  to  re-  l  The  act  under  which  the  Pennsyl- 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT.  331 

shall  have  voted  moneys  for  such  purpose  without  legislative 
authority,  it  is  competent  for  the  legislature  afterwards  to  legal- 
ize their  action  if  it  shall  so  choose.1 

The  cases  to  which  we  have  referred  in  the  notes  assume  that, 
if  the  purpose  is  one  for  which  the  State  might  properly  levy  a 
tax  upon  its  citizens  at  large,  the  legislature  would  also  have 
power  to  apportion  and  impose  the  duty,  or  confer  the  power  of 
assuming  it,  upon  the  towns  and  other  municipal  or  political 
divisions.  And  the  rule  laid  down  is  one  which  opens  a  broad 
field  to  legislative  discretion,  allowing  as  it  does  the  raising  and 
appropriation  of  moneys,  whenever,  in  the  somewhat  extravagant 
words  of  one  of  the  cases,  there  is  "  the  least  possibility  that  it 
will  be  promotive  in  any  degree  of  the  public  welfare."2  The 
same  rule,  substantially,  has  been  recognized  by  the  Court  of 
Appeals  of  New  York.  "The  legislature  is  not  confined  in  its 
appropriation  of  the  public  moneys,  or  of  the  sums  to  be  raised 
by  taxation  in  favor  of  individuals,  to  cases  in  which  a  legal 
demand  exists  against  the  State.  It  can  thus  recognize  claims 
founded  in  equity  and  justice  in  the  largest  sense  of  these  terms, 
or  in  gratitude  or  charity.  Independently  of  express  constitu- 
tional restrictions,  it  can  make  appropriations  of  money  when- 
ever the  public  well-being  requires  or  will  be  promoted  by  it, 
and  it  is  the  judge  of  what  is  for  the  public  good.  It  can, 

vania  case,  cited  in  the  preceding  note,  missioners  v.  Bearss,  25  Ind.  110 ;  Co- 
saw  decided,  authorized  the  borough  to  mer  v.  Fulsom,  13  Minn.  219 ;  State  v. 
contract  a  debt  for  the  payment  of  three  Demorest,  32  N.  J.  528;  Taylor  v.  Thomp- 
hundred  dollars  to  each  non-commissioned  son,  42  111.  9;  Barbour  v.  Camden,  51  Me. 
officer  and  private  who  might  thereafter  608 ;  Hart  v.  Holden,  55  Me.  572 ;  Burn- 
volunteer  and  enter  the  service  of  the  ham  v.  Chelsea,  43  Vt.  69;  Butler  v. 
United  States,  and  be  credited  upon  the  Pultney,  43  Vt.  481.  In  State  v.  Jackson 
quota  of  the  borough  under  an  impending  33  N.  J.  450,  a  statute  authorizing  a  town 
draft.  The  whole  purpose,  therefore,  to  raise  money  by  tax  to  relieve  its  in- 
was  to  relieve  the  community  from  the  habitants  from  the  burden  of  a  draft 
threatened  conscription.  But  in  the  case  under  a  law  of  Congress,  was  held  void 
of  Brodhead  v.  Milwaukee,  19  Wis.  624,  as  tending  to  defeat  the  purpose  of  such 
652,  it  was  held  constitutional,  not  only  to  law.  The  decision  was  made  by  a  bare 
provide  for  the  future  by  such  municipal  majority  of  a  bench  of  eleven  judges, 
taxation,  but  also  to  raise  moneys  to  pay  Compare  O'Hara  v.  Carpenter,  23  Mich, 
bounties  to  volunteers  previously  enlisted,  410,  in  which  a  contract  of  insurance 
and  even  to  those  who  should  thereafter  against  a  military  draft  was  held  void  on 
procure  substitutes  for  themselves,  and  grounds  of  public  policy, 
have  them  credited  on  the  nmnicipalquota.  2  Booth  v.  Woodbury,  32  Conn.  118, 
1  Booth  v.  Town  of  Woodbury,  32  128,  per  Butler,,!.  "  To  make  a  tax  law 
Conn.  118;  Bartholomew  v.  Harwinton,  unconstitutional  on  this  ground,  it  must 
33  Conn.  408;  Crowell'i\  Ilopkinton,  45  be  apparent  at  first  blush  that  the  com- 
N.  H.  9;  Shackf ord  v.  Xewington,46N.  H.  munity  taxed  can  have  no  possible  inter- 
415;  Lowell  v.  Oliver,  8  Allen,  247;  est  in  the.  purpose  to  which  their  money 
Anl  v.  Gleim,  52  Pa.  St.  43'2;  Weister  is  to  be  applied."  Sharpless  v.  Mayor, 
v.  Hade,  62  Pa.  St.  474;  Coffman  v.  &c.,  21  Pa.  St.  147, 174,  following  Cheaney 
Keightley,  24  Ind.  509 ;  Board  of  Com-  v.  Hooser,  9  B.  Monr.  330. 


332  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

:noreover,  under  the  power  to  levy  taxes,  apportion  the  public 
burdens  among  all  the  taxpaying  citizens  of  the  State,  or  among 
those  of  a  particular  section  or  political  division."  1  And  where 
citizens  have  voluntarily  advanced  moneys  for  the  purpose  of 
paying  bounties  to  recruits  who  fill  the  quota  of  a  municipal 
corporation,  on  an  understanding,  based  upon  informal  corporate 
action,  that  the  moneys  should  be  refunded  when  a  law  should 
be  passed  permitting  it,  a  subsequent  act  of  the  legislature 
authorizing  taxation  for  this  purpose  is  valid!2 

However  broad  are  the  terms  employed  in  describing  the  legis- 
lative power  over  taxation  in  these  cases,  it  is  believed  that  no 
one  of  them  has  gone  so  far  as  to  sanction  taxation  or  the  appro- 
priation of  the  public  revenue  in  order  to  refund  to  individuals 
moneys  which  they  may  have  paid  to  relieve  themselves  from  an 
impending  draft,  or  may  have  voluntarily  contributed  to  any 
public  purpose,  from  motives  purely  personal  to  themselves,  with- 
out any  reason  to  rely  upon  the  credit  of  the  State,  or  of  any 
municipal  corporation,  for  reimbursement,  and  where  the  circum- 
stances are  not  such  as  fairly  to  challenge  the  public  gratitude. 
Taxation  in  such  a  case,  where  no  obligation,  honorary  or  other- 
wise, rests  upon  the  public,  would  be  nothing  else  than  a  naked 
case  of  appropriating  the  property  of  the  taxpayer  for  private 
purposes,  and  that,  too,  without  reference  to  anticipated  public 
benefits.3 

1  Guilford  v.  Supervisors  of  Chenango,  thorized  and  required  the  school  directors 
13  N.  Y.  143,  149.      See  New  Orleans  v.  to  borrow  such  sums  of  money  as  would 
Clark,  95  U.  S.  644.  fully  reimburse  the  said  Halifax  Bounty 

2  Weister  v.   Hade,    52    Pa.    St.   474.  Association  for  moneys  advanced  to  free 
And  see  People  v.  Sullivan,  43  111.  412;  said  township  from  the  draft,  and  then 
Johnson  v.  Campbell,  49  111.  316.     Com-  further  authorized  the  school  directors  to 
pare   Susquehanna  Depot  v.   Barry,  61  levy  and  collect  a  tax  to  repay  the  sums 
Pa.  St.  317.  borrowed.      The  court  say :     "  We   are 

8  Tyson  v.  School  Directors,  &c.,  51  bound  to  regard  the  statute  as  an  author- 
Pa.  St.  9.  A  meeting  of  persons  liable  to  ity  to  reimburse  what  was  intended  by 
draft  under  the  law  of  the  United  States  the  Association  as  advances  made  to  the 
was  called,  and  an  association  formed,  township  with  the  intent  or  understand- 
called  the  Halifax  Bounty  Association,  ing  to  be  reimbursed  or  returned  to  those 
which  levied  an  assessment  of  thirty  doU  contributing.  This  was  the  light  in  which 
lars  on  each  person  liable  to  military  duty  the  learned  judge  below  regarded  the 
in  the  township,  and  solicited  contribu-  terms  used;  and  unless  this  appears  in 
tions  from  others.  Afterwards,  an  act  support  of  the  present  levy  by  the  school 
was  passed  by  the  legislature,  with  a  pre-  directors,  they  are  acting  without  author- 
amble  reciting  that  certain  citizens  of  ity.  But  the  learned  judge,  if  I  properly 
Halifax  township,  associated  as  the  Hali-  comprehend  his  meaning,  did  not  give 
fax  Bounty  Association,  for  freeing  the  sufficient  importance  to  these  terms,  and 
said  township  from  the  late  drafts,  ad-  hence,  I  apprehend,  he  fell  into  error, 
vanced  moneys,  which  were  expended  in  He  does  not  seem  to  have  considered  it 
paying  bounties  to  volunteers  to  fill  the  material  whether  the  Association  paid  its 
quota  of  the  township.  The  act  then  au-  money  voluntarily  in  aid  of  its  own  mem- 


CH.  VIII.]  THE    GRADES   OF   MUNICIPAL   GOVERNMENT. 


333 


But  it  has  been  held  by  the  Supreme  Court  of  Massachusetts 
that  towns  might  be  authorized  by  the  legislature  to  raise  moneys 
by  taxation  for  the  purpose  of  refunding  sums  contributed  by 
individuals  to  a  common  fund,  in  order  to  fill  the  quota  of  such 
towns  under  a  call  of  the  President,  notwithstanding  such  moneys 
might  have  been  contributed  without  promise  or  expectation  of 
reimbursement.  The  court  were  of  opinion  that  such  contribu- 
tions might  well  be  considered  as  advancements  to  a  public 
object,  and,  being  such,  the  legislature  might  properly  recognize 
the  obligation  and  permit  the  towns  to  provide  for  its  discharge.1 

On  a  preceding  page  we  have  spoken  in  strong  terms  of  the 
complete  control  which  is  possessed  by  the  legislative  authority 


bers,  or  expressly  to  aid  the  township  in 
saving  its  people  from  a  draft,  with  the 
understanding  that  it  was  advanced  in  the 
character  of  a  loan  if  the  legislature  chose 
to  direct  its  repayment,  and  the  school 
directors  chose  to  act  upon  the  author- 
ity conferred.  This  we  cannot  agree  to. 
Such  an  enactment  would  not  be  legisla- 
tion at  all.  It  would  be  in  the  nature  of 
judicial  action,  it  is  true ;  but,  wanting 
the  justice  of  notice  to  parties  to  be  af- 
fected by  the  hearing,  trial,  and  all  that 
gives  sanction  and  force  to  regular  judi- 
cial proceedings,  it  would  much  more  re- 
semble an  imperial  rescript  than  consti- 
tutional legislation  :  first,  in  declaring  an 
obligation  where  none  was  created  or 
previously  existed ;  and  next,  in  decree- 
ing payment  by  directing  the  money  or 
property  of  the  people  to  be  sequestered 
to  make  the  payment.  The  legislature 
can  exercise  no  such  despotic  functions ; 
and  as  it  is  not  apparent  in  the  act  that 
they  attempted  to  do  so,  we  are  not 
to  presume  they  did.  They  evidently 
intended  the  advancements  to  be  reim- 
bursed to  be  only  such  as  were  made  on 
the  faith  that  they  were  to  be  returned." 
See  also  Crowell  v.  Hopkinton,  45  N.  H. 
9;  Miller  v.  Grandy,  13  Mich.  540;  Pease 
v.  Chicago,  21  111.  500;  Ferguson  v.  Land- 
ram,  6  Bush,  230;  Esty  v.  Westminster, 
97  Mass.  324;  Cole  ?-.  Bedford,  97  Mass. 
326 ;  Usher  v.  Colchester,  33  Conn.  667 ; 
Perkins  v.  Milford,  69  Me.  315;  Thomp- 
son v.  Pittston,  59  Me.  315;  Kelly  v.  Mar- 
shall, 69  Pa.  St.  319.  The  legislature 
cannot  ratify  the  action  of  a  town  in 
agreeing  to  repay  those  who  paid  money 
to  avoid  the  draft.  Bowles  v.  Landaff,  59 
N.  H.  164.  In  Freeland  v.  Hastings,  10 


Allen,  570,  it  was  held  that  the  legisla- 
ture could  not  empower  towns  to  raise 
money  by  taxation  for  the  purpose  of  re- 
funding what  had  been  paid  by  individ- 
uals for  substitutes  in  military  service. 
In  Mead  v.  Acton,  139  Mass.  341,  1  N.  E. 
413,  it  was  held  that  an  act  passed  in 
1882  was  void,  which  permitted  taxation 
to  pay  bounties  to  those  who  re-enlisted 
in  1864,  as  being  for  a  private  purpose. 
In  Cass  v.  Dillon,  16  Ohio  St.  38,  it  was 
held  that  taxes  to  refund  bounties  pre- 
viously and  voluntarily  paid  might  be 
authorized.  See  also  State  v.  Harris,  17 
Ohio  St.  608.  The  Supreme  Court  of 
Wisconsin,  in  the  well-reasoned  case  of 
State  v.  Tappan,  29  Wis.  664,  deny  the 
power  of  the  State  to  compel  a  municipal 
corporation  to  pay  bounties  where  it  has 
not  voted  to  do  so.  fjAct  authorizing 
county  to  raise  by  taxation  money  to  pay 
to  men  drafted  and  serving  in  Union 
armies  in  Civil  War,  or  to  their  heirs, 
specified  sums  of  money  is  void,  as 
authorizing  a  devotion  of  public  moneys 
to  private  purposes.  Busli  v.  Bd.  of  Su- 
pervisors of  Orange  Co.,  159  N.  Y.  212, 
63  N.  E.  1121,  45  L.  R.  A.  556,  70  Am. 
St.  638.;] 

1  Freeland  v.  Hastings,  10  Allen,  670, 
686.  And  see  Hilbish  v.  Catherman,  64 
Pa.  St.  154,  and  compare  Tyson  v.  School 
Directors,  61  Pa.  St.  9.  [JTlie  question 
of  the  right  to  pension  school  teachers 
was  before  the  court  in  Hibhard  v.  State, 
65  Ohio,  674,  61  N.  E.  109,  and  the  right 
denied  as  involving  the  taking  of  private 
property  without  due  process  of  law  and 
because  the  particular  act  was  not  uni- 
form in  its  operatiou.] 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


of  the  State  over  the  municipal  corporations.  There  are  never- 
theless some  limits  to  its  power  in  this  regard,  as  there  are  in 
various  other  directions  limits  to  the  legislative  power  of  the 
State.  Some  of  these  are  expressly  defined ;  others  spring  from 
the  usages,  customs,  and  maxims  of  our  people ;  they  are  a  part 
of  its  history,  a  part  of  the  system  of  local  self-government,  in 
view  of  the  continuance  and  perpetuity  of  which  all  our  consti- 
tutions are  framed,  and  of  the  right  to  which  the  people  can 
never  be  deprived  except  through  express  renunciation  on  their 
part.  One  undoubted  right  of  the  people  is  to  choose,  directly 
or  indirectly,  under  the  forms  and  restrictions  prescribed  by  the 
legislature  for  reasons  of  general  State  policy,  the  officers  of 
local  administration,  and  the  board  that  is  to  make  the  local 
laws.  This  is  a  right  which  of  late  has  sometimes  been  en- 
croached upon  under  various  plausible  pretences,  but  almost 
always  with  the  result  which  reasonable  men  should  have  antici- 
pated from  the  experiment  of  a  body  at  a  distance  attempting  to 
govern  a  local  community  of  whose  affairs  or  needs  they  could 
know  but  little,  except  as  they  should  derive  information  from 
sources  likely  to  have  interested  reasons  for  misleading.1  An- 


1  On  this  subject  reference  is  made  to 
what  is  said  by  Campbell,  Ch.  J.,  in  People 
».  Hurlbut,  24  Mich.  44,  87,  et  seq. ;  also 
p.  97.  See  s.  c.  9  Am.  Rep.  103.  Much 
has  been  said  concerning  the  necessity 
of  legislative  interference  in  some  cases 
where  bad  men  were  coming  into  power 
through  universal  suffrage  in  cities,  but 
the  recent  experience  of  the  country 
shows  that  this  has  oftener  been  said 
to  pave  the  way  for  bad  men  to  obtain 
office  or  grants  of  unusual  powers  from 
the  legislature  than  with  any  purpose  to 
effect  local  reforms.  And  the  great  mu- 
nicipal scandals  and  frauds  that  have 
prevailed,  like  those  which  were  so  no- 
torious in  New  York  City,  have  been 
made  possible  and  then  nursed  and  fos- 
tered by  illegitimate  interference  at  the 
seat  of  State  government.  Some  officers, 
usually  of  local  appointment,  are  un- 
doubtedly to  be  regarded  as  State  officers 
whose  choice  may  be  confided  to  a  State 
authority  without  any  invasion  of  local 
rights ;  such  as  militia  officers,  officers  of 
police,  and  those  who  have  charge  of  the 
execution  of  the  criminal  laws ;  but  those 
who  are  to  administer  the  corporate  funds 
and  have  the  control  of  the  corporate 
property,  those  who  make  the  local  laws 
and  those  who  execute  them,  cannot  right- 


fully be  chosen  by  the  central  authority. 
Dillon,  Mun.  Corp.  §  33.  See  People  v. 
Com.  Council  of  Detroit,  28  Mich.  228. 
The  legislature  cannot  appoint  a  board  to 
have  charge  of  the  public  works,  streets, 
and  fire  department  of  a  city.  State  v. 
Denny,  118  Ind.  382, 21  N.  E.  252, 274,  4  L. 
R.  A.  79 ;  Evansville  r.  State,  118  Ind.  426, 
21  N.  E.  267, 4  L.  R.  A.  93.  Nor  may  a  city 
board  control  the  police  of  neighboring 
townships  which  are  not  represented  on 
it.  Metr.  Police  Board  v.  Wayne  County 
Auditors,  68  Mich.  576,  36  N.  W.  743. 
But  the  State  may  provide  for  the  ap- 
pointment of  police  officials  in  a  city. 
Com.  v.  Plaisted,  148  Mass.  374,  19  N.  E. 
224, 12  Am.  St.  666,2  L.  R.  A.  142;  State 
v.  Seavey,  22  Neb.  454,  36  N.  W.  228; 
[JNewport  v.  Horton,  22  R.  I.  196,  47  Atl. 
312,  50  L.  R.  A.  330.  Not  so  in  Wiscon- 
sin. O'Connor  v.  Fond  du  Lac,  109  Wis. 
253, 85  N.  W.  327.]  See  State  v.  Hunter, 
38  Kan.  578,  17  Pac.  177.  And  it  may 
empower  a  board  of  water  commission- 
ers, created  by  itself,  to  bond  a  city. 
David  v.  Portland  Water  Com.,  14  Oreg. 
98,  12  Pac.  174.  In  Ohio  it  is  held  no  in- 
fraction of  the  right  of  local  self-govern- 
ment to  allow  the  governor  to  appoint  a 
board  of  public  affairs  for  cities.  State 
v.  Smith,  44  Ohio  St.  348,  7  N.  E.  447,  12 


CH.  VIII.]         THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  335 

other  is  the  right  of  the  local  community  to  determine  what 
pecuniary  burdens  it  shall  take  upon  its  shoulders. (a)  But  here 
from  the  very  nature  of  the  case  there  must  be  some  limitations. 
The  municipalities  do  not  exist  wholly  for  the  benefit  of  their 
corporators,  but  as  a  part  of  the  machinery  of  State  government, 
and  they  cannot  be  permitted  to  decline  a  performance  of  their 
duties  or  a  discharge  of  their  obligations  as  such.  (6)  They 
cannot  abolish  local  government ;  they  cannot  refuse  to  provide 
the  conveniences  for  its  administration ;  they  cannot  decline  to 
raise  the  necessary  taxes  for  the  purpose ;  they  cannot  repudiate 
pecuniary  obligations  that  justly  rest  upon  them  as  a  local  gov- 
ernment. Over  these  matters  the  legislature  of  the  State  must 
have  control,  or  confusion  would  inevitably  be  introduced  into 
the  whole  system.  But  beyond  this  it  is  not  often  legitimate 
for  the  State  to  go  except  in  moulding  and  shaping  the  local 
powers,  and  perhaps  permitting  the  local  authorities  to  do  cer- 
tain things  for  the  benefit  of  their  citizens  which  under  the 
general  grants  of  power  would  be  inadmissible.1 

On  this  general  subject  we  shall  venture  to  lay  down  the  fol- 
lowing propositions  as  the  result  of  the  authorities :  — 

1.  That  the  legislature  has  undoubted  power  to  compel  the 
municipal  bodies  to  perform  their  functions  as  local  governments 
under  their  charters,  and  to  recognize,  meet,  and  discharge  the 
duties  and  obligations  properly  resting  upon  them  as  such, 
whether  they  be  legal,  or  merely  equitable  or  moral ;  and  for 
this  purpose  it  may  require  them  to  exercise  the  power  of  taxa- 
tion whenever  and  wherever  it  may  be  deemed  necessary  or 
expedient.2 

N.  E.  829.     In  Com.  v.  Plaisted,  supra,  the  large  or  an  indefinite  portion  of  it.     The 

court  say,  "  We  cannot  declare  an  act  of  municipality  may  be  compelled  to  submit 

the  legislature  invalid  because  it  abridges  to  a  tax  levied  upon  it  by  the  legislature 

the  exercise  of  the  privilege  of  local  self-  for  the  support  of  a  local  board  of  health, 

government  in  a  particular  in  regard  to  created   by  the   legislature.    Davock  v. 

which  such  privilege  is  not  guaranteed  Moore,  105  Mich.  120,  63  N.  W.  424,  28 

by  any  provision   of  the  Constitution."  L.  It.  A.  783-3 

fjAnd  the  right  of  local  self-government          1  This  subject  is  discussed  with  some 

is  not  involved  where  a  public  duty  is  fulness  in  Cooley  on  Taxation,  ch.  xxi. 
laid  upon  a  municipality,  the  proper  dis-          2  In  support  of  this,  we  refer  to  the 

charge  of  which  will  benefit  the  State  at  very  strong  case  of  Guilford  v.  Super- 

(a)  fJWhere  the  Constitution  prohibits  the  levy  by  the  legislature  of  any  tax  upon 
a  municipality  for  municipal  purposes,  the  municipality  cannot  be  required  to  pur- 
chase, when  it  shall  determine  to  own  a  water  plant,  only  from  a  private  water  com- 
pany to  which  it  has  granted  a  franchise.     Helena  Cons.  Water  Co.  v.  Steele,  20 
Mont.  1,  49  Pac.  382,  37  L.  R.  A.  412.] 

(b)  [JA  county  may  be  compelled  to  establish  and  maintain  a  high  school.     State 
v.  Freeman,  61  Kan.  90,  58  Pac.  959,  47  L.  R.  A.  67.    And  a  city,  a  park.    Knowlton 
v.  Williams,  174  Mass.  476,  55  N.  E.  77,  47  L.  R.  A'.  314.] 


336 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


2.    That  in  some  cases,  in  view  of  the  twofold  character  of 
such  bodies,  as  being  on  the  one  hand  agencies  of  State  govern- 


visors  of  Chenango,  18  Barb.  615,  s.  c.  13 
N.  Y.  143,  where  a  town  was  compelled 
by  the  legislative  authority  of  the  State 
to  reimburse  its  officers  the  expenses  in- 
curred by  them  in  the  honest  but  mis- 
taken endeavor  to  discharge  what  they 
believed  to  be  their  duty ;  approved  in 
New  Orleans  v.  Clark,  95  U.  S.  644;  also 
to  Sinton  v.  Ashbury,  41  Cal.  525,  530,  in 
which  it  is  said  by  Crocket,  J.,  that  "  It  is 
established  by  an  overwhelming  weight 
of  authority,  and  I  believe  is  conceded 
on  all  sides,  that  the  legislature  has  the 
constitutional  power  to  direct  and  control 
the  affairs  and  property  of  a  municipal 
corporation  for  municipal  purposes,  pro- 
vided it  does  not  impair  the  obligation  of 
a  contract,  and  by  appropriate  legislation 
may  so  control  its  affairs  as  ultimately  to 
compel  it,  out  of  the  funds  in  its  treasury, 
or  by  taxation  to  be  imposed  for  that 
purpose,  to  pay  a  demand  when  properly 
established,  which  in  good  conscience  it 
ought  to  pay,  even  though  there  be  no 
legal  liability  to  pay  it"  (citing  Blanding 
v.  Burr,  13  Cal.  343;  Beals  v.  Amador 
Co.,  35  Cal.  624;  People  v.  Supervisors 
of  San  Francisco,  11  Cal.  206;  Sharp  v. 
Contra  Costa  Co.,  34  Cal.  284  ;  People  v. 
McCreery,  34  Cal.  432;  People  v.  Ala- 
meda,  26  Cal.  641,  and  holding  that  a 
city  might  be  compelled  to  pay  the  claim 
of  persons  who  had  acted  as  commis- 
sioners in  the  extension  of  certain  of  its 
streets) ;  also  to  Borough  of  Dunmore's 
Appeal,  62  Pa.  St.  374,  in  which  the  legis- 
lature assumed  the  right  of  apportioning 
the  indebtedness  of  a  town  among  the 
boroughs  carved  out  of  it ;  supported  by 
Layton  v.  New  Orleans,  12  La.  Ann.  615; 
People  v.  Alameda,  26  Cal.  641;  and 
Burns  v.  Clarion  County,  62  Pa.  St.  422; 
also  to  People  v.  Flagg,  46  N.  Y.  401,  in 
which  the  legislative  power  to  direct  the 
construction  of  a  public  road,  and  to 
compel  the  creation  of  a  town  debt  for 
the  purpose,  was  fully  sustained ;  to 
People  v.  Power,  25  111.  187 ;  Waterville 
v.  County  Commissioners,  69  Me.  80; 
and  to  numerous  other  cases  cited,  ante, 
p.  268,  note,  and  which  we  will  not  occupy 
space  by  repeating  here.  The  legislature 
may  validate  an  unauthorized  issue  of 
bonds,  thereby  taking  away  an  inequi- 


table defence  against  a  holder  of  them 
in  good  faith,  and  enabling  him  to  en- 
force them.  Read  v.  Plattsmouth,  107 
U.  S.  668,  2  Sup.  Ct.  Rep.  208.  So  far 
as  an  act  creates  a  liability  which  did  not 
exist,  it  is  void ;  so  far  as  it  provides  a 
means  for  enforcing  a  pre-existing  lia- 
bility, it  is  valid.  Supervisors  of  Sads- 
bury  v.  Dennis,  96  Pa.  St.  400.  The 
legislature  cannot  impose  taxation  to  pay 
what  a  county  does  not  owe :  Board  of 
Supervisors  v.  Cowan,  60  Miss.  876;  nor 
to  bestow  a  gratuity ;  otherwise  if  there 
is  an  equitable  obligation  to  pay.  Fuller 
v.  Morrison  Co.,  36  Minn.  309,  30  N.  W. 
824.  See  State  v.  Foley,  30  Minn.  350, 
15  N.  W.  375;  Caldwell  Co.  v.  Harbert, 
68  Tex.  321,  4  S.  W.  607.  [Where  the 
Constitution  provides  that  no  county 
shall  give  any  money  or  property  in  aid 
of  any  individual,  association,  or  corpora- 
tion, the  legislature  cannot  authorize  the 
retrial  of  a  demand  against  a  county 
where  judgment  upon  the  first  trial  was 
for  the  county.  Re  Greene,  166  N.  Y. 
485,  60  N.  E.  183.]  In  Creighton  v.  San 
Francisco,  42  Cal.  446,  it  is  said  that 
the  power  of  the  legislature  to  appropri- 
ate the  money  of  municipal  corporations 
in  payment  of  equitable  claims  to  indi- 
viduals, not  enforceable  in  the  courts, 
depends  on  the  legislative  conscience, 
and  the  judiciary  will  not  interfere  un- 
less in  exceptional  cases.  [But  the  Con- 
stitution of  California  now  prohibits  such 
action  on  the  part  of  the  legislature.  Con- 
lin  v.  San  Francisco  Bd.  of  Supervisors, 
99  Cal.  17,  33  Pac.  753,  21  L.  R.  A.  474, 
37  Am.  St.  17.  See  also  other  cases  to 
same  effect,  note  3,  p.  316,  and  latter  part 
of  note  on  p.  318,  ante.~^  Unquestion- 
ably the  legislature  may  decide  what 
taxes  shall  be  levied  for  proper  purposes 
of  local  government.  Youngblood  v.  Sex- 
ton, 32  Mich.  406.  [And  a  territorial 
legislature  may  compel  the  payment  of 
debts  incurred  for  public  purposes  by  tlie 
inhabitants  of  a  town  before  the  organi- 
zation of  territorial  and  municipal  gov- 
ernments. Guthrie  National  Bank  v. 
Guthrie,  173  U.  S.  528,  19  Sup.  Ct.  Rep. 
613;  Guthrie  v.  Oklahoma,  1  Okla.  188, 
31  Pac.  190,  21  L.  R.  A.  841.  See  also 
State  v.  Springer,  —  N.  J.  — ,  48  Atl. 


CH.  VIII.]          THE   GRADES   OF  MUNICIPAL   GOVERNMENT. 


337 


ment,  and  on  the  other,  corporations  endowed  with  capacities 
and  permitted  to  hold  property  and  enjoy  peculiar  privileges  for 
the  benefit  of  their  corporators  exclusively,  the  legislature  may 
permit  the  incurring  of  expense,  the  contracting  of  obligations, 
and  the  levy  of  taxes  which  are  unusual,  and  which  would  not 
be  admissible  under  the  powers  usually  conferred.  Instances  of 
the  kind  may  be  mentioned  in  the  offer  of  military  bounties,  and 
the  payment  of  a  disproportionate  share  of  a  State  burden  in 
consideration  of  peculiar  local  benefits  which  are  to  spring  frgm 
it.1 

3.  But  it  is  believed  the  legislature  has  no  power,  against  the 
will  of  a  municipal  corporation,  to  compel  it  to  contract  debts  for 
local  purposes  in  which  the  State  has  no  concern,  or  to  assume 
obligations  not  within  the  ordinary  functions  of  municipal  gov- 
ernment. Such  matters  are  to  be  disposed  of  in  view  of  the 


605  (March  4,  1901).  That  penalties  re- 
coverable at  suit  of  party  injured  may 
be  laid  upon  counties  in  which  lynch- 
ings  occur,  see  Bd.  of  Com'rs  of  Cham- 
paign Co.  v.  Church,  62  Ohio  St.  318,  67 
N.  E.  50,  48  L.  R.  A.  738.  Legislature 
may  compel  a  city  to  acquire  or  con- 
struct and  to  pay  for  bridges  and  ferries 
within  their  limits  or  contiguous  to  them, 
but  it  cannot  compel  a  county  to  pay 
the  debts  of  a  city  within  it.  Simon  v. 
Northup,  27  Oreg.  487,  40  Pac.  560,  30 
L.  R.  A.  171.] 

1  The  subject  of  military  bounties  has 
been  sufficiently  referred  to  already.  As 
to  the  right  to  permit  a  municipal  corpo- 
ration to  burden  itself  with  a  local  tax  for 
a  State  object,  we  refer  to  Merrick  v.  Am- 
herst,  12  Allen,  600;  Marks  v.  Trustees 
of  Purdue  University,  37  Ind.  155;  Has- 
brouck  v.  Milwaukee,  13  Wis.  37.  The 
first  was  a  case  in  which,  in  consideration 
of  the  local  benefits  expected  from  the 
location  of  the  State  agricultural  college 
in  a  certain  town,  the  town  was  permitted 
to  levy  a  large  local  tax  in  addition  to  its 
proportion  of  the  State  burden,  for  the 
erection  of  the  necessary  buildings.  The 
second  case  was  of  a  similar  nature.  The 
third  was  the  case  of  permission  to  levy  a 
city  tax  to  improve  the  city  harbor,  —  a 
work  usually  done  by  the  general  govern- 
ment. There  are  cases  which  go  further 
than  these,  and  hold  that  the  legislature 
may  compel  a  municipal  corporation  to  do 
what  it  may  thus  permit.  Thus,  in  Kirby 
v.  Shaw,  19  Pa.  St.  258,  it  appeared  that  by 


an  act  of  April  3, 1848,  the  commissioners 
of  Bradford  County  were  required  to  add 
$500  annually,  until  1857,  to  the  usual 
county  rales  and  levies  of  the  borough  of 
Towanda  in  said  county,  for  the  purpose 
of  defraying  the  expenses  of  the  court- 
house and  jail,  then  in  process  of  erection 
in  that  borough.  The  act  was  held  con- 
stitutional on  the  principle  of  assessment 
of  benefits.  In  Gordon  v.  Cornes,  47 
If.  Y.  608,  a  law  was  sustained  which 
"  authorized  and  required  "  the  village  of 
Brockport  to  levy  a  tax  for  the  erection 
of  a  State  normal  school  building  at  that 
place.  It  is  to  be  said  of  this  case,  how- 
ever, that  there  was  to  be  in  the  building 
a  grammar-school  free  to  all  the  children 
of  proper  acquirements  in  the  village ;  so 
that  the  village  was  to  receive  a  peculiar 
and  direct  benefit  from  it,  besides  those 
which  would  be  merely  incidental  to  the 
location  of  the  normal  school  in  the  place. 
But  for  this  circumstance  it  would  be 
distinctly  in  conflict  with  State  v.  Haben, 
22  Wis.  660,  where  it  was  held  incompe- 
tent for  the  legislature  to  appropriate  the 
school  moneys  of  a  city  to  the  purchase 
of  a  site  for  a  State  normal  school;  and 
also  with  other  cases  cited  in  the  next 
note.  It  must  be  conceded,  however, 
that  there  are  other  cases  which  support 
it  And  see,  as  supporting  the  last  case, 
Livingston  County  v.  Weider,  64  111.  427  ; 
Burr  v.  Carbondale,  76  111.  455;  Liv- 
ingston County  v.  Darlington,  101  U.  S. 
407. 


22 


338 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


interests  of  the  corporators  exclusively,  and  they  have  the  same 
right  to  determine  them  for  themselves  which  the  associates  in 
private  corporations  have  to  determine  for  themselves  the  ques- 
tions which  arise  for  their  corporate  action.  The  State  in  such 
cases  may  remove  restrictions  and  permit  action,  but  it  cannot 
compel  it.1 


1  A  city  cannot  be  compelled  to  erect 
buildings  for  a  county ;  but  it  may  be 
permitted  to  do  it  if  it  so  elects.  Callam 
v.  Saginaw,  50  Mich.  7,  14  N.  W.  677. 
There  are  undoubtedly  some  cases  which 
go  to  the  extent  of  holding  that  municipal 
corporations  and  organizations  are  so 
completely  under  the  legislative  control, 
that  whatever  the  legislature  may  permit 
them  to  do,  it  may  compel  them  to  do, 
whether  the  corporators  are  willing  or 
not.  A  leading  case  is  Thomas  v.  Leland, 
24  Wend.  65.  In  that  case  it  appeared 
that  certain  citizens  of  Utica  had  given 
their  bond  to  the  people  of  the  State  of 
New  York,  conditioned  for  the  payment 
into  the  canal  fund  of  the  sum  of  $38,615, 
the  estimated  difference  between  the  cost 
of  connecting  the  Chenango  Canal  with 
the  Erie  at  Utica,  instead  of  at  Whites- 
borough,  as  the  canal  commissioners  had 
contemplated ;  and  it  was  held  within  the 
constitutional  powers  of  the  legislature  to 
require  this  sum  to  be  assessed  upon  the 
taxable  property  of  the  city  of  Utica, 
supposed  to  be  benefited  by  the  canal 
connection.  The  court  treat  the  case  as 
"  the  ordinary  one  of  local  taxation  to 
make  or  improve  a  public  highway,"  and 
dismiss  it  with  few  words.  If  it  could  be 
considered  as  merely  a  case  of  the  appor- 
tionment between  a  number  of  munici- 
palities of  the  expense  of  a  public  high- 
way running  through  them,  it  would  have 
the  support  of  Waterville  v.  County  Com- 
missioners, 59  Me.  80;  Commonwealth  v. 
Newburyport,  103  Mass.  129;  and  also 
what  is  said  in  Bay  City  v.  State  Treas- 
urer, 23  Mich.  499,  where  it  is  admitted 
that  over  the  matter  of  the  construction 
of  such  a  highway,  as  well  as  the  appor- 
tionment of  expense,  the  State  authority 
must  necessarily  be  complete.  It  has  been 
considered  in  subsequent  New  York  cases 
as  a  case  of  apportionment  merely.  See 
People  v.  Brooklyn,  4  N.  Y.  419  ;  Howell 
v.  Buffalo,  37  N.  Y.  267:  The  cases  of 
Kirby  v.  Shaw,  19  Pa.  St.  258,  and  Gor- 
don v.  Cornes,  47  N.  Y.  608,  referred  to 


in  the  preceding  note,  it  will  be  "per- 
ceived, were  also  treated  as  cases  merely 
of  apportionment.  How  that  can  be  called 
a  case  of  apportionment,  however,  which 
singles  out  a  particular  town,  and  taxes  it 
for  benefits  to  be  expected  from  a  high- 
way running  across  the  State,  without 
doing  the  same  by  any  other  town  in  the 
State,  it  is  not  easy  to  perceive.  In  Com- 
missioners of  Revenue  v.  The  State,  45 
Ala.  31*9,  it  appeared  that  the  legislature 
had  created  a  local  board  consisting  of 
the  president  of  the  county  commissioners 
of  revenue  of  Mobile  County,  the  mayor 
of  Mobile,  the  president  of  the  Bank  of 
Mobile,  the  president  of  the  Mobile  Cham- 
ber of  Commerce,  and  one  citizen  of  Mo- 
bile, appointed  by  the  governor, .  as  a 
board  for  the  improvement  of  the  river, 
harbor,  and  bay  of  Mobile,  and  required 
the  commissioners  of  revenue  of  Mobile 
County  to  issue  to  them  for  that  purpose 
county  bonds  to  the  amount  of  $1,000,000, 
and  to  levy  a  tax  to  pay  them.  Here 
was  an  appointment  by  the  State  of  local 
officers  to  make  at  the  expense  of  the 
locality  an  improvement  which  it  has  been 
customary  for  the  general  government  to 
take  in  charge  as  one  of  national  concern  ; 
but  the  Supreme  Court  of  the  State  sus- 
tained the  act,  going  farther,  as  we  think, 
in  doing  so,  than  lias  been  gone  in  any 
other  case.  In  Hasbrouck  v.  Milwaukee, 
13  Wis.  37,  approved  and  defended  in  an 
able  opinion  in  Mills  v.  Charleton,  29  Wis. 
400,  the  power  of  the  legislature  to  com- 
pel the  city  of  Milwaukee  to  issue  bonds 
or  levy  a  tax  for  the  improvement  of  its 
harbor  was  distinctly  denied,  though  it 
was  conceded  that  permission  might  be 
given,  which  the  city  could  lawfully  act 
upon.  Compare  also  Knapp  v.  Grant,  27 
Wis.  147;  State  v.  Tappan,  29  Wis.  664, 
9  Am.  Rep.  622 ;  Atkins  v.  Randolph, 
31  Vt.  226.  In  People  v.  Batchellor,  53 
N.  Y.  128,  the  Court  of  Appeals,  through 
an  able  and  lucid  opinion  by  Graver,  J., 
denied  the  validity  of  a  mandatory  statute 
compelling  a  town  to  take  stock  in  a  rail- 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


339 


4.    And  there  is  much  good  reason  for  assenting  also  to  what 
several  respectable  authorities  have  held,  that  where  a  demand 


road  corporation,  and  to  issue  its  bonds  in 
exchange  therefor.  The  authority  to  per- 
mit the  town  to  do  this  was  not  discussed, 
but,  taking  that  as  admitted,  it  is  declared 
that  municipal  corporations,  in  the  mak- 
ing or  refusing  to  make  arrangements  of 
the  nature  of  that  attempted  to  be  forced 
upon  the  town  in  question,  were  entitled 
to  the  same  freedom  of  action  precisely 
which  individual  citizens  might  claim. 
This  opinion  reviews  the  prior  decisions 
in  the  same  State,  and  finds  nothing  con- 
flicting with  the  views  expressed.  In 
People  v.  Mayor,  &c.  of  Chicago,  51  111. 
17,  2  Am.  Rep.  278,  it  was  denied,  in 
an  opinion  of  great  force  and  ability,  de- 
livered by  Chief  Justice  Breese,  that  the 
State  could  empower  a  board  of  park 
commissioners  of  State  appointment  to 
contract  a  debt  for  the  city  of  Chicago, 
for  the  purposes  of  a  public  park  for  that 
city,  and  without  the  consent  of  its  citi- 
zens. The  learned  judge  says  (p.  31)  : 
"  While  it  is  conceded  that  municipal 
corporations,  which  exist  only  for  public 
purposes,  are  subject  at  all  times  to  the 
control  of  the  legislature  creating  them, 
and  have  in  their  franchises  no  vested 
rights,  and  whose  powers  and  privileges 
the  creating  power  may  alter,  modify,  or 
abolish  at  pleasure,  as  they  are  but  parts 
of  the  machinery  employed  to  carry  on 
the  affairs  of  the  State,  over  which  and 
their  rights  and  effects  the  State  may 
exercise  a  general  superintendence  and 
control  (Richland  County  v.  Lawrence 
County,  12  111.  8;  Trustees  of  Schools 
v.  Tatman,  13  111.  30),  we  are  not  of  the 
opinion  that  that  power,  such  as  it  is,  can 
be  so  used  as  to  compel  any  one  of  our 
many  cities  to  issue  its  bonds  against  its 
will,  to  erect  a  park,  or  for  any  other  im- 
provement to  force  it  to  create  a  debt  of 
millions ;  in  effect,  to  compel  every  prop- 
erty owner  in  the  city  to  give  his  bond  to 
pay  a  debt  thus  forced  upon  the  city.  It 
will  hardly  be  contended  that  the  legisla- 
ture can  compel  a  holder  of  property  in 
Chicago  to  execute  his  individual  bond  as 
security  for  the  payment  of  a  debt  so  or- 
dered to  be  contracted.  A  city  is  made  up 
of  individuals  owning  the  property  within 
its  limits,  the  lots  and  blocks  which  com- 
pose it,  and  the  structures  which  adorn 


them.  What  would  be  the  universal  judg- 
ment, should  the  legislature,  sua  sponte, 
project  magnificent  and  costly  structures 
within  one  of  our  cities,  —  triumphal 
arches,  splendid  columns,  and  perpetual 
fountains,  —  and  require  in  the  act  creat- 
ing them  that  every  owner  of  property 
within  the  city  limits  should  give  his 
individual  obligation  for  his  proportion  of 
the  cost,  and  impose  such  costs  as  a  lien 
upon  his  property  forever?  What  would 
be  the  public  judgment  of  such  an  act, 
and  wherein  would  it  differ  from  the 
act  under  consideration  ?  "  And  again  : 
"  Here,  then,  is  a  case  where  taxes  may 
be  assessed,  not  by  any  corporate  author- 
ity of  the  city,  but  by  commissioners,  to 
whom  is  intrusted  the  erection,  embellish- 
ment, and  control  of  this  park,  and  this 
without  consent  of  the  property  owners. 

"  We  do  not  think  it  is  within  the  con- 
stitutional competency  of  the  legislature 
to  delegate  this  power  to  these  commis- 
sioners. If  the  principle  be  admitted 
that  the  legislature  can,  uninvited,  of 
their  mere  will,  impose  such  a  burden  as 
this  upon  the  city  of  Chicago,  then  one 
mucli  heavier  and  more  onerous  can  be 
imposed;  in  short,  no  limit  can  be  as- 
signed to  legislative  power  in  this  regard. 
If  this  power  is  possessed,  then  it  must 
be  conceded  that  the  property  of  every 
citizen  within  it  is  held  at  the  pleasure 
and  will  of  the  legislature.  Can  it  be 
that  the  General  Assembly  of  the  State, 
just  and  honest  as  its  members  may  be, 
is  the  depository  of  the  rights  of  property 
of  the  citizen  ?  Would  there  be  any  suffi- 
cient security  for  property  if  such  a 
power  was  conceded  ?  No  well-regu- 
lated mind  can  entertain  the  idea  that  it 
is  within  the  constitutional  competency 
of  the  legislature  to  subject  the  earnings 
of  any  portion  of  our  people  to  the  haz- 
ards of  any  such  legislation." 

This  case  should  be  read  in  connec- 
tion with  the  following  in  the  same  State, 
and  all  in  the  same  direction.  People  v. 
Common  Council  of  Chicago,  51  111.  58; 
Lovingston  v.  Wider,  63  111.  302;  Peo- 
ple v.  Canty,  55  111.  33  ;  Wider  v.  East  St. 
Louis,  55  111.  133;  Gage  v.  Graham,  57 
111.  144 ;  East  St.  Louis  v.  Witts,  59  111. 
155;  Marshall  v.  Silliman,  61  111.  218; 


340 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


is  asserted  against  a  municipality,  though  of  a  nature  that  the 
legislature  would  have  a  right  to  require  it  to  incur  and  dis- 
charge, yet  if  its  legal  and  equitable  obligation  is  disputed,  the 
corporation  has  the  right  to  have  the  dispute  settled  by  the  courts, 
and  cannot  be  bound  by  a  legislative  allowance  of  the  claim.1 


Cairo,  &c.  R.  R.  Co.  v.  Sparta,  77  111.  505 ; 
Barnes  v.  Lacon,  84  111.  461.  See  also 
People  v.  Common  Council  of  Detroit,  28 
Mich.  228.  That  the  legislature  may 
compel  a  municipality  to  levy  a  tax  for 
a  local  road,  see  Wilcox  v.  Deer  Lodge 
Co.,  2  Mont.  574.  £And  where  a  highway 
or  bridge  is  beneficial  to  several  munici- 
palities, the  legislature  may  compel  them 
to  contribute  to  the  expense  of  providing 
and  maintaining  it,  even  though  no  por- 
tion of  it  lies  within  the  boundaries  of 
some  of  the  contributories ;  and  the  leg- 
islature may  apportion  the  expense. 
State  v.  Williams,  68  Conn.  131,  35  Atl. 
24,  421,  48  L.  R.  A.  465,  aff.  in  Wil- 
liams v.  Eggleston,  170  U.  S.  304,  18  Sup. 
Ct.  Rep.  617.  Upon  power  of  legislature 
to  impose  burdens  of  this  character  on 
municipalities,  see  cases  collected  in  note 
to  48  L.  R.  A.  465.  That  city  may  be 
compelled  to  purchase  and  maintain  a 
park,  see  Knowlton  v.  Williams,  174 
Mass.  476,  55  N.  E.  77,  47  L.  R.  A.  314.] 
The  case  of  People  i>.  Batchellor,  53 
N.  Y.  128,  seems  to  us  clearly  inconsist- 
ent with  Thomas  v.  Lelaiid,  supra.  But, 
on  the  other  hand,  the  case  of  Duanes- 
burgh  v.  Jenkins,  57  N.  Y.  177,  goes  to  the 
full  extent  of  holding  that  a  subscription 
of  a  town  to  a  railroad,  made  on  condition 
of  subsequent  assent  of  the  town  thereto, 
may  be  relieved  of  the  condition  by  the 
legislature  and  enforced  against  the  town, 
though  the  original  subscription  was  by 
a  commission  which  the  town  did  not 
choose.  It  is  a  little  difficult,  therefore, 
to  determine  what  the  law  of  New  York 
now  is  on  this  subject,  especially  as  in 
New  York,  &c.  R.  R.  Co.  v.  Van  Horn,  57 
N.  Y.  473,  the  power  of  the  legislature  to 
make  valid  an  ineffectual  individual  con- 
tract is  denied.  But  leaving  out  of  view 
the  New  York  cases,  and  a  few  others 
which  were  decided  on  the  ground  of  an 
apportionment  of  local  benefits,  we  think 
the  case  in  Alabama  will  stflnd  substan- 
tially alone.  Before  that  decision  the  Su- 
preme Court  of  Illinois  were  able  to  say, 
in  a  case  calling  for  a  careful  and  thor- 


ough examination  of  the  authorities,  that 
counsel  had  "  failed  to  find  a  case  wherein 
it  had  been  held  that  the  legislature  can 
compel  a  city  against  its  will  to  incur  a 
debt  by  the  issue  of  its  bonds  for  a  local 
improvement."  People  v.  Mayor,  &c.,  51 
111.  17,  31.  See  also  cases  pp.  699-702, 
infra.  QAnd  see  Cook  Farm  Co.  v.  De- 
troit, 124  Mich.  426,  83  N.  W.  130,  that 
citizens  must  be  permitted  to  pass  upon 
the  proposition  to  allow  a  board  the 
power  of  local  taxation,  decided  on  au- 
thority of  Park  Commissioners  r.  Detroit, 
28  Mich.  228.] 

1  It  was  held  in  People  v.  Hawes,  37 
Barb.  440,  that  the  legislature  had  no 
right  to  direct  a  municipal  corporation  to 
satisfy  a  claim  made  against  it  for  dam- 
ages for  breach  of  contract,  out  of  the 
funds  or  property  of  such  corporation. 
In  citing  the  cases  of  Guilford  v.  Super- 
visors of  Chenango,  13  N.  Y.  143,  and 
People  v.  Supervisors  of  New  York,  11 
Abb.  14,  a  distinction  is  drawn  by  which 
the  cases  are  supposed  to  be  reconciled 
with  the  one  then  under  decision.  "  Those 
cases  and  many  others,"  say  the  court, 
p.  455,  "  related  not  to  the  right  or  power 
of  the  legislature  to  compel  an  individual 
or  corporation  to  pay  a  debt  or  claim,  but 
to  the  power  of  the  legislature  to  raise 
money  by  tax,  and  apply  such  money, 
when  so  raised,  to  the  payment  thereof. 
We  could  not,  under  the  decisions  of  the 
courts  on  this  point,  made  in  these  and 
other  cases,  now  hold  that  the  legislature 
had  not  authority  to  impose  a  tax  to  pay 
any  claim,  or  to  pay  it  out  of  the  State 
treasury ;  and  for  this  purpose  to  impose 
a  tax  upon  the  property  of  the  whole 
State,  or  any  portion  of  the  State.  This 
was  fully  settled  in  People  v.  Mayor,  &c. 
of  Brooklyn,  4  N.  Y.  419;  but  neither 
that  case  nor  the  case  in  13  N.  Y.  143,  in 
any  manner  gave  a  warrant  for  the  opin- 
ion that  the  legislature  had  a  right  to 
direct  a  municipal  corporation  to  pay  a 
claim  for  damages  for  breach  of  a  con- 
tract out  of  the  funds  or  property  of  such 
corporation,  without  a  submission  of  such 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


341 


Having  concisely  stated  these  general  views,  we  add  merely, 
that  those  cases  which  hold  that  the  State  may  raise  bounty 
moneys  by  taxation,  to  be  paid  to  persons  in  the  military  service, 
we  think  stand  by  themselves,  and  are  supported  by  different 
principles  from  any  which  can  fairly  be  summoned  to  the  aid  of 
some  of  the  other  cases  which  we  have  cited.  The  burden  of  the 
public  defence  unquestionably  rests  upon  the  whole  community; 
and  the  legislature  may  properly  provide  for  its  apportionment 
and  discharge  in  such  manner  as  its  wisdom  may  prescribe.  But 
those  cases  which  hold  it  competent  for  the  legislature  to  give 
its  consent  to  a  municipal  corporation  engaging  in  works  of 
public  improvement  outside  its  territorial  limits,  and  becoming  a 
stockholder  in  a  private  corporation,  must  be  conceded  on  all 
hands  to  have  gone  to  the  very  limit  of  constitutional  power  in 
this  direction ;  and  to  hold  that  the  legislature  may  go  even  fur- 
ther, and,  under  its  power  to  control  the  taxation  of  the  political 
divisions  and  organizations  of  the  State,  may  compel  them,  with- 
out the  consent  of  their  citizens,  to  raise  money  for  such  or  any 
other  unusual  purposes,  or  to  contract  debts  therefor,  seems  to  us 
to  be  introducing  new  principles  into  our  system  of  local  self- 
suited,  is  less  objectionable  and  less  likely 
to  lead  to  oppression,  than  the  power  to 
impose  through  taxation  a  claim  upon  a 
corporation  which  it  never  was  concerned 
in  creating,  against  which  it  protests,  and 
which  is  unconnected  with  the  ordinary 
functions  and  purposes  of  municipal  gov- 
ernment. In  Borough  of  Dunmore's  Ap- 
peal, 52  Pa.  St.  374,  a  decision  was  made 
which  seems  to  conflict  with  that  in  Peo- 
ple v.  Hawes,  supra,  and  with  the  subse- 
quent case  of  Baldwin  r.  Mayor,  &c.  of 
New  York,  42  Barb.  549.  The  Penn- 
sylvania court  decided  that  the  constitu- 
tional guaranty  of  the  right  to  jury  trial 
had  no  application  to  municipal  corpora- 
tions, and  a  commission  might  be  created 
by  the  legislature  to  adjust  the  demands 
between  them.  See  also  In  re  Pennsyl- 
vania Hall,  6  Pa.  St.  204;  Layton  v. 
New  Orleans,  12  La.  Ann.  515.  In  Peo- 
ple v.  Power,  25  III.  187,  it  was  held  com- 
petent for  the  legislature  to  apportion  the 
taxes  collected  in  a  county  between  a 
city  therein  and  the  remainder  of  the 
county,  and  that  the  county  revenues 
"  must  necessarily  be  within  the  control 
of  the  legislature  for  political  purposes." 
And  see  Portwood  v.  Montgomery  Co., 
52  Miss.  523. 


claim  to  a  judicial  tribunal."  If  by  this 
is  meant  that  the  legislature  has  power  to 
compel  a  corporation  to  tax  its  citizens 
for  the  payment  of  a  demand,  but  has  not 
the  authority  to  make  it  a  charge  against 
the  corporation  in  any  other  mode,  the 
distinction  seems  to  be  one  of  form  rather 
than  of  substance.  It  is  no  protection  to 
the  rights  of  property  of  a  municipal  cor- 
poration to  hold  that  the  legislature  can- 
not determine  upon  a  claim  against  it,  if 
at  the  same  time  the  corporation  may  be 
compelled  by  statute  to  assume  and  dis- 
charge the  obligation  through  the  levy  of 
a  tax  for  its  satisfaction.  But  if  it  is 
only  meant  to  declare  that  the  legislature 
cannot  adjudicate  upon  disputed  claims, 
there  can  be  no  good  reason  to  find  fault 
with  the  decision.  It  is  one  thing  to  de- 
termine that  the  nature  of  a  claim  is  such 
as  to  make  it  proper  to  satisfy  it  by  taxa- 
tion, and  another  to  adjudge  how  much  is 
justly  due  upon  it.  The  one  is  the  exer- 
cise of  legislative  power,  the  other  of 
judicial.  See  Sanborn  v.  Rice,  0  Minn. 
273;  Commonwealth  r.  Pittsburgh,  34 
Pa.  St.  496;  Plimpton  v.  Somerset,  33 
Vt.  283;  Gage  .-.  Graham,  57  111.  144. 
But  the  power  to  decide  upon  the  breach 
of  a  contract  by  a  corporation,  and  the 
extent  of  the  damages  which  have  re- 


342  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

government,  and  to  be  sanctioning  a  centralization  of  power  not 
within  the  contemplation  of  the  makers  of  the  American  consti- 
tutions. We  think,  where  any  such  forced  taxation  is  resisted 
by  the  municipal  organization,  it  will  be  very  difficult  to  defend 
it  as  a  proper  exercise  of  legislative  authority  in  a  government 
where  power  is  distributed  on  the  principles  which  prevail  here. 

Legislative   Control  of  Corporate  Property. 

The  legislative  power  of  the  State  controls  and  disposes  of  the 
property  of  the  State.  How  far  it  may  also  control  and  dispose 
of  the  property  of  those  agencies  of  government  which  it  has 
created  and  endowed  with  corporate  powers,  is  a  question  which 
happily  there  has  been  very  little  occasion  to  discuss  in  the 
courts.  Being  created  as  an  agency  of  government,  it  is  evident 
that  the  municipality  cannot  in  itself  have  that  complete  and 
absolute  control  and  power  of  disposition  of  its  property  which  is 
possessed  by  natural  persons  and  private  corporations  in  respect 
to  their  several  possessions.  For  it  can  hold  and' own  property 
only  for  corporate  purposes, (a)  and  its  powers  are  liable  at  any 
time  to  be  so  modified  by  legislation  as  to  render  the  property  no 
longer  available.  Moreover,  the  charter  rights  may  be  altogether 
taken  away ;  and  in  that  case  the  legislature  has  deprived  the 
corporation  of  its  property  by  depriving  it  of  corporate  capacity 
to  hold  it.  And  in  many  ways,  while  the  corporation  holds  and 
enjoys  property,  the  legislature  must  possess  power  to  interfere 
with  its  control,  at  least  incidentally;  for  the  mere  fact  that  the 
corporation  possesses  property  cannot  deprive  the  State  of  its 
complete  authority  to  mould  and  change  the  corporate  organiza- 
tion, and  enlarge  or  diminish  the  powers  which  it  possessed  be- 
fore. But  whether  the  State  can  directly  intervene  and  take 
away  the  corporate  property,  or  convert  it  to  other  uses  than 
those  for  which  it  was  procured,  or  whether,  on  repealing  a 
charter  of  incorporation,  it  can  take  to  itself  the  corporate  prop- 
erty, and  dispose  of  it  at  its  discretion,  are  different  questions 
from  any  raised  by  the  indirect  and  incidental  interference 
referred  to. 

In  the  leading  case,  in  which  it  was  decided  by  the  Supreme 
Court  of  the  United  States  that  a  private  charter  of  incorporation, 
granted  by  a  State,  was  a  contract  between  the  State  and  the 
corporators,  not  subject  to  modification  or  repeal,  except  in  pur- 
fa)  QSueh  property  is  held  subject  to  a  trust  in  behalf  of  the  public,  and  the 
municipality  is  incapable  of  alienating  it  unless  expressly  authorized  thereto.  See 
Huron  Waterworks  Co.  «.  Huron,  8  S.  D.  169,65  N.  W.  816,  30  L.  K.  A.  848J 


CH.  VIII.]          THE   GRADES    OF  MUNICIPAL   GOVERNMENT.  343 

suance  of  a  right  expressly  reserved,  but  that  the  charter  of  a 
municipal  corporation  was  not  such  a  contract,  it  was  at  the  same 
time  declared,  as  the  opinion  of  the  judges,  that  the  legislature 
could  not  deprive  such  municipal  corporations  of  their  vested 
rights  in  property.  "It  may  be  admitted,"  says  one  of  the 
judges,  "that  corporations  for  mere  public  government,  such  as 
towns,  cities,  and  counties,  may  in  many  respects  be  subject  to 
legislative  control.  But  it  will  hardly  be  contended  that  even  in 
respect  to  such  corporations  the  legislative  power  is  so  transcen- 
dent that  it  may,  at  its  will,  take  away  the  private  property  of 
the  corporation,  or  change  the  uses  of  its  private  funds  acquired 
under  the  public  faith.  Can  the  legislature  confiscate  to  its  own 
use  the  private  funds  which  a  municipal  corporation  holds  under 
its  charter,  without  any  default  or  consent  of  the  corporators? 
If  a  municipal  corporation  be  capable  of  holding  devises  and 
legacies  to  charitable  uses,  as  many  municipal  corporations  are, 
does  the  legislature,  under  our  forms  of  limited  government, 
possess  the  authority  to  seize  upon  those  funds  and  appropriate 
them  to  other  uses,  at  its  own  arbitrary  pleasure,  against  the  will 
of  the  donors  and  donees?  From  the  very  nature  of  our  govern- 
ment, the  public  faith  is  pledged  the  other  way,  and  that  pledge 
constitutes  a  valid  compact ;  and  that  compact  is  subject  only  to 
judicial  inquiry,  construction,  and  abrogation. " 1  "  The  govern- 
ment has  no  power  to  revoke  a  grant,  even  of  its  own  funds,  when 
given  to  a  private  person  or  corporation  for  special  uses.  It 
cannot  recall  its  own  endowments,  granted  to  any  hospital  or 
college,  or  city  or  town,  for  the  use  of  such  corporations.  The 
only  authority  remaining  to  the  government  is  judicial,  to  ascer- 
tain the  validity  of  the  grant,  to  enforce  its  proper  uses,  to  sup- 
press frauds,  and,  if  the  uses  are  charitable,  to  secure  their 
regular  administration  through  the  means  of  equitable  tribunals, 
in  cases  where  there  would  otherwise  be  a  failure  of  justice."2 

"In  respect  to  public  corporations,"  says  another  judge, 
"which  exist  only  for  public  purposes,  such  as  towns,  cities,  &c., 
the  legislature  may,  under  proper  limitations,  change,  modify, 
enlarge,  or  restrain  them,  securing,  however,  the  property  for 
the  use  of  those  for  whom  and  at  whose  expense  it  was  pur- 
chased."3 These  views  had  been  acted  upon  by  the  same  court 
in  preceding  cases.4  They  draw  a  distinction  between  the  politi- 

1  Story,  J.,  in  Dartmouth  College   v.  4  Terrett    v.   Taylor,   9    Cranch,   43  ; 
Woodward,  4  Wheat.  618,  694,  695.  Town  of  Pawlet  v.  Clark,  9  Cranch,  292. 

2  Story,  J.,  in  Dartmouth  College  v.  See  also   State   v.  Haben,  22  Wis.   660, 
Woodward,  4  Wheat.  698.  referred  to,  ante,  p.  337,  note;  Aberdeen 

3  Washington,  J.,   in  Dartmouth  Col-  v.  Saunderson,  16  Miss.  663.     In  People 
lege  v.  Woodward,  4  Wheat.  663.  v.  Common  Council  of  Detroit,  28  Mich. 


344  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

cal  rights  and  privileges  conferred  on  corporations  and  which 
are  not  vested  rights  in  any  sense  implying  constitutional 
permanency,  and  such  rights  in  property  as  the  corporation 
acquires,  and  which  in  the  view  of  these  decisions  are  protected 
by  the  same  reasons  which  shield  similar  rights  in  individuals.1 

When  the  municipal  divisions  of  the  territory  of  the  State  are 
changed  in  their  boundaries,  two  or  more  consolidated  in  one,  or 
one  subdivided,  it  is  conceded  that  the  legislature  possesses  the 
power  to  make  such  disposition  of  the  corporate  property  as  nat- 
ural equity  would  require  in  view  of  the  altered  condition  of 
things.  The  fact  that  a  portion  of  the  citizens,  before  entitled  to 
the  benefits  springing  from  the  use  of  specific  property  for  public 
purposes,  will  now  be  deprived  of  that  benefit,  cannot  affect  the 
validity  of  the  legislative  act,  which  is  supposed  in  some  other 
way  to  compensate  them  for  the  incidental  loss.2  And  in  many 
other  cases  the  legislature  properly  exercises  a  similar  power  of 
control  in  respect  to  the  corporate  property,  and  may  direct  its 
partition  and  appropriation,  in  order  to  accommodate  most  justly 
and  effectually,  in  view  of  new  circumstances,  the  purposes  for 
which  it  was  acquired. 

The  rule  upon  the  subject  we  take  to  be  this:  when  corporate 
powers  are  conferred,  there  is  an  implied  compact  between  the 
State  and  the  corporators  that  the  property  which  they  are  given 
the  capacity  to  acquire  for  corporate  purposes  under  their  char- 
ter shall  not  be  taken  from  them  and  appropriated  to  other  uses.3 

228,  this  subject  was  largely  considered,  exercise  of  this  species  of  power,  because 

and   the  court   denied  the  right  of   the  it  has  been  conferred  upon  them  by  the 

State  to  compel  a  municipal  corporation  bounty  of  the  legislature,  so  may  any  and 

to  contract  a  debt  for  a  mere  local  object ;  every  officer   under  the   government  do 

for  example,  a  city  park.     Compare  Peo-  the  same."    Nelson,  J.,  in  People  v.  Mor- 

ple  v.  Board  of  Supervisors,  50  Cal.  561.  ris,  13  Wend.  325,  331.     And  see  Bristol 

In  Texas  it  is  held  that  municipal  corpo-  v.  New  Chester,  3  N.  H.  524;  Benson  v. 

rations  have  a  constitutional  right  to  pro-  Mayor,  &c.  of  New  York,  10  Barb.  223. 

tection  in  their  property  as  against  State  It   is   competent   for  the   legislature    to 

legislation.     Milam  Co.  v.  Bateman,   54  transfer   the   control  of  the  streets  of  a 

Tex.  153.  city  to  park  commissioners  for  boulevard 

1  "  It  is  an  unsound  and  even  absurd  or  park  purposes.     People  r.  Walsh,  96 

proposition  that  political  power  conferred  111.  232 ;  36  Am.  Rep.  135.     See  Matter  of 

by  the  legislature  can  become  a  vested  Woolsey,  95  N.  Y.  135. 

right,  as  against  the  government,  in  any  in-  2  Bristol  r.  New  Chester,  3  N.  H.  524. 

dividual  or  body  of  men.     It  is  repugnant  And  see  ante,  pp.  267-269,   notes;  post, 

to  the  genius  of  our  institutions,  and  the  p.  317,  note  1. 

spirit  and  meaning  of  the  Constitution  ;  8  If  land  is  dedicated  as  a  public 
for  by  that  fundamental  law,  all  political  square,  and  accepted  as  such,  a  law  de- 
rights  not  there  defined  and  taken  out  of  voting  it  to  other  uses  is  void,  because 
the  exercise  of  legislative  discretion,  were  violating  the  obligation  of  contracts, 
intended  to  be  left  subject  to  its  regula-  Warren  v.  Lyons  City,  22  Iowa,  351. 
tion.  If  corporations  can  set  up  a  vested  As  there  was  no  attempt  in  that  case  to 
right  as  against  the  government  to  the  appropriate  the  land  to  such  other  uses 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


If  the  State  grants  property  to  the  corporation,  the  grant  is  an 
executed  contract,  which  cannot  be  revoked.  The  rights  ac- 
quired, either  by  such  grants  or  by  any  other  legitimate  mode  in 
which  such  a  corporation  can  acquire  property,  are  vested  rights, 
and  cannot  be  taken  away.  Nevertheless  if  the  corporate  powers 
should  be  repealed,  the  corporate  ownership  would  necessarily 
cease,  and  even  when  not  repealed,  a  modification  of  those  pow- 
ers, or  a  change  in  corporate  bounds,  might  seriously  affect,  if 
not  altogether  divest,  the  rights  of  individual  corporators,  so  far 
as  they  can  be  said  to  have  any  rights  in  public  property.  And 
in  other  ways,  incidentally  as  well  as  by  direct  intervention,  the 
State  may  exercise  authority  and  control  over  the  disposition 
and  use  of  corporate  property,  according  to  the  legislative  view 
of  what  is  proper  for  the  public  interest  and  just  to  the  corpo- 
rators, subject,  however,  to  this  restriction,  that  the  purpose  for 
which  the  property  as  originally  acquired  shall  be  kept  in  view, 
so  far  as  the  circumstances  will  admit,  in  any  disposition  that 
may  be  made  of  it.1 


under  the  right  of  eminent  domain,  the 
question  of  the  power  to  do  so  was  not 
considered. 

1  This  principle  is  asserted  and  sus- 
tained in  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514,  in  an  elaborate  opinion  by 
Mr.  Justice  Clifford.  Also  in  Meriwether 
v.  Garrett,  102  U.  S.  472.  And  ?ee  North 
Yarmouth  v.  Skillings,  45  Me.  133.  "That 
the  State  may  make  a  contract  with,  or  a 
grant  to,  a  public  municipal  corporation, 
which  it  could  not  subsequently  impair 
or  resume,  is  not  denied ;  but  in  such  case 
the  corporation  is  to  be  regarded  as  a  pri- 
vate company.  A  grant  may  be  made  to 
a  public  corporation  for  purposes  of  pri- 
vate advantage;  and  although  the  public 
may  also  derive  a  common  benefit  there- 
from, yet  the  corporation  stands  on  the 
same  footing,  as  respects  such  grant,  as 
would  any  body  of  persons  upon  whom 
like  privileges  were  conferred.  Public  or 
municipal  corporations,  however,  which 
exist  only  for  public  purposes,  and  pos- 
sess no  powers  except  such  as  are  be- 
stowed upon  them  for  public  political 
purposes,  are  subject  at  all  times  to  the 
control  of  the  legislature,  which  may 
alter,  modify,  or  abolish  them  at  pleas- 
ure." Trumbutl,  J.,  in  Richland  County 
v.  Lawrence  County,  12  111.  18.  "  Public 
corporations  are  but  parts  of  the  machin- 
ery employed  in  carrying  on  the  affairs 


of  the  State  ;  and  they  are  subject  to  be 
changed,  modified,  or  destroyed,  as  the 
exigencies  of  the  public  may  demand. 
The  State  may  exercise  a  general  super- 
intendence and  control  over  them  and 
their  right  and  effects,  so  that  their  prop- 
erty is  not  diverted  from  the  uses  and 
objects  for  which  it  was  given  or  pur- 
chased." Trustees  of  Schools  v.  Tatman, 
13  111.  27,  30,  per  Treat,  Ch.  J.  And  see 
Harrison  v.  Bridgeton,  16  Mass.  16;  Raw- 
son  v.  Spencer,  113  Mass.  40;  Mont- 
pelier  v.  East  Montpelier,  27  Vt.  704 ; 
Same  v.  Same,  29  Vt.  12;  Benson  v. 
Mayor,  &c.  of  New  York,  10  Barb.  223. 
See  also  City  of  Louisville  v.  University, 
15  B.  Monr.  642;  Weymouth  &  Brain- 
tree  Fire  District  v.  County  Commission- 
ers, 108  Mass.  142 ;  Morgan  v.  Beloit,  7 
Wall.  613.  In  State  v.  St.  Louis  County 
Court,  34  Mo.  546,  the  following  remarks 
are  made  by  the  court,  in  considering  the 
cause  shown  by  the  county  in  answer  to 
an  application  to  compel  it  to  meet  a  re- 
quisition for  the  police  board  of  St.  Louis  : 
"  As  to  the  second  cause  shown  in  the 
return,  it  is  understood  to  mean,  not  that 
there  is  in  fact  no  money  in  the  treasury 
to  pay  this  requisition,  but  that  as  a  mat- 
ter of  law  all  the  money  which  is  in  the 
treasury  was  collected  for  specific  pur- 
poses from  which  it  cannot  be  diverted. 
The  specific  purposes  for  which  the  money 


346 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


This   restriction  is  not  the   less   applicable  where   corporate 
powers  are  abolished   than  it  is  in  other  cases;   and  whatever 


was  collected  were  those  heretofore  di- 
rected by  the  legislature ;  and  this  act, 
being  a  later  expression  of  the  will  of  the 
legislature,  controls  the  subject,  and  so 
far  as  it  conflicts  with  previous  acts  re- 
peals them.  The  county  is  not  a  private 
corporation,  but  an  agency  of  the  State 
government;  and  though  as  a  public 
corporation  it  holds  property,  such  hold- 
ing is  subject  to  a  large  extent  to  the  will 
of  the  legislature.  Whilst  the  legislature 
cannot  take  away  from  a  county  its  prop- 
erty, it  has  full  power  to  direct  the  mode 
in  which  the  property  shall  be  used  for 
the  benefit  of  the  county."  For  like 
views,  see  Palmer  v.  Fitts,  51  Ala.  489, 
492.  Compare  People  v.  Mahaney,  13 
Mich.  481;  Richland  Co.  v.  Richland  Cen- 
ter, 69  Wis.  591, 18  N.  W.  497.  It  will  be 
observed  that  the  strong  expression  of 
legislative  power  is  generally  to  be  found 
in  cases  where  the  thing  actually  done 
was  clearly  and  unquestionably  compe- 
tent. In  Payne  v.  Treadwell,  16  Cal.  220, 
233,  this  language  is  used  :  "  The  agents, 
of  the  corporation  can  sell  or  dispose  of 
the  property  of  the  corporation  only  in 
the  way  and  according  to  the  order  of  the 
legislature  ;  and  therefore  the  legislature 
may  by  law  operating  immediately  upon 
the  subject  dispose  of  this  property,  or 
give  effect  to  any  previous  disposition 
or  attempted  disposition.  The  property 
itself  is  a  trust,  and  the  legislature  is  the 
prime  and  controlling  power,  managing 
and  directing  the  use,  disposition,  and 
direction  of  it."  Quoted  and  approved  in 
San  Francisco  v.  Canavan,  42  Cal.  541, 
558.  These  strong  and  general  expres- 
sions should  be  compared  with  what  is 
said  in  Grogan  r.  San  Francisco,  18  Cal. 
590,  in  which  the  right  of  municipal  cor- 
porations to  constitutional  protection  in 
their  property  is  asserted  fully.  The 
same  right  is  asserted  in  People  v.  Batch- 
ellor,  53  N.  Y.  128 ;  People  v.  Mayor, 
&c.  of  Chicago,  51  111.  17  ;  People  v.  Tap- 
pan,  29  Wis.  664 ;  People  v.  Hurlbut,  24 
Mich.  44 ;  and  very  many  others.  See 
Dillon,  Mun.  Corp.  §§  39  et  seq.,  and  cnses 
referred  to  in  notes.  And  see  Hewison 
v.  New  Haven,  87  Conn.  475 ;  New  Or- 
leans, &c.  R.  R.  Co.  v.  New  Orleans,  26 
La.  Ann.  517,  as  to  the  distinction  be- 


tween the  public  or  governmental  char- 
acter of  municipal  corporations,  and  their 
private  character  as  respects  the  owner- 
ship and  management  of  their  own  prop- 
erty. One  of  the  strongest  illustrations 
of  the  power  of  legislation  over  municipal 
corporations  is  to  be  found  in  the  statutes 
which  have  been  passed  in  some  States 
to  compel  these  corporations  to  make 
compensation  for  losses  occasioned  by 
mobs  and  riots.  The  old  English  law 
made  the  hundred  responsible  for  rob- 
beries, and  this  was  extended  by  the  Riot 
Act  of  1  Geo.  I.  to  cover  damages  sus- 
tained at  the  hands  of  persons  unlawfully, 
riotously,  and  tumultuously  assembled. 
See  Radcliffe  v.  Eden,  Cowp.  485;  Wil- 
inot  v.  Horton,  Doug.  701,  note ;  Hyde 
v.  Cogan,  Doug.  699,  an  action  growing 
out  of  the  riot  in  which  Lord  Mansfield's 
house  was  sacked  and  his  library  de- 
stroyed. Similar  statutes  it  has  been 
deemed  necessary  to  enact  in  some  of  the 
States,  and  they  have  received  elaborate 
judicial  examination  and  been  sustained 
as  important  and  beneficial  police  regula- 
tions, based  upon  the  theory  that,  with 
proper  vigilance  on  the  part  of  the  local 
authorities,  the  disorder  and  injury  might 
and  ought  to  have  been  prevented.  Don- 
oghue  v.  Philadelphia,  2  Pa.  St.  230; 
Commissioners  of  Kensington  v.  Phila- 
delphia, 13  Pa.  St.  76;  Allegheny  County 
r.  Gibson,  90  Pa.  St.  397,  35  Am.  Rep. 
670;  Darlington  v.  New  York,  31  N.  Y. 
164;  Ely  v.  Niagara  Co.,  36  N.  Y.  297; 
Folsom  v.  New  Orleans,  28  La.  Ann.  936 ; 
Street  v.  New  Orleans,  32  La.  Ann.  677 ; 
Underbill  v.  Manchester,  45  N.  H.  214; 
Chadbourne  v.  New  Castle,  48  N.  H.  196  ; 
^Chicago  v.  Manhattan  Cement  Co.,  178 
111.  372,  53  N.  E.  68,  45  L.  R.  A.  848, 
69  Am.  St.  321.  Municipal  corporations 
may  be  made  liable  for  lynchings  that 
occur  within  their  boundaries.  Brown 
v.  Orangeburg  Co.,  55  S.  C.  45,  32  S.  E. 
764,  44  L.  R.  A.  734 :  see,  in  this  connec- 
tion, Champaign  Co.  r.  Church,  62  Ohio 
St.  318, 57  N.  E.  50, 48  L.  R.  A.  738.  Upon 
liability  for  destruction  by  mobs,  see  note 
to  24  L.  R.  A  592.]  There  is  no  such 
liability  in  the  absence  of  statute.  West- 
ern College  v.  Cleveland,  12  Ohio  St.  375. 
L~Nor  for  loss  of  life  at  hands  of  rioters, 


CH.  VIII.]  THE  GRADES   OF   MUNICIPAL   GOVERNMENT.  347 

might  be  the  nature  of  the  public  property  which  the  corporation 
had  acquired,  and  whatever  the  purpose  of  the  acquisition,  the 
legislature,  when  by  taking  away  the  corporate  authority  it 
became  vested  with  the  control  of  the  property,  would  be  under 
obligation  to  dispose  of  it  in  such  manner  as  to  give  the  original 
corporators  the  benefit  thereof  by  putting  it  to  the  use  designed, 
if  still  practicable,  or  to  some  kindred  or  equally  beneficial  use 
having  reference  to  the  altered  condition  of  things.  The  obliga- 
tion is  one  which,  from  the  very  nature  of  the  case,  must  rest  for 
its  enforcement  in  great  measure  upon  the  legislative  good  faith 
and  sense  of  justice ;  and  it  could  only  be  in  those  cases  where 
there  had  been  a  clear  disregard  of  the  rights  of  the  original 
corporators,  in  the  use  attempted  to  be  made  of  the  property, 
that  relief  could  be  had  through  judicial  action. 

No  such  restriction,  however,  can  rest  upon  the  legislature  in 
regard  to  the  rights  and  privileges  which  the  State  grants  to 
municipal  corporations  in  the  nature  of  franchises,  and  which 
are  granted  only  as  aids  or  conveniences  to  the  municipality  in 
effecting  the  purposes  of  its  incorporation.  These,  like  the 
corporate  powers,  must  be  understood  to  be  granted  during 
pleasure.1 

Towns  and   Counties. 

Thus  far  we  have  been  considering  general  rules,  applicable 
to  all  classes  of  municipal  organizations  possessed  of  corporate 
powers,  and  by  which  these  powers  may  be  measured,  or  the 
duties  which  they  impose  defined.  In  regard  to  some  of  these 
organizations,  however,  there  are  other  and  peculiar  rules  which% 
require  separate  mention.  Some  of  them  are  so  feebly  endowed 
with  corporate  life,  and  so  much  hampered,  controlled,  and 

in  absence  of  statute.  New  Orleans  v.  void,  on  the  ground  that  the  original 
Abagnatto,  62  Fed.  Rep.  240,  26  L.  R.  A.  grant  was  of  a  franchise  which  consti- 
329 ;  Gianfortone  v.  New  Orleans,  61  Fed.  tuted  property,  and  it  could  not  be  trans- 
Rep.  64,  24  L.  R.  A.  592.]  ferred  to  another,  though  it  might  be 
1  East  Hartford  v.  Hartford  Bridge  repealed.  The  case  cites  Bailey  v.  Mayor, 
Co.,  10  How.  611.  On  this  subject  see  &c.,  3  Hill,  631,  and  St.  Louis  v.  Russell, 
ch.  ix.,  post.  The  case  of  Trustees  of  9  Mo.  507,  which  seem  to  have  little  rele- 
Aberdeen  Academy  v.  Mayor,  &c.  of  vancy ;  also  4  Wheat.  663,  698,  699,  and 
Aberdeen,  13  S.  &  M.  645,  appears  to  be  2  Kent,  305,  note,  for  the  general  rule 
contra.  By  the  charter  of  the  town  of  protecting  municipal  corporations  in  their 
Aberdeen  in  1837,  the  legislature  granted  vested  rights  to  property.  The  case  of 
to  it  the  sole  power  to  grant  licenses  to  Benson  v.  Mayor,  &c.  of  New  York,  10 
sell  vinous  and  spirituous  liquors  within  Barb.  223,  also  holds  the  grant  of  a  ferry 
the  corporate  limits  thereof,  and  to  ap-  franchise  to  a  municipal  corporation  to 
propriate  the  money  arising  therefrom  to  be  irrevocable,  but  the  authorities  gener- 
city  purposes.  In  1848  an  act  was  passed  ally  will  not  sustain  this  view.  See  post, 
giving  these  moneys  to  the  Aberdeen  p.  399,  and  note. 
Female  Academy.  The  act  was  held 


348  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

directed  in  the  exercise  of  the  functions  which  are  conferred 
upon  them,  that  they  are  sometimes  spoken  of  as  nondescript  in 
character,  and  as  occupying  a  position  somewhere  between  that 
of  a  corporation  and  a  mere  voluntary  association  of  citizens. 
Counties,  townships,  school  districts,  and  road  districts  do  not 
usually  possess  corporate  powers  under  special  charters;  but  they 
exist  under  general  laws  of  the  State,1  which  apportion  the  terri- 
tory of  the  State  into  political  divisions  for  convenience  of  gov- 
ernment, and  require  of  the  people  residing  within  those  divisions 
the  performance  of  certain  public  duties  as  a  part  of  the  ma- 
chinery of  the  State;  and,  in  order  that  they  may  be  able  to 
perform  these  duties,  vest  them  with  certain  corporate  powers. 
Whether  the}7  shall  assume  those  duties  or  exercise  those  powers, 
the  people  of  the  political  divisions  are  not  allowed  the  privilege 
of  choice ;  the  legislature  assumes  this  division  of  the  State  to 
be  essential  in  republican  government,  and  the  duties  are  im- 
posed as  a  part  of  the  proper  and  necessary  burden  which  the 
citizens  must  bear  in  maintaining  and  perpetuating  constitu- 
tional liberty.2  Usually  their  functions  are  wholly  of  a  public 
nature,  and  there  is  no  room  to  imply  any  contract  between 
them  and  the  State,  in  their  organization  as  corporate  bodies, 
except  that  which  springs  from  the  ordinary  rules  of  good  faith, 
and  which  requires  that  the  property  they  shall  acquire,  by  local 
taxation  or  otherwise,  for  the  purposes  of  their  organization, 
shall  not  be  seized  by  the  State,  and  appropriated  in  other  ways. 
They  are,  therefore,  sometimes  called  quasi  corporations,3  to 
distinguish  them  from  the  corporations  in  general,  which  pos- 
sess more  completely  the  functions  of  an  artificial  entity.  Chief 
Justice  Parker,  of  Massachusetts,  in  speaking  of  school  districts, 
has  said,  "That  they  are  not  bodies,  politic  and  corporate,  with 
the  general  powers  of  corporations,  must  be  admitted;  and  the 
reasoning  advanced  to  show  their  defect  of  power  is  conclusive. 

1  A   constitutional  provision   that  the  Am.  Dec.  522;  Beardsley  v.  Smith,  16 
legislature  shall  pass  no  special  act  con-  Conn.  367 ;   Eastman    v.    Meredith,    36 
ferring  corporate  powers,  applies  to  pub-  N.  H.  284;  Hopple  v.  Brown,  13  Ohio  St. 
lie  as  well  as  private  corporations.    State  311;  Commissioners  of  Hamilton  Co.   v. 
v.  Cincinnati,  20  Ohio  St.   18 ;  Clegg  v.  Mighels,  7  Ohio  St.  109 ;   Ray  County  v. 
School  District,  8  Nev.  178 ;  School  Dis-  Bentley,  49  Mo.  236.     In  Nebraska  coun- 
trict  v.  Insurance  Co.,  103  U.  S.  707.  ties    are    not    municipal    corporations, 

2  Granger  v.  Pulaski  County,  26  Ark.  Sherman  Co.  v.  Simons,  109  U.   S.  735. 
37 ;  Scales  v.  Chattahoochee  County,  41  3  Sup.  Ct.  Rep.  502.     It  is  not  competent 
Ga.  225;  Palmer  v.  Fitts,  61  Ala.  489.  to  organize  a  town  of  parcels  of  territory 

8  Riddle  v.   Proprietors,   &c.,   7   Mass,  which  are  not  contiguous.     Chicago,  &c. 

169,  187 ;    School   District  v.  Wood,   13  Railway  Co.  v.  Oconto,  50  Wis.  189,  6 

Mass.  192 ;  Adams  v.  Wise-asset  Bank,  1  N.  W.  607.  36  Am.  Rep.  840.     See  Smith 

Me.  361 ;  Denton   r.   Jackson,  2  Johns,  v.  Sherry,  50  Wis.  210,  6  N.  W.  561. 
Ch.  320;  Todd  v.  Birdsall,  1  Cow.  260,  13 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL   GOVERNMENT.  349 

The  same  may  be  said  of  towns  and  other  municipal  societies; 
which,  although  recognized  by  various  statutes,  and  by  imme- 
morial usage,  as  persons  or  aggregate  corporations,  with  precise 
duties  which  may  be  enforced,  and  privileges  which  may  be 
maintained  by  suit  at  law,  yet  are  deficient  in  many  of  the 
powers  incident  to  the  general  character  of  corporations.  They 
may  be  considered,  under  our  institutions,  as  quasi  corporations, 
with  limited  powers,  coextensive  with  the  duties  imposed  upon 
them  by  statute  or  usage,  but  restrained  from  the  general  use  of 
authority  which  belongs  to  these  metaphysical  persons  by  the 
common  law.  The  same  may  be  said  of  all  the  numerous  cor- 
porations which  have  been  from  time  to  time  created  by  various 
acts  of  the  legislature ;  all  of  them  enjoying  the  power  which  is 
expressly  bestowed  upon  them,  and  perhaps,  in  all  instances 
where  the  act  is  silent,  possessing,  by  necessary  implication,  the 
authority  which  is  requisite  to  execute  the  purposes  of  their 
creation."  "It  will  not  do  to  apply  the  strict  principles  of  law 
respecting  corporations  in  all  cases  to  these  aggregate  bodies 
which  are  created  by  statute  in  this  Commonwealth.  By  the 
several  statutes  which  have  been  passed  respecting  school  dis- 
tricts, it  is  manifest  that  the  legislature  has  supposed  that  a 
division  of  towns,  for  the  purpose  of  maintaining  schools,  will 
promote  the  important  object  of  general  education ;  and  this 
valuable  object  of  legislative  care  seems  to  require,  in  construing 
their  acts,  that  a  liberal  view  should  be  had  to  the  end  to  be 
effected."1  Following  out  this  view,  the  courts  of  the  New 
England  States  have  held,  that  when  judgments  are  recovered 
against  towns,  parishes,  and  school  districts,  any  of  the  property 
of  private  owners  within  the  municipal  division  is  liable  to  be 
taken  for  their  discharge.  The  reasons  for  this  doctrine,  and 
the  custom  upon  which  it  is  founded,  are  thus  stated  by  the 
Supreme  Court  of  Connecticut :  — 

"We  know  that  the  relation  in  which  the  members  of  munici- 
pal corporations  in  this  State  have  been  supposed  to  stand,  in 
respect  to  the  corporation  itself,  as  well  as  to  its  creditors,  has 
elsewhere  been  considered  in  some  respects  peculiar.  We  have 
treated  them,  for  some  purposes,  as  parties  to  corporate  proceed- 
ings, and  their  individuality  has  not  been  considered  as  merged 
in  their  corporate  connection.  Though  corporators,  they  have 
been  holden  to  be  parties  to  suits  by  or  against  the  corporation, 
and  individually  liable  for  its  debts.  Heretofore  this  has  not 
been  doubted  as  to  the  inhabitants  of  towns,  located  ecclesiastical 
societies,  and  school  districts. 

1  School  District  v.  Wood,  13  Mass.  192,  197. 


350  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

"  From  a  recurrence  to  the  history  of  the  law  on  this  subject, 
we  are  persuaded  that  the  principle  and  usage  here  recognized 
and  followed,  in  regard  to  the  liability  of  the  inhabitants  of  towns 
and  other  communities,  were  very  early  adopted  by  our  ancestors. 
And  whether  they  were  considered  as  a  part  of  the  common  law 
of  England,  or  originated  here,  as  necessary  to  our  state  of 
society,  it  is  not  very  material  to  inquire.  We  think,  however, 
that  the  principle  is  not  of  domestic  origin,  but  to  some  extent 
was  operative  and  applied  in  the  mother  country,  especially  in 
cases  where  a  statute  fixed  a  liability  upon  a  municipality  which 
had  no  corporate  funds.  The  same  reasons  and  necessity  for  the 
application  of  such  a  principle  and  practice  existed  in  both  coun- 
tries. Such  corporations  are  of  a  public  and  political  character; 
they  exercise  a  portion  of  the  governing  power  of  the  State. 
Statutes  impose  upon  them  important  public  duties.  In  the  per- 
formance of  these,  they  must  contract  debts  and  liabilities,  which 
can  only  be  discharged  by  a  resort  to  individuals,  either  by  tax- 
ation or  execution.  Taxation,  in  most  cases,  can  only  be  the 
result  of  the  voluntary  action  of  the  corporation,  dependent  upon 
the  contingent  will  of  a  majority  of  the  corporators,  and  upon 
their  tardy  and  uncertain  action.  It  affords  no  security  to  cred- 
itors, because  they  have  no  power  over  it.  Such  reasons  as  these 
probably  operated  with  our  ancestors  in  adopting  the  more  effi- 
cient and  certain  remedy  by  execution,  which  has  been  resorted 
to  in  the  present  case,  and  which  triey  had  seen  to  some  extent 
in  operation  in  the  country  whose  laws  were  their  inheritance. 

"The  plaintiff  would  apply  to  these  municipal  or  quasi  corpo- 
rations the  close  principles  applicable  to  private  corporations. 
But  inasmuch  as  they  are  not,  strictly  speaking,  corporations, 
but  only  municipal  bodies,  without  pecuniary  funds,  it  will  not 
do  to  apply  to  them  literally,  and  in  all  cases,  the  law  of 
corporations.1 

'"The  individual  liability  of  the  members  of  quasi  corporations, 
though  not  expressly  adjudged,  was  very  distinctly  recognized  in 
the  case  of  Russell  v.  The  Men  of  Devon.2  It  was  alluded  to  as 
a  known  principle  in  the  case  of  the  Attorney-General  v.  The 
City  of  Exeter,3  applicable  as  well  to  cities  as  to  hundreds  and 
parishes.  That  the  rated  inhabitants  of  an  English  parish  are 
considered  as  the  real  parties  to  suits  against  the  parish  is  now 
supposed  to  be  well  settled ;  and  so  it  was  decided  in  the  cases  of 
The  King  v.  The  Inhabitants  of  Woburn,4  and  The  King  v.  The 

1  School  District  v.  Wood,   13  Mass.        8  2  Russ.  45. 
192.  *  10  East,  395. 

*  2  Term  Rep.  660. 


OH.  VIII.]  THE   GRADES   OF  MUNICIPAL   GO  VEHEMENT.  351 

Inhabitants  of  Hard  wick.1  And,  in  support  of  this  principle, 
reference  was  made  to  the  form  of  the  proceedings ;  as  that  they 
are  entitled  '  against  the  inhabitants,'  <fec. 

"In  the  State  of  Massachusetts,  from  whose  early  institutions 
we  have  borrowed  many  valuable  specimens,  the  individual  re- 
sponsibility of  the  inhabitants  of  towns  for  town  debts  has  long 
been  established.  Distinguished  counsel  in  the  case  of  the  Mer- 
chants' Bank  v.  Cook,a  referring  to  municipal  bodies,  say :  '  For 
a  century  past  the  practical  construction  of  the  bar  has  been  that, 
in  an  action  by  or  against  a  corporation,  a  member  of  the  corpora- 
tion is  a  party  to  the  suit. '  In  several  other  cases  in  that  State 
the  same  principle  is  repeated.  In  the  case  of  Riddle  v.  The 
Proprietors  of  the  Locks  and  Canals  on  Merrimack  River,3  Par- 
sons, Ch.  J.,  in  an  allusion  to  this  private  responsibility  of  cor- 
porators, remarks:  *  And  the  sound  reason  is,  that  having  no 
corporate  fund,  and  no  legal  means  of  obtaining  one,  each  cor- 
porator is  liable  to  satisfy  any  judgment  obtained  against  the 
corporation.'  So  in  Brewer  v.  Inhabitants  of  New  Gloucester,4 
the  court  say:  'As  the  law  provides  that,  when  judgments  is  re- 
covered against  the  inhabitants  of  a  town,  execution  may  be 
levied  upon  the  property  of  any  inhabitant,  each  inhabitant  must 
be  considered  as  a  party.'  In  the  case  before  referred  to  of  the 
Merchants'  Bank  v.  Cook,  Parker,  Ch.  J.,  expresses  the  opinion 
of  the  court  upon  this  point  thus :  '  Towns,  parishes,  precincts, 
&c.,  are  but  a  collection  of  individuals,  with  certain  corporate 
powers  for  political  and  civil  purposes,  without  any  corporate 
funds  from  which  a  judgment  can  be  satisfied ;  but  each  member 
of  the  community  is  liable,  in  his  person  and  estate,  to  the  execu- 
tion which  may  issue  against  the  body;  each  individual,  there- 
fore, may  be  well  thought  to  be  a  party  to  a  suit  brought  against 
them  by  their  collective  name.  In  regard  to  banks,  turnpike, 
and  other  corporations,  the  case  is  different.'  The  counsel 
concerned  in  the  case  of  Mower  v.  Leicester,5  without  contradic- 
tion, speak  of  this  practice  of  subjecting  individuals  as  one  of 
daily  occurrence.  The  law  on  this  subject  was  very  much 
considered  in  the  case  of  Chase  v.  The  Merrimack  Bank,6  and 
was  applied  and  enforced  against  the  members  of  a  territorial 
parish.  '  The  question  is,'  say  the  court,  '  whether,  on  an 
execution  against  a  town  or  parish,  the  body  or  estate  of  any 
inhabitant  may  be  lawfully  taken  to  satisfy  it.  This  question 
seems  to  have  been  settled  in  the  affirmative  by  a  series  of 

1  11  East,  577.  4  14  Mass.  216. 

2  4  Pick.  405.  6  9  Mass.  247. 
8  7  Mass.  187.  6  19  Pick.  564. 


352  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

decisions,  and  ought  no  longer  to  be  considered  as  an  open 
question. '  The  State  of  Maine,  when  separated  from  Massachu- 
setts, retained  most  of  its  laws  and  usages,  as  they  had  been 
recognized  in  the  parent  State;  and,  among  others,  the  one  in 
question.  In  Adams  v.  Wiscasset  Bank,1  Mellen,  Ch.  J.,  says: 
4  It  is  well  known  that  all  judgments  against  quasi  corporations 
may  be  satisfied  out  of  the  property  of  any  individual  inhabitant.' 

"  The  courts  of  this  State,  from  a  time  beyond  the  memory  of 
any  living  lawyer,  have  sanctioned  and  carried  out  this  usage,  as 
one  of  common-law  obligation ;  and  it  has  been  applied,  not  to 
towns  only,  but  also,  by  legal  analogy,  to  territorial  ecclesiastical 
societies  and  school  districts.  The  forms  of  our  process  against 
these  communities  have  always  corresponded  with  this  view  of 
the  law.  The  writs  have  issued  against  the  inhabitants  of  towns, 
societies,  and  districts  as  parties.  As  early  in  the  history  of  our 
jurisprudence  as  1705,  a  statute  was  enacted  authorizing  commu- 
nities, such  as  towns,  societies,  &c.,  to  prosecute  and  defend 
suits,  and  for  this  purpose  to  appear,  either  by  themselves,  agents, 
or  attorneys.  If  the  inhabitants  were  not  then  considered  as 
parties  individually,  and  liable  to  the  consequences  of  judgments 
against  such  communities  as  parties,  there  would  have  been  a 
glaring  impropriety  in  permitting  them  to  appear  and  defend  by 
themselves;  but,  if  parties,  such  a  right  was  necessary  and 
indispensable.  Of  course  this  privilege  has  been  and  may  be 
exercised.2 

"  Our  statute  providing  for  the  collection  of  taxes  enacts  that 
the  treasurer  of  the  State  shall  direct  his  warrant  to  the  collectors 
of  the  State  tax  in  the  several  towns.  If  neither  this  nor  the 
further  proceedings  against  the  collectors  and  the  selectmen 
authorized  by  the  statute  shall  enforce  the  collection  of  the  tax, 
the  law  directs  that  then  the  treasurer  shall  issue  his  execution 
against  the  inhabitants  of  such  town.  Such  an  execution  may 
be  levied  upon  the  estate  of  the  inhabitants ;  and  this  provision 
of  the  law  was  not  considered  as  introducing  a  new  principle,  or 
enforcing  a  novel  remedy,  but  as  being  only  in  conformity  with 
the  well-known  usage  in  other  cases.  The  levy  of  an  execution 
under  this  statute  produced  the  case  of  Beers  v.  Botsford.3  There 
the  execution,  which  had  been  issued  against  the  town  of  New- 
town  by  the  treasurer  of  the  State,  had  been  levied  upon  the 
property  of  the  plaintiff,  an  inhabitant  of  that  town,  and  he  had 
thus  been  compelled  to  pay  the  balance  of  a  State  tax  due  from 
the  town.  He  sued  the  town  of  Newtown  for  the  recovery  of  the 

i  1  Greenl.  361.  2  1  Swift's  System,  227.  8  3  Day,  159. 


CH.  VIII.]          THE    GRADES    OF   MUNICIPAL   GOVERNMENT.  353 

money  so  paid  by  him.  The  most  distinguished  professional 
gentlemen  in  the  State  were  engaged  as  counsel  in  that  case ; 
and  it  did  not  occur,  either  to  them  or  to  the  court,  that  the 
plaintiff's  property  had  been  taken  without  right:  on  the  con- 
trary, the  case  proceeded  throughout  on  the  conceded  principle 
of  our  common  law,  that  the  levy  was  properly  made  upon  the 
estate  of  the  plaintiff.  And  without  this  the  plaintiff  could  not 
have  recovered  of  the  town,  but  must  have  resorted  to  his  action 
against  the  officer  for  his  illegal  and  void  levy.  In  Fuller  v. 
Hampton,1  Peters,  J.,  remarked  that,  if  costs  are  recovered 
against  a  town,  the  writ  of  execution  to  collect  them  must  have 
been  issued  against  the  property  of  the  inhabitants  of  the  town; 
and  this  is  the  invariable  practice.  The  case  of  Atwater  v. 
Woodrich2  also  grew  out  of  this  ancient  usage.  The  ecclesiasti- 
cal society  of  Bethany  had  been  taxed  by  the  town  of  Woodrich 
for  its  moneys  at  interest,  and  the  warrant  for  the  collection  of 
the  tax  had  been  levied  upon  the  property  of  the  plaintiff,  and  the 
tax  had  thus  been  collected  of  him,  who  was  an  inhabitant  of 
the  located  society  of  Bethany.  £rainerd,  J.,  who  drew  up  the 
opinion  of  the  court,  referring  to  this  proceeding,  said:  'This 
practice  with  regard  to  towns,  has  prevailed  in  New  England,  so 
far  as  I  have  been  able  to  investigate  the  subject,  from  an  early 
period,  — from  its  first  settlement,  — a  practice  brought  by  our 
forefathers  from  England,  which  had  there  obtained  in  corpora- 
tions similar  to  the  towns  incorporated  in  New  England. '  It  will 
here  be  seen  that  the  principle  is  considered  as  applicable  to 
territorial  societies  as  to  towns,  because  the  object  to  be  obtained 
was  the  same  in  both, — 'that  the  town  or  society  should  be 
brought  to  a  sense  of  duty,  and  make  provision  for  payment  and 
indemnity ; '  a  very  good  reason,  and  very  applicable  to  the  case 
we  are  considering. 

"The  law  on  this  subject  was  more  distinctly  brought  out  and 
considered  by  this  court  in  the  late  case  of  McCloud  v.  Selby,3  in 
which  this  well-known  practice,  as  it  had  been  applied  to  towns 
and  ecclesiastical  societies,  was  extended  and  sanctioned  as  to 
school  districts;  '  else  it  would  be  breaking  in  upon  the  analogies 
of  the  law. '  '  They  are  communities  for  different  purposes,  but 
essentially  of  the  same  character.'  And  no  doubt  can  remain, 
since  the  decision  of  this  case,  but  that  the  real  principle  of  all 
the  cases  on  this  subject,  has  been,  and  is,  that  the  inhabitants 
of  quasi  corporations  are  parties  individually,  as  well  as  in  their 
corporate  capacities,  to  all  actions  in  which  the  corporation  is  a 

i  5  Conn.  417.  2  6  Conn.  223.  8  10  Conn.  390-395. 


354  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

party.  And  to  the  same  effect  is  the  language  of  the  elementary 
writers. "  l 

So  far  as  this  rule  rests  upon  the  reason  that  these  organiza- 
tions have  no  common  fund,  and  that  no  other  mode  exists  by 
which  demands  against  them  can  be  enforced,  it  cannot  be  con- 
sidered applicable  in  those  States  where  express  provision  is 
made  by  law  for  compulsory  taxation  to  satisfy  any  judgment 
recovered  against  the  corporate  body,  — the  duty  of  levying  the 
tax  being  imposed  upon  some  officer,  who  may  be  compelled  by 
mandamus  to  perform  it.  Nor  has  any  usage,  so  far  as  we  are 
aware,  grown  up  in  any  of  the  newer  States,  like  that  which  had 
so  early  an  origin  in  New  England.  More  just,  convenient, 
and  inexpensive  modes  of  enforcing  such  demands  have  been 
established  by  statute,  and  the  rules  concerning  them  are  con- 
formed more  closely  to  those  which  are  established  for  other 
corporations. 

On  the  other  hand,  it  is  settled  that  these  corporations  are  not 
liable  to  a  private  action,  at  the  suit  of  a  party  injured  by  a 
neglect  of  their  officers  to  perform  a  corporate  duty,  unless  such 
action  is  given  by  statute. (a)  This  doctrine  has  been  frequently 
applied  where  suits  have  been  brought  against  towns,  or  the 
highway  officers  of  towns,  to  recover  for  damages  sustained  in 
consequence  of  defects  in  the  public  ways.  The  common  law 
gives  no  such  action,  and  it  is  therefore  not  sustainable  at  all, 
unless  given  by  statute.2  A  distinction  is  made  between  those 
corporations  which  are  created  as  exceptions,  and  receive  special 
grants  of  power  for  the  peculiar  convenience  and  benefit  of  the 
corporators,  on  the  one  hand,  and  the  incorporated  inhabitants 
of  a  district,  who  are  by  statute  invested  with  particular  powers, 

1  Beardsley  v.   Smith,  16   Conn.   375,  fourteenth   amendment.     Eames  v.  Sav- 

citing    2    Kent,   221  ;    Angell    &   Ames  age,  77  Me.  212. 

on  Corp.  374 ;  1  Swift's  Dig.  72,  794 ;  2  This  rule,  however,  has  no  applica- 
5  Dane's  Abr.  158.  And  see  Dillon,  Mun.  tion  to  the  case  of  neglect  to  perform 
Corp.  c.  1.  It  was  held  competent  in  the  those  obligations  which  are  incurred  by 
above  case  to  extend  the  same  principle  the  political  subdivisions  of  the  State 
to  incorporated  cities ;  and  an  act  of  the  when  special  duties  are  imposed  on  them 
legislature  permitting  the  enforcement  by  law.  Hannon  v.  St.  Louis  Co.  Court, 
of  city  debts  in  the  same  mode  was  62  Mo.  313.  But  such  liability  is  strictly 
sustained.  For  a  more  recent  case  in  construed.  Where  a  county  is  charge- 
Massachusetts  than  these  cited,  see  Gas-  able  with  highway  repairs,  it  is  not  liable 
kill  v.  Dudley,  6* Met.  546.  A  statute  for  injury  to  one  on  the  highway  caused 
allowing  judgments  against  a  town  to  by  the  fall  of  a  dead  tree  which  had 
be  collected  from  the  goods  of  individ-  stood  near  the  road.  Watkins  v.  County 
uals  is  due  process  of  law  under  the  Court,  30  W.  Va.  657,  5  S.  E.  654. 

(a)  FJOn  right  of  action  given  to  injured  party  to  sue  for  damages  where  sheriff 
fails  to  prevent  lynching,  see  Champaign  Co.  v.  Church,  62  Ohio  St.  318,  57  N.  E.  50 
48  L.  R.  A.  738  ] 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL    GOVERNMENT. 


355 


without  their  consent,  on  the  other.  In  the  latter  case,  the 
State  may  impose  corporate  duties,  and  compel  their  perform- 
ance, under  penalties;  but  the  corporators,  who  are  made  such 
whether  they  will  or  no,  cannot  be  considered  in  the  light  of 
persons  who  have  voluntarily,  and  for  a  consideration,  assumed 
obligations,  so  as  to  owe  a  duty  to  every  person  interested  in  the 
performance.1 

The  reason  which  exempts  these  public  bodies  from  liability 
to  private  actions,  based  upon  neglect  to  perform  public  obliga- 
tions, does  not  apply  to  villages,  boroughs,  and  cities,  which 
accept  special  charters  from  the  State.  The  grant  of  the  corpo- 
rate franchise,  in  these  cases,  is  usually  made  only  at  the  request 
of  the  citizens  to  be  incorporated,  and  it  is  justly  assumed  that 
it  confers  what  to  them  is  a  valuable  privilege.  This  privilege 
is  a  consideration  for  the  duties  which  the  charter  imposes. 
Larger  powers  of  self-government  are  given  than  are  confided 
to  towns  or  counties;  larger  privileges  in  the  acquisition  and 


1  Mower  v.  Leicester,  9  Mass.  247 ; 
Bartlett  v.  Crozier,  17  Johns.  439;  Far- 
nnm  s.  Concord,  2  N.  H.  392 ;  Adams  v. 
Wiscasset  Bank,  1  Me.  361  ;  Baxter  v. 
Winooski  Turnpike,  22  Vt.  114  ;  Beards- 
ley  v.  Smith,  16  Conn.  368;  Chidsey  v. 
Canton,  17  Conn.  475;  Young  v.  Commis- 
sioners, &c.,  2  N.  &  McC.  637  ;  Commis- 
sioners of  Highways  v.  Martin,  4  Mich. 
657 ;  Morey  v.  Newfane,  8  Barb.  645 ; 
Lorillard  v.  Monroe,  11  N.  Y.  392;  Galen 
v.  Clyde  and  Rose  Plank  Road  Co.,  27 
Barb.  543 ;  Reardon  v.  St.  Louis,  36  Mo. 
655;  Sherbourne  v.  Yuba  Co.,  21  Cal. 
113;  State  v.  County  of  Hudson,  30  N.  J. 
137 ;  Hedges  v.  Madison  Co.,  6  111.  567  ; 
Granger  v.  Pulaski  Co.,  26  Ark.  37; 
Weightman  v.  Washington,  1  Black,  39; 
Ball  v.  Winchester,  32  N.  H.  435;  East- 
man v.  Meredith,  36  N.  H.  284  ;  Waltham 
«>.  Kemper,  55  111.  316 ;  Sutton  v.  Board, 
41  Miss.  236 ;  Cooley  v.  Freeholders,  27 
N.  J.  415  ;  Bigelow  v.  Randolph,  14  Gray, 
541;  Symonds  v.  Clay  Co.,  71  111.  355; 
People  v.  Young,  72  111.  411  ;  Frazer  v. 
Lewiston,  76  Me.  531 ;  Altnow  v.  Sibley, 
30  Minn.  186,  14  N.  W.  877 ;  Yeager  v. 
Tippecanoe,  81  Ind.  46  ;  Abbettr.  Com'rs 
Johnson  Co.,  114  Ind.  61,  16  N  E.  127. 
These  cases  follow  the  leading  English 
case  of  Russell  v.  Men  of  Devon,  2  T.  R. 
667.  A  county  is  not  liable  for  obstruct- 
ing a  river:  White  Star  Co.  v.  Gordon 
Co.,  81  Ga.  47,  7  S.  E.  Rep.  231 ;  nor  for 


failure  of  its  treasurer  to  pay  to  city 
money  belonging  to  the  latter.  Mar- 
quette  Co.  v.  Ishpeming  Treas.,  49  Mich. 
244, 13  N.  W.  609.  In  the  very  carefully 
considered  case  of  Eastman  v.  Meredith, 
36  N.  H.  284,  it  was  decided,  on  the  prin- 
ciple above  stated,  that  if  a  building 
erected  by  a  town  for  a  town-house  is  so 
imperfectly  constructed  that  the  flooring 
gives  way  at  the  annual  town-meeting, 
and  an  inhabitant  and  legal  voter,  in  at- 
tendance on  the  meeting,  receives  thereby 
a  bodily  injury,  he  cannot  maintain  an 
action  against  the  town  to  recover  dam- 
ages for  this  injury.  The  case  is  carefully 
distinguished  from  those  where  corpora- 
tions have  been  held  liable  for  the  negli- 
gent use  of  their  own  property  by  means 
of  which  others  are  injured.  The  familiar 
maxim  that  one  shall  so  use  his  own  as 
not  to  injure  that  which  belongs  to  an- 
other is  of  general  application.  A  similar 
ruling  was  made  after  careful  considera- 
tion in  a  case  where  a  child  was  injured 
by  the  unsafe  condition  of  a  school  build- 
ing which  a  city  was  obliged  to  maintain. 
The  duty  being  one  to  the  public  imposed 
by  law,  there  is  no  liability  in  the  ab- 
sence of  statute.  Hill  v.  Boston,  122 
Mass.  344.  So  if  the  duty  is  assumed 
under  a  general  law  but  not  expressly 
imposed.  Wixon  v.  Newport,  13  R.  1. 454. 
See  Wild  v.  Paterson,  47  N.  J.  L.  406, 1  Atl. 
490,  and  cases  supra,  p.  306. 


356 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIIL 


control  of  corporate  property;  and  special  authority  is  conferred 
to  make  use  of  the  public  highways  for  the  special  and  peculiar 
convenience  of  the  citizens  of  the  municipality  in  various  modes 
not  permissible  elsewhere.  The  grant  hy  the  State  to  the  muni- 
cipality of  a  portion  of  its  sovereign  powers,  and  their  acceptance 
for  these  beneficial  purposes,  is  regarded  as  raising  an  implied 
promise,  on  the  part  of  the  corporation,  to  perform  the  corporate 
duties,  and  as  imposing  the  duty  of  performance,  not  for  the 
benefit  of  the  State  merely,  but  for  the  benefit  of  every  individual 
interested  in  its  performance.1  In  this  respect  these  corporations 


1  Selden,  J.,  in  Weet  v.  Brockport,  16 
N.  Y.  161,  note.  See  also  Mayor  of  Lyme 
v.  Turner,  Cowp.  86 ;  Henley  v.  Lyme 
Regis,  5  Bing.  91  ;  s.  c.  in  error,  3  B.  & 
Adol.  77,  and  1  Bing.  N.  C.  222 ;  Mayor, 
&c.  of  New  York  v.  Furze,  3  Hill,  612 ; 
Rochester  White  Lead  Co.  v.  Rochester, 
3  N.  Y.  463 ;  Hutson  v.  Mayor,  &c.  of  New 
York,  9  N  Y.  163;  Conrad  v.  Ithaca, 

16  N.  Y.  158  ;  Mills  v.  Brooklyn,  32  N.  Y. 
489;    Barton  v.   Syracuse,  36  N.  Y.  54; 
Lee  v.  Sandy  Hill,  40  N.  Y.  442 ;  Clark  v. 
Washington,    12    Wheat.   40;   Riddle   v. 
Proprietors  of  Locks,  &c.,  7  Mass.  169 ; 
Bigelow  v.  Inhabitants  of  Randolph,   14 
Gray,  541 ;    Mears  v.   Commissioners  of 
Wilmington,   9    Ired.    73;    Browning  v. 
Springfield,  17  111.   143;  Bloomington  v. 
Bay,  42  111.  503 ;  Springfield  v.  LeClaire, 
49  111.  476 ;  Peru  v.  French,  55  111.  317 ; 
Pittsburg  v.  Grier,  22  Pa.  St.  54 ;  Jones 
v.  New  Haven,  34  Conn.  1 ;  Stackhouse  v. 
Lafayette,   26  Ind.   17 ;    Brinkrneyer  v. 
Evansville,  29  Ind.  187;  Sawyer  v.  Corse, 

17  Gratt.   230;    Richmond   v.  Long,   17 
Gratt.  375 ;  Noble  v.  Richmond,  31  Gratt. 
271,  31  Am.  Rep.  726;  Blake  v.  St.  Louis, 
40  Mo.  569 ;  Scott  v.  Mayor,  &c.  of  Man- 
chester, 37  Eng.  L.  &  Eq.  495;  Smoot 
r.  Wetumpka,  24  Ala.  112;  Albrittin  v. 
Huntsville,  60  Ala.  486,  31  Am.  Rep.  46; 
Detroit  v.  Corey,  9  Mich.  165;  Rusch  v. 
Davenport,  6  Iowa,  443;  Commissioners 
v.   Duckett,   20   Md.    468 ;  Covington  v. 
Bryant,    7    Bush,    248;    Weightman    v. 
Washington,  1  Black,  39;  Chicago  v.  Rob- 
bins,  2  Black,  418 ;  Nebraska  v.  Campbell, 
2  Black,  590;   Galveston  v.  Posnainsky, 
62   Tex.    118 ;    Hutchinson   v.   Olympia, 
2   Wash.  314;  Kellogg  v.  Janesville,  34 
Minn.  132,   and    see    Kent   v.  Worthing 
Local  Board,  L.  R.  10  Q.  B.  D.  118.     The 
same  rule  applies  to  cities  existing  under 
a  general  law.     Boulder  v.  Niles,  9  Col. 


415,  12  Pac.  632.  A  city  is  liable  for  a 
defect  in  a  sidewalk  maintained  by  it 
though  in  fact  outside  the  highway  line : 
Mansfield  v.  Moore,  124  111.  133,  16  N.  E. 
246 ;  for  negligence  of  an  abutter  who  for 
his  own  purposes  renders  a  sidewalk  un- 
saff,  if  it  has  notice.  Philadelphia  v. 
Smith,  —  Pa.  —  ,  16  Atl.  Rep.  493.  See 
Dooley  v.  Sullivan,  112  Ind.  451,  14  N.  E. 
566.  ^That  legislature  may  exempt  mu- 
nicipal corporations  from  such  liability, 
see  Wilmington  v.  Ewing,  2  Penn.,  Del. 
66,  43  Atl.  305,  45  L.  R.  A.  70.]  In  the 
case  of  Detroit  r.  Blackeby,  21  Mich.  84, 
this  whole  subject  is  considered  at  length ; 
and  the  court  (one  judge  dissenting)  deny 
the  soundness  of  the  principle  stated  in 
the  text,  and  hold  that  municipal  corpo- 
rations existing  under  special  charters 
are  not  liable  to  individuals  for  injuries 
caused  by  neglect  to  perform  corporate 
duties,  unless  expressly  made  so  by  stat- 
ute. This  case  is  referred  to  and  dis- 
sented from  in  Waltham  i?.  Kemper,  55 
111.  347,  and  approved  in  Navasota  r. 
Pearce,  46  Tex.  525 ;  Young  v.  Charles- 
ton, 20  S.  C.  116,  and  Arkadelphia  r. 
Windham,  49  Ark.  139,  4  S.  W.  450. 
The  rule  in  California  is  similar.  Chope 
v.  Eureka,  78  Cal.  588,  21  Pac.  364. 
Where  a  street  is  roped  off  by  order  of  a 
court,  a  city  is  not  liable  for  an  injury 
caused  thereby.  Belvin  v.  Richmond, 
85  Va.  574,  8  S.  E.  Rep.  378.  In  Mur- 
taugh  v.  St.  Louis,  44  Mo.  479,  480, 
Currier,  J.,  says :  "  The  general  result  of 
the  adjudications  seems  to  be  this  :  When 
the  officer  or  servant  of  a  municipal  cor- 
poration is  in  the  exercise  of  a  power 
conferred  upon  the  corporation  for  its 
private  benefit,  and  injury  ensues  from 
the  negligence  or  misfeasance  of  such 
officer  or  servant,  the  corporation  is  liable, 
as  in  the  case  of  private  corporations  or 


CH.  VIII.]          THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


357 


are  looked  upon  as  occupying  the  same  position  as  private  cor- 
porations, which,  having  accepted  a  valuable  franchise,  on  con- 
dition of  the  performance  of  certain  public  duties,  are  held  by 
the  acceptance  to  contract  for  the  performance  of  those  duties. 
In  the  case  of  public  corporations,  however,  the  liability  is 
contingent  on  the  law  affording  the  means  of  performing  the 
duty,  which,  in  some  cases,  by  reason  of  restrictions  upon  the 
power  of  taxation,  they  might  not  possess.  But,  assuming 
the  corporation  to  be  clothed  with  sufficient  power  by  the  charter 
to  that  end,  the  liability  of  a  city  or  village,  vested  with  control 
of  its  streets,  for  any  neglect  to  keep  them  in  repair,  or  for  any 
improper  construction,  has  been  determined  in  many  cases.1 
And  a  similar  liability  would  exist  in  other  cases  where  the 
same  reasons  would  be  applicable. 

But  if  the  ground  of  the  action  is  the  omission  by  the  corpora- 
tion to  repair  a  defect,  it  would  seem  that  notice  of  the  defect 


parties ;  but  when  the  acts  or  omissions 
complained  of  were  done  or  omitted  in 
the  exercise  of  a  corporate  franchise  con- 
ferred upon  the  corporation  for  the  public 
good,  and  not  for  the  private  corporate 
advantage,  then  the  corporation  is  not 
liable  for  the  consequences  of  such  acts 
or  omissions."  Citing  Bailey  v.  New 
York,  3  Hill,  531  ;  Martin  v.  Brooklyn, 
1  Hill,  550 ;  Richmond  v.  Long's  Adm'r, 
17  Gratt.  375;  Sherbourne  v.  Yuba  Co., 
21  Cal.  113;  Dargan  v.  Mobile,  31  Ala. 
469;  Stewart  v.  New  Orleans,  9  La.  Ann. 
461 ;  Profiler  v.  Lexington,  13  B.  Monr. 
659.  And  as  to  exemption  from  liability 
in  exercising  or  failing  to  exercise  legisla- 
tive authority,  see  ante,  pp.  301-303,  and 
notes.  As  to  who  are  to  be  regarded  as 
municipal  officers,  see  Maxmilian  v.  New 
York,  62  N.  Y.  160,  20  Am.  Rep.  468,  and 
cases  there  cited.  [JUpon  remedy  over 
by  municipality  against  wrongdoer  after 
payment  of  damages  for  injury  done  by 
him  or  through  his  negligence,  see  Wash- 
ington Gas  Light  Co.  v.  District  of  Co- 
lumbia, 161  U.  S.  316,  16  Sup.  Ct.  Rep. 
664,  and  note  to  s.  c.  in  40  L.  ed.  U.  S. 
712.] 

1  Weet  v.  Brockport,  16  N.  Y.  161, 
note;  Hickok  v.  Plattsburg,  16  N.  Y. 
161;  Nelson  v.  Canisteo,  100  N.  Y.  89; 
Morey  v.  Newfane,  8  Barb.  645 ;  Brown- 
ing v.  Springfield,  17  111.  143;  Hyatt  v. 
Rondout,  44  Barb.  385;  Lloyd  v.  Mayor, 
&c.  of  New  York,  5  N.  Y.  3~69 ;  Rusch  v. 
Davenport,  6  Iowa,  443.  And  see  Dillon, 


Mun.  Corp.  c.  18,  and  the  cases  cited  in 
the  preceding  note.  fJSee  also  Gibson  v. 
Huntington,  38  W.  Va.  177,  18  S.  E.  447, 
22  L.  R.  A.  661,  and  note/]  The  cases  of 
Weet  v.  Brockport,  and  Hickok  v.  Platts- 
burg, were  criticised  by  Mr.  Justice  Mar- 
vin, in  the  case  of  Peck  i?.  Batavia,  32 
Barb.  634,  where,  as  well  as  in  Cole  v. 
Medina,  27  Barb.  218,  he  held  that  a 
village  merely  authorized  to  make  and  re- 
pair sidewalks,  but  not  in  terms  absolutely 
and  imperatively  required  to  do  so,  had  a 
discretion  conferred  upon  it  in  respect  to 
such  walks,  and  was  not  responsible  for  a 
refusal  to  enact  ordinances  or  by-laws  in 
relation  thereto ;  nor,  if  it  enacted  such 
ordinances  or  by-laws,  was  it  liable  for 
damages  arising  from  a  neglect  to  enforce 
them.  The  doctrine  that  a  power  thus 
conferred  is  discretionary  does  not  seem 
consistent  with  the  ruling  in  some  of  the 
other  cases  cited,  and  is  criticised  in  Hyatt 
v.  Rondout,  44  Barb.  385.  But  see  ante, 
pp.  301-303,  and  notes.  Calling  public 
meetings  for  political  or  philanthropic  pur- 
poses is  no  part  of  the  business  of  a  muni- 
cipal corporation,  and  it  is  not  liable  to 
one  who,  in  lawfully  passing  by  where 
the  meeting  is  held,  is  injured  by  the  dis- 
charge of  a  cannon  fired  by  persons  con- 
cerned in  the  meeting.  Boyland  v.  Mayor, 
&c.  of  New  York,  1  Sandf.  27.  The  noise 
of  a  cannon  fired  outside  a  highway  is 
not  a  defect  in  the  way  for  which  a  city 
is  liable.  Lincoln  «>.  Boston,  148  Mass. 
517,  20  N.  E.  329. 


358  CONSTITUTIONAL  LIMITATIONS.  [CH.  VIII. 

should  be  brought  home  to  the  corporation,  or  to  officers  charged 
with  some  duty  respecting  the  streets,  or  that  facts  should  appear 
sufficient  to  show  that,  by  proper  vigilance,  it  must  have  been 
known.1  On  the  other  hand,  if  the  injury  has  happened  in  con- 
sequence of  defective  construction,  notice  is  not  essential,  as  the 
facts  must  be  supposed  to  have  been  known  from  the  first.2 

In  regard  to  all  those  powers  which  are  conferred  upon  the 
corporation,  not  for  the  benefit  of  the  general  public,  but  of  the 
corporators,  —  such  as  the  power  to  construct  works  to  supply  a 
city  with  water,  or  gas-works,  or  sewers,  and  the  like,  — the  cor- 
poration is  held  to  a  still  more  strict  liability,  and  is  made  to 
respond  in  damages  to  the  parties  injured  by  the  negligent  man- 
ner in  which  the  work  is  constructed,  or  guarded,  even  though, 
under  its  charter,  the  agents  for  the  construction  are  not  chosen 
or  controlled  by  the  corporation,  and  even  where  the  work  is 
required  by  law  to  be  let  to  the  lowest  responsible  bidder. 

In  Bailey  v.  Mayor,  <fcc.,  of  New  York,3  an  action  was  brought 
against  the  city  by  one  who  had  been  injured  in  his  property  by 
the  careless  construction  of  the  Croton  dam  for  the  purpose  of 
supplying  the  city  with  water.  The  work  was  constructed  under 
the  control  of  water  commissioners,  in  whose  appointment  the 
city  had  no  voice;  and  upon  this  ground,  among  others,  and  also 
on  the  ground  that  the  city  officers  were  acting  in  a  public  capa- 
city, and,  like  other  public  agents,  not  responsible  for  the  mis- 
conduct of  those  necessarily  appointed  by  them,  it  was  insisted 
the  city  could  not  be  held  liable.  Nelson,  Ch.  J.,  examining  the 
position  that,  "admitting  the  water  commissioners  to  be  the 
appointed  agents  of  the  defendants,  still  the  latter  are  not  liable, 
inasmuch  as  they  were  acting  solely  for  the  State  in  prosecuting 
the  work  in  question,  and  therefore  are  not  responsible  for  the 
conduct  of  those  necessarily  employed  by  them  for  that  purpose," 
says :  "  We  admit,  if  the  defendants  are  to  be  regarded  as  oc- 
cupying this  relation,  and  are  not  chargeable  with  any  want  of 

1  Hart   v.   Brooklyn,     36     Barb.   226 ;  defect  is  notice  of  the  facts,  whether  the 

Dewey  v.  City  of  Detroit,  15  Mich.  307;  authorities  consider  them  as  constituting 

Garrison  v.  New  York,  5  Bosw.  497 ;  Me-  a  defect  or  not.     Hinckley  v.  Somerset, 

Ginity   v.   Mayor,   &c.  of  New  York,  5  145  Mass.   326,   14  N.  E.   166.     [When 

Duer,  674;  Decatur  v.  Fisher,  53  III.  407  ;  excavation  is  made  by  city  employees 

Chicago  v.  McCarthy,  75  111.  602;  Requa  acting  under  proper  authority,  city  must 

v.  Rochester,  45  N.  Y.  129 ;  Hume  v.  New  be  deemed  to   have    notice.     Wilson  v. 

York,  47  N.  Y.  639 ;  Springfield  v.  Doyle,  Troy,  135  N.  Y.  96,  32  N.  E.  44, 18  L.  R.  A. 

76  111.  202;  Rosenburg  v.  Des  Moines,  41  449.  31  Am.  St.  817.] 

Iowa,  415;  Vandersliste  v.  Philadelphia,  2  Alexander  v.   Mt.    Sterling,    71    111. 

103  Pa.  St.  102  ;   Dotton   v.  Albion,  50  366  ;  Hinckley  v.  Somerset,  145  Mass.  326, 

Mich.  129,  60  N.  W.  46 ;  Davis  v.  Guilford,  14  N.  E.  166. 

K>  Conn.   351,   11   Atl.   350.    Notice  of  3  3  Hill,  531 ;  8.  c.  in  error,  2  Demo,  433. 


CH.  VIII.]  THE   GIJADES   OF   MUNICIPAL   GOVERNMENT.  359 

diligence  in  the  selection  of  agents,  the  conclusion  contended  for 
would  seem  to  follow.  They  would  then  be  entitled  to  all  the 
immunities  of  public  officers  ch'arged  with  a  duty  which,  from  its 
nature,  could  not  be  executed  without  availing  themselves  of  the 
services  of  others ;  and  the  doctrine  of  respondeat  superior  does 
not  apply  to  such  cases.  If  a  public  officer  authorize  the  doing 
of  an  act  not  within  the  scope  of  his  authority,  or  if  he  be  guilty 
of  negligence  in  the  discharge  of  duties  to  be  performed  by  him- 
self, he  will  be  held  responsible;  but  not  for  the  misconduct  or 
malfeasance  of  such  persons  as  he  is  obliged  to  employ.  But 
this  view  cannot  be  maintained  on  the  facts  before  us.  The 
powers  conferred  by  the  several  acts  of  the  legislature,  authoriz- 
ing the  execution  of  this  great  work,  are  not,  strictly  and  legally 
speaking,  conferred  for  the  benefit  of  the  public;  the  grant  is  a 
special,  private  franchise,  made  as  well  for  the  private  emolu- 
ment and  advantage  of  the  city  as  for  the  public  good.  The 
State,  in  its  sovereign  character,  has  no  interest  in  it.  It  owns 
no  part  of  the  work.  The  whole  investment,  under  the  law,  and 
the  revenue  and  profits  to  be  derived  therefrom,  are  a  part  of  the 
private  property  of  the  city,  as  much  so  as  the  lands  and  houses 
belonging  to  it  situate  within  its  corporate  limits. 

"The  argument  of  the  defendants'  counsel  confounds  the 
powers  in  question  with  those  belonging  to  the  defendants  in 
their  character  as  a  municipal  or  public  body, — such  as  are 
granted  exclusively  for  public  purposes  to  counties,  cities,  towns, 
and  villages,  where  the  corporations  have,  if  I  may  so  speak,  no 
private  estate  or  interest  in  the  grant. 

"As  the  powers  in  question  have  been  conferred  upon  one  of 
these  public  corporations,  thus  blending,  in  a  measure,  those 
conferred  for  private  advantage  and  emolument  with  those 
already  possessed  for  public  purposes,  there  is  some  difficulty, 
I  admit,  in  separating  them  in  the  mind,  and  properly  distin- 
guishing the  one  class  from  the  other,  so  as  to  distribute  the 
responsibility  attaching  to  the  exercise  of  each. 

"  But  the  distinction  is  quite  clear  and  well  settled,  and  the 
process  of  separation  practicable.  To  this  end,  regard  should 
be  had,  not  so  much  to  the  nature  and  character  of  the  various 
powers  conferred,  as  to  the  object  and  purpose  of  the  legislature 
in  conferring  them.  If  granted  for  public  purposes  exclusively, 
they  belong  to  the  corporate  body  in  its  public,  political,  or  mu- 
nicipal character.  But  if  the  grant  was  for  purposes  of  private 
advantage  and  emolument,  though  the  public  may  derive  a  com- 
mon benefit  therefrom,  the  corporation  quo  hoc  is  to  be  regarded 
as  a  private  company.  It  stands  on  the  same  footing  as  would 


360  CONSTITUTIONAL   LIMITATIONS.  [CH.  VIII. 

any  individual  or  body  of  persons  upon  whom  the  like  special 
franchises  had  been  conferred.1 

"  Suppose  the  legislature,  instead  of  the  franchise  in  question, 
had  conferred  upon  the  defendants  banking  powers,  or  a  charter 
for  a  railroad  leading  into. the  city,  in  the  usual  manner  in  which 
such  powers  are  conferred  upon  private  companies,  could  it  be 
doubted  that  they  would  hold  them  in  the  same  character,  and 
be  subject  to  the  same  duties  and  liabilities?  I  cannot  doubt 
but  they  would.  These  powers,  in  the  eye  of  the  law,  would  be 
entirely  distinct  and  separate  from  those  appertaining  to  the  de- 
fendants as  a  municipal  body.  So  far  as  related  to  the  charter 
thus  conferred,  they  would  be  regarded  as  a  private  company, 
and  be  subject  to  the  responsibilities  attaching  to  that  class  of 
institutions.  The  distinction  is  well  stated  by  the  Master  of  the 
Rolls  in  Moodalay  v.  East  India  Co.,2  in  answer  to  an  objection 
made  by  counsel.  There  the  plaintiff  had  taken  a  lease  from  the 
company,  granting  him  permission  to  supply  the  inhabitants  of 
Madras  with  tobacco  for  ten  years.  Before  the  expiration  of 
that  period,  the  company  dispossessed  him,  and  granted  the 
privilege  to  another.  The  plaintiff,  preparatory  to  bringing 
an  action  against  the  company,  filed  a  bill  of  discovery.  One 
of  the  objections  taken  by  the  defendants  was,  that  the  removal 
of  the  plaintiff  was  incident  to  their  character  as  a  sovereign 
power,  the  exercise  of  which  could  not  be  questioned  in  a  bill 
or  suit  at  law.  The  Master  of  the  Rolls  admitted  that  no  suit 
would  lie  against  a  sovereign  power  for  anything  done  in  that 
capacity ;  but  he  denied  that  the  defendants  came  within  the 
rule.  '  They  have  rights,'  he  observed,  '  as  a  sovereign  power; 
they  have  also  duties  as  individuals;  if  they  enter  into  bonds  in 
India,  the  sums  secured  may  be  recovered  here.  So  in  this  case, 
as  a  private  company,  they  have  entered  into  a  private  contract, 
to  which  they  must  be  liable.'  It  is  upon  the  like  distinction 
that  municipal  corporations,  in  their  private  character  as  owners 
and  occupiers  of  lands  and  houses,  are  regarded  in  the  same 

1  Citing  Dartmouth  College  r.  Wood-  Richmond  v.  Long,  17  Gratt.  375;  Atkins 

ward,  4  Wheat  668,  672;  Philips  v.  Bury,  v.   Randolph,  31   Vt.  226;  Small  v.  Dan- 

1  Ld.  Raym.  8,  2  T.  R.  352;  Allen  v.  Me-  ville,  51   Me.  359;  Oliver  v.   Worcester, 

Keen,  1  Sumn.  297  ;  People  v.  Morris,  13  102  Mass.  489,  3  Am.  Rep.  485;  Philadel- 

Wend.  331-338,  2  Kent's  Com.  275  (4th  pliia   v.    Fox,  64  Pa.  St.  169 ;   Detroit  v. 

ed.)  ;    United    States    Bank   v.    Planters'  Corey,  9  Mich.  165;  People  v.   Hurlbut, 

Bank,  9  Wheat.   907;   Clark  r.  Corp.  of  24   Mich.  44,  9  Am.  Rep.  103;   Western 

Washington,  12  Wheat.  40;  Moodalay  v.  College  v.  Cleveland,  12  Ohio,  N.  8.  375; 

East  India  Co  ,   1    Brown's  Ch.    R.  469.  Hewinson  v.  New  Haven,  37  Conn.  475, 

See,  in  addition  to  the  cases  cited  by  the  9  Am.  Rep.  342;  People  v.  Batchellor,  53 

court,  Touchard  v.  Touchard,  5  Cal.  306;  N.  Y.  128;  Welsh  v.  St.  Louis,  73  Mo.  71. 
Gas   Co.  v.  San  Francisco,   9  Cal.  453;        2  1  Brown's  Ch.  R.  469. 


CH.  VIII.]  THE    GRADES    OF   MUNICIPAL   GOVERNMENT.  361 

light  as  individual  owners  and  occupiers,  and  dealt  with  accord- 
ingly. As  such,  they  are  bound  to  repair  bridges,  highways,  and 
churches;  are  liable  to  poor  rates;  and,  in  a  word,  to  the  dis- 
charge of  any  other  duty  or  obligation  to  which  an  individual 
owner  would  be  subject."1 

In  Storrs  v.  City  of  Utica,2  it  was  held  that  a  city,  owing  to 
the  public  the  duty  of  keeping  its  streets  in  a  safe  condition  for 
travel,  was  liable  to  persons  receiving  injury  from  the  neglect  to 
keep  proper  lights  and  guards  at  night  around  an  excavation 
which  had  been  made  for  the  construction  of  a  sewer,  notwith- 
standing it  had  contracted  for  all  proper  precautions  with  the 
persons  executing  the  work.  And  in  the  City  of  Detroit  v. 
Corey3  the  corporation  was  held  liable  in  a  similar  case,  not- 
withstanding the  work  was  required  by  the  charter  to  be  let  to 
the  lowest  bidder.  Manning,  «!.,  in  speaking  to  the  point  whether 
the  contractors  were  to  be  considered  as  the  agents  of  the  city, 
so  that  the  maxim  respondeat  superior  should  apply,  says:  "It 
is  to  be  observed  that  the  power  under  which  they  acted,  and 
which  made  that  lawful  which  would  otherwise  have  been  unlaw- 
ful, was  not  a  power  given  to  the  city  for  governmental  purposes, 
or  a  public  municipal  duty  imposed  on  the  city,  as  to  keep  its 
streets  in  repair,  or  the  like,  but  a  special  legislative  grant  to 
the  city  for  private  purposes.  The  sewers  of  the  city,  like  its 
works  for  supplying  the  city  with  water,  are  the  private  property 
of  the  city ;  they  belong  to  the  city.  The  corporation  and  its 
corporators,  the  citzens,  are  alone  interested  in  them ;  the  out- 
side public  or  people  of  the  State  at  large  have  no  interest  in 
them,  as  they  have  in  the  streets  of  the  city,  which  are  public 
highways. 

"  The  donee  of  such  a  power,  whether  the  donee  be  an  individ- 
ual or  a  corporation,  takes  it  with  the  understanding  —  for  such 
are  the  requirements  of  the  law  in  the  execution  of  the  power — • 

1  2  Inst.  703;  Tlmrsfield  v.  Jones,  Sir  used  for  public  purposes,  the  latter  for 
T.  Jones,  187  ;  Rex  v.  Gardner,  Cowp.  79;  private  purposes.  While  in  the  exercise 
Mayor  of  Lynn  v.  Turner,  Cowp.  87  ;  Hen-  of  the  former,  the  corporation  is  a  muni- 
ley  v.  Mayor  of  Lyme  Regis,  5  Binsr.  91 ;  cipal  government,  and  while  in  the  exer- 
s.  c.  in  House  of  Lords,  1  Bing.  N.  C.  222.  cise  of  the  latter,  is  a  corporate,  legal  in- 
See  also  Lloyd  v.  Mayor,  &c.  of  New  dividual."  Ibid.,  per  Foot,  J.  See  upon 
York,  5  N.  Y.  369;  Commissioners  v.  this  point  also  Western  Fund  Saving  So- 
Duckett,  20  Md.  468.  '•  The  corporation  ciety  v.  Philadelphia,  31  Pa.  St.  175;  Louis- 
of  the  City  of  New  York  possesses  two  ville  v.  Commonwealth,  1  Duvall,  295 ; 
kinds  of  powers,  —  one  governmental  and  People  v.  Common  Council  of  Detroit, 
public,  and,  to  the  extent  they  are  held  28  Mich.  228;  ante,  pp.  335-337,  and  notes, 
and  exercised,  is  clothed  with  sover-  2  17  N.  Y.  104. 

eignty  ;  the  other  private,  and,  to  the  ex-  8  9  Mich.  165.  Compare  Mills  v.  Brook- 
tent  they  are  held  and  exercised,  is  a  legal  lyn,  32  N.  Y.  489 ;  Jones  v.  New  Haven, 
individual.  The  former  are  given  and  34  Conn.  1. 


362 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  VIII. 


that  it  shall  be  so  executed  as  not  unnecessarily  to  interfere  with 
the  rights  of  the  public,  and  that  all  needful  and  proper  measures 
will  be  taken,  in  the  execution  of  it,  to  guard  against  accidents 
to  persons  lawfully  using  the  highway  at  the  time.  He  is  indi- 
vidually bound  for  the  performance  of  these  obligations;  he 
cannot  accept  the  power  divested  of  them,  or  rid  himself  of 
their  performance  by  executing  them  through  a  third  person  as 
his  agent.  He  may  stipulate  with  the  contractor  for  their  per- 
formance, as  was  done  by  the  city  in  the  present  case,  but  he 
cannot  thereby  relieve  himself  of  his  personal  liability,  or  com- 
pel an  injured  party  to  look  to  his  agent,  instead  of  himself,  for 
damages."  And  in  answer  to  the  objection  that  the  contract 
was  let  to  the  lowest  bidder,  as  the  law  required,  it  is  shown 
that  the  provision  of  law  to  that  effect  was  introduced  for  the 
benefit  of  the  city,  to  protect  it  against  frauds,  and  that  it  should 
not,  therefore,  relieve  it  from  any  liability.1 


1  See  also  Rochester  White  Lead  Co. 
v.  City  of  Rochester,  3  N.  Y.  463;  Grant 
v.  City  of  Brooklyn,  41  Barb.  381 ;  City 
of  Buffalo  v.  Holloway,  14  Barb.  101,  and 
7  N.  Y.  493 ;  Lloyd  v.  Mayor,  &c.  of  New 
York,  5  N.  Y.  369 ;  Delmonico  v.  Mayor, 
&c.  of  New  York,  1  Sandf.  222;  Barton  v. 
Syracuse,  37  Barb.  292 ;  Storrs  v.  Utica, 
17  N.  Y.  104 ;  Springfield  o.  LeClaire,  4') 
111.  47(5;  Blake  v.  St.  Louis,  40  Mo.  509; 
Baltimore  c.  Pendleton,  15  Md.  12  ;  St. 
Paul  v.  Seitz,  3  Minn.  297  ;  Denver  v. 
Rhodes,  9  Col.  554,  13  Pac.  729 ;  Wilson 
v.  Wheeling,  19  W.  Va.  323;  Birmingham 
v.  McCary,  84  Ala.  469, 4  So.  630  ;  Logans- 
port  i1.  Dick,  70  Ind.  65 ;  Brasso  v.  Buffalo, 
90  N.  Y.  679 ;  Turner  v.  Newburgh,  109 
N.  Y.  301,  16  N.  E.  344;  Circleville  v. 
Neuding,  41  Ohio  St.  465;  Jacksonville 
v.  Drew,  19  Fla.  106;  Joslyn  v.  Detroit, 
74  Mich.  458,  42  N.  W.  50;  McCoull 
v.  Manchester,  85  Va.  579,  8  S.  E. 
379 ;  also  numerous  cases  collected  and 
classified  in  Dillon  on  Municipal  Corpo- 
rations. But  this  doctrine  seems  not  to 
obtain  in  Pennsylvania :  School  Dist.  v. 
Fuess,  98  Pa.  St.  600;  Susquehanna  Depot 
v.  Simmons,  112  Pa.  St.  384,  5  Atl.  434. 
If  the  injury  arises  from  something  not 
collateral  to  the  work,  the  city  is  not 
liable,  as  where  horses  are  frightened  by 
the  noise  of  blasting  in  an  adjoining 
street:  Herrington  t;.  Lansingburgh,  110 
N.  Y.  145,  17  N.  E.  728;  or  a  person  is  in- 
jured by  the  blasting.  Blumb  v.  Kansas 
City,  84  Mo.  112;  Murphy  v.  Lowell,  128 


Mass.  396.  Compare  Joliet  v.  Harwood, 
86  111.  110.  A  municipal  corporation  is 
not  liable  for  neglect  to  devise  and  con- 
struct a  proper  system  of  drainage.  Carr 
v.  Northern  Liberties,  35  Pa.  St.  324.  See 
ante,  pp.  300,  301,  and  notes.  Cities  are 
not  liable  for  the  illegal  conduct  of  offi- 
cials in  the  discharge  of  duty.  Dillon, 
§§  774-778,  and  cases  cited  ;  Grumbine  v. 
Washington,  2  McArthur,  578. 

The  following  are  some  of  the  more 
recent  cases  in  which  the  liability  of  mu- 
nicipal corporations  for  neglect  of  public 
duties  has  been  considered  :  — 

For  nuisance  in  highway,  sewer,  &c. : 
Todd  i'.  Troy,  61  N.  Y.  506;  Masterton  w. 
Mt.  Vernon,  58  N.  Y.  391 ;  Merrifield  v. 
Worcester,  110  Mass.  216,  14  Am.  Rep. 
592 ;  Woodward  v.  Worcester,  121  Mass. 
245;  Chicago  v.  Brophy,  79  111.  277; 
Chicago  i'.  O'Brennan,  65  111.  160;  Wil- 
kins  o.  Rutland,  61  Vt.  336,  17  Atl.  Rep. 
735 ;  Kibele  v.  Philadelphia,  105  Pa.  St. 
41 ;  Duffy  v.  Dubuque,  63  Iowa,  171,  18 
N.  W.  900:  Kunz  v.  Troy,  104  N.  Y.  344, 
10  N.  E.  442;  Langan  -v.  Atchison,  35 
Kan.  318,  11  Pac.  38.  See  Stock  v.  Bos- 
ton, 149  Mass.  410,  21  N.  E.  871 ;  Ray  v. 
St.  Paul,  40  Minn.  458,  42  N.  W.  297. 
For  invasion  of  private  right  or  prop- 
erty :  Sheldon  v.  Kahunazoo,  24  Mich. 
383;  Babcock  v.  Buffalo,  56  N.  Y.  268; 
Lee  v.  Sandy  Hill,  40  N.  Y.  442 ;  Phinizy 
v.  Augusta,  47  Ga.  260  ;  Helena  v.  Thomp- 
son, 29  Ark.  569 ;  Kobs  v.  Minneapolis, 
22  Minn.  159.  For  negligent  construction 


CH.  VIII.]  THE   GRADES   OF   MUNICIPAL   GOVERNMENT. 


363 


We  have  not  deemed  it  important,  in  considering  the  subject 
embraced  within  this  chapter,  to  discuss  the  various  questions 
which  might  be  suggested  in  regard  to  the  validity  of  the  pro- 
ceedings by  which  it  is  assumed  in  any  case  that  a  municipal 
corporation  has  become  constituted.  These  questions  are  gen- 
erally questions  between  the  corporators  and  the  State,  with 
which  private  individuals  are  supposed  to  have  no  concern.  In 
proceedings  where  the  question  whether  a  corporaton  exists  or 
not  arises  collaterally,  the  courts  will  not  permit  its  corporate 
character  to  be  questioned,  if  it  appear  to  be  acting  under  color 
'of  law,  and  recognized  by  the  State  as  such.  Such  a  question 
should  be  raised  by  the  State  itself,  by  quo  warranto  or  other 
direct  proceeding.1  And  the  rule,  we  apprehend,  would  be  no 

Charleston,  16  W.  Va.  282,  37  Am.  Rep. 
703 ;  Cromarty  v .  Boston,  127  Mass.  329, 
34  Am.  Rep.  381 ;  Sherwood  v.  Dist. 
Columbia,  3  Mackey,  276;  Saulsbury  v. 
Ithaca,  94  N.  Y.  27  ;  Pomfrey  v.  Saratoga, 
104  N.  Y.  459,  11  N.  E.  43  ;  Cloughessey  v. 
Waterhury,  51  Conn.  405.  For  injury  by 
limb  falling  from  tree  overhanging  street : 
Jones  v.  New  Haven,  34  Conn.  1.  See 
Gubasko  v.  New  York,  1  N.  Y.  Supp. 
215.  For  injury  by  fall  of  an  awning 
over  sidewalk  :  Bohen  r.Waseca,  32  Minn. 
176, 19  N.  W.  730 ;  Larson  v.  Grand  Forks, 
3  Dak.  307,  19  N.  W.  414.  For  failure  to 
keep  street  in  repair  :  Gorham  v.  Coopers- 
town,  59  N.  Y.  660 ;  Hines  v.  Lockport, 
50  N.  Y.236;  Bell  r.West  Point,  51  Miss. 
262;  Chicago  v.  McGiven,  78  111.  347; 
Alton  v.  Hope,  68  111.  167 ;  Centralia  v. 
Scott,  59  111.  129 ;  Winbigler  v.  Los  An- 
geles, 45  Cal.  36 ;  Market  v.  St.  Louis,  56 
Mo.  189  ;  Willey  v.  Belfast,  61  Me.  669  ; 
Bill  v.  Norwich,  39  Conn.  222 ;  Lindholm 
v.  St.  Paul,  19  Minn.  245;  Shartle  r. 
Minneapolis,  17  Minn.  308;  O'Leary  v. 
Mankato,  21  Minn.  65 ;  Griffin  v.  Wil- 
liamstown,  6  W.  Va.  312.  For  failure  to 
keep  sewers  in  repair.:  Munn  v.  Pitts- 
burg,  40  Pa.  St.  364;  Jersey  City  ». 
Kiernan,  50  N.  J.  L  246,  13  Atl.  170. 

1  State  v.  Carr,  5  N.  H.  367 ;  Presi- 
dent, &c.  of  Mendota  v.  Thompson,  20 
111.  197  ;  Hamilton  v.  President,  &c.  of 
Carthage,  24  111.  22.  These  were  prose- 
cutions by  municipal  corporations  for  re- 
covery of  penalties  imposed  by  by-laws, 
and  where  the  plea  of  nul  tiel  corporation 
was  interposed  and  overruled.  See  also 
Kayer  v.  Bremen,  16  Mo.  88 ;  Kettering 
v.  Jacksonville,  50  111.  39 ;  Bird  v.  Per- 


of  sewers  :  Nims  v.  Troy,  59  N.  Y.  500; 
Van  Pelt  v.  Davenport,  42  Iowa,  308; 
Rowe  v.  Portsmouth,  56  N.  H.  291 ;  Ash- 
ley v.  Port  Huron,  35  Mich.  296,  20  Am. 
Rep.  628,  note ;  Noonan  v.  Albany,  79 
N.  Y.  470,  35  Am.  Rep.  540 ;  Chicago  v. 
Hesing,  83  111.  204,  25  Am.  Rep.  378 ;  Post 
v.  Boston,  141  Mass.  189, 4  N.  E.  815.  For 
negligence  in  construction  and  improve- 
ment of  streets :  Pekin  v.  Winkel,  77  111. 
66 ;  Bloomington  v.  Brokaw,  77  111.  194 ; 
Pekin  v.  Brereton,  67  111.  477 ;  Chicago 
v.  Lan glass,  66  111.  361  ;  Mead  v.  Derby, 
40  Conn.  205 ;  Milledgeville  v.  Cooley, 
65  Ga.  17;  Prentiss  v.  Boston,  112  Mass. 
43;  Saltmarsh  v.  Bow,  66  N.  H.  428; 
Sewall  v.  St.  Paul,  20  Minn.  511;  Kent- 
worthy  v.  Ironton,  41  VVis.  647 ;  Hoyt  v. 
Hudson,  41  Wis.  105;  Talbot  v.  Taunton, 
140  Mass.  552,  5  N.  E.  616;  Gray  v.  Dan- 
bury,  54  Conn.  674,  10  Atl.  198.  For  de- 
fective sidewalk  :  Springfield  v.  Doyle,  76 
111.  202;  Champaign  c.  Pattison,  50  111. 
62 ;  Townsend  v.  Des  Moines,  42  Iowa, 
657;  Rice  v.  Des  Moines,  40  Iowa,  638; 
McAuley  v.  Boston,  113  Mass.  503;  Har- 
riman  v.  Boston,  114  Mass.  241 ;  Morse 
v.  Boston,  109  Mass.  446 ;  Hanscom  v. 
Boston,  141  Mass.  242,  5  N.  E.  249; 
McLaughlin  v.  Corry,  77  Pa.  St.  109; 
Boucher  v.  New  Haven,  40  Conn.  456 ; 
Congdon  r.  Norwich,  37  Conn.  414 ; 
Stewart  v.  Ripon,  38  Wis.  584;  Chap- 
man r.  Macon,  55  Ga.  566 ;  Moore  v. 
Minneapolis,  19  Minn.  300;  Furnell  r.  St. 
Paul,  20  Minn.  117 ;  Omaha  v.  Olmstead, 
6  Neb.  446 ;  Higert  v.  Greencastle,  43 
Ind.  574  ;  Providence  v.  Clapp,  17  How. 
161;  Smith  v.  Leavenworth,  15  Kan.  81  ; 
Atchison  v.  King,  9  Kan.  550;  Gillison  v. 


364 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  VIII. 


different,  if  the  constitution  itself  prescribed  the  manner  of 
incorporation.  Even  in  such  a  case,  proof  that  the  corporation 
was  acting  as  such,  under  legislative  action,  would  be  sufficient 
evidence  of  right,  except  as  against  the  State  ;  and  private  parties 
could  not  enter  upon  any  question  of  regularity.  And  the  State 
itself  may  justly  be  precluded,  on  the  principle  of  estoppel,  from 
raising  such  an  objection,  where  there  has  been  long  acquiescence 
and  recognition.1 


kins,  33  Mich.  28 ;  Worley  v.  Harris,  82 
Ind.  493. 

1  In  People  v.  Maynard,  15  Mich.  463, 
470,  where  the  invalidity  of  an  act  organiz- 
ing a  county,  passed  several  years  before, 
was  suggested  on  constitutional  grounds, 
Campbell,  J.,  says :  "  If  this  question  had 
been  raised  immediately,  we  are  not  pre- 
pared to  say  that  it  would  have  been  alto- 
gether free  from  difficulty.  But  inasmuch 
as  the  arrangement  there  indicated  had 
been  acted  upon  for  ten  years  before  the 
recent  legislation,  and  had  been  recog- 
nized as  valid  by  all  parties  interested,  it 
cannot  now  be  disturbed.  Even  in  pri- 
vate associations  the  acts  of  parties  inter- 
ested may  often  estop  them  from  relying 
on  legal  objections,  which  might  have 
availed  them  if  not  waived.  But  in  pub- 
lic affairs,  where  the  people  have  organ- 
ized themselves  under  color  of  law  into 
the  ordinary  municipal  bodies,  and  have 
gone  on  year  after  year  raising  taxes, 
making  improvements,  and  exercising 
their  usual  franchises,  their  rights  are 
properly  regarded  as  depending  quite  as 
much  on  the  acquiescence  as  on  the  regu- 
larity of  their  origin,  and  no  ex  post  facto 
inquiry  can  be  permitted  to  undo  their 
corporate  existence.  Whatever  may  be 
the  rights  of  individuals  before  such  gen- 
eral acquiescence,  the  corporate  stand- 
ing of  the  community  can  no  longer  be 
open  to  question.  See  Rumsey  v.  People, 


19  N.  Y.  41;  and  Lanning  v.  Carpenter, 

20  N.  Y.  474,  where  the  effect  of  the  in- 
validity of  an  original  county  organiza- 
tion is  very  well  considered  in  its  public 
and  private  bearings.     There  have  been 
direct  legislative  recognitions  of  the  new 
division  on  several  occasions.     The  exer- 
cise of  jurisdiction  being  notorious  and 
open  in  all  such  cases,  the  State  as  well 
as  county  and  town  taxes  being  all  levied 
under  it,  there  is  no  principle  which  could 
justify   any   court,   at  this  late   day,  in 
going  back  to  inquire  into  the  regularity 
of  the  law  of  1857."     A  similar  doctrine 
has  been  applied  in  support  of  the  official 
character   of   persons    who,    without  au- 
thority of  law,  have  been  named  for  mu- 
nicipal officers  by  State  legislation,  and 
whose  action   in    such    offices   has   been 
acquiesced  in  by  the  citizens  or  authori- 
ties of  the  municipality.     See  People  v. 
Salomon,  54  111.  51  ;  People  v.  Lothrop, 
24  Mich.  235.     Compare   Kimball  v.  Al- 
corn,  45    Miss.  151.     But   such   acquies- 
cence could  not  make  them  local  officers 
and  representatives  of  the  people  for  new 
and   enlarged    powers    subsequently   at- 
tempted  to  be  given  by  the  legislature. 
People  v.  Common  Council  of  Detroit,  28 
Mich.  228.     Nor  in  respect  to  powers  not 
purely   local.     People  v.  Springwells,  25 
Mich.  153.     And  see  People  v.  Albertson, 
65  N.  Y.  50. 


CH.  IX.]        FEDERAL  PROTECTION  TO  PERSON,  ETC.          365 


CHAPTER   IX. 

PROTECTION   TO   PERSON    AND    PROPERTY  UNDER   THE   CONSTITUTION 
OF  THE   UNITED   STATES. 

As  the  government  of  the  United  States  was  to  be  one  of  enu- 
merated powers,  it  was  not  deemed  important  by  the  framers  of 
the  Constitution  that  a  bill  of  rights  should  be  incorporated  among 
its  provisions.  If,  among  the  powers  conferred,  there  was  none 
which  would  authorize  or  empower  the  government  to  deprive  the 
citizen  of  any  of  those  fundamental  rights  which  it  is  the  object 
and  the  duty  of  government  to  protect  and  defend,  and  to  insure 
which  is  the  sole  purpose  of  bills  of  rights,  it  was  thought  to  be 
at  least  unimportant  to  insert  negative  clauses  in  that  instrument, 
inhibiting  the  government  from  assuming  any  such  powers,  since 
the  mere  failure  to  confer  them  would  leave  all  such  powers  be- 
yond the  sphere  of  its  constitutional  authority.  And,  as  Mr.  Ham- 
ilton argued,  it  might  seem  even  dangerous  to  do  so.  "  For  why 
declare  that  things  shall  not  be  done  which  there  is  no  power  to 
do  ?  Why,  for  instance,  should  it  be  said  that  the  liberty  of  the 
press  shall  not  be  restrained,  when  no  power  is  given  by  which 
restrictions  may  be  imposed  ?  I  will  not  contend  that  such  a  pro- 
vision would  confer  a  regulating  power ;  but  it  is  evident  that  it 
would  furnish,  to  men  disposed  to  usurp,  a  plausible  pretence  for 
claiming  that  power.  They  might  urge,  with  a  semblance  of  rea- 
son, that  the  Constitution  ought  not  to  be  charged  with  the  ab- 
surdity of  providing  against  the  abuse  of  an  authority  which  was 
not  given,  and  that  the  provision  against  restraining  the  liberty 
of  the  press  afforded  a  clear  implication  that  a  right  to  prescribe 
proper  regulations  concerning  it  was  intended  to  be  vested  in  the 
national  government.  This  may  serve  as  a  specimen  of  the  nu- 
merous handles  which  would  be  given  to  the  doctrine  of  construc- 
tive powers,  by  the  indulgence  of  an  injudicious  zeal  for  bills  of 
rights."  i 

It  was  also  thought  that  bills  of  rights,  however  important 
under  a  monarchical  government,  were  of  no  moment  in  a  consti- 
tution of  government  framed  by  the  people  for  themselves,  and 
under  which  public  affairs  were  to  be  managed  by  means  of  agen- 

1  Federalist,  No.  84. 


366  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

cies  selected  by  the  popular  choice,  and  subject  to  frequent  change 
by  popular  action.  "  It  has  been  several  times  truly  remarked, 
that  bills  of  rights  are,  in  their  origin,  stipulations  between  kings 
and  their  subjects,  abridgments  of  prerogative  in  favor  of  privilege, 
reservations  of  rights  not  surrendered  to  the  prince.  'Such  was 
Magna  Charta,  obtained  by  the  barons,  sword  in  hand,  from  King 
John.  Such  were  the  subsequent  confirmations  of  that  charter 
by  succeeding  princes.  Such  was  the  Petition  of  Right,  assented 
to  by  Charles  the  First,  in  the  beginning  of  his  reign.  Such  also 
was  the  Declaration  of  Right  presented  by  the  Lords  and  Commons 
to  the  Prince  of  Orange  in  1688,  and  afterwards  thrown  into  the 
form  of  an  act  of  Parliament,  called  the  Bill  of  Rights.  It  is 
evident,  therefore,  that,  according  to  their  primitive  signification, 
they  have  no  application  to  constitutions  professedly  founded 
upon  the  power  of  the  people,  and  executed  by  their  immediate 
representatives  and  servants.  Here,  in  strictness,  the  people  sur- 
render nothing;  and,  as  they  retain  everything, they  have  no  need 
of  particular  reservations.  '  WE,  THE  PEOPLE  OP  THE  UNITED 
STATES,  to  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity,  do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America.'  This  is  a  better  recognition  of  popular  rights 
than  volumes  of  those  aphorisms  which  make  the  principal  figure 
in  several  of  our  State  bills  of  rights,  and  which  would  sound 
much  better  in  a  treatise  of  ethics  than  in  a  constitution  of 
government."  1 

Reasoning  like  this  was  specious,  but  it  was  not  satisfactory  to 
many  of  the  leading  statesmen  of  that  day,  who  believed  that 
"  the  purposes  of  society  do  not  require  a  surrender  of  all  our 
rights  to  our  ordinary  governors  ;  that  there  are  certain  portions 
of  right  not  necessary  to  enable  them  to  carry  on  an  effective 
government,  and  which  experience  has  nevertheless  proved  they 
will  be  constantly  encroaching  on,  if  submitted  to  them  ;  that 
there  are  also  certain  fences  which  experience  has  proved  pecu- 
liarly efficacious  against  wrong,  and  rarely  obstructive  of  right, 
which  yet  the  governing  powers  have  ever  shown  a  disposition 
to  weaken  and  remove."  2  And  these  governing  powers  will  be 
no  less  disposed  to  be  aggressive  when  chosen  by  majorities  than 
when  selected  by  the  accident  of  birth,  or  at  the  will  of  privileged 
classes.  Indeed  if,  during  the  long  struggle  for  constitutional 
liberty  in  England,  covering  the  whole  of  the  seventeenth  century, 
importance  was  justly  attached  to  a  distinct  declaration  and 
enumeration  of  individual  rights  on  the  part  of  the  government, 

3  Federalist,  No.  84,  by  Hamilton.  2  Jefferson's  Works,  Vol.  HI.  p.  201. 


CH.  IX.] 


FEDERAL  PROTECTION  TO  PERSON,  ETC. 


367 


when  it  was  still  in  the  power  of  the  governing  authorities  to 
infringe  upon  or  to  abrogate  them  at  any  time,  and  when,  conse- 
quently, the  declaration  could  possess  only  a  moral  force,  a  similar 
declaration  would  appear  to  be  of  even  more  value  in  the  Consti- 
tution of  the  United  States,  where  it  would  constitute  authoritative 
law,  and  be  subject  to  no  modification  or  repeal,  except  by  the 
people  themselves  whose  rights  it  was  designed  to  protect,  nor  even 
by  them  except  in  the  manner  b}r  the  Constitution  provided.1 

The  want  of  a  bill  of  rights  was,  therefore,  made  the  ground  of 
a  decided,  earnest,  and  formidable  opposition  to  the  confirmation 
of  the  national  Constitution  by  the  people  ;  and  its  adoption  was 


1  Mr.  Jefferson  sums  up  the  objections 
to  a  bill  of  rights  in  the  Constitution  of 
the  United  States,  and  answers  them  as 
follows  :  "  1.  That  the  rights  in  question 
are  reserved  by  the  manner  in  which  the 
federal  powers  are  granted.  Answer :  A 
constitutive  act  may  certainly  be  so 
formed  as  to  need  no  declaration  of 
rights.  The  act  itself  has  the  force  of  a 
declaration,  as  far  as  it  goes;  and  if  it 
goes  to  all  material  points,  nothing  more 
is  wanting.  In  the  draft  of  a  constitution 
which  I  had  once  a  thought  of  proposing 
in  Virginia,  and  printed  afterwards,  I  en- 
deavored to  reach  all  the  great  objects  of 
public  liberty,  and  did  not  mean  to  add  a 
declaration  of  rights.  Probably  the  ob- 
ject was  imperfectly  executed;  but  the 
deficiencies  would  have  been  supplied  by 
others  in  the  course  of  discussion.  But 
in  a  constitutive  act  which  leaves  some 
precious  articles  unnoticed,  and  raises 
implications  against  others,  a  declaration 
of  rights  becomes  necessary  by  way  of 
supplement.  This  is  the  case  of  our  new 
federal  Constitution.  This  instrument 
forms  us  into  one  State,  as  to  certain 
objects,  and  gives  us  a  legislative  and 
executive  body  for  these  objects.  It 
should  therefore  guard  us  against  their 
abuses  of  power,  within  the  field  sub- 
mitted to  them.  2.  A  positive  declara- 
tion of  some  essential  rights  could  not 
be  obtained  in  the  requisite  latitude. 
Answer :  Half  a  loaf  is  better  than  no 
bread.  If  we  cannot  secure  all  our  rights, 
let  us  secure  what  we  can.  3.  The  limited 
powers  of  the  federal  government,  and 
jealousy  of  the  subordinate  governments, 
afford  a  security,  which  exists  in  no  other 
instance.  Answer:  The  first  member  of 
this  seems  resolvable  into  the  first  objec- 


tion before  stated.  The  jealousy,  of  the 
subordinate  governments  is  a  precious  re- 
liance. But  observe  that  those  govern- 
ments are  only  agents.  They  must  have 
principles  furnished  them  whereon  to 
found  their  opposition.  The  declaration 
of  rights  will  be  the  text  whereby  they 
will  try  all  the  acts  of  the  federal  gov- 
ernment. In  this  view  it  is  necessary 
to  the  federal  government  also ;  as  by 
the  same  text  they  may  try  the  oppo- 
sition of  the  subordinate  governments. 
4.  Experience  proves  the  inefficacy  of  a 
bill  of  rights.  True.  But  though  it  is  not 
absolutely  efficacious,  under  all  circum- 
stances, it  is  of  great  potency  always,  and 
rarely  inefficacious.  A  brace  the  more 
will  often  keep  up  the  building  which 
would  have  fallen  with  that  brace  the 
less.  There  is  a  remarkable  difference 
between  the  characters  of  the  inconve- 
niences which  attend  a  declaration  of 
rights,  and  those  which  attend  the  want 
of  it.  The  inconveniences  of  the  declara- 
tion are,  that  it  may  cramp  government 
in  its  useful  exertions.  But  the  evil  of 
this  is  short-lived,  moderate,  and  repara- 
ble. The  inconveniences  of  the  want  of  a 
declaration  are  permanent,  afflictive,  and 
irreparable.  They  are  in  constant  pro- 
gression from  bad  to  worse.  The  execu- 
tive, in  our  governments,  is  not  the  sole, 
it  is  scarcely  the  principal,  object  of  my 
jealousy.  The  tyranny  of  the  legislatures 
is  the  most  formidable  dread  at  present, 
and  will  be  for  many  years.  That  of  the 
executive  will  come  in  its  turn ;  but  it 
will  be  at  a  remote  period."  Letter  to 
Madison,  March  16,  1789,  Jefferson's 
Works,  Vol.  III.  p.  4.  See  also  same 
volume,  pp.  13  and  101 ;  Vol.  II.  pp.  829, 
358. 


368  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

only  secured  in  some  of  the  leading  States  in  connection  with  the 
recommendation  of  amendments  which  should  cover  the  ground.1 

The  clauses  inserted  in  the  original  instrument,  for  the  protec- 
tion of  person  and  property,  had  reference  mainly  to  the  action 
of  the  State  governments,  and  were  made  limitations  upon  their 
power.  The  exceptions  embraced  a  few  cases  only,  in  respect  to 
which  the  experience  of  both  English  and  American  history  had 
forcibly  demonstrated  the  tendency  of  power  to  abuse,  not  when 
wielded  by  a  prince  only,  but  also  when  administered  by  the 
agencies  of  the  people  themselves. 

Bills  of  attainder  were  prohibited  to  be  passed,  either  by  the 
Congress  2  or  by  the  legislatures  of  the  several  States.3  Attain- 
der, in  a  strict  sense,  means  an  extinction  of  civil  and  political 
rights  and  capacities ;  and  at  the  common  law  it  followed,  as  of 
course,  on  conviction  and  sentence  to  death  for  treason  ;  and,  in 
greater  or  less  degree,  on  conviction  and  sentence  for  the  different 
classes  of  felony. 

A  bill  of  attainder  was  a  legislative  conviction  for  alleged  crime, 
with  judgment  of  death.  Such  convictions  have  not  been  uncom- 
mon under  other  governments,  and  the  power  to  pass  these  bills 
has  been  exercised  by  the  Parliament  of  England  at  some  periods 
in  its  history,  under  the  most  oppressive  and  unjustifiable  circum- 
stances, greatly  aggravated  by  an  arbitrary  course  of  procedure, 
which  had  few  of  the  incidents  of  a  judicial  investigation  into 
alleged  crime.  For  some  time  before  the  American  Revolution, 
however,  no  one  had  attempted  to  defend  it  as  a  legitimate  exer- 
cise of  power ;  and  if  it  would  be  unjustifiable  anywhere,  there 
were  many  reasons  why  it  would  be  specially  obnoxious  under  a 
free  government,  and  why  consequently  its  prohibition,  under  the 
existing  circumstances  of  our  country,  would  be  a  matter  of  more 
than  ordinary  importance.  Every  one  must  concede  that  a  legis- 
lative body,  from  its  numbers  and  organization,  and  from  the 
very  intimate  dependence  of  its  members  upon  the  people,  which 
renders  them  liable  to  be  peculiarly  susceptible  to  popular  clamor, 
is  not  properly  constituted  to  try  with  coolness,  caution,  and  im- 
partiality a  criminal  charge,  especially  in  those  cases  in  which 
the  popular  feeling  is  strongly  excited,  —  the  very  class  of  cases 
most  likely  to  be  prosecuted  by  this  mode.  And  although  it 
would  be  conceded  that,  if  such  bills  were  allowable,  they  should 
properly  be  presented  only  for  offences  against  the  general  laws 

1  For    the    various    recommendations  2  Constitution  of  United  States,  art.  1, 

by   Massachusetts,  South  Carolina,  New  §  9. 

Hampshire,   Virginia,  New  York,  North  3  Constitution  of  United  States,  art.  1, 

Carolina,  and  Rhode  Island,  see  1  Elliott's  §  10. 
Debates,  322-334. 


CH.  IX.]        FEDERAL  PROTECTION  TO  PERSON,  ETC.  369 

of  the  land,  and  be  proceeded  with  on  the  same  full  opportunity 
for  investigation  and  defence  which  is  afforded  in  the  courts  of 
the  common  law,  yet  it  was  remembered  that  in  practice  they  were 
often  resorted  to  because  an  obnoxious  person  was  not  subject  to 
punishment  under  the  general  law,1  or  because,  in  proceeding 
against  him  by  this  mode,  some  rule  of  the  common  law  requiring 
a  particular  species  or  degree  of  evidence  might  be  evaded,  and  a 
conviction  secured  on  proofs  that  a  jury  would  not  be  suffered 
to  accept  as  overcoming  the  legal  presumption  of  innocence. 
Whether  the  accused  should  necessarily  be  served  with  process  ; 
what  degree  or  species  of  evidence  should  be  required  ;  whether 
the  rules  of  law  should  be  followed,  either  in  determining  what 
constituted  a  crime,  or  in  dealing  with  the  accused  after  convic- 
tion, —  were  all  questions  which  would  necessarily  address  them- 
selves to  the  legislative  discretion  and  sense  of  justice ;  and  the 
very  qualities  which  are  essential  in  a  court  to  protect  individuals 
on  trial  before  them  against  popular  clamor,  or  the  hate  of  those 
in  power,  were  precisely  those  which  were  likely  to  prove  weak 
or  wanting  in  the  legislative  body  at  such  a  time.2  And  what 
could  be  more  obnoxious  in  a  free  government  than  the  exercise 
of  such  a  power  by  a  popular  body,  controlled  by  a  mere  majority, 
fresh  from  .the  contests  of  exciting  elections,  and  quite  too  apt, 
under  the  most  favorable  circumstances,  to  suspect  the  motives  of 
their  adversaries,  and  to  resort  to  measures  of  doubtful  propriety 
to  secure  party  ends  ? 

Nor  were  legislative  punishments  of  this  severe  character  the 
only  ones  known  to  parliamentary  history  ;  there  were  others  of 
a  milder  form,  which  were  only  less  obnoxious  in  that  the  conse- 
quences were  less  terrible.  Those  legislative  convictions  which 

1  Cases  of  this  description  were  most  ble  in  barbarity  as  possible,  the  list  of 
numerous  during  the  reign  of  Henry  the  proscribed  was  carefully  kept  secret 
VIII.,  and  among  the  victims  was  Crom-  until  after  the  time  fixed  for  their  appear- 
well,  who  is  said  to  have  first  advised  ance  !  Macaulay's  History  of  England, 
that  monarch  to  resort  to  this  objection-  c.  12. 

able  proceeding.     Even  the  dead  were  at-        2  This  was  equally  true,  whether  the 

tainted,  as  in  the  case  of  Richard  III.,  and  attainder  was  at   the   command   of  the 

later,  of  the  heroes  of  the  Commonwealth,  king,  as  in  the  case  of  Cardinal  Pole's 

The  most  atrocious  instance  in  history,  mother,  or  at  the  instigation  of  the  popu- 

however,  only  relieved  by  its  weakness  lace,  as  in  the  case  of  Wentworth,  Earl  of 

and   futility,  was  the  great  act  of  attain-  Strafford.     The  last  infliction  of  capital 

der  passed  in  1688  by  the  Parliament  of  punishment  in  England    under  a  bill  of 

James  II.,  assembled  in  Dublin,  by  which  attainder  was  upon  Sir  John  Fenwick,  in 

between  two  and  three  thousand  persons  the  Teign    of  William   and   Mary.     It  is 

were  attainted,  their  property  confiscated,  worthy   of   note   that  in    the   preceding 

and  themselves  sentenced  to  death  if  they  reign  Sir  John  had   been   prominent  in 

failed  to  appear  at  a  time  named.     And,  the  attainder  of  the  unhappy  Monmouth. 

to  render  the  whole  proceeding  as  horri-  Macaulay's  History  of  England,  c.  5. 

24 


370  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

imposed  punishments  less  than  that  of  death  were  called  bills  of 
pains  and  penalties,  as  distinguished  from  bills  of  attainder ;  but 
the  constitutional  provisions  we  have  referred  to  were  undoubt- 
edly aimed  at  any  and  every  species  of  legislative  punishment  for 
criminal  or  supposed  criminal  offences  ;  and  the  term  "  bill  of 
attainder  "  is  used  in  a  generic  sense,  which  would  include  bills 
of  pains  and  penalties  also.1 

The  thoughtful  reader  will  not  fail  to  discover,  in  the  acts  of 
the  American  States  during  the  Revolutionary  period,  sufficient 
reason  for  this  constitutional  provision,  even  if  the  still  more 
monitory  history  of  the  English  attainders  had  not  been  so  freshly 
remembered.  Some  of  these  acts  provided  for  the  forfeiture  of 
the  estates,  within  the  Commonwealth,  of  those  British  subjects 
who  had  withdrawn  from  the  jurisdiction  because  not  satisfied 
that  grievances  existed  sufficiently  serious  to  justify  the  last  resort 
of  an  oppressed  people,  or  because  of  other  reasons  not  satisfactory 
to  the  existing  authorities  ;  and  the  only  investigation  provided 
for  was  an  inquiry  into  the  desertion.  Others  mentioned  particu- 
lar persons  by  name,  adjudged  them  guilty  of  adhering  to  the 
enemies  of  the  State,  and  proceeded  to  inflict  punishment  upon 
them,  so  far  as  the  presence  of  property  within  the  Commonwealth 
would  enable  the  government  to  do  so.2  These  were  the  resorts 
of  a  time  of  extreme  peril  ;  and  if  possible  to  justify  them  in  a 
period  of  revolution,  when  everything  was  staked  on  success,  and 
when  the  public  safety  would  not  permit  too  much  weight  to 

1  Fletcher  v.  Peck,  6  C ranch,  87;  Story  counsel,  and  no   recognized  rule  of  evi- 

on    Constitution,    §    1314;    Cummings  v.  dence  governed  the  inquiry."    Per  Miller, 

Missouri,  4  Wall.  277;  Ex  purte  Garland,  4  J.,   in    Ex  parte  Garland,   4   Wall.   333, 

Wall.  333;   Drebman   v.  Stifle,  8    Wall.  388. 

695,  601.     "I  think  it  will  be  found  that  2  gee  Belknap's  History  of  New  Hamp- 

the   following   comprise   those    essential  shire,  c.  26 ;  2  Ramsay's  History  of  South 

elements  of  bills  of  attainder,  in  addition  Carolina,  351 ;  8  Rhode  Island  Colonial 

to  the  one  already  mentioned  [which  was  Records,    609;    2    Arnold's    History    of 

that    they   declared   certain   persons    at-  Rhode   Island,    300,   449;    Thompson    v. 

tainted  and  their  blood  corrupted,  so  that  Carr,   5   N.    H.    510 ;  Sleght   v.   Kane,  2 

it  had  lost  all  heritable  property],  which  Johns.    Cas.  236 ;  Story  on  Const.   (4th 

distinguish  them  from  other  legislation,  ed.)  §  1344,  note.     On  the  general  subject 

and  which  made  them  so  obnoxious  to  the  of  bills  of  attainder,  one  would  do  well 

statesmen   who    organized    our   govern-  to  consult,  in  addition  to  the  cases  in  4 

ment:    1.   They    were    convictions    and  Wallace,  those  of  Blair  v.  Ridgeley,  41 

sentences  pronounced  by  the  legislative  Mo.  63  (where  it  was  very  elaborately 

department  of  the  government,  instead  examined    by    able    counsel) ;    State   v. 

of   the  judicial.     2.  The   sentence   pro-  Staten,  6  Cold.  233 ;  Randolph  v.  Good,  3 

nounced  and    the    punishment    inflicted  W.   Va.   551  ;  Ex  parte  Law,  decided  by 

were  determined  by  no  previous  law  or  Judge  Erskine,  in  the  United  States  Dis- 

fixed  rule.    3.  The  investigation  into  the  trict  Court  of  Georgia,  May  Term,  1866; 

guilt  of  the  accused,  if  an}'  such  were  State  v.  Adams,  44  Mo.  570 ;  Beirne  v. 

made,  was   not   necessarily  or  generally  Brown,  4   W.  Va.  72 ;  Peerce  ».  Carska- 

conducted  in  his  presence  or  that  of  his  don,  4  W.  Va.  234. 


CH.  IX.] 


FEDERAL  PROTECTION  TO  PERSON,  ETC. 


371 


scruples  concerning  the  private  rights  of  those  who  were  not  aid- 
ing the  popular  cause,  the  power  to  repeat  such  acts  under  any- 
conceivable  circumstances  in  which  the  country  could  be  placed 
again  was  felt  to  be  too  dangerous  to  be  left  in  the  legislative 
hands.  So  far  as  proceedings  had  been  completed  under  those 
acts,  before  the  treaty  of  1783,  by  the  actual  transfer  of  property, 
they  remained  valid  and  effectual  afterwards  ;  but  so  far  as  they 
were  then  incomplete,  they  were  put  an  end  to  by  that  treaty.1 

The  conviction  of  the  propriety  of  this  constitutional  provision 
has  been  so  universal,  that  it  has  never  been  questioned,  either  in 
legislative  bodies  or  elsewhere.  Nevertheless,  cases  have  recently 
arisen,  growing  out  of  the  attempt  to  break  up  and  destroy  the 
government  of  the  United  States,  in  which  the  Supreme  Court  of 
the  United  States  has  adjudged  certain  action  of  Congress  to  be 
in  violation  of  this  provision  and  consequently  void.2  The  action 


1  Jackson  v.  Munson,  3  Caines,  137. 

2  On   the   2d  of  July,  1862,  Congress, 
by  "  an  act  to  prescribe  an  oath  of  office, 
and   for  other   purposes,"   enacted    that 
"  hereafter  every  person   elected   or  ap- 
pointed to  any  office  of  honor  or  profit 
under    the   government    of    the    United 
States,   either  in   the   civil,   military,  or 
naval  departments  of  the  public  service, 
excepting  the   President   of  the  United 
States,  shall,  before   entering   upon  the 
duties  of  such  office,  take  and  subscribe 
the  following  oath  or  affirmation  :  I,  A  B, 
do  solemnly  swear  or  affirm  that  I  have 
never  voluntarily  borne  arms  against  the 
United  States  since  I  have  been  a  citizen 
thereof;  that  I  have  voluntarily  given  no 
aid,  countenance,   counsel,  or  encourage- 
ment to  persons  engaged  in  armed  hostility 
thereto ;  that  I  have  neither  sought  nor 
accepted,  nor  attempted  to  exercise,  the 
functions  of  any  office  whatever,  under 
any  authority  or  pretended  authority  in 
hostility  to  the  United  States  ;  that  I  have 
not  yielded  a  voluntary  support  to  any 
pretended  government,  authority,  power, 
or  constitution  within  the  United  States, 
hostile  or  inimical  thereto.    And  I  do  fur- 
ther swear  or  affirm  that,  to  the  best  of 
my  knowledge  and  ability,  I  will  support 
and  defend  the  Constitution  of  the  United 
States  against  all   enemies,  foreign  and 
domestic;  that  I  will  bear  true  faith  and 
allegiance  to  the  same  ;  that  I  take  this 
obligation    freely,    without    any   mental 
reservation  or  purpose   of  evasion ;  and 
that  I  will  well  and  faithfully  discharge 


the  duties  of  the  office  on  which  I  am 
about  to  enter,  so  help  me  God."  On  the 
24th  of  January,  1865,  Congress  passed  a 
supplementary  act  as  follows:  "No  per- 
son after  the  date  of  this  act  shall  be  ad- 
mitted to  the  bar  of  the  Supreme  Court 
of  the  United  States,  or  at  any  time  after 
the  4th  of  March  next  shall  be  admitted 
to  the  bar  of  any  Circuit  or  District  Court 
of  the  United  States,  or  of  the  Court  of 
Claims,  as  an  attorney  or  counsellor  of 
such  court,  or  shall  be  allowed  to  appear 
and  to  be  heard  in  any  such  court,  by 
virtue  of  any  previous  admission,  or  any 
special  power  of  attorney,  unless  he  shall 
have  first  taken  and  subscribed  the  oath" 
aforesaid.  False  swearing,  under  each  of 
the  acts,  was  made  perjury.  See  12  Stat- 
utes at  Large,  502  ;  13  Statutes  at  Large, 
424.  In  Ex  parte  Garland,  4  Wall.  333,  a 
majority  of  the  court  held  the  second  of 
these  acts  void,  as  partaking  of  the  nature 
of  a  bill  of  pains  and  penalties,  and  also 
as  being  an  ex  post  facto  law.  The  act  was 
looked  upon  as  inflicting  a  punishment 
for  past  conduct ;  the  exaction  of  the  oath 
being  the  mode  provided  for  ascertaining 
the  parties  upon  whom  the  act  was  in- 
tended to  operate.  See  Drehman  v.  Stifle, 
8  Wall.  595.  The  conclusion  declared  by 
the  Supreme  Court  of  the  United  States 
in  Ex  parte  Garland  had  been  previously 
reached  by  Judge  Trigg,  of  the  United 
States  Circuit  Court,  in  Matter  of  Bax- 
ter ;  by  Judge  Busteed,  of  the  District 
Court  of  Alabama,  in  Matter  of  Shorter 
et  al. ;  and  by  Judge  Erskine,  of  the  Dis- 


372 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


referred  to  was  designed  to  exclude  from  practice  in  the  United 
States  courts  all  persons  who  had  taken  up  arms  against  the 
government  during  the  recent  rebellion,  or  who  had  voluntarily 
given  aid  and  encouragement  to  its  enemies ;  and  the  mode 
adopted  to  effect  the  exclusion  was  to  require  of  all  persons,  be- 
fore they  should  be  admitted  to  the  bar  or  allowed  to  practise,  an 
oath  negativing  any  such  disloyal  action.  This  decision  was  not 
at  first  universally  accepted  as  sound  ;  and  the  Supreme  Courts 
of  West  Virginia  and  of  the  District  of  Columbia  declined  to  fol- 
low it,  insisting  that  permission  to  practise  in  the  courts  is  not  a 
right,  but  a  privilege,  and  that  the  withholding  it  for  any  reason 
of  State  policy  or  personal  unfitness  could  not  be  regarded  as  the 
infliction  of  criminal  punishment.1 

The  Supreme  Court  of  the  United  States  has  also,  upon  the 
same  reasoning,  held  a  clause  in  the  Constitution  of  Missouri, 
which,  among  other  things,  excluded  all  priests  and  clergymen 
from  practising  or  teaching  unless  they  should  first  take  a  similar 
oath  of  loyalty,  to  be  void,  overruling  in  so  doing  a  decision  of 
the  Supreme  Court  of  that  State.2 

Ex  post  facto  laws  are  also,  by  the  same  provisions  of  the  national 
Constitution  already  cited,3  forbidden  to  be  passed,  either  by  the 
States  or  by  Congress. 


trict  Court  of  Georgia,  in  Ex  parte  Law. 
An  elector  cannot  be  excluded  from  the 
right  to  vote  on  the  ground  of  being  a 
deserter  who  has  never  been  tried  and 
convicted  as  such.  Huber  c.  Reily,  53 
Pa.  St.  112;  McCafferty  v.  Guyer,  59  Pa. 
St.  109 ,  State  o.  Symonds,  57  Me.  148. 
See  ante,  p.  99,  note. 

1  See  the  cases       Ex  parte  Magruder, 
American   Law   Register,  Vol.  VI.  N.  s. 
p.  292;  and  Ex  parte   Hunter,  American 
Law   Register,  Vol.  VI.  N.  8.  410;  2  W. 
Va.  122  ;  Ex  parte  Quarrier,  4  W.  Va.  210. 
See  also  Cohen  v.  Wright,  22  Cal.  293. 

2  Cummings  v.  Missouri,  4  Wall.  277. 
See  also  the  case  of  State  v.  Adams,  44 
Mo.  570,  in  which  it  was  held  that  a  legis- 
lative  act   declaring   that   the   board  of 
curators  of  St.  Charles  College  had  for- 
feited their  office,  was  of  the  nature  of  a 
bill  of  attainder  and  void.     The  Missouri 
oath  of  loyalty  was  a  very  stringent  one, 
and   applied  to  electors,    State,  county, 
city  and  town  officers,  officers  in  any  cor- 
poration, public  or  private,  professors  and 
teachers  in  educational  institutions,  attor- 
neys   and    counsellors,   bishops,    priests, 
deacons,  ministers,  elders,  or  other  clergy- 


men of  any  denomination.  The  Supreme 
Court  of  Missouri  had  held  this  provision 
valid  in  the  following  cases :  State  v.  Ga- 
resche,  36  Mo.  256,  case  of  an  attorney; 
State  v.  Cummings,  36  Mo.  263,  case  of  a 
minister,  reversed  as  above  stated;  State 
v.  Bernoudy,  36  Mo.  279,  case  of  the  re- 
corder of  St.  Louis  ;  State  v.  McAdoo,  36 
Mo.  452,  where  it  is  held  that  a  certificate 
of  election  issued  to  one  who  failed  to 
take  the  oath  as  required  by  the  consti- 
tution was  void.  In  Beirne  v.  Brown,  4 
W.  Va.  72,  and  Peerce  v.  Carskadon,  4 
W.  Va.  234,  an  act  excluding  persons  from 
the  privilege  of  sustaining  suits  in  the 
courts  of  the  State,  or  from  proceedings 
for  a  rehearing,  except  upon  their  taking 
an  oath  that  they  had  never  been  engaged 
in  hostile  measures  against  the  govern- 
ment, was  sustained.  And  see  State  v. 
Neal,  42  Mo.  119.  Contra,  Kyle  v.  Jenkins, 
6  W.  Va.  371 ;  Lynch  r.  Hoffman,  7  W. 
Va.  553.  The  case  of  Peerce  v.  Carskadon 
was  reversed  in  16  Wall.  234,  being  held 
covered  by  the  case  of  Cummings  v.  Mis- 
souri. 

3  Constitution  of  United  States,  art.  1, 
§§  9  and  10. 


CH.  IX.]  FEDERAL   PROTECTION   TO   PERSON,   ETC.  373 

At  an  early  day  it  was  settled  by  authoritative  decision,  in 
opposition  to  what  might  seem  the  more  natural  and  obvious 
meaning  of  the  term  ex  post  facto,  that  in  their  scope  and  pur- 
pose these  provisions  were  confined  to  laws  respecting  criminal 
punishments,  and  had  no  relation  whatever  to  retrospective  legis- 
lation of  any  other  description.  And  it  has,  therefore,  been  re- 
peatedly held,  that  retrospective  laws,  when  not  of  a  criminal 
nature,  do  not  come  in  conflict  with  the  national  Constitution, 
unless  obnoxious  to  its  provisions  on  other  grounds  than  their 
retrospective  character. 

"  The  prohibition  in  the  letter,"  says  Chase,  J.,  in  the  leading 
case,1  "  is  not  to  pass  any  law  concerning  or  after  the  fact ;  but 
the  plain  and  obvious  meaning  and  intention  of  the  prohibition  is 
this  :  that  the  legislatures  of  the  several  States  shall  not  pass  laws 
after  a  fact  done  by  a  subject  or  citizen,  which  shall  have  relation 
to  such  fact,  and  punish  him  for  having  done  it.  The  prohibition, 
considered  in  this  light,  is  an  additional  bulwark  in  favor  of  the 
personal  security  of  the  subject,  to  protect  his  person  from  pun- 
ishment by  legislative  acts  having  a  retrospective  operation.  I 
do  not  think  it  was  inserted  to  secure  the  citizen  in  his  private 
rights  of  either  property  or  contracts.  The  prohibitions  not  to 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts,  and  not  to  pass  any  law  impairing  the  obligation  of  con- 
tracts, were  inserted  to  secure  private  rights  ;  but  the  restriction 
not  to  pass  any  ex  post  facto  law  was  to  secure  the  person  of  the 
subject  from  injury  or  punishment,  in  consequence  of  such  law. 
If  the  prohibition  against  making  ex  post  facto  laws  was  intended 
to  secure  personal  rights  from  being  affected  or  injured  by  such 
laws,  and  the  prohibition  is  sufficiently  extensive  for  that  object, 
the  other  restraints  I  have  enumerated  were  unnecessary,  and 
therefore  improper,  for  both  of  them  are  retrospective. 

"  I  will  state  what  laws  I  consider  ex  post  facto  laws,  within  the 
words  and  the  intent  of  the  prohibition.  1st.  Every  law  that 
makes  an  action  done  before  the  passing  of  the  law,  and  which 
was  innocent  when  done,  criminal,  and  punishes  such  action. 
2d.  Every  law  that  aggravates  a  crime,  or  makes  it  greater  than 
it  was  when  committed.  3d.  Every  law  that  changes  the  pun^ 
ishment,  and  inflicts  a  greater  punishment  than  the  law  annexed 
to  the  crime  when  committed.  4th.  Every  law  that  alters  the 
legal  rules  of  evidence,  and  receives  less  or  different  testimony 
than  the  law  required  at  the  time  of  the  commission  of  the  of- 
fence, in  order  to  convict  the  offender.  All  these  and  similar 

i  Calder  ».  Bull,  3  Dall.  386,  390. 


374  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

laws  are  manifestly  unjust  and  oppressive.  In  my  opinion,  the 
true  distinction  is  between  ex  post  facto  laws  and  retrospective 
laws.  Every  ex  post  facto  law  must  necessarily  be  retrospective, 
but  every  retrospective  law  is  not  an  ex  post  facto  law  ;  the  former 
only  are  prohibited.  Every  law  that  takes  away  or  impairs  rights 
vested,  agreeably  to  existing  laws,  is  retrospective  and  is  gen- 
erally unjust,  and  may  be  oppressive  ;  and  there  is  a  good  general 
rule,  that  a  law  should  have  no  retrospect ;  but  there  are  cases 
in  which  laws  may  justly,  and  for  the  benefit  of  the  community, 
and  also  of  individuals,  relate  to  a  time  antecedent  to  their  com- 
mencement ;  as  statutes  of  oblivion  or  of  pardon.  They  are  cer- 
tainly retrospective,  and  literally  both  concerning  and  after  the 
facts  committed.  But  I  do  not  consider  any  law  ex  post  facto, 
within  the  prohibition  that  mollifies  the  rigor  of  the  criminal 
law;  but  only  those  that  create  or  aggravate  the  crime,  or  in- 
crease the  punishment,  or  change  the  rules  of  evidence  for  the 
purpose  of  conviction.  Every  law  that  is  to  have  an  operation 
before  the  making  thereof,  as  to  commence  at  an  antecedent 
time,  or  to  save  time  from  the  statute  of  limitations,  or  to  excuse 
acts  which  were  unlawful,  and  before  committed,  and  the  like,  is 
retrospective.  But  such  laws  may  be  proper  or  necessary,  as  the 
case  may  be.  There  is  a  great  and  apparent  difference  between 
making  an  unlawful  act  lawful,  and  the  making  an  innocent 
action  criminal,  and  punishing  it  as  a  crime.  The  expressions 
ex  post  facto  laws  are  technical  ;  they  had  been  in  use  long  before 
the  Revolution,  and  had  acquired  an  appropriate  meaning,  by 
legislators,  lawyers,  and  authors."  l 

1  See  also  Fletcher  v.  Peck,  6  Cranch,  203.     Before  a  right  to  an  acquittal  has 

87;   Ogden  v.  Saunders,  12  Wheat.  213;  been  "absolutely  acquired  by  the  com- 

Satterlee  v.  Mathewson,  2  Pet.  380;  Wat-  pletion  of  the  period  of  limitation,  that 

son  v.  Mercer,  8  Pet.  88  ;  Charles  River  period  is  subject  to  enlargement  or  repeal 

Bridge  v.  Warren  Bridge,  11  Pet.  420;  without  being  obnoxious  to  the  constitu- 

Carpenter  v.  Pennsylvania,  17  How.  456  ;  tional  prohibition."     Com.  v.  Duffy,  96 

Cummings.r.  Missouri,  4  Wall.  277;  Ex  Pa.  St.  506.     [[A  constitutional  provision 

parte  Garland,  4  Wall.  333  ;  Baugher  v.  that  crimes  less  than  capital  shall  be  tried 

Nelson,  9  Gill,  299;  Woart  v.  Winnick,  3  by  a  jury  of  eight  is  ex  post  facto  with 

N.  H.  473 ;  Locke  v.  Dane,  9  Mass.  360 ;  regard   to   crimes   committed  before   its 

Dash  v.  Van  Kleek,  7  Johns.  477;  Evans  enactment.    Thompson  v.  Utah,  170  U.  S. 

v.  Montgomery,  4  W.  &  S.  218;  Tucker  v.  343,  18  Sup.  Ct.  Rep.  620.     But  a  mere 

Harris,  13  Ga.  1 ;  Perry's  Case,  3  Gratt.  change  in  the  constitution  of  the  trial 

632 ;  Municipality  No.  1  v.  Wheeler,  10  court  which  leaves   unchanged   all   the 

La.  Ann.  745;  New  Orleans  v.  Poutz,  14  substantial  protections  which  the  law  in 

La.  Ann.  853 ;  Huber  v.  Reily,  63  Pa.  St.  force  at  the  time  of  commission  of  the 

115;   Wilson  v.  Ohio,  &c.  R.  R.  Co.,  64  alleged  offence  threw  about  the  accused 

111.  542.     That  an  act  providing  for  the  is  not  ex  post  facto.     Duncan  v.  Missouri, 

punishment  of  an  offence  in  respect  to  152  U.  S.  377,  14  Sup.  Ct.  Rep.  570.    "  An 

which  prosecution  is   already  barred  is  ex  post  facto  law  does  not  involve,  in  any 

ex  post  facto,  see  Moore  v.  State,  43  N.  J.  of  its  definitions,  a  change  of  the  place  of 


CH.  IX.] 


FEDERAL  PROTECTION  TO  PERSON,  ETC. 


375 


Assuming  this  construction  of  the  constitutional  provision  to 
be  correct, — and  it  has  been  accepted  and  followed  as  correct  by 
the  courts  ever  since,  —  it  would  seem  that  little  need  be  said 
relative  to  the  first,  second,  and  fourth  classes  of  ex  post  facto 
laws,  as  enumerated  in  the  opinion  quoted.1  It  is  not  essential, 
however,  in  order  to  render  a  law  invalid  on  these  grounds,  that 
it  should  expressly  assume  the  action  to  which  it  relates  to  be 
criminal,  or  provide  for  its  punishment  on  that  ground.  If  it 
shall  subject  an  individual  to  a  pecuniary  penalty  for  an  act 
which,  when  done,  involved  no  responsibility,2  or  if  it  deprives  a 
party  of  any  valuable  right  —  like  the  right  to  follow  a  lawful 


trial  of  an  alleged  offence  after  its  com- 
mission." Gut  v.  Minnesota,  9  Wall.  35, 
quoted  and  affirmed  in  Cook  v.  United 
States,  138  U.  S.  157,  11  Sup.  Ct.  Rep. 
268.  Nor  of  the  time  when  sentence 
shall  be  executed.  Holden  v.  Minnesota, 
137  U.  S.  483, 11  Sup.  Ct.  Rep.  143.  Priv- 
ilege existing  at  time  of  commission  of 
offence  (e.  g.  privilege  of  earning  a  short- 
ening of  sentence  by  good  behavior)  can- 
not be  taken  away  by  subsequent  stat- 
ute. Murphy  v.  Commonwealth,  172 
Mass.  264,  52  N.  E.  505,  43  L  R.  A.  154, 
70  Am.  St.  266.  Second  offences  may  be 
made  punishable  with  greater  severity, 
even  though  first  offence  was  committed 
before  law  was  passed.  Re  Miller,  110 
Mich.  676,  68  N.  W.  990,  34  L.  R.  A. 
398,  64  Am.  St.  376,  and  see  note  thereto 
in  L.  R.  A.  upon  enhanced  penalty  for 
second  and  subsequent  offences  ;  see  also 
Commonwealth  v.  Graves,  155  Mass.  163, 
29  N.  E.  579,  16  L.  R.  A.  256 ;  McDonald 
v.  Massachusetts,  180  U.  S.  811,  21  Sup. 
Ct.  Rep.  389,  aff.  173  Mass.  322,  53  N.  E. 
874.  Right  to  secure  change  of  magis- 
trate or  place  of  preliminary  examination 
upon  affidavit  of  accused  that  he  believes 
magistrate  is  prejudiced  against  him  may 
be  withdrawn.  People  v.  McDonald,  5 
Wyo.  526,  42  Pac.  15,  29  L.  R.  A.  834. 
Statute  allowing  punitive  damages  where 
none  had  been  theretofore  allowed  is  ex 
post  facto  with  regard  to  past  acts. 
French  v.  Deane,  19  Col.  504,  36  Pac.  609, 
24  L.  R.  A.  387.  Statute  diminishing  the 
minimum  period  of  imprisonment  is  not 
ex  post  facto.  People  v,  Hayes,  140  N.  Y. 
484,  35  N.  E.  951,  23  L.  R.  A.  830,  37  Am. 
St.  572.  Law  shortening  time  between 
sentence  and  execution  is  ex  post  facto 
with  regard  to  past  crimes.  Re  Tyson, 


13  Col.  482,  22  Pac.  810,  6  L.  R.  A.  472. 
But  providing  that  State  may  appeal 
from  an  order  granting  a  new  trial  is  not. 
Mallett  v.  North  Carolina,  181  U.  S.  589, 
21  Sup.  Ct.  Rep.  730,  aff.  125  N.  C.  718, 
34  S.  E.  651.  A  statute  providing  that 
persons  convicted  of  murder  and  await- 
ing execution  shall  be  confined  in  the 
State's  prison  and  executed  within  its 
walls  is  invalid  as  applied  to  one  con- 
victed prior  to  its  enactment.  People 
v.  McNulty,  93  Cal.  427,  29  Pac.  61.  A 
statute  changing  the  punishment  for  mur- 
der from  death  to  imprisonment  for  life  is 
not  ex  post  facto.  McGuire  v.  State,  76 
Miss.  504,  25  So.  495.  See,  in  this  con- 
nection, Storti  v.  Com.,  180  Mass.  57,  61 
N.  E.  759,  52  L.  R.  A.  520.] 

1  See  Kring  v.  Missouri,  107  U.  S.  221, 
2  Sup.   Ct.  Rep.   443.    A  constitutional 
amendment  changed  the  judicial  rule  that 
conviction  of  one  grade  of  murder  bars  a 
subsequent  conviction  of  a  higher  grade. 
Before  it  took  effect  a  crime  had  been 
committed.     After  it  on  a  plea  of  guilty 
the  prisoner  was  convicted  of  murder  in 
the   second   degree,   but   the   conviction 
was  reversed,  and  on  new  trial  he  was 
convicted   in   the  first   degree.     A   bare 
majority  of  the  court  held  the  act  ex  post 
facto  as  to  him,  as  altering  the  rules  of  evi- 
dence and  the  punishment.    The  minority 
considered  the  change  one  in  procedure, 
and  as  the  evidence  in  question,  viz.,  his 
conviction  in  the  second  degree,  of  the 
effect  of  which  he  was  deprived,  came 
into  existence  after  the  amendment,  held 
the  act  good. 

2  Falconer  v.   Campbell,  2    McLean, 
195;  Wilson  ».  Ohio,  &c.  R.  R.  Co.,  64 
111.  542. 


376  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

calling  —  for  acts  which  were  innocent,  or  at  least  not  punishable 
by  law  when  committed,1  the  law  will  be  ex  post  facto  in  the  con- 
stitutional sense,  notwithstanding  it  does  not  in  terms  declare  the 
acts  to  which  the  penalty  is  attached  criminal.2  But  how  far  a 
law  may  change  the  punishment  for  a  criminal  offence,  and  make 
the  change  applicable  to  past  offences,  is  certainly  a  question  of 
great  difficulty,  which  has  been  increased  by  the  decisions  made 
concerning  it.  As  the  constitutional  provision  is  enacted  for  the 
protection  and  security  of  accused  parties  against  arbitrary  and 
oppressive  legislative  action,  it  is  evident  that  any  change  in  the 
law  which  goes  in  mitigation  of  the  punishment  is  not  liable  to 
this  objection.3  But  what  does  go  in  mitigation  of  the  punish- 
ment ?  If  the  law  makes  a  fine  less  in  amount,  or  imprisonment 
shorter  in  point  of  duration,  or  relieves  it  from  some  oppressive 
incident,  or  if  it  dispenses  with  some  severable  portion  of  the 
legal  penalty,  no  embarrassment  would  be  experienced  in  reaching 
a  conclusion  that  the  law  was  favorable  to  the  accused,  and  there- 
fore not  ex  post  facto.  But  who  shall  say,  when  the  nature  of  the 
punishment  is  altogether  changed,  and  a  fine  is  substituted  for 
the  pillory,  or  imprisonment  for  whipping,  or  imprisonment  at 
hard  labor  for  life  for  the  death  penalty,  that  the  punishment  is 
diminished,  or  at  least  not  increased  by  the  change  made  ?  What 
test  of  severity  does  the  law  or  reason  furnish  in  these  cases  ? 
and  must  the  judge  decide  upon  his  own  view  of  the  pain,  loss, 
ignominy,  and  collateral  consequences  usually  attending  the  pun- 
ishment? or  may  he  take  into  view  the  peculiar  condition  of  the 
accused,  and  upon  that  determine  whether,  in  his  particular  case, 

1  Cummings  v.  Missouri,  4  Wall.  277 ;  See  also  Dent  v.  West  Virginia,  129  U.  S. 

Ex  parte  Garland,  4  Wall.  333.     But  a  114,  9  Sup.  Ct.  Rep.  231,  distinguishing 

divorce  is  not  a  punishment,  and  it  may  Cummings  v.  Missouri,  4  Wall.  277,  and 

therefore  be  authorized  for   causes    hap-  explaining    Ex   parte   Garland,   4   Wall, 

pening  previous  to   the   passage   of   the  333.] 

divorce  act.    Jnnes   v.  Jones,  2   Overt.  2  The  repeal  of  an  amnesty  law  by 

2,  6  Am.  Dec.  645;  Carson  v.  Carson,  40  a  constitutional  convention  was  held   in 

Miss.  349.     An  act  providing  for  destruc-  State  v.  Keith,  63  N.  C.  140,  to  be  ex  post 

tion  of  liquor  as  a  means  of  abating  an  facto  as  to  the  cases  covered  by  the  law. 

existing  liquor  nuisance  does  not  author-  An  act  to  validate  an  invalid  conviction 

ize  a  criminal  proceeding,  and  is  not  ex  would  be  ex  post  facto.     In  re  Murphy,  1 

post  facto.     McLane  v.  Bonn,    70   Iowa,  Woolw.  141. 

752,  30  N.  W.  478.    See  Drake  v.  Jordan,  8  Strong  v.  State,  1  Blackf.  193 ;  Keen 

73  Iowa,  707,  36  N.  W.  653.     QA  statute  v.  State,  3  Chand.  109 ;  Boston  v.  Cum- 

providing  that  one  who  has   been   con-  mins,  16  Ga.  102;   Woart  v.   Winnick,  3 

victed  of  crime  is  ineligible  as  a  medical  N.  H.  473;  State  v.  Arlin,  39  N.  H.  179; 

practitioner  is  not  invalid  as  to  a  case  Clarke  r.  State,  23   Miss.  261 ;   Maul  v. 

where  the  conviction  was  prior   to   the  State,  25  Tex.  166.    To  provide  an  alter- 

enactment    of    the    statute.      People    v.  native  punishment  of  a  milder   form   is 

Hawker,  162  N.  Y.  234,   46  N.  E.  607,  not  ex  post  facto.     Turner  v.   State,  40 

aff.  170  U.  S.  189,  18  Sup.  Ct.  Rep.  573.  Ala.  21. 


CH.  IX,]  FEDERAL   PROTECTION   TO   PERSON,   ETC.  377 

the  punishment  prescribed  by  the  new  law  is  or  is  not  more  severe 
than  that  under  the  old. 

In  State  v.  Arlin,1  the  respondent  was  charged  with  a  robbery, 
which,  under  the  law  as  it  existed  at  the  time  it  was  committed, 
was  subject  to  be  punished  by  solitary  imprisonment  not  exceed- 
ing six  months,  and  confinement  for  life  at  hard  labor  in  the 
State  prison.  As  incident  to  this  severe  punishment,  he  was  en- 
titled by  the  same  law  to  have  counsel  assigned  him  by  the 
government,  to  process  to  compel  the  attendance  of  witness,  to 
a  copy  of  his  indictment,  a  list  of  the  jurors  who  were  to  try  him, 
&c.  Before  he  was  brought  to  trial,  the  punishment  for  the 
offence  was  reduced  to  solitary  imprisonment  not  exceeding  six 
months,  and  confinement  at  hard  labor  in  the  State  prison  for 
not  less  than  seven  nor  more  than  thirty  years.  By  the  new  act, 
the  court,  if  they  thought  proper,  were  to  assign  the  respondent 
counsel,  and  furnish  him  with  process  to  compel  the  attendance 
of  witnesses  in  his  behalf ;  and,  acting  under  this  discretion,  the 
court  assigned  the  respondent  counsel,  but  declined  to  do  more ; 
while  the  respondent  insisted  that  he  was  entitled  to  all  the 
privileges  to  which  he  would  have  been  entitled  had  the  law 
remained  unchanged.  The  court  held  this  claim  to  be  unfounded 
in  the  law.  "  It  is  contended,"  they  say,  "  that,  notwithstanding 
the  severity  of  the  respondent's  punishment  was  mitigated  by  the 
alteration  of  the  statute,  he  is  entitled  to  the  privileges  demanded, 
as  incidents  to  the  offence  with  which  he  is  charged,  at  the  date 
of  its  commission ;  in  other  words,  it  seems  to  be  claimed,  that, 
by  committing  the  alleged  offence,  the  respondent  acquired  a 
vested  right  to  have  counsel  assigned  him,  to  be  furnished  with 
process  to  procure  the  attendance  of  witnesses,  and  to  enjoy  all 
the  other  privileges  to  which  he  would  have  been  entitled  if  tried 
under  laws  subjecting  him  to  imprisonment  for  life  upon  convic- 
tion. This  position  appears  to  us  wholly  untenable.  We  have 
no  doubt  the  privileges  the  respondent  claims  were  designed  and 
created  solely  as  incidents  of  the  severe  punishment  to  which  his 
offence  formerly  subjected  him,  and  not  as  incidents  of  the 
offence.  When  the  punishment  was  abolished,  its  incidents  fell 
with  it ;  and  he  might  as  well  claim  the  right  to  be  punished 
under  the  former  law  as  to  be  entitled  to  the  privileges  connected 
with  a  trial  under  it."  2 

1  39  N.  H.  179.  to  the  other  privileges  by  which  the  old 

2  With  great  deference  it  may  be  sug-  law  surrounded  the  trial,  —  all  of  which 
gested  whether  this  case  does  not  over-  were  designed  as  securities  against  unjust 
look  the  important  circumstance,  that  the  convictions, —  was  directly  calculated  to 
new  law,  by  taking  from  the  accused  that  increase  the  party's  peril,  and  was  in  con- 
absolute  right  to  defence  by  counsel,  and  sequence  brought  within  the  reason  of  the 


378  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

In  Strong  v.  State,1  the  plaintiff  in  error  was  indicted  and  con- 
victed of  perjury,  which,  under  the  law  as  it  existed  at  the  time 
it  was  committed,  was  punishable  by  not  exceeding  one  hundred 
stripes.  Before  the  trial,  this  punishment  was  changed  to  im- 
prisonment in  the  penitentiary  not  exceeding  seven  years.  The 
court  held  this  amendatory  law  not  to  be  ex  post  facto,  as  applied 
to  the  case.  "The  words  ex  post  facto  have  a  definite,  technical 
signification.  The  plain  and  obvious  meaning  of  this  prohibition 
is,  that  the  legislature  shall  not  pass  any  law,  after  a  fact  done 
by  any  citizen,  which  shall  have  relation  to  that  fact,  so  as  to 
punish  that  which  was  innocent  when  done,  or  to  add  to  the  pun- 
ishment of  that  which  was  criminal,  or  to  increase  the  malignity 
of  a  crime,  or  to  retrench  the  rules  of  evidence  so  as  to  make 
conviction  more  easy."  "  Apply  this  definition  to  the  act  under 
consideration.  Does  this  statute  make  a  new  offence?  It  does 
not.  Does  it  increase  the  malignity  of  that  which  was  an  offence 
before  ?  It  does  not.  Does  it  so  change  the  rules  of  evidence  as 
to  make  conviction  more  easy  ?  This  cannot  be  alleged.  Does 
it  then  increase  the  punishment  of  that  which  was  criminal  before 
its  enactment  ?  We  think  not."  2 

So  in  Texas  it  has  been  held  that,  the  infliction  of  stripes,  from 
the  peculiarly  degrading  character  of  the  punishment,  was  worse 
than  the  death  penalty.  "  Among  all  nations  of  civilized  man, 
from  the  earliest  ages,  the  infliction  of  stripes  has  been  considered 
more  degrading  than  death  itself."  3  While,  on  the  other  hand, 
in  South  Carolina,  where,  at  the  time  of  the  commission  of  a 
forgery,  the  punishment  was  death,  but  it  was  changed  before 
final  judgment  to  fine,  whipping,  and  imprisonment,  the  new  law 
was  applied  to  the  case  in  passing  the  sentence.4  These  cases 

rule  which  holds  a  law  ex  post  facto  which  favorable  to  the  accused,  when  its  molli- 

changes  the  rules  of  evidence  after  the  fying  circumstance  is  more  than  coun- 

fact,  so  as  to  make  a  less  amount  or  de-  terbalanced    by    others    of    a    contrary 

gree  sufficient.     Could  a  law  be  void  as  character. 

ex  post  facto  which  made  a  party  liable  to  1  I  Blackf.  193. 

conviction  for  perjury  in  a  previous  oath  2  Mr.  Bishop  says  of  this  decision: 
on  the  testimony  of  a  single  witness,  and  "  But  certainly  the  court  went  far  in  this 
another  law  unobjectionable  on  this  score  case."  1  Bishop,  Crim.  Law,  §219  (108). 
which  deprived  a  party,  when  put  on  8  Berber  v.  State,  7  Tex.  69. 
trial  for  a  previous  act,  of  all  the  usual  *  State  v.  Williams,  2  Rich.  418.  In 
opportunities  of  exhibiting  the  facts  and  Clark  v.  State,  23  Miss.  261,  defendant 
establishing  his  innocence?  Undoubtedly,  was  convicted  of  a  mayhem.  Between  the 
if  the  party  accused  was  always  guilty,  commission  of  the  act  and  his  conviction, 
and  certain  to  be  convicted,  the  new  law  a  statute  had  been  passed,  changing  the 
must  be  regarded  as  mitigating  the  of-  punishment  for  this  offence  from  the  pit- 
fence  ;  but,  assuming  every  man  to  be  lory  and  a  fine  to  imprisonment  in  the 
innocent  until  he  is  proved  to  be  guilty,  penitentiary,  but  providing  further,  that 
could  such  a  law  be  looked  upon  as  "  mol-  ''  no  offence  committed,  and  no  penalty 
lifying  the  rigor  "  of  the  prior  law,  or  as  and  forfeiture  incurred  previous  to  the 


CH.  IX.]       FEDERAL  PROTECTION  TO  PERSON,  ETC.  379 

illustrate  the  difficulty  of  laying  down  any  rule  which  will  be 
readily  and  universally  accepted  as  to  what  is  a  mitigation  of 
punishment,  when  its  character  is  changed,  and  when  from  the 
very  nature  of  the  case  there  can  be  no  common  standard,  by 
which  all  minds,  however  educated,  can  measure  the  relative 
severity  and  ignominy. 

In  Hartung  v.  People,1  the  law  providing  for  the  infliction  of 
capital  punishment  had  been  so  changed  as  to  require  the  party 
liable  to  this  penalty  to  be  sentenced  to  confinement  at  hard  labor 
in  the  State  prison  until  the  punishment  of  death  should  be  in- 
flicted ;  and  it  further  provided  that  such  punishment  should  not 
be  inflicted  under  one  year,  nor  until  the  governor  should  issue  his 
warrant  for  the  purpose.  The  act  was  evidently  designed  for  the 
benefit  of  parties  convicted,  and,  among  other  things,  to  enable 
advantage  to  be  taken,  for  their  benefit,  of  any  circumstances 
subsequently  coming  to  light  which  might  show  the  injustice  of 
the  judgment,  or  throw  any  more  favorable  light  on  the  action  of 
the  accused.  Nevertheless,  the  court  held  the  act  inoperative  as 
to  offences  before  committed.  "  In  my  opinion,"  says  Denio,  J., 
"  it  would  be  perfectly  competent  for  the  legislature,  by  a  general 
law,  to  remit  any  separable  portion  of  the  prescribed  punishment. 
For  instance,  if  the  punishment  were  fine  and  imprisonment,  a 
law  which  should  dispense  with  either  the  fine  or  the  imprison- 
ment might,  I  think,  be  lawfully  applied  to  existing  offences  ;  and 
so,  in  my  opinion,  the  term  of  imprisonment  might  be  reduced, 
or  the  number  of  stripes  diminished,  in  cases  punishable  in  that 
manner.  Anything  which,  if  applied  to  an  individual  sentence, 
would  fairly  fall  within  the  idea  of  a  remission  of  a  part  of  the 
sentence,  would  not  be  liable  to  objection.  And  any  change 
which  should  be  referable  to  prison  discipline  or  penal  adminis- 
tration as  its  primary  object  might  also  be  made  to  take  effect 
upon  past  as  well  as  future  offences ;  as  changes  in  the  manner 
or  kind  of  employment  of  convicts  sentenced  to  hard  labor, 
the  system  of  supervision,  the  means  of  restraint,  or  the  like. 
Changes  of  this  sort  might  operate  to  increase  or  mitigate  the 

time  when  this  act  shall  take  effect  shall  punishment  prescribed  in  that  code  in 

be  affected  by  this  act,  except  that  when  lieu  of  that  to  which  he  was  liable  before 

any  punishment,  forfeiture,   or  penalty  its  enactment."    But  inasmuch   as   the 

should  have  been  mitigated  by  it,  its  pro-  record  did  not  show  that  the  defendant 

visions  should  be  applied  to  the  judgment  claimed  a   commutation   of  his  punisb- 

to  be  pronounced  for  offences  committed  ment,  the  court  confirmed  a  sentence  im- 

before  its  adoption."    In  regard  to  this  posed  according  to  the  terms  of  the  old 

statute  the  court  say :     "  We   think  that  law.     On  this   subject,   see  further  the 

in  every  case  of  offence  committed  before  cases  of  Holt  v.  State,  2  Tex.  363 ;  Daw- 

the  adoption  of  the  penitentiary  code,  the  son  v.  State,  6  Tex.  347. 

prisoner  has  the  option  of  selecting  the  l  22  N.  Y.  95,  105. 


380  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

severity  of  the  punishment  of  the  convict,  but  would  not  raise 
any  question  under  the  constitutional  provision  we  are  consider- 
ing. The  change  wrought  by  the  Act  of  1860,  in  the  punishment 
of  existing  offences  of  murder,  does  not  fall  within  either  of  these 
exceptions.  If  it  is  to  be  construed  to  vest  in  the  governor  a 
discretion  to  determine  whether  the  convict  should  be  executed 
or  remain  a  perpetual  prisoner  at  hard  labor,  this  would  only  be 
equivalent  to  what  he  might  do  under  the  authority  to  commute 
a  sentence.  But  he  can,  under  the  Constitution,  only  do  this 
once  for  all.  If  he  refuses  the  pardon,  the  convict  is  executed 
according  to  sentence.  If  he  grants  it,  his  jurisdiction  of  the 
case  ends.  The  act  in  question  places  the  convict  at  the  mercy 
of  the  governor  in  office  at  the  expiration  of  one  year  from  the 
time  of  the  conviction,  and  of  all  of  his  successors  during  the  life- 
time of  the  convict.  He  may  be  ordered  to  execution  at  any  time, 
upon  any  notice,  or  without  notice.  Under  one  of  the  repealed 
sections  of  the  Revised  Statutes,  it  was  required  that  a  period 
should  intervene  between  the  sentence  and  execution  of  not  less 
than  four,  nor  more  than  eight  weeks.  If  we  stop  here,  the 
change  effected  by  the  statute  is  between  an  execution  within  a 
limited  time,  to  be  prescribed  by  the  court,  or  a  pardon  or  com- 
mutation of  the  sentence  during  that  period,  on  the  one  hand,  and 
the  placing  the  convict  at  the  mercy  of  the  executive  magistrate 
for  the  time,  and  his  successors,  to  be  executed  at  his  pleasure  at 
any  time  after  one  year,  on  the  other.  The  sword  is  indefinitely 
suspended  over  his  head,  ready  to  fall  at  any  time.  It  is  not 
enough  to  say,  even  if  that  can  be  said,  that  most  persons  would 
probably  prefer  such  a  fate  to  the  former  capital  sentence.  It  is 
enough  to  bring  the  law  within  the  condemnation  of  the  Constitu- 
tion, that  it  changes  the  punishment  after  the  commission  of  the 
offence,  by  substituting  for  the  prescribed  penalty  a  different  one. 
We  have  no  means  of  saying  whether  one  or  the  other  would  be 
the  most  severe  in  a  given  case.  That  would  depend  upon  the 
disposition  and  temperament  of  the  convict.  The  legislature 
cannot  thus  experiment  upon  the  criminal  law.  The  law,  more- 
over, prescribes  one  year's  imprisonment,  at  hard  labor  in  the  State 
prison,  in  addition  to  the  punishment  of  death.  In  every  case  of 
the  execution  of  a  capital  sentence,  it  must  be  preceded  by  the 
year's  imprisonment  at  hard  labor.  True,  the  concluding  part  of 
the  judgment  cannot  be  executed  unless  the  governor  concurs  by 
ordering  the  execution.  But  as  both  parts  may,  in  any  given 
case,  be  inflicted,  and  as  the  convict  is  consequently,  under  this 
law,  exposed  to  the  double  infliction,  it  is,  within  both  the  defi- 
nitions which  have  been  mentioned,  an  ex  post  facto  law.  It 


CH.  IX.]  FEDERAL   PROTECTION   TO    PERSON,   ETC.  381 

changes  the  punishment,  and  inflicts  a  greater  punishment  than 
that  which  the  law  annexed  to  the  crime  when  committed.  It  is 
enough,  in  my  opinion,  that  it  changes  it  in  arty  manner  except 
by  dispensing  with  divisible  portions  of  it;  but  upon  the  other 
definition  announced  by  Judge  Chase,  where  it  is  implied  that  the 
change  must  be  from  a  less  to  a  greater  punishment,  this  act 
cannot  be  sustained."  This  decision  has  since  been  several  times 
followed  in  the  State  of  New  York,1  and  it  must  now  be  regarded 
as  the  settled  law  of  that  State,  that  "  a  law  changing  the  punish- 
ment for  offences  committed  before  its  passage  is  ex  post  facto 
arid  void,  under  the  Constitution,  unless  the  change  consists  in 
the  remission  of  some  separable  part  of  the  punishment  before 
prescribed,  or  it  is  referable  to  prison  discipline  or  penal  adminis- 
tration as  its  primary  object." 2  And  this  rule  seems  to  us  a 
sound  and  sensible  one,  with  perhaps  this  single  qualification,— 
that  the  substitution  of  any  other  punishment  for  that  of  death 
must  be  regarded  as  a  mitigation  of  the  penalty.3 

But  so  far  as  mere  modes  of  procedure  are  concerned,  a  party 
has  no  more  right,  in  a  criminal  than  in  a  civil  action,  to  insist 
that  his  case  shall  be  disposed  of  under  the  law  in  force  when  the 
act  to  be  investigated  is  charged  to  have  taken  place.  Remedies 
must  always  be  under  the  control  of  the  legislature,  and  it  would 
create  endless  confusion  in  legal  proceedings  if  every  case  was  to 
be  conducted  only  in  accordance  with  the  rules  of  practice,  and 
heard  only  by  the  courts,  in  existence  when  its  facts  arose.  The 
legislature  may  abolish  courts  and  create  new  ones,  and  it  may 
prescribe  altogether  different  modes  of  procedure  in  its  discretion, 
though  it  cannot  lawfully,  we  think,  in  so  doing,  dispense  with 
any  of  those  substantial  protections  with  which  the  existing  law 
surrounds  the  person  accused  of  crime.4  Statutes  giving  the  gov- 

1  Shepherd  v.  People,  25  N.  Y.  406 ;  is  not  ex  post  facto  which  in  a  capital  case 
Ratzky  v.  People,  29  N.  Y.  124;  Kuckler  directs  that  the  imprisonment  after  sen- 
is.  People,  5  Park.  Cr.  Rep.  212.  tence,  and  the  execution  shall  be  in  a  pen- 

2  Per  Davies,  J.,  in  Ratzky  v.  People,  itentiary  instead  of  a  jail.     In  re  Tyson, 
29  N,  Y.  124.     See  Miles  v.  State,  40  Ala.  13  Col.  482,  22  Pac.  Rep.  810. 

39.  If  when  the  act  was  committed  one  8  See  1  Bishop,  Grim.  Law,  §  219 
could  escape  the  death  penalty  by  plead-  (108).  QOne  charged  with  crime  cannot 
ing  guilty  and  a  law  changes  this  before  be  deprived  of  the  benefit  of  a  law  en- 
trial,  it  is  bad.  Garvey  v.  People,  6  Col.  acted  after  its  commission.  State  v.  Ed- 
659.  So  if  the  option  of  a  jury  to  inflict  wards,  —  La.  Ann.  — ,  33  So.  209.] 
death  or  life  imprisonment  is  taken  away,  *  Jurisdiction  may  be  transferred  from 
and  the  former  is  made  the  only  penalty,  one  court  to  another.  State  v.  Cooler, 
Marion  v.  State,  16  Neb.  349,  20  N.  W.  30  S.  C.  105,  8  S.  E.  69.  As  to  what  is 
289.  See  Lindzey  v.  State,  65  Miss.  542,  5  merely  a  change  in  procedure,  see  dissent- 
So.  99.  Otherwise,  of  an  act  which  allows  ing  opinions  in  Kring  v.  Missouri,  107 
a  prisoner  to  elect  between  death  and  im-  U.  S.  221,  2  Sup  Ct.  Rep.  443,  cited  supra, 
prisonment.  Mclnturf  v.  State,  20  Tex.  p.  376,  note  1 ;  Drake  v.  Jordan,  73  Iowa, 
App.  335.  An  act  passed  after  the  offence  707,  36  N.  W.  653.  Taking  from  the  jury 


382 


CONSTITUTIONAL   LIMITATIONS. 


[Cll.  IX. 


ernment  additional  challenges,1  and  others  which  authorized  the 
amendment  of  indictments,2  have  been  sustained  and  applied  to 
past  transactions,  as  doubtless  would  be  any  similar  statute,  cal- 
culated merely  to  improve  the  remedy,  and  in  its  operation  work- 
ing no  injustice  to  the  defendant,  and  depriving  him  of  no 
substantial  right.3 

And  a  law  is  not  objectionable  as  ex  post  facto  which,  in  pro- 
viding for  the  punishment  of  future  offences,  authorizes  the 
offender's  conduct  in  the  past  to  be  taken  into  the  account,  and 
the  punishment  to  be  graduated  accordingly.  Heavier  penalties 


power  to  judge  of  the  law  is  a  matter  of 
procedure.  Marion  v.  State,  20  Neb.  233, 
29  N.  W.  911. 

1  Walston  v.  Commonwealth,  16  B. 
Monr.  15;  Jones  v.  State,  1  Ga.  610; 
Warren  v.  Commonwealth,  37  Pa.  St.  45; 
Walter  v.  People,  32  N.  Y.  147 ;  State  v. 
Ryan,  13  Minn.  370;  State  v.  Wilson,  48 
N.  H.  398 ;  Commonwealth  v.  Dorsey,  103 
Mass.  412. 

3  State  v.  Manning,  14  Tex.  402;  La- 
sure  v.  State,  19  Ohio  St.  43;  Sullivan  v. 
Oneida,  61  111.  242.  See  State  i>.  Corson, 
59  Me.  137.  The  defendant  in  any  case 
must  be  proceeded  against  and  punished 
under  the  law  in  force  when  the  proceed- 
ing is  had.  State  v.  Williams,  2  Rich. 
418;  Keene  v.  State,  3  Chand.  109;  People 
v.  Phelps,  5  Wend.  9;  Rand  v.  Common- 
wealth, 9  Gratt.  738.  A  law  is  not  uncon- 
stitutional which  precludes  a  defendant 
in  a  criminal  case  from  taking  advantage 
of  variances  which  do  not  prejudice  him. 
Commonwealth  v.  Hall,  97  Mass.  570;  La- 
sure  v.  State,  19  Ohio  St.  43.  Nor  one 
which  reduces  the  number  of  the  prison- 
er's peremptory  challenges.  Dowling  v. 
State,  13  Miss.  664.  Nor  one  which, 
though  passed  after  the  commission  of 
the  offence,  authorizes  a  change  of  venue 
to  another  county  of  the  judicial  district. 
Gut  v.  State,  9  Wall.  35.  Nor  one  which 
modifies  the  grounds  of  challenge.  Stokes 
t>.  People,  63  N.  Y.  164.  Nor  one  which 
merely  modifies,  simplifies,  and  reduces 
the  essential  allegations  in  a  criminal  in- 
dictment, retaining  the  charge  of  a  dis- 
tinct offence.  State  v.  Learned,  47  Me. 
426;  State  v.  Corson,  59  Me.  137.  And 
see  People  v.  Mortimer,  46  Cal.  114.  In 
the  absence  of  statutory  permission,  if  a 
court  allows  an  indictment  to  be  amended 
by  striking  out  words  as  surplusage,  it 
must  be  resubmitted  to  the  jury.  Ex 


parte  Bain,  121  U.  S.  1,  7  Sup.  Ct.  Rep. 
781.  But  a  statute  providing  that  the 
rule  of  law  precluding  a  conviction  on  the 
uncorroborated  testimony  of  an  accom- 
plice should  not  apply  to  cases  of  mis- 
demeanor, it  was  held  could  not  have 
retrospective  operation.  Hart  v.  State, 
40  Ala.  32. 

8  But  the  legislature  can  have  no  power 
to  dispense  with  such  allegations  in  in- 
dictments as  are  essential  to  reasonable 
particularity  and  certainty  in  the  descrip- 
tion of  the  offence.  McLaughlin  «;.  State, 
45  Ind.  338;  Brown  v.  People,  29  Mich. 
232;  People  v.  Olmstead,  30  Mich.  431; 
State  v.  O'Flaherty,  7  Nev.  153.  [A 
State  may  between  the  time  of  commis- 
sion of  an  offence  and  the  time  of  trial 
modify  the  rules  of  evidence  regarding 
the  proof  of  handwriting.  Thompson  v. 
Missouri,  171  U.  S.  380,  18  Sup.  Ct.  Rep. 
922 ;  aff.  132  Mo.  301,  34  S.  W.  31.  Upon 
ex  post  facto  laws,  see  notes  to  1  L.  ed. 
U.  S.  648,  and  4  L.  ed.  U.  S.  529.  May 
enact  that  jurors  shall  be  selected  from 
"  persons  of  good  intelligence,  sound 
judgment,  and  fair  character."  Gibson 
v.  Mississippi,  162  U.  S.  565,  16  Sup. 
Ct.  Rep.  904.  May  change  mode  of 
accusation  from  indictment  to  infor- 
mation. Re  Wright,  3  Wyo.  478,  27  Pac. 
565,  13  L.  R.  A.  748,  31  Am.  St.  94.  In 
Mallett  v.  North  Carolina,  181  U.  S.  589, 
21  Sup.  Ct.  Rep.  730,  it  is  held  that  a 
provision  for  an  appeal  by  the  State  from 
an  order  granting  a  new  trial  is  not  ex 
post  facto  as  applied  to  a  criminal  case 
tried  before  the  statute  was  passed,  the 
order  for  a  new  trial  having  been  made 
after  the  enactment  of  the  statute.  The 
opinion  cites  the  principal  cases  on  the 
constitutional  prohibition  of  ex  post  facto 
laws  in  the  Federal  Supreme  Court/] 


CH.  IX.]       FEDERAL  PROTECTION  TO  PERSON,  ETC.          383 

are  often  provided  by  law  for  a  second  or  any  subsequent  offence 
than  for  the  first ;  and  it  has  not  been  deemed  objectionable  that, 
in  providing  for  such  heavier  penalties,  the  prior  conviction 
authorized  to  be  taken  into  the  account  may  have  taken  place 
before  the  law  was  passed.1  In  such  case,  it  is  the  second  or 
subsequent  offence  that  is  punished,  not  the  first ; 2  and  the 
statute  would  be  void  if  the  offence  to  be  actually  punished 
under  it  had  been  committed  before  it  had  taken  effect,  even 
though  it  was  after  its  passage.3 

Laws  impairing  the   Obligation  of  Contracts. 

The  Constitution  of  the  United  States  also  forbids  the  States 
passing  any  law   impairing  the  obligation   of  contracts.4     It   is 


1  Rand  v.  Commonwealth,  9  Gratt.  738; 
Ross's  Case,  2  Pick.  165;  People  v.  Butler, 
3  Cow.  347 ;  Ex  parte  Guiterrez,  45  Cal. 
429.     Extradition   treaties    may   provide 
for  the  surrender  of  persons  charged  with 
offences  previously  committed.    In  re  De 
Giacomo,  12  Blatch.  391. 

2  Rand  r.  Commonwealth,  9  Gratt.  738. 
8  Riley's  Case,  2  Pick.  171. 

*  Const,  art.  1,  §  10.  "A  State  can  no 
more  impair  the  obligation  of  a  contract 
by  her  organic  law  than  by  legislative 
enactment ;  for  her  constitution  is  a  law 
within  the  meaning  of  the  contract  clause 
of  the  National  Constitution."  New  Or- 
leans Gas  Co.  v.  Louisiana  Light  Co.,  115 
U.  S.  650,  672,  6  Sup.  Ct.  Rep.  252;  Fisk 
v.  Jefferson  Police  Jury,  116  U.  S.  131, 
6  Sup.  Ct.  Rep.  329 ;  St.  Tammany  Water 
Works  v.  New  Orleans  Water  Works,  120 
U.  S.  64,  7  Sup.  Ct.  Rep.  405,  and  see  cases, 
ante,  p.  62,  note  2.  fJSee,  Southwest  Mo. 
L.  Co.  v.  Taplin,  113  Fed.  817,  in  which 
case  the  same  conclusion  was  reached, 
though  there  was  no  specific  agreement 
not  to  erect  a  municipal  plant  as  in  the 
Walla  Walla  Case  cited  post,  in  this  note. 
See  also  Hamilton,  &c.  Co.  r.  Hamilton, 
146  U.  S.  258,  13  Sup.  Ct.  Rep.  90; 
Skaneateles  W.  W.  Co.  v.  Skaneateles, 
161  N.  Y.  154,  55  N.  E.  562 ;  Syracuse 
W.  Co.  v.  Syracuse,  116  N.  Y.  167,  22 
N.  E.  381,  5  L.  R.  A.  546  ;  Re  Brooklyn, 
143  N.  Y.  596,  38  N.  E.  983,  26  L.  R.  A. 
270;  Westerly  W.  W.  v.  Westerly,  75 
Fed.  Rep.  181.  In  Detroit  r.  Detroit  Cit. 
St.  Ry.  Co.,  184  U.  S.  368,  22  Sup.  Ct. 
Rep.  410,  the  lines  of  the  railway  com- 
pany were  constructed  under  a  statute 


authorizing  construction  "  under  such  reg- 
ulations and  upon  such  terms  and  con- 
ditions as  the  municipal  authorities  may 
from  time  to  time  prescribe."  The  city 
in  its  agreement  witli  the  company  for 
the  construction  authorized  a  particular 
rate  of  fare.  It  subsequently  passed  an 
ordinance  for  the  reduction  of  the 
rate  so  fixed.  The  ordinance  was  held 
invalid  as  impairing  the  obligation  of 
contract.] 

The  law  which  impairs  must  be  one 
passed  after  the  formation  of  the  con- 
tract. Lehigh  Water  Co.  v.  Easton,  121 
U.  S.  388,  7  Sup.  Ct.  Rep.  916.  A  New 
York  law  prohibiting  the  sale  of  lottery 
tickets  is  not  invalid  because  a  lottery, 
the  tickets  in  which  are  sold,  is  legal  in 
Louisiana.  People  v.  Noelke,  94  N.  Y.  137. 
That  the  prohibition  does  not  apply  to 
Congress,  see  Mitchell  v.  Clark,  110  U.  S. 
633,  4  Sup.  Ct.  Rep.  170,  312.  fJSee  on 
what  laws  are  void  as  impairing  the  obli- 
gation of  contracts,  note  to  3  L.  ed.  U.  S. 
162;  on  what  contracts  are  within  the 
rule,  note  to  10  L.  R.  A.  405.  A  city  in 
granting  to  a  water  company  power  to 
lay  pipe  in  the  streets  and  to  supply  the 
citizens  with  water  at  reasonable  rates, 
&c.,  has  power  to  bind  itself  for  a  limited 
period  not  to  erect  any  competing  water- 
works. Subsequent  ordinance  providing 
for  tlie  erection  of  a  system  of  water-works 
by  the  city  within  the  limited  period  is 
invalid,  and  its  execution  may  be  enjoined. 
Walla  Walla  v.  W.  W.  Water  Co.,  172 
U.  S.  1,  19  Sup.  Ct.  Rep.  77.  Ordinances 
of  a  city  are  laws  of  the  State  within  the 
meaning  of  this  provision  of  the  Con- 


I 


384  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

remarkable  that  this  very  important  clause  was  passed  over 
almost  without  comment  during  the  discussions  preceding  the 
adoption  of  that  instrument,  though  since  its  adoption  no  clause 
which  the  Constitution  contains  has  been  more  prolific  of  litiga- 
tion, or  given  rise  to  more  animated  and  at  times  angry  contro- 
versy. It  is  but  twice  alluded  to  in  the  papers  of  the  Federalist ; l 
and  though  its  great  importance  is  assumed,  it  is  evident  that  the 
writer  had  no  conception  of  the  prominence  it  was  afterwards  to 
hold  in  constitutional  discussions,  or  of  the  very  numerous  cases 
to  which  it  was  to  be  applied  in  practice. 

I  The  first  question  that  arises  under  this  provision  is,  What  is 
a  contract  in  the  sense  in  which  the  word  is  here  employed  ?  In 
the  leading  case  upon  this  subject,  it  appeared  that  the  legislature 
of  Georgia  had  made  a  grant  of  land,  but  afterwards,  on  an 
allegation  that  the  grant  had  been  obtained  by  fraud,  a  subsequent 
legislature  had-  passed  another  act  annulling  and  rescinding  the 
first  conveyance,  and  asserting  the  right  of  the  State  to  the  land 
it  covered.  "  A  contract,"  says  Ch.  J.  Marshall,  "  is  a  compact 
between  two  or  more  parties,  and  is  either  executory  or  executed. 
An  executory  contract  is  one  in  which  a  party  binds  himself  to 
do  or  not  to  do  a  particular  thing.  Such  was  the  law  under 
which  the  conveyance  was  made  by  the  governor.  A  contract 
executed  is  one  in  which  the  object  of  the  contract  is  performed ; 
and  this,  says  Blackstone,  differs  in  nothing  from  a  grant.  The 
contract  between  Georgia  and  the  purchasers  was  executed  by 
the  grant.  A  contract  executed,  as  well  as  one  which  is  execu- 
tory, contains  obligations  binding  on  the  parties.  A  grant,  in  its 
own  nature,  amounts  to  an  extinguishment  of  the  right  of  the 
grantor,  and  implies  a  contract  not  to  reassert  that  right.  A 

stitution.     Penn  Mutual  Life  Ins.  Co.  v.  referred  to,  to  the  remainder  of  the  line 

Austin,  168  U.  S.  685, 18  Sup.  Ct.  Rep.  223.  thereafter  constructed.     Houston  &  T.  C. 

Provision    operating  only   on    contracts  R.  Co.  v.  Texas,  170  U.  S.  243,  18  Sup. 

thereafter  formed    cannot   impair    their  Ct.  Rep.  610,  rev.  90  Tex.  607,  40  S.  W. 

obligation.     Galveston,  H.  &  S.  A.  R.  Co.  402.     A  State  cannot  compel   the  non- 

v.  Texas,  170  U.  S.  226,  18  Sup.  Ct.  Rep.  resident  treasurer  of  a  foreign  corpora- 

603,   aff.   89   Tex.   340,   34    S.    W.   746.  tion   to  act  as  tax-collector  and  collect 

Where   a    railroad    company   accepts   a  taxes  levied  by  the  State  upon  resident 

charter   and    subsequent    legislation    en-  holders  of  bonds  of  the  corporation   in 

titling  it  to  construct  a  line  of  railroad  respect  of  interest  upon  such  bonds,  even 

and  thereby  earn  certain  grants  of  land,  though    the   corporation    does    business 

and  enters  upon  the  construction  of  the  within  the  borders  of  the  State.     N.  Y., 

road,  and  actually  completes  an  impor-  L.  E.  &  W.  R.  Co.  v.   Pennsylvania,  153 

tant  part  of  it  by  the  time  a  new  consti-  U.  S.  628,  14  Sup.   Ct.   Rep.   952.     See 

tution    for    the   State    is    adopted,   that  also,  Bier  v.  McGehee,  148  U.  S.  137,  13 

constitution  cannot  impair  the  right  of  Sup.  Ct.  Rep.  580.] 

the  company  to  earn  the  lands  attaching,  *  Federalist,  Nos.  7  and  44. 
under  the  charter  and  legislation  above 


CH.  IX.]  FEDERAL   PROTECTION    TO   PERSON,   ETC.  385 

party  is,  therefore,  always  estopped  by  his  own  grant.  Since 
then,  in  fact,  a  grant  is  a  contract  executed,  the  obligation  of 
which  still  continues,  and  since  the  Constitution  uses  the  general 
term  '  contract '  without  distinguishing  between  those  which  are 
executory  and  those  which  are  executed,  it  must  be  construed  to 
comprehend  the  latter  as  well  as  the  former.  A  law  annulling 
conveyances  between  individuals,  and  declaring  that  the  grantors 
should  stand  seized  of  their  former  estates,  notwithstanding  those 
grants,  would  be  as  repugnant  to  the  Constitution  as  a  law  dis- 
charging the  vendors  of  property  from  the  obligation  of  executing 
their  contracts  by  conveyances.  It  would  be  strange  if  a  contract 
to  convey  was  secured  by  the  Constitution,  while  an  absolute  con- 
veyance remained  unprotected.  If,  under  a  fair  construction  of 
the  Constitution,  grants  are  comprehended  under  the  term  '  con- 
tracts,'  is  a  grant  from  the  State  excluded  from  the  operation  of 
the  provision  ?  Is  the  clause  to  b^Tconsidered  as  inhibiting  the 
State  from  impairing  the  obligation  of  contracts  between  two 
individuals,  but  as  excluding  from  that  inhibition  contracts  made 
with  itself  ?  The  words  themselves  contain  no  such  distinction. 
They  are  general,  and  are  applicable  to  contracts  of  every  de- 
scription. If  contracts  made  with  the  State  are  to  be  exempted 
from  their  operations,  the  exception  must  arise  from  the  char- 
acter of  the  contracting  party,  not  from  the  words  which  are 
employed."  And  the  court  proceed  to  .give  reasons  for  their 
decision,  that  violence  should  not "  be  done  to  the  natural  mean- 
ing of  words,  for  the  purpose  of  leaving  to  the  legislature  the 
power  of  seizing,  for  public  use,  the  estate  of  an  individual,  in 
the  form  of  a  law  annulling  the  title  by  which  he  holds  that 
estate." 1 

It  will  be  seen  that  this  leading  decision  settles  two  important 
points  :  first,  that  an  executed  contract  is  within  the  provision, 
and,  second,  that  it  protects  from  violation  the  contracts  of  States 
equally  with  those  entered  into  between  private  individuals.2 

1  Fletcher  v.  Peck,  6  Cranch,  87, 136.  a  stipulated  form  or  discipline,  or  to  pay 

2  This  decision  has  been   repeatedly  taxes  to  those   whose  creed   they  could 
followed.     In  the  founding  of  the  Colony  not  conscientiously  believe.     By  statute 
of  Virginia   the   religious   establishment  in   1801,   the   legislature    asserted    their 
of  England  was  adopted,  and  before  the  right  to  all  the  property  of  the  Episcopal 
Revolution  the  churches  of  that  denomi-  churches  in   the   respective   parishes  of 
nation  had  become  vested,  by  grants  of  the  State;  and,  among  other  things,  di- 
the  crown  or  colony,  with  large  proper-  reeled   and   authorized    the  overseers  of 
ties,  which  continued  in  their  possession  the   poor  and  their  successors  in  each 
after  the  constitution  of  the  State  had  parish,  wherein  any  glebe  land  was  va- 
forbidden  the  creation  or  continuance  of  cant  or  should   become   so,  to  sell   the 
any  religious  establishment  possessed  of  same  and  appropriate  the  proceeds  to  the 
exclusive    rights    or    privileges,  or   the  use  of  the  poor  of  the  parish.     By  this 
compelling  the  citizens  to  worship  under  act,  it  will  be  seen,  the  State  sought  in 

25 


386 


CONSTITUTIONAL  LIMITATIONS. 


[OIL  ix. 


And  it  has  since  been  held  that  compacts  between  two  States  are 
in  like  manner  protected.1     These   decisions,   however,   do   not 


effect  to  resume  grants  made  by  tlie  sov- 
ereignty,—  a  practice  which  had  been 
common  enough  in  English  history,  and 
of  which  precedents  were  not  wanting 
in  the  History  of  the  American  Colonies. 
The  Supreme  Court  of  the  United  States 
held  the  grant  not  revocable,  and  that 
the  legislative  act  was  therefore  uncon- 
stitutional and  void.  Terrett  v.  Taylor,  9 
Cranch,  43.  See  also  Town  of  Pawlet  v. 
Clark,  9  Cranch,  292 ;  Davis  v.  Gray,  16 
Wall.  203 ;  Hall  v.  Wisconsin,  103  U.  S.  5; 
People  v.  Platt,  17  Johns.  195;  Montgom- 
ery v.  Kasson,  16  Cal.  189;  Grogan  v.  San 
Francisco,  18  Cal.  590 ;  Rehoboth  v.  H  unt, 

1  Pick.  224 ;   Lowry  v.  Francis,  2  Yerg. 
534 ;  University  of  North  Carolina  v.  Foy, 

2  Hayw.  310;  State  i1.  Barker,  4  Kan. 
379  and  435.    When  a  State  descends  from 
the  plane  of  its  sovereignty  and  contracts 
with   private  persons,  it  is  regarded  pro 
hoc  vice  as  a  private  person  itself,  and  is 
bound   accordingly.     Davis    v.  Gray,  16 
Wall.  203 ;  Georgia  Pen.  Cos.  v.  Nelms, 
71  Ga.  301.     The  lien  of  a  bondholder, 
who  has  loaned  money  to  the  State  on  a 
pledge   of   property   by   legislative    act, 
cannot  be  divested  or  postponed  by  a  sub- 
sequent legislative  act.     Wabash,  &c.  Co. 
v.  Beers,  2  Black,  448.     An  agreement  to 
receive  coupons  of  State  bonds  in  pay- 
ment for  State  taxes  is  binding.    Hartman 
v.  Greenhow,  102  U.   S.  672;  Poindexter 
v.  Greenhow,  114  U.  S.  270,  5  Sup.  Ct. 
Rep.  903,  962.     See  Keith    v.  Clark,  97 
U.  S.  454.     QWheii   State  officers  acting 
under  authority  of  a  statute   have  re- 
ceived in  payment  of  obligations  due  to 
the  State  warrants  drawn  on  the  State 
treasury,  there  is  an  executed  contract, 
and   the  obligation   is   discharged,  even 
though    the  warrants  were    illegal    and 
void,  as  being  issued  with  the  intention 
that  they  circulate  as  money  or  as  bills 
of  creditor  in  aid  of  rebellion.    For  the 
courts   of    the   State    to   place    upon    a 
statute  thereafter  passed  a  construction 
which  will  treat  such  payments  as  void 
and  revive  the  obligation   is  to  impair 
the  obligation  of  the  contract,  and  there- 
fore   to  violate    the   Federal    Constitu- 
tion.    Houston  &  T.  C.  R.  Co.  v.  Texas, 
177  U.  S.  06,  20  Sup.  Ct   Rep.  545,  rev. 
41  S.   W.  157.    But   whore   the  statute 


under  which  a  State  grants  permission  to 
a  foreign  corporation  to  do  business 
within  its  borders  provides  that  such 
perm^sion  may  be  revoked  upon  viola- 
tion of  the  statute  by  the  corporation,  a 
forfeiiure  of  the  permission  because  of 
such  violation  does  not  impair  the  obliga- 
tion of  any  contract.  Waters-Pierce  Oil 
Co.  v.  Texas,  177.  U.  S.  28,  20  Sup.  Ct. 
Rep.  518,  aff.  19  Tex.  Civ.  App.  1,  44 
S.  W.  93(5.  A  contract  authorized  under 
the  interpretation  and  construction  put 
upon  the  State  constitution  by  the  high- 
est court  of  the  State  at  the  time  the 
contract  is  entered  into  cannot  be  im- 
paired by  any  subsequent  amendment  of 
the  constitution  or  by  any  change  in  its 
construction  by  the  courts  of  the  State. 
Los  Angeles  v.  Los  Angeles  City  Water 
Co..  177  U.  S.  658,  20  Sup.  Ct.  Rep.  736. 
Upon  impairment  of  obligation  of  con- 
tract by  State  constitution,  see  note  to  10 
L.  R.  A.  405;  by  change  in  interpretation 
of  constitution,  note  to  16  L.  R.  A.  646, 
and  one  to  44  L.  ed.  U.  S.  886.  In  this  con- 
nection, see  New  Orleans  v.  Warner,  175 
U.  S.  120,  20  Sup.  Ct.  Rep.  44;  and 
s.  c.  167  U.  S.  467,  17  Sup.  Ct.  Rep.  802. 
A  railroad  company  was  organized  under 
general  statutes  which  provided  for  the 
alteration,  amendment,  or  repeal  of  corpo- 
rate charters.  Filing  a  map  of  a  pro- 
posed route  does  not  vest  in  it  any  right 
to  condemn  lands  upon  the  proposed 
route,  such  that  the  State  is  precluded 
from  taking  these  lands  for  other  pur- 
poses without  impairing,  to  the  damage 
of  the  company,  the  obligation  of  a  con- 
tract. Adirondack  R.  Co.  v.  N.  Y.,  176 
U.  S.  335,  20  Sup.  Ct.  Rep.  460,  aff.  160 
N.  Y.  225, 54  N.  E.  689.  An  appeal  bond  is 
a  contract  hereunder.  Schuster  v.  Weiss, 
114  Mo.  158,  21  S.  W.  438,  19  L.  R.  A. 
182.] 

1  On  the  separation  cf  Kentucky  from 
Virginia,  a  compact  was  entered  into  be- 
tween the  proposed  new  and  the  old  State, 
by  which  it  was  agreed  "that  all  private 
grants  and  interests  of  lands,  within  the 
said  district,  derived  from  the  laws  of 
Virginia,  shall  remain  valid  and  secure 
under  the  laws  of  the  proposed  State, 
and  shall  be  determined  by  the  laws  now 
existing  in  this  State."  After  the  ad- 


CH.  IX.]  FEDERAL   PROTECTION   TO    PERSON,   ETC.  387 

fully  determine  what  under  all  circumstances  is  to  be  regarded  as 
a  contract,  (a)  A  grant  of  land  by  a  State  is  a  contract,  because 
in  making  it  the  State  deals  with  the  purchaser  precisely  as  any 
other  vendor  might ;  and  if  its  mode  of  conveyance  is  any  differ- 
ent, it  is  only  because,  by  virtue  of  its  sovereignty,  it  has  power 
to  convey  by  other  modes  than  those  which  the  general  law  opens 
to  private  individuals.  But  many  things  done  by  the  State  may 
seem  to  hold  out  promises  to  individuals  which  after  all  cannot 
be  treated  as  contracts  without  hampering  the  legislative  power 
of  the  State  in  a  manner  that  would  soon  leave  it  without  the 
means  of  performing  its  essential  functions.  The  State  creates 
offices,  and  appoints  persons  to  fill  them ;  it  establishes  municipal 
corporations  with  large  and  valuable  privileges  for  its  citizens  ; 

i 

mission  of  the  new  State  to  the  Union,  pany  till  its  debts  of  a  certain  class  are 

"occupying  claimant"  laws  were  passed  paid,  is  void.     De  Groff  v.  St.  Paul,  &c. 

by  its  legislature,  such  as  were  not  in  K.  R.  Co.,  23  Minn.   144;  Robertson  v. 

existence  in  Virginia,  and  by  the  force  Land  Commissioner,  44  Mich.  274,  6  N.  W. 

of  which,  under  certain   circumstances,  659.     After  a  contract  made  by  a  city 

the  owner  might  be  deprived  of  his  title  with  a  company  allowing  it  to  build  a 

to  land,  unless  he  would  pay  the  value  railroad  in  certain  streets,  has  been  partly 

of  lasting  improvements   made  upon  it  completed,  the  legislature  cannot  make 

by    an    adverse    claimant.     These    acts  the  right  to  finish  it  conditional  on  the 

were   also  held   void ;  the   compact  was  consent  of  property  owners.     Hovelman 

held   inviolable    under  the  Constitution,  v.  Kansas  City  Ry.  Co.,  79  Mo.  632.     The 

and  it  was  deemed   no  objection   to  its  power  to  withdraw  a  franchise  does  not 

binding  character,  that  its  effect  was  to  give  a  legislature  power  to  authorize  a 

restrict,  in  some  directions,  the  legisla-  city  to  require  a  horse  railroad  company 

tive  power  of  the  State  entering  into  it.  to  pave  outside  its  rails,  when  the  city 

Green  v.  Biddle,  8  Wheat.   1.     See  also  had  contracted  with  it  to  pave  only  inside 

Hawkins  v.  Barney's  Lessee,  5  Pet.  457.  the  rails.     Coast  Line  R.  Co.  v.  Savan- 

After   a   State   has   granted   lands   to  a  nah,  30  Fed.  Rep.  646.     See  New  Orleans 

company,  and  the  grantee  has   fulfilled  v.  Great  South  Tel.  Co.,  40  La.  Ann.  41, 

the  conditions  of  the  grant  and  earned  3  So.  633;  McGee  v.  San  Jose,  68  Cal. 

the  lands,  a  further  enactment,  that  the  91,  8  Pac.  641 ;  [[Chicago  Union  Tr.  Co. 

lands  shall  not  be  transferred  to  the  com-  v.  Chicago,  —  111.  — ,  65  N.  E.  243.] 

(a)  [^Authority  to  construct  and  maintain  a  dam  for  the  purpose  of  improving  a 
water-power  is  only  a  license  and  may  be  revoked  at  any  time.  St.  Anthony  Falls 
W.  P.  Co.  v.  Bd.  of  Water  Com'rs,  168  U.  S.  349,  18  Sup.  Ct.  Rep.  157.  Rate  of 
interest  allowed  upon  an  unpaid  judgment  is  not  contractual  unless  the  judgment  is 
upon  a  contract  to  pay  interest  at  a  given  rate  until  the  debt  is  paid,  and  in  all  other 
cases  it  may  be  changed  at  any  time  by  the  State,  and  such  changed  rate  will  he 
operative  thenceforth.  Morley  v.  L.  S.  &  M.  S.  R.  Co.,  146  U.  S.  162,  13  Sup.  Ct. 
Rep.  54,  aff.  95  N.  Y.  667,  and  following  O'Brien  r.  Young,  95  N.  Y.  428;  47  Am. 
Rep.  64.  Contra,  Butler  v.  Rockwell,  17  Col.  290,  29  Pac.  458, 17  L.  R.  A.  611,  and 
note;  Wyoming  Nat.  Bk.  v.  Brown,  7  Wyo.  494,  53  Pac.  291,  9  Wyo.  153,  61  Pac. 
465,  on  rehearing  (June  29,  1900),  holds  that  contract  is  merged  in  judgment, 
and  rate  of  interest  on  judgment  is  not  contractual.  Judgment  upon  a  tort  is  not  a 
contract,  and  power  to  levy  taxes  ma}1  be  so  restricted  as  to  make  such  judgment 
against  a  city  practically  worthless.  Sherman  v.  Langham,92  Tex.  13,40  S.  W.  140, 
42  S.  W.  961,  39  L.  R.'A.  258;  Louisiana  v.  New  Orleans,  109  U.  S.  285,  3  Sup. 
Ct.  Rep.  211 ;  Louisiana  v.  Police  Jury,  111  U.  S.  716,  4  Sup.  Ct.  Rep.  648.] 


388 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


by  its  general  laws  it  holds  out  inducements  to  immigration  ;  it 
passes  exemption  laws,  and  laws  for  the  encouragement  of  trade 
and  agriculture  ;  and  under  all  these  laws  a  greater  or  less  num- 
ber of  citizens  expect  to  derive  profit  and  emolument.  But  can 
these  laws  be  regarded  as  contracts  between  the  State  and  the 
officers  and  corporations  who  are,  or  the  citizens  of  the  State  who 
expect  to  be,  benefited  by  their  passage,  so  as  to  preclude  their 
being  repealed  ? 

On  these  points  it  would  seem  that  there  could  be  no  difficulty. 
When  the  State  employs  officers  or  creates  municipal  corpora- 
tions as  the  mere  agencies  of  government,  it  must  have  the 
power  to  discontinue  the  agency  whenever  it  comes  to  be  regarded 
as  no  longer  important.  "  The  f  ramers  of  the  Constitution  did 
not  intend  to  restrain  the  States  in  the  regulation  of  their  civil 
institutions,  adopted  for  internal  government." 1  They  may, 
therefore,  discontinue  offices  or  change  the  salary  or  other  com- 
pensation, or  abolish  or  change  the  organization  of  municipal  cor- 
porations at  any  time,  according  to  the  existing  legislative  view 
of  State  policy,  unless  forbidden  by  their  own  constitutions  from 
doing  so.2  And  although  municipal  corporations,  as  respects  the 


1  Dartmouth   College    v.    Woodward, 

4  Wheat.  518-629,  per  Marshall,  Ch.  J. 

2  Butler   v.   Pennsylvania,    10    How. 
402 ;  United  States  v.  Hartwell,  6  Wall. 
385;  Newton  v.  Commissioners,  100  U.  S. 
559;    Warner  v.  People,   2    Denio,  272; 
Conner  v.  New  York,  2  Sandf.  355,  and 

5  N.  Y.  285;  People  v.  Green,  58  N.  Y. 
295;   State  v.  Van    Baumbaeh,  12  Wis. 
310  ;  Coffin  v.  State,  7  Ind.  157  ;  Benford 
v.  Gibson,  15  Ala.  521 ;  Perkins  v.  Corbin, 
45  Ala.  103;    Evans   v.  Populus,  22  La. 
Ann.    121 ;     Commonwealth    v.    Bacon, 

6  S.  &  R.  322;  Commonwealth  v.  Mann, 
6  W.  &  S.  403,  418  ;  Koontz  v.  Franklin 
Co.,  76  Pa.  St.  154 ;  French  v.  Common- 
wealth, 78  Pa.  St.  339  ;  Augusta  v.  Swee- 
ney, 44  Ga.  463;  County  Commissioners 
v.  Jones,  18  Minn.  199 ;  People  v.  Lippin- 
cott,  67   111.  333;  In  re  Bulger,  45  Cal. 
553;  Opinions  of  Justices,  117  Mass.  603; 
Kendall  v.  Canton,  53  Miss.  526;    Wil- 
liams V.Newport,  12  Bush,  438;  States. 
Douglass,  26  Wis.  4-28;  State  v.  Kalb,  50 
Wis.    178,  6   N.   W.   557;    Robinson    v. 
White,  26  Ark.  139 ;    Alexander  v.  Mc- 
Kenzie,   2   S.  C.  81 ;    Harvey  v.  Com'rs 
Rusli  Co.,  32  Kan.  159,  4  Pac.  153  ;  Com. 
v.  Bailey,  81  Ky.   395.     Compare   Peo- 
ple  v.   Bull,  46  N.  Y.  57,   7  Am.   Rep. 
302 ;  Wyandotte   v.  Drennan,  46   Mich. 


478,  9  N.  W.  500.  "  Where  an  office  is 
created  by  statute,  it  is  wholly  within  the 
control  of  the  legislature.  The  term,  the 
mode  of  appointment,  and  the  compensa- 
tion may  be  altered  at  pleasure,  and  the 
latter  may  be  even  taken  away  without 
abolishing  the  office.  Such  extreme  leg- 
islation is  not  to  be  deemed  probable  in 
any  case.  But  we  are  now  discussing  the 
legislative  power,  not  its  expediency  or 
propriety.  Having  the  power,  the  legis- 
lature will  exercise  it  for  the  public  good, 
and  it  is  the  sole  judge  of  the  exigency 
which  demands  its  interference."  Per 
Sandford,  J.,  2  Sandf.  355,  369.  "  The 
selection  of  officers  who  are  nothing  more 
than  public  agents  for  the  effectuating  of 
public  purposes  is  matter  of  public  con- 
venience or  necessity,  and  so,  too,  are  the 
periods  for  the  appointment  of  such 
agents  ;  but  neither  the  one  nor  the  other 
of  these  arrangements  can  constitute  any 
obligation  to  continue  such  agents,  or  to 
reappoint  them,  after  the  measures  which 
brought  them  into  being  shall  have  been 
found  useless,  shall  have  been  fulfilled, 
or  shall  have  been  abrogated  as  even 
detrimental  to  the  well-being  of  the  pub- 
lic. The  promised  compensation  for  ser- 
vices actually  performed  and  accepted, 
during  the  continuance  of  the  particular 


CH.  IX.] 


FEDERAL   PROTECTION   TO   PERSON,  ETC. 


389 


property  which  they  hold,  control,  and  manage,  for  the  benefit  of 
their  citizens,  are  governed  by  the  same  rules  and  subject  to  the 
same  liabilities  as  individuals,  yet  this  property,  so  far  as  it  has 
been  derived  from  the  State,  or  obtained  by  the  exercise  of  the 
ordinary  powers  of  government,  must  be  held  subject  to  control 
by  the  State,  but  under  the  restriction  only,  that  it  is  not  to  be 
appropriated  to  uses  foreign  to  those  for  which  it  has  been  ac- 


agency,  may  undoubtedly  be  claimed, 
both  upon  principles  of  compact  and  of 
equity ;  but  to  insist  beyond  this  upon 
the  perpetuation  of  a  public  policy  either 
useless  or  detrimental,  and  upon  a  reward 
for  acts  neither  desired  nor  performed, 
would  appear  to  be  reconcilable  with 
neither  common  justice  nor  common 
sense."  Daniel,  J.,  in  Butler  v.  Pennsyl- 
vania, 10  How.  402,  416.  "But  after 
services  have  been  rendered  under  a  law, 
resolution,  or  ordinance  which  fixes  the 
rate  of  compensation,  there  arises  an 
implied  contract  to  pay  for  those  services 
at  that  rate.  This  contract  is  a  completed 
contract.  Its  obligation  is  perfect,  and 
rests  on  the  remedies  which  the  law  gives 
for  its  enforcement,"  and  cannot  be  im- 
paired by  a  change  in  the  State  constitu- 
tion. Fisk  v.  Jefferson  Police  Jury,  116 
U.  S.  131,  6  Sup.  Ct.  Rep.  329.  See  also 
Barker  v.  Pittsburgh,  4  Pa.  St.  49 ;  Standi- 
ford  v.  'Wingate,  2  Duv.  443;  Taft  v. 
Adams,  3  Gray,  126 ;  Walker  v.  Peelle, 
18  Ind.  264;  People  v.  Haskell,  5  Cal. 
357;  Dart  v.  Houston,  22  Ga.  506;  Wil- 
liams v.  Newport,  12  Bush,  438 ;  Terri- 
tory v.  Pyle,  1  Oreg.  149;  Bryan  v.  Cat- 
tell,  15  Iowa,  538.  If  the  term  of  an 
office  is  fixed  by  the  Constitution,  the 
legislature  cannot  remove  the  officer,  — 
except  as  that  instrument  may  allow,  — 
either  directly,  or  indirectly  by  abolish- 
ing the  office.  People  v.  Dubois,  23  111. 
647;  State  v.  Messmore,  14  Wis.  163; 
Commonwealth  v.  Gamble,  62  Pa.  St. 
343,  1  Am.  Rep.  422 ;  Lowe  i\  Common- 
wealth, 3  Met  (Ky.)  240  ;  State  v.  Wiltz, 
11  La.  Ann.  489;  Goodin  v.  Thoman,  10 
Kan.  191  ;  State  r.  Draper,  50  Mo.  353. 
Or  by  shortening  the  constitutional  term. 
Brewer  v.  Davis,  9  Humph.  212.  Com- 
pare Christy  v.  Commissioners,  39  Cal.  3. 
But  if  after  the  election  of  a  justice,  his 
town  becomes  part  of  a  city,  his  office 
ceases.  Gertum  v.  Board,  109  N.  Y.  170, 
16  N.  E.  328.  Nor  can  the  legislature  take 
from  a  constitutional  officer  a  portion  of 


the  characteristic  duties  belonging  to  the 
office,  and  devolve  them  upon  an  office  of 
its  own  creation.  State  v.  Brunst,  26 
Wis.  413,  7  Am.  Rep.  84,  disapproving 
State  v.  Dews,  R.  M.  Charl.  397.  QSee 
also  People  v.  Howland,  155  N.  Y.  270, 
49  N.  E  775,  41  L.  R.  A.  838.  Cameron 
v.  Parker,  2  Okla  277,  38  Pac.  14.]  Com- 
pare Warner  v.  People,  2  Denio,  272; 
People  v.  Albertson,  55  N.  Y.  50;  People 
v.  Raymond,  37  N  Y.  428;  King  v.  Hun- 
der,  65  N.  C.  603,  6  Am.  Rep.  754.  Nor, 
where  the  office  is  elective,  can  the  legis- 
lature fill  it,  either  directly,  or  by  extend- 
ing the  term  of  the  incumbent.  People 
v.  Bull,  46  N.  Y.  57 ;  People  v.  McKinney, 
52  N.  Y.  374.  [[Where  the  constitution 
prohibits  the  removal  of  an  officer  during 
his  term  except  for  cause,  it  equally  pro- 
hibits the  transfer  of  the  duties  and 
emoluments  of  the  office.  State  Prison 
v.  Day,  124  N.  C.  362,  32  S.  E.  748,  46 
L.  R.  A.  295.]  See  also  on  these  points 
cases,  p.  99,  supra.  Compare  People  v. 
Flanagan,  66  N.  Y.  237.  As  to  control 
of  municipal  corporations,  see  further 
Marietta  v.  Fearing,  4  Ohio,  427  ;  Brad- 
ford v.  Cary,  5  Me.  339 ;  Bush  v.  Ship- 
man,  5  III.  186 ;  Trustees,  &c.  v.  Tatman, 
13  111.  27;  People  v.  Morris,  13  Wend. 
325;  Mills  v.  Williams,  11  Ired.  558; 
People  v.  Banvard,  27  Cal.  470 ;  ante,  ch. 
viii.  But  where  the  State  contracts  as 
an  individual,  it  is  bound  as  an  indi- 
vidual would  be:  Davis  v.  Gray,  16 
Wall.  203 ;  even  though  the  contract 
creates  an  official  relation.  Hall  v.  Wis- 
consin, 103  U.  S.  5.  QA  public  office  is 
not  property,  and  a  provision  that  "  no 
person  shall  be  deprived  of  ...  property 
without  .  .  .  the  judgment  of  his  peers" 
is  not  applicable  to  a  lawful  removal  from 
office  upon  a  charge  of  gross  immorality. 
Moore  v.  Strickling,  46  W.  Va.  515,  33 
S.  E.  274,  50  L  R.  A.  279.  That  notice 
is  necessary  to  a  valid  removal  of  an 
elected  officer,  see  Jacques  v.  Litle,  51 
Kan.  300,  33  Pac.  106,  20  L.  R.  A.  304.] 


390 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


quired.  And  the  franchises  conferred  upon  such  a  corporation, 
for  the  benefit  of  its  citizens,  must  be  liable  to  be  resumed  at  any 
time  by  that  authority  which  may  mould  the  corporate  powers  at 
its  will,  or  even  revoke  them  altogether.  The  greater  power  will 
comprehend  the  less.1  If,  however,  a  grant  is  made  to  a  munici- 


1  In  East  Hartford  v.  Hartford  Bridge 
Co.,  10  How.  611,  533,  Mr.  Justice  Wood- 
bury,  in  speaking  of  the  grant  of  a  ferry 
franchise  to  a  municipal  corporation, 
says:  "Our  opinion  is  ...  that  the  parties 
to  this  grant  did  not  by  their  charter 
stand  in  the  attitude  towards  each  other 
of  making  a  contract  by  it,  such  as  is 
contemplated  in  the  Constitution,  and  as 
could  not  be  modified  by  subsequent  legis- 
lation. The  legislature  was  acting  here 
on  the  one  part,  and  public  municipal  and 
political  corporations  on  the  other.  They 
were  acting,  too,  in  relation  to  a  public 
object,  being  virtually  a  highway  across 
the  river,  over  another  highway  up  and 
down  the  river.  From  this  standing  and 
relation  of  these  parties,  and  from  the 
subject-matter  of  their  action,  we  think 
that  the  doings  of  the  legislature  as  to 
this  ferry  must  be  considered  rather  as 
public  laws  than  as  contracts.  They  re- 
lated to  public  interests.  They  changed 
as  those  interests  demanded.  The  gran- 
tees, likewise  the  towns,  being  mere 
organizations  for  public  purposes,  were 
liable  to  have  their  public  powers,  rights, 
and  duties,  modified  or  abolished  at  any 
moment  by  the  legislature.  They  are 
incorporated  for  public,  and  not  private, 
objects.  They  are  allowed  to  hold  priv- 
ileges or  property  only  for  public  pur- 
poses. The  members  are  not  sharehold- 
ers nor  joint  partners  in  any  corporate 
estate  which  they  can  sell  or  devise  to 
others,  or  which  can  be  attached  and 
levied  on  for  their  debts.  Hence,  gener- 
ally, the  doings  between  them  and  the 
legislature  are  in  the  nature  of  legislation 
rather  than  compact,  and  subject  to  all 
the  legislative  conditions  just  named,  and 
therefore  to  be  considered  as  not  violated 
by  subsequent  legislative  changes.  It  is 
hardly  possible  to  conceive  the  grounds 
on  which  a  different  result  could  be  vin- 
dicated, without  destroying  all  legislative 
sovereignty,  and  checking  most  legisla- 
tive improvements  and  amendments,  as 
well  as  supervision  over  its  subordinate 
public  bodies."  A  different  doctrine  was 


advanced  by  Mr.  Justice  Barculo,  in  Ben- 
son v.  Mayor,  &c.  of  New  York,  10  Barb. 
234,  who  cites  in  support  of  his  opinion, 
that  ferry  grants  to  the  city  of  New  York 
could  not  be  taken  away  by  the  legisla- 
ture, what  is  said  by  Chancellor  Kent,  (2 
Kent's  Com.  275),  that  "  public  corpora- 
tions .  .  .  may  be  empowered  to  take  and 
hold  private  property  for  municipal  uses  ; 
and  such  property  is  invested  with  the 
security  of  other  private  rights.  So  cor- 
porate franchises  attached  to  public  cor- 
porations are  legal  estates,  coupled  witli 
an  interest,  and  are  -protected  as  private 
property."  This  is  true  in  a  general  sense, 
and  it  is  also  true  that,  in  respect  to  such 
property  and  franchises,  the  same  rules  of 
responsibility  are  to  be  applied  as  in  the 
case  of  individuals.  Bailey  v.  Mayor,  &c. 
of  New  York,  3  Hill,  53 1".  But  it  does 
not  follow  that  the  legislature,  under  its 
power  to  administer  the  government,  of 
which  these  agencies  are  a  part,  and  for 
the  purposes  of  which  the  grant  has  been 
made,  may  not  at  any  time  modify  the 
municipal  powers  and  privileges,  by  trans- 
ferring the  grant  to  some  other  agency, 
or  revoking  it  when  it  seems  to  have  be- 
come unimportant.  A  power  to  tax  is 
not  private  property  or  a  vested  right 
which  when  once  conferred  upon  a  mu- 
nicipality by  legislative  act  cannot  be 
subsequently  modified  or  repealed.  The 
grant  of  such  power  is  not  a  contract. 
Williamson  v.  New  Jersey,  130  U.  S.  189, 
9  Sup.  Ct.  Rep.  453 ;  Richmond  v.  Rich- 
mond, &c.  R.  R.  Co.,  21  Gratt.  604,  611. 
See  post,  p.  355,  note  1.  In  People  v. 
Power,  25  111.  187,  191,  Breese,  J.,  in 
speaking  of  a  law  which  provided  that 
three-fourths  of  the  taxes  collected  in  the 
county  of  Sangamon,  with  certain  de- 
ductions, should  be  paid  over  to  the  city 
of  Springfield,  which  is  situated  therein, 
says:  "While  private  corporations  are 
regarded  as  contracts  which  the  legisla- 
ture cannot  constitutionally  impair,  as 
the  trustee  of  the  public  interests  it  has 
the  exclusive  and  unrestrained  control 
over  public  corporations ;  and  as  it  may 


CH.  IX.] 


FEDERAL   PROTECTION   TO   PERSON,  ETC. 


391 


pal  corporation  charged  with  a  trust  in  favor  of  an  individual, 
private  corporation,  or  charity,  the  interest  which  the  cestui  que 
trust  has  under  the  grant  may  sustain  it  against  legislative  revo- 
cation ;  a  vested  equitable  interest  being  property  in  the  same 
sense  and  entitled  to  the  same  protection  as  a  legal.1 

Those  charters  of  incorporation,  however,  which  are  granted, 
not  as  a  part  of  the  machinery  of  the  government,  but  for  the 
private  benefit  or  purposes  of  the  corporators,  stand  upon  a 
different  footing,  and  are  held  to  be  contracts  between  the  legis- 
lature and  the  corporators,  having  for  their  consideration  the  lia- 
bilities and  duties  which  the  corporators  assume  by  accepting 


create,  so  it  may  modify  or  destroy,  as 
public  exigency  requires  or  the  public 
interests  demand.  Coles  v.  Madison 
County,  Breese,  115.  Their  whole  ca- 
pacities, powers,  and  duties  are  derived 
from  the  legislature,  and  subordinate  .to 
that  power.  If,  then,  the  legislature  can 
destroy  a  county,  they  can  destroy  any  of 
its  parts,  and  take  from  it  any  one  of  its 
powers.  The  revenues  of  a  county  are 
not  the  property  of  the  county,  in  the 
sense  in  which  revenue  of  a  private  per- 
son or  corporation  is  regarded.  The 
whole  State  has  an  interest  in  the  reve- 
nue of  a  county;  and  for  the  public  good 
the  legislature  must  have  the  power  to 
direct  its  application.  The  power  con- 
ferred upon  a  county  to  raise  a  revenue 
by  taxation  is  a  political  power,  and  its 
application  when  collected  must  neces- 
sarily be  within  the  control  of  the  legis- 
lature for  political  purposes.  This  act 
of  the  legislature  nowhere  proposes  to 
take  from  the  county  of  Sangamon,  and 
give  to  the  city  of  Springfield,  any  prop- 
erty belonging  to  the  county,  or  revenues 
collected  for  the  use  of  the  county.  But 
if  it  did  it  would  not  be  objectionable.  But, 
on  the  contrary,  it  proposes  alone  to  ap- 
propriate the  revenue  which  may  be  col- 
lected by  the  county,  by  taxes  levied  on 
property  both  in  the  city  and  county,  in 
certain  proportions  ratably  to  the  city 
and  county."  It  is  held  in  People  v. 
Ingersoll,  58  N.  Y.  1,  that  the  franchise  to 
levy  taxes  by  a  county  for  county  pur- 
poses was  not  exercised  by  the  county  as 
agt  nt  for  the  State,  but  as  principal.  And 
see  Bush  v.  Shipman,  5  111.  186;  Rich- 
land  County  v.  Lawrence  County,  12  111. 
1 ;  Sangamon  Co.  v.  Springfield,  63  III. 
66;  Borough  of  Dunmore's  Appeal,  5'2 


Pa.  St.  374;  Guilford  v.  Supervisors  of 
Chenango,  18  Barb.  615,  and  13  N.  Y. 
143;  ante,  pp.  342,347,  and  cases  cited. 
[Statute  exempting  city's  waterworks 
from  taxation  is  not  irrepealable.  Cov- 
ington  v.  Kentucky,  173  U.  S.  231,  19 
Sup.  Ct.  Rep.  383Q 

*  See  Town  of  Pawlet  v.  Clark,  9 
Cranch,  292,  and  Terrett  v.  Taylor,  9 
Cranch,  43.  The  municipal  corporation 
holding  property  or  rights  in  trust  might 
even  be  abolished  without  affecting  the 
grant ;  but  the  Court  of  Chancery  might 
be  empowered  to  appoint  a  new  trustee 
to  take  charge  of  the  property,  and  to 
execute  the  trust.  Montpelier  v.  East 
Montpelier,  29  Vt.  12.  Power  to  repeal 
a  charter  cannot  be  exercised  so  as  to 
injure  creditors  already  entitled  to  pay- 
ment, Morris  v.  State,  62  Tex.  728. 
A  municipal  corporation,  like  the  State, 
may  enter  into  contracts  by  legislative 
action.  Where,  for  example,  a  village 
by  ordinance  grants  to  a  railroad  com- 
pany permission  to  use  the  streets  of  the 
village  for  its  road-bed,  on  condition  of 
grading  and  gravelling  them  at  its  own 
expense,  the  ordinance  when  accepted 
constitutes  a  contract  from  which  neither 
party  can  withdraw.  Cincinnati,  &c.  R. 
R.  Co.  v.  Carthage,  36  Ohio  St.  631.  See 
also  Hovelman  v.  Kansas  City  Ry.  Co.,  79 
Mo.  632 ;  Coast  Line  Ry.  Co.  v.  Savannah, 
30  Fed.  Rep.  646 ;  Los  Angeles  v.  Water 
Co.,  61  Cal.  65;  Chicago,  Mun.,  &c.  Co. 
v.  Lake,  130  111.  42,  22  N.  E.  616.  [Grant 
to  a  public  corporation  of  all  moneys 
received  by  a  certain  county  from  fines 
and  penalties  may  be  revoked  at  pleasure 
of  legislature.  Watson  Seminary  v.  Co. 
Ct.  of  Pike  Co.,  149  Mo.  57,  50  S.  W.  880, 
45  L.  R.  A.  675.11 


392 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


them  ;  and  the  grant  of  the  franchise  can  no  more  he  resumed  by 
the  legislature,  or  its  benefits  diminished  or  impaired  without  the 
consent  of  the  grantees,  than  any  other  grant  of  property  or  valu- 
able thing,  unless  the  right  to  do  so  is  reserved  in  the  charter 
itself.1  As  the  power  to  grant  unamendable  and  irrepealable 


1  Dartmouth  College  v.  Woodward,  4 
Wheat.  518;  Trustees  of  Vincennes  Uni- 
versity v.  Indiana,  14  How.  2ti8 ;  Planters' 
Bank  o.  Sharp,  6  How.  301 ;  Piqua  Bank 
r.  Knoop,  16  How.  369 ;  Binghamton 
Bridge  Case,  3  Wall.  51 ;  Norris  v.  Trus- 
tees of  Abingdon  Academy,  7  G.  &  J.  7 ; 
Grammar  School  v.  Burt,  11  Vt.  632  ; 
Brown  v.  Hummel,  6  Pa.  St.  86;  State 
v.  Hey  ward,  3  Rich.  389 ;  People  v.  Man- 
hattan Co.,  9  Wend.  351 ;  Commonwealth 
v.  Cullen,  13  Pa.  St.  132;  Commercial 
Bank  of  Natchez  v.  State,  14  Miss.  599 ; 
Backus  v.  Lebanon,  11  N.  H.  19;  Michi- 
gan State  Bank  v.  Hastings,  1  Doug. 
(Mich.)  225;  Bridge  Co.  v.  Hoboken  Co., 
13  N.  J.  Eq.  81;  Miners'  Bank  v.  United 
States,  1  Greene  (Iowa),  553;  Edwards  v. 
Jagers,  19  Ind.  407 ;  State  v.  Noyes,  47 
Me.  189 ;  Bruffet  v.  G.  W.  R.  R.  Co.,  25 
111.  353  ;  People  v.  Jackson  &  Michigan 
Plank  Road  Co.,  9  Mich.  285 ;  Bank  of 
the  State  v.  Bank  of  Cape  Fear,  13  Ired. 
75 ;  Mills  v.  Williams,  11  Ired.  558  ;  Haw- 
thorne v.  Calef,  2  Wall.  10;  Wales  v. 
Stetson,  2  Mass.  143 ;  Nichols  v.  Bertram, 
3  Pick.  342 ;  King  v.  Dedham  Bank,  15 
Mass.  447 ;  State  v.  Tombeckbee  Bank,  2 
Stew.  30 ;  Central  Bridge  v.  Lowell,  15 
Gray,  106;  Bank  of  the  Dominion  v. 
McVeigh,  20  Gratt.  457 ;  Sloan  v.  Pacific 
R.  R.  Co.,  61  Mo.  24  ;  State  v.  Richmond, 
&c.  R.  R.  Co.,  73  N.  C.  527;  Turnpike 
Co.  v.  Davidson  Co.,  3  Tenn.  Ch.  397 ; 
Detroit  v.  Plank  Road  Co.,  43  Mich.  140, 

5  N.  W.  275 ;  Penn.  R.  R.   Co.  v.  Balti- 
more, &c.  R.  R.  Co.,  60  Md.  263 ;  Com.  v. 
Erie   &   W.   Tr.   Co.,  107   Pa.   St.  112; 
Houston  &  T.  C.  Ry.  Co.  v.  Texas  &  P. 
Ry.  Co.,  70  Tex.  649,  8  S.  W.  498 ;  fJCity 
R.  Co.  v.  Citizens'  Street  R.  Co  ,  166  LT.  S. 
557,  17  Sup.  Ct.  Rep.  653  ;  Mich.  Tel.  Co. 
v.  St.  Joseph,  121  Mich.  502,  80  N.  W.  383, 
47  L.  R.  A.  87  ;  Ingersoll  v.  Nassau  Elec- 
tric R.  Co.,  157  N.  Y.  453,  52  N.  E.  645,  43 
L.   R.  A.  236 ;    Franklin   Co.    Grammar 
School  w.  Bailey,  62  Vt.  467,  20  All.  820, 
10  L.  R.  A.  405,  and  note ;  Nashville,  M., 

6  S.  Tump.  Co.  v.  Davidson  County,  106 
Tenn.  258,  61  S.  W.  68;  Stale  c.  Lebanon 


&  N.  Turnp.  Co.,  —  Tenn  — ,  61  S.  W.  1096 
(Nov.  27,  1900). 3  The  mere  passage  of 
an  act  of  incorporation,  however,  does 
not  make  the  contract ;  and  it  may  be  re- 
pealed prior  to  a  full  acceptance  by  the 
corporators.  Mississippi  Society  v.  Mus- 
grove,  44  Miss.  820,  7  Am.  Rep.  723.  Or 
amended,  Cincinnati,  H.  &  I.  R.  R.  Co.  v. 
Clifford,  113  Ind.  460,  15  N.  E.  624.  See, 
further,  Chincleclamouche  L.  &  B.  Co.  v. 
Com.,  100  Pa.  St.  438.  After  the  adoption 
of  a  constitutional  amendment  allowing 
amendment  and  repeal  of  charters,  a  cor- 
poration, previously  chartered,  accepted 
acts  of  the  legislature.  Held  that  its 
charter  thereby  became  subject  to  altera- 
tion under  the  amendment,  and  that  it 
was  affected  by  a  constitutional  amend- 
ment passed  thereafter.  Penn.  R.  R.  Co. 
v.  Duncan,  111  Pa.  St.  352.  In  affirming 
this  decision  it  is  held  that  the  corpora- 
tion took  its  charter  subject  to  changes 
in  the  constitution  and  general  laws  of 
the  State.  Penn.  R.  R.  Co.  v.  Miller,  132 
U.  S.  75,  10  Sup.  Ct.  Rep.  34.  An  act, 
passed  after  the  granting  of  a  charter, 
allowing  the  corporation  in  a  proper  case 
to  be  wound  up,  is  valid.  A  corporation 
is  subject  to  such  reasonable  regulation 
as  the  legislature  may  prescribe  short  of 
a  material  interference  with  its  privileges. 
Chicago  Life  Ins.  Co  v.  Needles,  113  U.  S. 
574,  5  Sup.  Ct.  Rep.  681.  fjUntil  the  cor- 
poration has  entered  upon  the  execution 
of  a  general  power  granted  to  it  (e.  g.  to 
mortgage  its  property)  the  legislature 
may  modify  at  will  the  conditions  under 
which  that  power  may  be  exercised  (e.  g. 
may  enact  that  subsequent  judgments 
against  the  corporation  shall  be  prior 
liens  upon  its  property).  East  Tenn.,  V. 
&  G.  R.  Co.  v.  Frazier,  139  U.  S.  288,  11 
Sup.  Ct.  Rep.  517-3  The  provision  in  a 
railroad  charter  prescribing  the  manner 
in  which  it  may  take  lands  for  its  pur- 
poses, only  gives  a  remedy  which  may  be 
altered.  Mississippi  R.  R.  Co.  v.  Mc- 
Donald, 12  Heisk.  54.  Giving  the  right 
of  cumulative  voting  to  stockholders  in  a 
corporation  with  an  irrepealable  charter, 


(JH.  IX.] 


FEDERAL  PROTECTION  TO  PERSON,  ETC. 


393 


charters  is  one  readily  susceptible  of  being  greatly  abused,  to  the 
prejudice  of  important  public  interests,  and  has  been  greatly 
abused  in  the  past,  the  people  in  a  majority  of  the  States,  in 
framing  or  amending  their  constitutions,  have  prudently  guarded 


which  provides  that  each  share  shall  have 
one  vote,  is  a  violation  of  contract.  State 
v.  Greer,  78  Mo.  188.  It  is  under  the 
protection  of  the  decision  in  the  Dart- 
mouth College  Case  that  the  most  enor- 
mous and  threatening  powers  in  our 
country  have  been  created  ;  some  of  the 
great  and  wealthy  corporations  actually 
having  greater  influence  in  the  country 
at  large,  and  upon  the  legislation  of  the 
country,  than  the  States  to  which  they 
owe  their  corporate  existence.  Every 
privilege  granted  or  right  conferred  —  no 
matter  by  what  means  or  on  what  pre- 
tence—  being  made  inviolable  by  the 
Constitution,  the  government  is  frequently 
found  stripped  of  its  authority  in  very  im- 
portant particulars,  by  unwise,  careless, 
or  corrupt  legislation  ;  and  a  clause  of  the 
federal  Constitution,  whose  purpose  was 
to  preclude  the  repudiation  of  debts  and 
just  contracts,  protects  and  perpetuates 
the  evil. 

And  as  to  the  right  to  regulate  charges 
for  transportation  of  persons  and  prop- 
erty, see  post,  p.  870. 

In  Mills  v.  Williams,  11  Ired.  558,  561, 
Pearson,  J.,  states  the  difference  between 
the  acts  of  incorporation  of.  public  and 
private  corporations  as  follows  :  "  The 
substantial  distinction  is  this  :  Some  cor- 
porations are  created  by  the  mere  will  of 
the  legislature,  there  being  no  other 
party  interested  or  concerned.  To  this 
party  a  portion  of  the  power  of  the  legis- 
lature is  delegated,  to  be  exercised  for  the 
general  good,  and  subject  at  all  times  to 
be  modified,  changed,  or  annulled.  Other 
corporations  are  the  result  of  contract. 
The  legislature  is  not  the  only  party  in- 
terested ;  for,  although  it  has  a  public 
purpose  to  be  accomplished,  it  chooses  to 
do  it  by  the  instrumentality  of  a  second 
party.  These  two  parties  make  a  con- 
tract. The  legislature,  for  and  in  consid- 
eration of  certain  labor  and  outlay  of 
money,  confers  upon  the  party  of  the 
second  part  the  privilege  of  being  a  cor- 
poration, with  certain  powers  and  capaci- 
ties. The  expectation  of  benefit  to  the 
public  is  the  moving  consideration  on  one 
side ;  that  of  expected  remuneration  for 


the  outlay  is  the  consideration  on  the 
other.  It  is  a  contract,  and  therefore  can- 
not be  modified,  changed,  or  annulled, 
without  the  consent  of  both  parties." 
An  incorporated  academy,  whose  endow- 
ment comes  exclusively  from  the  public, 
is  a  public  corporation.  Dart  v.  Houston, 
22  Ga.  506.  Compare  State  v.  Adams, 
44  Mo.  570.  [In  Skaneateles  Water 
Works  Co.  v.  Skaneateles,  161  N.  Y  154, 
55  N.  E.  562,  the  municipality  gave  to 
the  water  company  a  franchise  to  main- 
tain and  operate  within  its  corporate 
limits  a  system  of  water-works  for  fur- 
nishing to  the  municipality  and  its  in- 
habitants water.  Later  the  municipality 
took  appropriate  action  for  the  construc- 
tion of  a  system  of  water-works  of  its 
own.  The  action  was  enjoined  as  in 
violation  of  the  provision  of  the  Federal 
Constitution  against  the  impairment  of 
contracts.  This  case  differs  from  Syra- 
cuse Water  Co.  v.  Syracuse,  116  N.  Y. 
167,  22  N.  E.  381,  5  L.  R.  A.  546,  and  Re 
Brooklyn,  143  N.  Y.  596,  38  N.  E.  983, 
26  L.  R.  A.  270,  in  that  in  those  cases  it 
was  a  question  of  whether,  where  the 
franchise  did  not  purport  to  be  exclusive, 
a  franchise  might  be  given  to  a  com- 
peting company.  The  Brooklyn  case  is 
affirmed  in  166  U.  S.  685,  17  Sup.  Ct. 
Rep.  718,  sub  nom.,  Long  Island  Water- 
Supply  Co.  v.  Brooklyn.  The  Skaneateles 
Case  affirms  the  rule  of  these  cases  that 
such  second  franchises  might  be  granted, 
but  holds  that  the  municipality  itself  can- 
not enter  such  competition  without  being 
open  to  the  constitutional  objection.  See 
also  Vicksburg  Waterworks  Co.  v.  Vicks- 
burg,  185  U.  S.  65,  — Sup.  Ct.  Rep.—. 
Westerly  Water  Works  r.  Westerly,  75 
Fed.  Rep.  181.  See  also  additional  cases 
cited  ante,  p.  387,  note  a.  A  statute  re- 
lieving street  railway  company  from  the 
obligation  to  repair  any  portion  of  the 
streets  over  which  its  tracks  are  laid, 
does  not  impair  the  obligation  of  con- 
tract. Springfield  v.  Springfield  St.  Ry. 
Co,— Mass.— ,  64  N.  E.  577  (July  15, 
1902) ;  Worcester  v.  Worcester  St.  Ry. 
Co.,  — Mass.— ,  64  N.  E.  581  (July  15, 
1902). 3 


394 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


against  it  by  reserving  the  right  to  alter,  amend,  or  repeal  all  laws 
that  may  be  passed,  conferring  corporate  powers.  These  provi- 
sions give  protection  from  the  time  of  their  adoption,  but  the 
improvident  grants  theretofore  made  are  beyond  their  reach.1  In 
many  States  the  constitutions  also  prohibit  special  charters,  and 
all  corporations  are  formed  by  the  voluntary  association  of  indi- 
viduals under  general  laws.2 


1  Respecting  the  power  to  amend  or 
repeal  corporate  grants,  some  troublesome 
questions  are  likely  to  .arise  which  have 
only  as  yet  been  hinted  at  in  the  decided 
cases.  Corporations  usually  acquire  prop- 
erty under  their  grants ;  and  any  property 
or  any  rights  which  become  vested  under 
a  legitimate  exercise  of  the  powers 
granted,  no  legislative  act  can  take  away. 
Commonwealth  v.  Essex  Co.,  13  Gray, 
239  ;  Railroad  Co.  v.  Maine,  96  U.  S.  499; 
Sinking  Fund  Cases,  99  U.  S.  700 ;  Attor- 
ney-General v.  Railroad  Companies,  35 
Wis.  425 ;  Detroit  v.  Detroit  &  Howell 
P.  R.  Co.,  43  Mich.  140,  6  N.  W.  275. 
See  post,  pp.  837-839.  But  a  legislature 
may  grant  to  another  corporation  the 
franchises  of  an  existing  one,  and  may 
authorize  the  taking  of  its  property 
upon  compensation  made.  Greenwood  v. 
Freight  Co.,  105  U.  S.  13.  A  new  con- 
stitution may  allow  water  rates  to  be 
fixed  by  a  public  board,  although  the 
company  had  under  the  law  of  its  organi- 
zation the  right  of  representation  upon 
the  board.  Spring  Valley  Water  Works 
«.  Schottler,  110  U.  S.  347,  4  Sup.  Ct.  Rep. 
48.  In  many  cases  the  property  itself 
becomes  valueless  unless  its  employment 
in  the  manner  contemplated  in  the  cor- 
porate grant  may  be  continued ;  as  in  the 
case,  for  instance,  of  railroad  property ; 
and  whatever  individual  owners  of  such 
property  might  do  without  corporate 
powers,  it  must  be  competent  for  the 
stockholders  to  do  after  their  franchises 
are  taken  away.  Without  speculating 
on  the  difficulties  likely  to  arise,  refer- 
ence is  made  to  the  following  cases,  in 
which  the  reserved  power  to  alter  or 
repeal  corporate  grants  has  been  consid- 
ered or  touched  upon  :  Worcester  v.  Nor- 
wich, &c.  R.  R.  Co.,  109  Mass.  103; 
Railroad  Commissioners  v.  Portland,  &c. 
R.  R.  Co.,  63  Me.  269,  18  Am.  Rep  208; 
State  v.  Maine  Cent.  R.  R.  Co.,  66  Me. 
488;  Ames  r.  Lake  Superior  R.  R.  Co., 
21  Minn.  201 ;  Sprigg  v.  Telegraph  Co., 


46  Md.  67;  State  v.  Com'rs  of  R.  R. 
Taxation,  37  N.  J.  228 ;  State  v.  Mayor 
of  Newark,  35  N.  J.  157 ;  West  Wis.  R.  R. 
Co.  v.  Supervisors,  35  Wis.  257 ;  Union 
Improvement  Co.  v.  Commonwealth,  09 
Pa.  St.  140;  111.  Cent.  R.  R.  Co.  v.  Peo- 
ple, 95  111.  313,  1  Am.  &  Eng.  R.  R.  Cas. 
188  ;  Rodemacher  v  Milwaukee,  &c.  R.  R. 
Co.,  41  Iowa,  297,  20  Am.  Rep.  5'J2;  Gor- 
man v.  Pacific  R.  R.  Co.,  20  Mo.  441; 
Gardner  v.  Hope  Ins.  Co.,  9  R.  I.  194,  11 
Am.  Rep.  238;  Yeaton  v.  Bank  of  Old 
Dom.,  21  Gratt.  593 ;  Tomlinson  c.  Jes- 
sup,  15  Wall.  454;  Tomlinson  v.  Branch, 
15  Wall.  400 ;  Miller  v.  State,  15  Wall.  478 ; 
Holyoke  Co.  v.  Lyman,  15  Wall.  500; 
Detroit  v.  Detroit  &  H.  P.  R.  Co.,  43 
Mich.  140,  5  N.  W.  275;  Ashuelot  R.  R. 
Co.  v.  Elliott,  58  N.  H.  451 ;  [Hamilton 
Gaslight  &  Coke  Co.  v.  Hamilton,  146 
U.  S.  258,  13  Sup.  Ct.  Rep.  90.  After 
subscribers  to  stock  have  paid  for  it  in 
full,  the  legislature  cannot  increase  their 
liabilities.  Enterprise  Ditch  Co.  v.  Moffit, 
58  Neb.  642,  79  N.  W.  560.  45  L.  R.  A. 
647.] 

Where  no  power  to  amend  a  charter 
has  been  reserved,  amendments  may 
nevertheless  be  made  with  the  consent 
of  the  corporation,  but  the  corporation 
cannot  bind  its  shareholders  by  the  ac- 
ceptance of  amendments  which  effect 
fundamental  changes  in  its  character  or 
purpose.  See  Gray  v.  Navigation  Co., 
2  W.  &  S.  156,  37  Am.  Dec.  600;  Stevens 
v.  Rutland,  &c.  R.  R.  Co.,  .29  Vt.  545. 
[Where  such  power  has  been  reserved, 
the  mode  of  electing  directors  may  be  so 
modified  as  to  permit  cumulative  voting 
in  order  to  secure  proportional  represen- 
tation on  the  board  of  directors.  Looker 
v.  Maynard,  179  U.  S.  46,  21  Sup.  Ct. 
Rep.  21.] 

2  Where  corporations  are  thus  formed, 
the  articles  of  association,  taken  in  con- 
nection with  the  General  Statute  under 
which  they  are  entered  into,  constitute 
the  charter. 


CH.  IX.]  FEDERAL    PROTECTION   TO   PERSON,   ETC.  395 

Perhaps  the  most  interesting  question  which  arises  in  this  dis- 
cussion is,  whether  it  is  competent  for  the  legislature  to  so  bind 
up  its  own  hands  by  a  grant  as  to  preclude  it  from  exercising 
for  the  future  any  of  the  essential  attributes  of  sovereignty  in 
regard  to  any  of  the  subjects  within  its  jurisdiction  ;  whether, 
for  instance,  it  can  agree  that  it  will  not  exercise  the  power  of 
taxation,  or  the  police  power  of  the  State,  or  the  right  of  eminent 
domain,  as  to  certain  specified  property  or  persons;  and  whether, 
if  it  shall  undertake  to  do  so,  the  agreement  is  not  void  on  the 
general  principle  that  the  legislature  cannot  diminish  the  power 
of  its  successors  by  irrepealable  legislation,  and  that  any  other 
rule  might  cripple  and  eventually  destroy  the  government  itself. 
If  the  legislature  has  power  to  do  this,  it  is  certainly  a  very  dan- 
gerous power,  exceedingly  liable  to  abuse,  and  may  possibly  come 
in  time  to  make  the  constitutional  provision  in  question  as  prolific 
of  evil  as  it  ever  has  been,  or  is  likely  to  be,  of  good. 

So  far  as  the  power  of  taxation  is  concerned,  it  has  been  so 
often  decided  by  the  Supreme  Court  of  the  United  States,  though 
not  without  remonstrance  on  the  part  of  State  courts,1'that  an 
agreement  by  a  State,  for  a  consideration  received  or  supposed 
to  be  received,  that  certain  property,  rights,  or  franchises  shall 
be  exempt  from  taxation,  or  be  taxed  only  at  a  certain  agreed 
rate,  is  a  contract  protected  by  the  Constitution,)tliat  the  question 
can  no  longer  be  considered  an  open  one.2  In  any  case,  however, 

1  Mechanics'  &  Traders'  Bank  v.  De-  2  New  Jersey  v.  Wilson,  7  Cranch,  164; 

bolt,   1    Ohio   St.  691;    Toledo   Bank  v.  Gordon  v.  Appeal  Tax  Court,  3  How.  133  ; 

Bond,  1  Ohio  St.  622;    Knoop  v.  Piqua  Piqua  Bank  v.  Knoop,  16  How.  369;  Ohio 

Bank,  1  Ohio  St.  603;  Milan  &  R.  Plank  Life   &   Trust   Co.   v.   Debolt,    16   How. 

Road  Co.  v.  Husted,  3  Ohio  St.  578  ;  Pis-  416  ;    Dodge  v.  Woolsey,   18  How.  331 ; 

cataqua  Bridge  v.  N.  H.  Bridge,  7  N.  H.  Mechanics'  &  Traders'  Bank  v.  Debolt, 

35;   Brewster  v.  Hough,  10  N.  H.  138;  18    How.   380;    Mechanics'   &   Traders' 

Backus  v.  Lebanon,  11  N.  H.  19;  Thorpe  Bank  v.  Thomas,  18  How.  384;  McGee  v. 

v.  R.  &  B.  R.  R.  Co.,  27  Vt.  140 ;  Brainard  Mathis,  4  Wail.  143 ;  Home  of  the  Friend- 

v.  Colchester,  31  Conn.  407;  Mottr.  Penn-  less  v.  Rouse,  8  Wall.  430;  Washington 

sylvania  R.  R.  Co.,  30  Pa.  St.  9;   East  University  v.  Rouse,  8  Wall.  43!);   Wil- 

Saginaw  Salt  Manuf.  Co.  v.  East  Saginaw,  mington  R.  R.  Co.  v.  Reid,  13  Wall.  264 ; 

19  Mich.  259;  West  Wis.  R.  Co.  v.  Super-  Raleigh  &  Gaston  R.  R.  Co.  v.  Reid,  13 

visor  of  Trempeleau  Co.,  35  Wis.  257,  265 ;  Wall.  269 ;  Humphrey  v.  Pegues,  16  Wall. 

Attorney-General?;. Chicago, &C.R.R. Co.,  244;    Pacific   R.   R.   Co.  v.  Magnire,  20 

35  Wis.  425,  572.     See  also  the  dissenting  Wall.  36:   New  Jersey  v.  Yard,  95  U.  S. 

opinion  of  Mr.  Justice  Miller,  in  Washing-  104;    Farrington  v.  Tennessee,  95  U.  S. 

ton  University  v.  Rouse,  8  Wall.  439,  441,  679;  University  v.  Illinois,  99  U.  S.  309; 

in  which  the  Chief  Justice  and  Justice  New  Orleans  v.  Houston,  119  U.  S.  265, 

Field  concurred.    Also  Raleigh,  &c.  R.  R.  7  Sup.  Ct  Rep.  198.     See  also  Atwater  v. 

Co  r.  Reid,  64  N.  C.  155.    That  one  legisla-  Woodbridge,   6   Conn.   223;    Osborne    v. 

ture  cannot  deprive  another  of  the  right  Humphrey,  7  Conn.  335;   Parker  v.  Red- 

to  amend  a  charter  by  delegating  to  a  city  field,  10  Conn.  490;  Landon  v.  Litchfield, 

power  to  grant  corporate  rights,  see  State  11  Conn.  251;    Herrick  v.  Randolph,  13 

v.  Hilbert,  72  Wis.  184,  39  N.  W.  326.  Vt.  525 ;   Aruaington  v.  Barnet,  15  Vt. 


396 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


there  must  be  a  consideration,  so  that  the  State  can  be  supposed 
to  have  received  a  beneficial  equivalent ;  for  it  is  conceded  on  all 
sides  that,  if  the  exemption  is  made  as  a  privilege  only,  it  may  be 
revoked  at  any  time.1  And  it  is  but  reasonable  that  the  exemp-y 
tion  be  construed  with  strictness.2 


745;  O'Donnell  v.  Bailey,  24  Miss.  386; 
St.  Paul,  &c.  R.  R.  Co.  v.  Parcher,  14 
Minn.  297;  Grand  Gulf  R.  R.  Co.  v, 
Buck,  63  Miss.  246 ;  Central  R.  R.  Co. 
v.  State,  54  Ga.  401 ;  St.  Louis,  &c.  R.  R. 
Co.  v.  Lof tin,  30  Ark.  693 ;  Prop'rs  Mt. 
Auburn  Cem.  v.  Cambridge,  150  Mass.  12, 
22  N.  E.  .Rep.  66,  where  an  exemption 
from  all  public  taxes  was  held  to  cover  a 
sewer  assessment.  [And  see  also  Mobile 
&  0.  R.  Co.  v.  Tennessee,  153  U.  sV~486, 
14  Sup.  Ct.  Rep.  968 ;  Stearns  v.  Minne- 
sota, 179  U.  S.  223,  21  Sup.  Ct.  Rep.  73; 
Berger  v.  United  States  Steel  Corp.,  — 
N.  J.  L.  — ,  53  Atl.  68.  Where  the  legis- 
lature has  reserved  the  right  to  amend, 
alter,  or  repeal  any  and  all  corporate 
charters,  the  withdrawal  of  an  exemption 
from  taxation  does  not  impair  the  obli- 
gation of  any  contract.  Louisville  Water 
Co.  v.  Clark,  143  U.  S.  1,  12  Sup.  Ct. 
Rep.  346.] 

1  Christ  Church  v.  Philadelphia,  24 
How.  300;  Brainard  v.  Colchester,  31 
Conn.  407.  See  also  Commonwealth  v. 
Bird,  12  Mass.  442 ;  Dale  >•.  The  Gover- 
nor, 3  Stew.  387;  Com'rs  Calhoun  Co.  v. 
Woodstock  Iron  Co.,  82  Ala.  151,  2  So. 
132.  [Grand  Lodge  of  Louisiana  v.  New 
Orleans,  166  U.  S.  143,  17  Sup.  Ct.  Rep. 
523.  But  see  Farrington  v.  Tennessee, 
95  U.  S.  679,  and  Bk.  of  Commerce  v. 
Tennessee,  161  U.  S.  134,  16  Sup.  Ct. 
Rep.  456,  both  of  which  seem  to  overlook 
the  necessity  for  a  consideration.]  If  an 
exemption  from  taxation  exists  in  any 


case,  it  must  be  the  result  of  a  deliberate 
intention  to  relinquish  this  prerogative 
of  sovereignty,  distinctly  manifested. 
Easton  Bank  v.  Commonwealth,  10  Pa. 
St.  450 ;  Providence  Bank  v.  Billings, 
4  Pet.  514 ;  Christ  Church  v.  Philadelphia, 
24  How.  300;  Gilman  v.  Sheboygan,  2 
Black,  510;  Louisville  &  N.  R.  R.  Co.  v. 
Palmes,  109  U.  S.  244,  3  Sup.  Ct.  Rep.  193 ; 
Memphis  Gaslight  Co.  v.  Shelby  Co.,  109 
U.  S.  398,  3  Sup.  Ct.  Rep.  205;  Chicago, 
B.  &  K.  C.  Ry.  Co.  v.  Guffey,  120  U.  S. 
569,  7  Sup.  Ct.  Rep.  693 ;  State  ».  Hilbert, 
72  Wis.  184,  39  N.  W.  326;  Herrick  v. 
Randolph,  13  Vt.  525;  East  Saginaw  Salt 
Manuf.  Co.  v.  East  Saginaw,  19  Mich. 
259;  in  error,  13  Wall.  373;  People  v. 
Roper,  35  N.  Y.  629;  People  v.  Commis- 
sioners of  Taxes,  47  N.  Y.  501 ;  People 
v.  Davenport,  91  N.  Y.  574 ;.  Lord  v.  Litch- 
field,  36  Conn.  116,  4  Am.  Rep.  41 ;  Erie 
Railway  Co.  v.  Commonwealth,  66  Pa. 
St.  84,  5  Am.  Rep.  351  ;  Bradley  v. 
McAtee,  7  Bush,  667,  3  Am.  Rep.  309; 
North  Missouri  R.  R.  Co.  v.  Maguire,  49 
Mo.  490,  8  Am.  Rep.  141 ;  Illinois  Cent. 
R.  R.  Co.  v.  Irvin,  72  111.  452.  [Coving- 
ton  v.  Kentucky,  173  U.  S.  231,  19  Sup. 
Ct.  Rep.  383;  Citizens'  Sav.  Bk.  v. 
Owensboro,  173  U.  S.  636,  19  Sup.  Ct. 
Rep.  530,  571 ;  Louisville  v.  Bk.  of  Louis- 
ville, 174  U.  S.  439,  19  Sup.  Ct.  Rep.  753. 
But  taxes  cannot,  after  revocation  of  an 
exemption,  be  levied  for  any  part  of  the 
time  prior  to  such  revocation.  Louisville 
Water  Co.  v.  Kentucky,  170  U.  S.  127,  18 


2  See  Cooley  on  Taxation,  146,  and 
cases  cited.  Hoge  v.  Railroad  Co.,  99 
U.  S.  348;  Railway  Co.  v.  Philadelphia, 
101  U.  S.  528;  Vicksburg,  S.  &  P.  R.  R. 
Co.  v.  Dennis,  116  U.  S.  665,  6  Sup.  Ct. 
Rep.  625 ;  Chicago,  B.  &  K.  C.  Ry.  Co.  v. 
Guffey,  120  U.  S.  569,  7  Sup.  Ct.  Rep. 
693;  Yazoo  &  M.  R.  R.  Co.  v  Thomas, 
132  U.  S.  174,  10  Sup.  Ct.  Rep.  68.  £Bk. 
of  Commerce  v.  Tennessee,  163  U.  S.  416, 
16  Sup.  Ct.  Rep.  1113,  mod.  s.C.  161  U.  S. 
134,  16  Sup.  Ct.  Rep.  456.  Exemption 


will  not  be  presumed.  New  Orleans  C.  & 
L.  R,  Co.  v.  New  Orleans,  143  U.  S.  192, 
12  Sup.  Ct.  406.  Strictly  construed,  St. 
Paul,  M.  &  M.  R.  Co.  v.  Todd  County,, 
142  U.  S.  282,  12  Sup.  Ct.  Rep.  281, 
aff.  38  Minn.  163,  36  N.  W.  109.  See 
also  Wheeling  &  B.  Bridge  Co.  v. 
Wheeling  Bridge  Co.,  138  U.  S.  287,  11 
Sup.  Ct.  Rep.  301 ;  Joy  v.  St.  Louis,  138 
U.  S.  1,  11  Sup.  Ct.  Rep.  243,  and  Free- 
port  W.  Co.  v.  Freeport,  180  U.  S.  587, 
21  Sup.  Ct.  Rep.  493.] 


CH.  IX.] 


FEDERAL   PROTECTION   TO   PERSON,  ETC. 


397 


The  power  of  the  legislature  to  preclude  itself  in  any  case  from 
exercising  the  power  of  eminent  domain  is  not  so  plainly  decided. 
It  must  be  conceded,  under  the  authorities,  that  the  State  may 
grant  exclusive  franchises,  —  like  the  right  to  construct  the  only 


Sup.  Ct.  Rep.  571,  rev.  18  Ky.  L.  Rep. 
620,  37  S.  W.  576.]  Upon  the  reorganiza- 
tion of  a  corporation  which  had  enjoyed 
an  exemption,  it  passes,  if  all  the  "  privi- 
leges "  of  the  old  pass  to  the  new ;  not, 
if  the  "  rights  and  franchises"  alone 
pass.  Memphis  &  L.  R.  R.  R.  Co.  v.  R.  R. 
Com'rs,  112  U.  S.  009,  5  Sup.  Ct.  Rep. 
209 ;  St.  Louis  Iron  M.  &  S.  Ry.  Co.  v. 
Berry,  113  U.  S.  465,  5  Sup.  Ct.  Rep.  529; 
Tennessee  v.  Whitworth,  117  U.  S.  139, 
6  Sup.  Ct.  Rep.  645.  See  Detroit  St.  Ry. 
Co.  v.  Guthard,  51  Mich.  180,  16  N.  W. 
328.  FJGrant  of  "powers,  rights,  and 
capacities "  of  old  corporation  to  new 
does  not  include  exemptions  enjoyed  by 
old.  Covington  &  L.  Turnpike  Road  Co. 
v.  Sandford,  164  U.  S.  578,  17  Sup.  Ct. 
Rep.  198.  Grant  of  "all  the  rights  and 
privileges,"  omitting  "and  immunities," 
impliedly  excludes  the  grant  of  exemp- 
tion from  taxation  enjoyed  by  old  coiji- 
pany.  Phoenix  F.  &  M.  Ins.  Co.  v.  Ten- 
nessee, 161  U.  S.  174,  16  Sup.  Ct.  Rep. 
471,  aff.  91  Tenn.  566.  And  where  a 
corporation  is  exempt  from  taxation  and 
becomes  insolvent  and  its  charter  is  sold 
under  judicial  decree,  but  not  the  shares 
of  stock  of  the  stockholders,  the  pur- 
chasers acquire  only  the  right  to  reor- 
ganize as  a  corporation,  subject  to  all 
the  laws  then  in  force,  including  a  con- 
stitutional amendment  passed  after  the 
organization  of  the  original  corporation 
and  prior  to  the  sale  of  the  charter. 
Mercantile  Bank  v.  Tennessee,  161  U.  S. 
161,  16  Sup.  Ct.  Rep.  466,  aff.  95  Tenn. 
212,  31  S.  W.  989.  Delay  in  accepting  a 
charter  containing  exemptions  from  tax- 
ation until  after  a  constitutional  provision 
prohibiting  exemptions  has  been  passed 
is  fatal.  Planters'  Ins.  Co.  v.  Tennessee, 
161  U.  S.  193,  16  Sup.  Ct.  Rep.  466,  aff. 
95  Tenn.  203,  31  S.  W.  992.  An  act 
giving  a  new  corporation  "all  the  .  .  . 
powers,  rights,  reservations,  restrictions 
and  liabilities  given  to  and  imposed  upon  " 
the  old,  does  not  convey  to  the  new  an 
exemption  from  taxation  enjoyed  by  the 
old.  Home  Ins.  &  T.  Co.  v.  Tennessee, 
161  U.  S.  198,  16  Sup.  Ct.  Rep.  476,  fol- 


lowing Phoenix  F.  &  M.  Ins.  Co.  v.  Ten- 
nessee, above ;  People,  &c.  v.  Cook,  148 
U.  S.  397,  13  Sup.  Ct.  Rep.  645,  aff.  110 
N.  Y.  443,  18  N.  E.  113,  47  Hun,  467. 
See  also  Wilmington  &  W.  R.  Co.  i\ 
Alsbrook,  146  U.  S.  279,  13  Sup.  Ct. 
Rep.  72.  Nor  the  power  to  fix  tolls. 
St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  156  U.  S. 
649,  15  Sup.  Ct.  Rep.  484,  491,  aff.  54 
Ark.  101,  15  S.  W.  18,  11  L.  R.  A.  452; 
Norfolk  &  W.  R.  Co.  v.  Pendleton,  156 
U.  S.  667,  15  Sup.  Ct.  Rep.  413.  Where 
a  corporation  authorized  to  carry  on  an 
insurance  business  takes  advantage,  after 
the  adoption  of  a  constitutional  provision 
prohibiting  exemptions  from  taxation,  of 
a  statute  permitting  it  to  do  a  banking 
business,  it  so  radically  changes  the  char- 
acter of  its  business  as  to  lose  its  exemp- 
tion from  taxation.  Memphis  City  Bank 
v.  Tennessee,  161  U.  S.  186,  16  Sup.  Ct. 
Hep.  468,  aff.  91  Tenn.  574,  19  S.  W. 
1045.  And  when  two  corporations  are 
consolidated,  a  new  corporation  is  formed, 
and  if  before  the  consolidation  takes 
place  a  constitutional  prohibition  of  ex- 
emptions from  taxation  has  been  made, 
the  legislative  grant  to  the  consolidated 
corporation  of  all  the  "  rights,  privileges, 
and  immunities"  of  the  old  corporations 
is  ineffective  to  exempt  the  new  from 
taxation.  Keokuk  &  W.  R.  Co.  v.  Mis- 
souri, 152  U.  S.  301,  14  Sup.  Ct.  Rep. 
592,  aff.  99  Mo.  30,  12  S.  W.  290;  Yazoo 
&  M.  V.  R.R.  Co.  v.  Adams,  180  U.  S. 
1,  21  Sup.  Ct.  Rep.  240,  aff.  77  Miss. 
302,  305,  315,  24  So.  200,  317,  28  So. 
956.  Where  corporations  are  taxed  upon 
their  capital  stock,  the  consolidated  cor- 
poration may  be  compelled  by  the  State 
under  whose  laws  it  is  incorporated  to 
pay  the  tax  upon  its  entire  capital  stock, 
and  not  merely  upon  that  of  the  consoli- 
dating corporation  which  was  formerly 
a  corporation  of  that  State.  Ashley  r. 
Ryan,  153  U.  S.  436,  14  Sup.  Ct.  Rep. 
865.  The  new  corporation  is  subject  to 
all  the  laws  existing  at  the  time  of  its 
organization.  People,  &c.  v.  Cook,  148 
U.  S.  397,  13  Sup.  Ct.  Rep.  645,  aff.  110 
N.  Y.  443,  18  N.  E.  113,  47  Hun,  467.] 


398  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

railroad  which  shall  be  built  between  certain  termini ;  or  the  only 
bridge  which  shall  be  permitted  over  a  river  between  specified 
limits;  or  to  own  the  only  ferry  which  shall  be  allowed  at  a  cer- 
tain point,1  —  but  the  grant  of  an  exclusive  privilege  will  not  pre- 
vent the  legislature  from  exercising  the  power  of  eminent  domain 
in  respect  thereto.  Franchises,  like  every  other  thing  of  value, 
and  in  the  nature  of  property,  within  the  State,  are  subject  to  this 
power;  and  any  of  their  incidents  may  betaken  away,  or  them- 
selves altogether  annihilated,  by  means  of  its  exercise.2  And  it 
is  believed  that  an  express  agreement  in  the  charter,  that  the 
power  of  eminent  domain  should  not  be  so  exercised  as  to  impair 
or  affect  the  franchise  granted,  if  not  void  as  an  agreement  be- 
yond the  power  of  the  legislature  to  make,  must  be  considered 
as  only  a  valuable  portion  of  the  privilege  secured  by  the  grant, 
and  as  such  liable  to  be  appropriated  under  the  power  of  eminent 
domain.  The  exclusiveness  of  the  grant,  and  the  agreement 
against  interference  with  it,  if  valid,  constitute  elements  in  its 
value  to  be  taken  into  account  in  assessing  compensation  ;  but 
appropriating  the  franchise  in  such  a  case  no  more  violates  the 
obligation  of  the  contract  than  does  the  appropriation  of  land 
which  the  State  has  granted  under  an  express  or  implied  agree- 
ment for  quiet  enjoyment  by  the  grantee,  but  which  nevertheless 
may  be  taken  when  the  public  need  requires.3  All  grants  are 
subject  to  this  implied  condition  ;  and  it  may  well  be  worthy  of 
inquiry,  whether  the  agreement  that  a  franchise  granted  shall 
not  afterwards  be  appropriated  can  have  any  other  or  greater 
force  than  words  which  would  make  it  an  exclusive  franchise,  but 
which,  notwithstanding,  would  not  preclude  a  subsequent  grant 

1  West  River  Bridge  Co.  v.  Dix,  16  v.  Union  R.  R.  Co.,  35  Md.  224 ;  Eastern 
Vt.  446,  and  6  How.  507;   Binghamton  R.  R.  Co.  v.  Boston,  &c.  R.  R.  Co.,  Ill 
Bridge  Case,  3  Wall.  51;  Shorten;.  Smith,  Mass.  125,  15  Am.  Rep.  13.     A  way  may 
9  Ga.  517;   Piscataqua  Bridge  v.  N.  H.  be  condemned   through   a   cemetery  in 
Bridge,  7  N.  H.  35;  Boston  Water  Power  spite  of  a  contract  to  the  contrary.    In  re 
Co.,  v.  Boston  &  Worcester  R.  R.   Co.,  Twenty-second  St.,  16  Phila.  409,  102  Pa. 
23  Pick.  360;   Boston   &  Lowell  R.  R.  St.  108.     The  use  of  land  held  by  the 
v.  Salem   &  Lowell   R.  R.,   2  Gray,   1 ;  State  under  contract  to  redeliver  posses- 
Costar   v.    Brush,   25   Wend.   628;   Cali-  sion  may  be  condemned.     Tait's  Exec.  v. 
fornia  Telegraph  Co.  v.  Alta  Telegraph  Central  Lunatic  Asylum,  84  Va.  27, 4  S.  E. 
Co.,  22  Cal.  398.     QWilliams  v.  Wingo,  697.     That  property  has  been   acquired 
177  U.  S.  601,  20  Sup.  Ct.  Rep.  793.]  by  a  corporation  under  the  right  of  emi- 

2  Matter  of  Kerr,  42  Barb.  119;  En-  nent  domain   does    not  prevent    further 
field  Toll  Bridge  Co.  v.  Hartford  &  N.  H.  appropriation  of  it  under  the  same  right. 
R.  R.  Co.,  17  Conn.  40,  454;  West  River  Chicago,  &c.  R.  R.  Co.   v.  Lake,  71  HI. 
Bridge  Co.  v.  Dix,  16  Vt.  446,  and  6  How.  333 ;  Peoria,  &c.  R.  R.  Co.  v.  Peoria,  &c. 
507;  Philadelphia  &  Gray's  Ferry  Co.'s  Co,  66  111.   174;   Eastern  R.   R,   Co.  v. 
Appeal,  102  Pa.  St.  123.  Boston,  &c.  R.  R.  Co.,  11 1  Mass.  125.    See 

3  Alabama,  &c.  R.  R.  Co.  v.  Kenney,  post, pp.  757,  note  3,  806,  note  l.and  cases 
39  Ala.  307  ;  Baltimore,  &c.  Turnpike  Co.  referred  to. 


CH.  IX.] 


FEDERAL   PROTECTION    TO    PERSON,   ETC. 


399 


on  making  compensation.1  The  words  of  the  grant  are  as  much 
in  the  way  of  the  grant  of  a  conflicting  franchise  in  the  one  case 
as  in  the  other. 

It  has  also  been  intimated  in  a  very  able  opinion  that  the 
police  power  of  the  State  could  not  be  alienated  even  by  express 
grant.2  And  this  opinion  is  supported  by  those  cases  where  it 


1  Mr.  Greenleaf,  in  a  note  to  his  edi- 
tion of  Cruise  on  Real  Property,  Vol.  II. 
p.  67,  says  upon  this  subject :  "  In  regard 
to  the  position  that  the  grant  of  the  fran- 
chise of  a  ferry,  bridge,  turnpike,  or  rail- 
road is  in  its  nature  exclusive,  so  that 
the  State  cannot  interfere  with  it  by  the 
creation  of  another  similar  franchise  tend- 
ing materially  to  impair  its  value,  it  is 
with  great  deference  submitted  that  an 
important  distinction  should  be  observed 
between  those  powers  of  government 
which  are  essential  attributes  of  sover- 
eignty, indispensable  to  be  always  pre- 
served in  full  vigor,  such  as  the  power 
to  create  revenues  for  public  purposes, 
to  provide  for  the  common  defence,  to 
provide  safe  and  convenient  ways  for  the 
public  necessity  and  convenience,  and  to 
take  private  property  for  public  uses,  and 
the  like,  and  those  powers  which  are  not 
thus  essential,  such  as  the  power  to  alien- 
ate the  lands  and  other  property  of  the 
State,  and  to  make  contracts  of  service, 
or  of  purchase  and  sale,  or  the  like. 
Powers  of  the  former  class  are  essential 
to  the  constitution  of  society,  as  without 
them  no  political  community  can  well 
exist;  and  necessity  requires  that  they 
should  continue  unimpaired.  They  are 
intrusted  to  the  legislature  to  be  exer- 
cised, not  to  be  bartered  away ;  and  it  is 
indispensable  that  each  legislature  should 
assemble  with  the  same  measure  of  sov- 
ereign power  which  was  held  by  its 
predecessors.  Any  act  of  the  legislature 
disabling  itself  from  the  future  exercise  of 
powers  intrusted  to  it  for  the  public  good 
must  be  void,  being  in  effect  a  covenant 
to  desert  its  paramount  duty  to  the  whole 
people.  It  is  therefore  deemed  not  com- 
petent for  a  legislature  to  covenant  that 
it  will  not,  under  any  circumstances,  open 
another  avenue  for  the  public  travel 
within  certain  limits,  or  in  a  certain  term 
of  time ;  such  covenant  being  an  alien- 
ation of  sovereign  powers,  and  a  violation 
of  public  duty."  See  also  Redfield  on 
Railways  (3d.  ed.),  Vol.  I.  p.  258.  That 


the  intention  to  relinquish  the  right  of 
eminent  domain  is  not  to  be  presumed  in 
any  legislative  grant,  see  People  v.  Mayor, 
&c.  of  New  York,  32  Barb.  102;  Illinois 
&  Michigan  Canal  v.  Chicago  &  Hock 
Island  Railroad  Co.,  14  111.  314;  Eastern 
R.  R.  Co.  v.  Boston,  &c.  R.  R.  Co.,  Ill 
Mass.  125,  15  Am.  Rep.  13;  Turnpike  Co. 
v.  Union  R.  R.  Co.,  35  Md.  224. 

2  "  We  think  the  power  of  the  legisla- 
ture to  control  existing  railways  in  this 
respect  may  be  found  in  the  general  con- 
trol over  the  police  of  the  country,  which 
resides  in  the  law-making  power  in  all 
free  States,  and  which  is,  by  the  fifth  ar- 
ticle of  the  Bill  of  Rights  of  this  State, 
expressly  declared  to  reside  perpetually 
and  inalienably  in  the  legislature,  which 
is  perhaps  no  more  than  the  enunciation 
of  a  general  principle  applicable  to  all 
free  States ;  and  which  cannot  therefore 
be  violated  so  as  to  deprive  the  legis- 
lature of  the  power,  even  by  express 
grant  to  any  mere  public  or  private  cor- 
poration. And  when  the  regulation  of  the 
policy  of  a  city  or  town,  by  general  ordi- 
nances, is  given  to  such  towns  and  cities, 
and  the  regulation  of  their  own  internal 
police  is  given  to  railroads,  to  be  carried 
into  effect  by  their  by-laws  and  other 
regulations,  it  is,  of  course,  always,  in  all 
such  cases,  subject  to  the  superior  control 
of  the  legislature.  That  is  a  responsibil- 
ity which  legislatures  cannot  divest  them- 
selves of,  if  they  would."  Thorpe  v.  R.  & 
B.  R.  R.  Co.,  27  Vt.  140,  149,  per  Redfield, 
Ch.  J.  The  legislature  cannot  make  an 
irrepealable  contract  as  to  that  which 
affects  public  morals  or  public  health,  so 
as  to  limit  the  exercise  of  the  police 
power  over  the  subject-matter.  Butcher's 
Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S. 
746,  4  Sup.  Ct.  Rep.  052.  See  also  Indian- 
apolis, &c.  R.  R.  Co.  v.  Kercheval,  Ifi 
Ind.  84;  Ohio,  &c.  R.  R.  Co.  v.  McClelland, 
25  111.  140.  See  State  v.  Noyes,  47  Me. 
189,  on  the  same  subject.  In  Bradley  ?•. 
McAtee,  7  Bu*h,  607,  3  Am.  Rep.  300,  it 
was  decided  that  a  provision  in  a  city 


400 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  IX. 


has  been  held  that  licenses  to  make  use  of  property  in  certain 
modes  may  be  revoked  by  the  State,  notwithstanding  they  may 
be  connected  with  grants  and  based  upon  a  consideration.1  But 
this  subject  we  shall  recur  to  hereafter. 

It  would  .seem,  therefore,  to  be  the  prevailing  opinion,  and  one 
based  upon  sound  reason,  that  the  State  cannot  barter  away,  or 
in  any  manner  abridge  or  weaken,  any  of  those  essential  powers 
which  are  inherent  in  all  governments,  and  the  existence  of  which 
in  full  vigor  is  important  to  the  well-being  of  organized  society  ; 
and  that  any  contracts  to  that  end  are  void  upon  general  prin- 
ciples, and  cannot  be  saved  from  invalidity  by  the  provision  of 
the  national  Constitution  now  under  consideration.  If  the  tax 
cases  are  to  be  regarded  as  an  exception  to  this  statement,  the 
exception  is  perhaps  to  be  considered  a  nominal  rather  than  a 


charter  that,  after  the  first  improvement 
of  a  street,  repairs  should  be  made  at  the 
expense  of  the  city,  was  not  a  contract; 
and  on  its  repeal  a  lot-owner,  who  had 
paid  for  the  improvement,  might  have 
his  lot  assessed  for  the  repairs.  Compare 
Hammett  v.  Philadelphia,  65  Pa.  St.  146, 
3  Am.  Eep.  615. 

1  See,  upon  this  subject,  Brick  Pres- 
byterian Church  v.  Mayor,  &c.  of  New 
York,  6  Cow.  638  ;  Vanderbilt  v.  Adams, 

7  Cow.  349  ;  State  v.  Sterling,  8  Mo.  697  ; 
Him  v.  State,  1  Ohio  St.  15;   Calder  v. 
Kurby,  5  Gray,  597 ;  Brimmer  v.  Boston, 
102  Mass.  19.     The  power  of  the  State, 
after  granting  licenses  for  the  sale  of  liq- 
uors and  receiving  fees  therefor,  to  revoke 
the  licenses  by  a  general  law  forbidding 
sales,   has   been   denied   in   some   cases. 
See  State  v.  Phalen,  3  Harr.  441;  Adams 
17.  Hachett,  27  N.  H.  289 ;  Boyd  v.  State, 
36  Ala.  329.     But  there  is  no  doubt  this 
is  entirely  competent.    Freleigh  v.  State, 

8  Mo.  606;  State  v.  Sterling,  8  Mo.  697  ; 
Calder  v.  Kurby,  5  Gray,  697 ;  Met.  Board 
of  Excise  v.  Barrie,  34  N.  Y.  657  ;  Balti- 
more v.  Cluner,  23  Md.  449;  Fell  v.  State, 
42  Md.  71,  20  Am.  Rep.  83;   Common- 
wealth v.  Brennan,  103  Mass.  70 ;  McKin- 
ney  v.  Salem,  77   Ind.  213;    Moore  v. 
Indianapolis,    120    Ind.    483,    22    N.   E. 
424 ;    La  Croix  v.  Co.  Com'rs,  60  Conn. 
321;    Brown     v.    State,   82    Ga.    224,    7 
S.  E.  915;  Beer  Company  r.  Massachu- 
setts,  97   U.   S.   25.     Compare   State   v. 
Cooke,  24  Minn.  247;   Pleuler  v.  State, 
11  Neb.  647,   10  N.  W.  481.     An  addi- 
tional license  may  be  required  within  the 


period  covered  by  a  former  one.  Row- 
land v.  State,  12  Tex.  App.  418.  A  mer- 
chant's license  may  be  revoked  by  a  police 
regulation  inconsistent  with  it.  State  v. 
Burgoyne,  7  Lea,  173.  But  a  munici- 
pality cannot  add  to  the  statutory  grounds 
for  revocation.  Lantz  v.  Highstown,  46 
N.  J.  L.  102.  Grants  of  the  right  to  es- 
tablish lotteries  are  mere  privileges,  and 
as  such  are  revocable.  Bass  v.  Nash- 
ville, Meigs,  421,  83  Am.  Dec.  154;  State 
t7.  Morris,  77  N.  C.  612 ;  Stone  v.  Missis- 
sippi, 101  U.  S.  814  ;  Justice  v.  Com.,  81 
Va.  209;  State  v.  Woodward,  89  Ind.  110; 
[Douglas  v.  Kentucky,  168  U.  S.  488,  18 
Sup.  Ct.  Rep.  199.]  But  if  they  are  au- 
thorized by  the  constitution,  they  cannot 
be  abolished  by  the  legislature.  New 
Orleans  v.  Houston,  119  U.  S.  265,  7  Sup. 
Ct.  Rep.  198.  In  short,  the  State  cannot 
by  any  legislation  irrevocably  hamper 
itself  in  the  exercise  of  its  police  power. 
Toledo,  &c.  R.  R.  Co.  v.  Jacksonville,  67 
111.  37;  Chicago  Packing  Co.  v.  Chicago, 
88  111.  221  ;  Beer  Company  v.  Massachu- 
setts, 97  U.  S.  25;  Fertilizing  Co  v.  Hyde 
Park,  97  U.  S.  659;  Stone  v.  Mississippi, 
101  U.  S.  814;  People  v.  Commissioners, 
69  N.  Y.  92.  An  act  requiring  all  under- 
ground electric  lines  to  be  laid  under  the 
orders  of  a  commission  violates  no  con- 
tract rights  of  their  owners.  People  r. 
Squire,  107  N.  Y.  693,  14  N.  E.  820. 
No  doubt  if  a  license  is  revoked  for 
which  the  State  has  collected  money, 
good  faith  would  require  that  the  money 
be  returned.  Him  v.  State,  1  Ohio 
St.  15. 


CH.  IX.]        FEDERAL  PROTECTION  TO  PERSON,  ETC.  401 

real  one,  since  taxation  is  for  the  purpose  of  providing  the  State 
a  revenue,  and  the  State  laws  which  have  been  enforced  as  con- 
tracts in  these  cases  have  been  supposed  to  be  based  upon  con- 
sideration, by  which  the  State  receives  the  benefit  which  would 
have  accrued  from  an  exercise  of  the  relinquished  power  in  the 
ordinary  mode. 

Exclusive  Privileges.  Under  the  rulings  of  the  federal  Supreme 
Court,  the  grant  of  any  exclusive  privilege  by  a  State,  if  lawfully 
made,  is  a  contract,  and  not  subject  to  be  recalled.1  As  every 
exclusive  privilege  is  in  the  nature  of  a  monopoly,  it  may  at  some 
time  become  a  question  of  interest,  whether  there  are  any,  and 
if  so  what,  limits  to  the  power  of  the  State  to  grant  them.  In 
former  times,  such  grants  were  a  favorite  resort  in  England,  not 
only  to  raise  money  for  the  personal  uses  of  the  monarch,  but  to 
reward  favorites ;  and  the  abuse  grew  to  such  enormous  magni- 
tude that  Parliament  in  the  time  of  Elizabeth,  and  again  in  the 
times  of  James  I.,  interfered  and  prohibited  them.  What  is  more 
important  to  us  is,  that  in  1602  they  were  judicially  declared 
to  be  illegal.2  These,  however,  were  monopolies  in  the  ordinary 
occupations  of  life  ;  and  the  decision  upon  them  would  not  affect 
the  special  privileges  most  commonly  granted.  Where  the  grant 
is  of  a  franchise  which  would  not  otherwise  exist,  no  question  can 
be  made  of  the  right  of  the  State  to  make  it  exclusive,  unless  the 
constitution  of  the  State  forbids  it ;  because,  in  contemplation  of 
law,  no  one  is  wronged  when  he  is  only  excluded  from  that  to 
which  he  never  had  any  right.  An  exclusive  right  to  build  and 
maintain  a  toll  bridge  or  to  set  up  a  ferry  may  therefore  be 
granted  ;  and  the  State  may  doubtless  limit,  by  the  requirement 
of  a  license,  the  number  of  persons  who  shall  be  allowed  to  en- 
gage in  employments  the  entering  upon  which  is  not  a  matter  of 
common  right,  and  which,  because  of  their  liability  to  abuse,  may 
require  special  and  extraordinary  police  supervision.  The  busi- 
ness of  selling  intoxicating  drinks  and  of  setting  up  a  lottery  are 
illustrations  of  such  employments.  But  the  grant  of  a  monopoly 
in  one  of  the  ordinary  and  necessary  occupations  of  life  must  be 
as  clearly  illegal  in  this  country  as  in  England;  and  it  would  be 
impossible  to  defend  and  sustain  ifc,  except  upon  the  broad  ground 
that  the  legislature  may  control  and  regulate  the  ordinary  em- 
ployments, even  to  the  extent  of  fixing  the  prices  of  labor  and 
of  commodities.  As  no  one  pretends  that  the  legislature  pos- 
sesses such  a  power,  and  as  its  existence  would  be  wholly  incon- 
sistent with  regulated  liberty,  it  must  follow  that  lawful  grants 

1  Ante, p.  395,  and  cases  cited;  Slaugli-         2  Darcy  v.  Allain,  11  Rep.  84. 
ter-House  Cases,  16  Wall.  36,  74. 

26 


402  CONSTITUTIONAL   LIMITATIONS.  [oil.  IX. 

of  special  privileges  must  be  confined  to  cases  where  they  will 
take  from  citizens  generally  nothing  which  before  pertained  to 
them  as  of  common  right.1 

Changes  in  the  General  Laws.  We  have  said  in  another  place 
that  citizens  have  no  vested  right  in  the  existing  general  laws  of 
the  State  which  can  preclude  their  amendment  or  repeal,  and  that 
there  is  no  implied  promise  on  the  part  of  the  State  to  protect  its 
citizens  against  incidental  injury  occasioned  by  changes  in  the 
law.  Nevertheless  there  may  be  laws  which  amount  to  proposi- 
tions on  the  part  of  the  State,  which,  if  accepted  by  individuals, 
will  become  binding  contracts.  Of  this  class  are  perhaps  to  be 
considered  bounty  laws,  by  which  the  State  promises  the  payment 
of  a  gratuity  to  any  one  who  will  do  any  particular  act  supposed 
to  be  for  the  State  interest.  Unquestionably  the  State  may  re- 
peal such  a  law  at  any  time ; 2  but  when  the  proposition  has  been 
accepted  by  the  performance  of  the  act  before  the  law  is  repealed, 
the  contract  would  seem  to  be  complete,  and  the  promised  gra- 
tuity becomes  a  legal  debt.3  And  where  a  State  was  owner  of 
the  stock  of  a  bank,  and  by  the  law  its  bills  and  notes  were  to  be 
received  in  payment  of  all  debts  due  to  the  State,  it  was  properly 
held  that  this  law  constituted  a  contract  with  those  who  should 
receive  the  bills  before  its  repeal  and  that  a  repeal  of  the  law 
could  not  deprive  these  holders  of  the  right  which  it  assured. 
Such  a  law,  with  the  acceptance  of  the  bills  under  it,  "  comes 
within  the  definition  of  a  contract.  It  is  a  contract  founded  upon 
a  good  and  valuable  consideration,  —  a  consideration  beneficial  to 
the  State  ;  as  its  profits  are  increased  by  sustaining  the  credit, 

1  The  grant  of  an  exclusive  privilege  U.  S.  674,  6  Sup.  Ct.  Rep.  273;  St.  Tam- 

in  slaughtering  cattle  in  the  vicinity  of  many  Water  Works  v.  New  Orleans  Water 

New  Orleans  was  upheld  as  an  exercise  Works,  120  U.  S.  64,  7  Sup.  Ct.  Rep.  405; 

of  the   police  power,  in  the  Slaughter-  Citizens'  Water  Co.  v.  Bridgeport,  &c.  Co., 

House  Cases,  16  Wall.  36.    But  the  legis-  65  Conn.  1,  10  Atl.  170. 

lature  could  not  by  a  grant  of  this  kind  2  Christ   Church   v.   Philadelphia,    24 

make  an  irrepealable  contract.    In  regard  How.  300;   East   Saginaw    Salt   Manuf. 

to  public  health  and  public  morals  a  legis-  Co.  v.  East   Saginaw,    19   Mich.    259,   2 

lature  cannot  by  any  contract  limit  the  Am.  Rep.  82,  and  13  Wall.  373.     So  as  to 

exercise  of  the  police  power  to  the  preju-  pension  to  a  policeman:  Pennie  v.  Reis, 

dice  of   the  general  welfare.     Butcher's  80  Cal.  266,  22  Pac.  176;  or  an  exempiion 

Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  from  taxation  to  persons  planting  forest 

746, 4  Sup.  Ct.  Rep.  652.    An  irrepealable  trees.     Shiner  v.  Jacobs,  62  Iowa,  392,  17 

contract  giving  exclusive  privileges  with  N.  W.  613. 

reference  to  lighting  a  city,  may  be  made.  8  People  v.  Auditor-General,  9  Mich. 

New  Orleans  Gaslight  Co.  v.  Louisiana  327.    See  Montgomery  v.  Kasson,  16  Cal. 

Light  Co.,  115  U.  S.  650,  6  Sup.  Ct.  Rep.  189 ;    Adams    v.    Palmer,    51    Me.   480. 

25'2 ;  Louisville  Gas  Co.  v.  Citizens'  Gas  QState  cannot  lower  the  rate  of  interest 

Co.,  115  U.  S.  683,  6  Sup.  Ct.  Rep.  265.  upon  its  warrants  already  issued.     State 

So  as  to  the  privilege  of  furnishing  water,  v.  Barrett,  25  Mont.  112,  63  Pac.  1030.] 
New  Orleans  Water  Works  r.  Rivers,  115 


CII.  IX.]       FEDERAL  PROTECTION  TO  PERSON,  ETC.          403 

and  consequently  extending  the  circulation,  of  the  paper  of  the 
bank."  l 

That  laws  permitting  the  dissolution  of  the  contract  of  marriage 
are  not  within  the  intention  of  the  clause  of  the  Constitution  under 
discussion,  has  been  many  times  affirmed.2  It  has  been  intimated, 
however,  that,  so  far  as  property  rights  are  concerned,  the  con- 
tract must  stand  on  the  same  footing  as  any  other,  and  that  a 
law  passed  after  the  marriage,  vesting  the  property  in  the  wife 
for  her  sole  use,  would  be  void,  as  impairing  the  obligation  of  con- 
tracts.3 But  certainly  there  is  no  such  contract  embraced  in  the 
marriage  as  would  prevent  the  legislature  changing  the  law,  and 
vesting  in  the  wife  solely  all  property  which  she  should  acquire 
thereafter ;  and  if  the  property  had  already  become  vested  in  the 
husband,  it  would  be  protected  in  him,  against  legislative  transfer 
to  the  wife,  on  other  grounds  than  the  one  here  indicated. 

"  TJie  obligation  of  a  contract"  it  is  said,  "  consists  in  its  bind- 
ing force  on  the  party  who  makes  it.  This  depends  on  the  laws 
in  existence  when  it  is  made  ;  these  are  necessarily  referred  to  in 
all  contracts,  and  forming  a  part  of  them  as  the  measure  of  the 
obligation  to  perform  them  by  the  one  party,  and  the  right  ac- 
quired by  the  other.  There  can  be  no  other  standard  by  which 
to  ascertain  the  extent  of  either,  than  that  which  the  terms  of 
the  contract  indicate,  according  to  their  settled  legal  meaning ; 
when  it  becomes  consummated,  the  law  defines  the  duty  and  the 
right,  compels  one  party  to  perform  the  thing  contracted  for,  and 
gives  the  other  a  right  to  enforce  the  performance  by  the  remedies 
then  in  force.  If  any  subsequent  law  affect  to  diminish  the  duty 
or  to  impair  the  right,  it  necessarily  bears  on  the  obligation  of 
the  contract,  in  favor  of  one  party,  to  the  injury  of  the  other ; 

1  Woodruff  v.  Trapnall,  10  How.  190.  246.      So   of  county   warrants.      People 

See  Winter  v.  Jones,   10  Ga.   190 ;  Fur-  v.  Hall,  8  Col.  485,  9  Pac.  34.     An  act, 

man  v.  Nichol,  8  Wall.  44.     A  law  which  changing  after  issue  the  place  of  payment 

makes  coupons  on  State  bonds  receivable  of  municipal  bonds,  is  bad.    Dillingham  v. 

for  all  taxes  and  dues  is  a  contract,  the  Hook,  32  Kan.  185,  4  Pac.  166.     So  one 

obligation  of  which   no  subsequent  law  requiring  bonds  payable  to  bearer  to  be 

can  impair.     Antoni  v.  Wright,  22  Gratt.  registered.    Priestly  v.  Watkins,  62  Miss. 

833;  Hartman  v.  Greenhow,  102  U.  S.  672  ;  798.     See  People  v.   Otis,   90  N.  Y.   48. 

Poindexter  v.  Greenhow,  111  U.  S.  270,  But  compare   Gurnee   v.  Speer,   68   Ga. 

6  Sup.  Ct.  Rep.  903,  962;  [McCullough  711. 

v.  Virginia,  172  U.  S.  102, 19  Sup.  Ct.  Rep.  2  Per  Marshall,  Ch.  J.,  Dartmouth  Col- 
134,  and  many  cases  therein  cited.  A  lege  v.  Woodward,  4  Wheat.  518,  629; 
valuable  history  of  the  persistent  attempts  Maynard  v.  Hill,  125  U..S.  190,  8  Sup.  Ct. 
of  Virginia  to  avoid  the  obligation  of  these  Rep.  723;  Maguire  ».  Maguire,  7  Dana, 
bonds  and  their  coupons  may  be  found  in  181 ;  Clark  v.  Clark,  10  N.  H.  380 ;  Cronise 
McGahey  v.  Virginia,  135  U.  S.  662,  10  v.  Cronise,  54  Pa.  St.  255;  Carson  v.  Car- 
Sup.  Ct.  Rep.  972.]  Compare  Corn  wall  u.  son,  40  Miss.  349,;  Adams  v.  Palmer,  51 
Com..  82  Va.  644 ;  Com.  v.  Jones,  82  Va.  Me.  480. 
789 ;  Ellett  v.  Com.,  85  Va.  517,  8  S.  E.  8  Holmes  v.  Holmes,  4  Barb.  295. 


404 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


hence  any  law  which  in  its  operations  amounts  to  a  denial  or 
obstruction  of  the  rights  accruing  by  a  contract,  though  profess- 
ing to  act  only  on  the  remedy,  is  directly  obnoxious  to  the  pro- 
hibition of  the  Constitution."  1  "  It  is  the  civil  obligation  of  con- 
tracts which  [the  Constitution]  is  designed  to  reach ;  that  is,  the 
obligation  which  is  recognized  by,  and  results  from,  the  law  of 
the  State  in  which  it  is  made.  If,  therefore,  a  contract  when 


1  McCracken  v.  Hay  ward,  2  How.  608, 
612.  "  The  obligation  of  a  contract  .  .  . 
is  the  law  which  binds  the  parties  to  per- 
form their  agreement.  The  law,  then, 
which  has  this  binding  obligation  must 
govern  and  control  the  contract,  in  every 
shape  in  which  it  is  intended  to  bear  upon 
it,  whether  it  affects  its  validity,  con- 
struction, or  discharge.  It  is,  then,  the 
municipal  law  of  the  State  whether  that  be 
written  or  unwritten,  which  is  emphatic- 
ally the  law  of  the  contract  made  within 
the  State,  and  must  govern  it  throughout, 
whenever  its  performance  is  sought  to  be 
enforced."  Washington,  J.,  in  Ogden  »;. 
Saundere,  12  Wheat.  213,  257,  259.  "  As 
I  understand  it,  the  law  of  the  contract 
forms  its  obligation."  Thompson,  J.,  ibid. 
302.  "The  obligation  of  the  contract 
consists  in  the  power  and  efficacy  of  the 
law  which  applies  to,  and  enforces  per- 
formance of,  the  contract,  or  the  payment 
of  an  equivalent  for  non-performance. 
The  obligation  does  not  inhere  and  sub- 
sist in  the  contract  itself,  proprio  vigore, 
but  in  the  law  applicable  to  the  contract. 
This  is  the  sense,  I  think,  in  which  the 
Constitution  uses  the  term  'obligation.'" 
Trimble,  J.,  ibid.  318.  And  see  Van 
Baumbach  v.  Bade,  9  Wis.  559 ;  Johnson 
v.  Higgins,  3  Met.  (Ky.)  566;  People  v. 
Ingersoll,  58  N.  Y.  1.  Requirement  of 
a  license  tax  for  permission  to  do  what  a 
contract  with  the  city  gives  authority 
to  do,  without  "  let,  molestation,  or  hin- 
drance," is  void.  Stein  v.  Mobile,  49  Ala. 
362,  20  Am.  Rep.  283.  But  licenses  in 
general  are  subject  to  the  taxing  power. 
Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116; 
Reed  v.  Beall,  42  Miss.  472;  Cooley  on 
Taxation,  386,  and  cases  cited.  A  law 
taxing  a  debt  to  the  debtor  and  making 
him  pay  the  tax  and  deduct  the  amount 
from  the  debt  is  valid.  Lehigh  V.  R.  R. 
Co.  v.  Com.,  129  Pa.  St.  429,  18  Atl. 
410.  So  where  the  debtor,  a  foreign  cor- 
poration, has  paid  for  the  privilege  of 


being  exempt  from  taxation.  New  York, 
L.  E.  &  W.  R.  R.  Co.  v.  Com.,  129  Pa. 
St.  463,  18  Atl.  412.  A  law  giving  in- 
terest on  debts,  which  bore  none  when 
contracted,  was  held  void  in  Goggans  v. 
Turnispeed,  1  S.  C.  (N.  s.)  40,  7  Am.  Rep. 
23.  The  legislature  cannot  authorize  the 
compulsory  extinction  of  ground  rents, 
on  payment  of  a  sum  in  gross.  Palairet's 
Appeal,  67  Pa.  St.  479,  5  Am.  Rep.  450. 
A  State  law,  discontinuing  a  public  work, 
does  not  impair  the  obligation  of  con- 
tracts, the  contractor  having  his  just 
claim  for  damages.  Lord  v.  Thomas,  64 
N.  Y.  107.  A  law  giving  an  abutter  a 
right  to  damages  when  a  railroad  is  laid 
in  the  street  is  valid  as  to  changes  there- 
after made  by  a  railroad,  though  a  city 
ordinance  had  given  it  the  right  to  use 
the  street.  Drady  v.  Des  Moines,  &c.  Co , 
57  Iowa,  393,  10  N.  W.  754.  See  also 
Mulholland  v.  Des  Moines,  &c.  Co.,  60 
Iowa,  740,  13  N.  W.  726.  A  statute  pro- 
viding for  reversion  of  land  condemned 
for  railroad  purposes  if  work  on  the  road 
has  ceased  for  eight  years  is  valid.  The 
property  right  does  not  attach  to  the  land 
independent  of  its  use  for  public  purposes. 
Skillman  v.  Chicago,  &c.  Ry.  Co.,  78  Iowa, 
404,  43  N.  W.  275.  £Where  at  the 
time  a  contract  was  made  a  judgment  for 
damages  for  breach  thereof  was  renew- 
able indefinitely,  a  later  enacted  statute 
limiting  absolutely  the  life  of  the  judg- 
ment is  void  with  regard  to  this  contract. 
Bettman  v.  Cowley,  19  Wash.  207,  53 
Pac.  53,  40  L.  R.  A.  815,  and  see  also 
Palmer  v.  Laberee,  23  Wash.  409,  63  Pac. 
216.  Warrant  of  attorney  to  holder  of 
note  to  enter  judgment  against  maker 
upon  default  of  payment,  and  issue  exe- 
cution, etc.,  valid  when  note  was  made 
cannot  be  invalidated  by  subsequent 
statute.  Second  Ward  Savings  Bank  v. 
Schranck,  97  Wis.  250,  73  N.  W.  31,  39 
L.  R.  A.  669J 


CH.  IX.]       FEDERAL  PEOTECTION  TO  PERSON,  ETC.          405 

made  is  by  the  law  of  the  place  declared  to  be  illegal,  or  deemed 
to  be  a  nullity,  or  a  nude  pact,  it  has  no  civil  obligation;  because 
the  law  in  such  cases  forbids  its  having  any  binding  efficacy  or 
force.  It  confers  no  legal  right  on  the  one  party,  and  no  cor- 
respondent legal  duty  on  the  other.  There  is  no  means  allowed 
or  recognized  to  enforce  it ;  for  the  maxim  is  ex  nudo  pacto  non 
oritur  actio.  But  when  it  does  not  fall  within  the  predicament  of 
being  either  illegal  or  void,  its  obligatory  force  is  coextensive 
with  its  stipulations."1 

Such  being  the  obligation  of  a  contract,  it  is  obvious  that  the 
rights  of  the  parties  in  respect  to  it  are  liable  to  be  affected  in 
many  ways  by  changes  in  the  laws,  which  it  could  not  have  been 
the  intention  of  the  constitutional  provision  to  preclude.  "  There 
are  few  laws  which  concern  the  general  police  of  a  State,  or  the 
government  of  its  citizens,  in  their  intercourse  with  each  other  or 
with  strangers,  which  may  not  in  some  way  or  other  affect  the 
contracts  which  they  have  entered  into  or  may  thereafter  form. 
For  what  are  laws  of  evidence,  or  which  concern  remedies,  frauds, 
and  perjuries,  laws  of  registration,  and  those  which  affect  land- 
lord and  tenant,  sales  at  auction,  acts  of  limitation,  and  those 
which  limit  the  fees  of  professional  men,  and  the  charges  of 
tavern-keepers,  and  a  multitude  of  others  which  crowd  the  codes 
of  every  State,  but  laws  which  may  affect  the  validity,  construc- 
tion, or  duration,  or  discharge  of  contracts  ?"2  But  the  changes 
in  these  laws  are  not  regarded  as  necessarily  affecting  the  obliga- 
tion of  contracts.  Whatever  belongs  merely  to  the  remedy  may 

1  Story  on  Const.  §  1380.  Slave  con-  Levy  v.  Hitsche,  40  La.  Ann.  600,  4 
tracts,  which  were  legal  when  made,  are  So.  472 ;  QLos  Angeles  v.  Los  Angeles 
not  rendered  invalid  by  the  abolition  of  City  Water  Co.,  177  U.  S.  558,  20  Sup.  Ct. 
slavery ;  nor  can  the  States  make  them  Rep.  736 .]  But  such  construction  is  not 
void  by  their  constitutions,  or  deny  rem-  "  settled  "  by  a  single  decision.  McLure 
edies  for  their  enforcement.  White  v.  v.  Melton,  24  S.  C.  659.  The  same  rule 
Hart,  13  Wall.  646;  Osborn  v.  Nicholson,  applies  to  the  settled  construction  of  a 
13  Wall.  654 ;  .Tacoway  v.  Denton,  25  constitution.  Louisiana  v.  Pilsbury,  105 
Ark.  641.  An  act  of  indemnity  held  not  U.  S.  278.  QAn  ordinance  which  in  effect 
to  relieve  a  sheriff  from  his  obligation  on  denies  any  contract  obligation  is  not  a 
his  official  bond  to  account  for  moneys  law  impairing  the  obligation  of  contract 
which  had  been  paid  away  under  mili-  though  the  obligation  does  exist.  The 
tary  compulsion.  State  v.  Gatzweiler,  49  contract  may  still  be  enforced  if  found 
Mo.  17,  8  Am.  Rep.  119.  The  settled  to  exist  notwithstanding  such  denial, 
judicial  construction  of  a  statute,  so  far  St.  Paul  Gaslight  Co.  v.  St.  Paul,  181 
as  con  tract  rights  are  there  under  acquired,  U.  S.  142,  21  Sup.  Ct.  Rep.  675,  aff.  78 
is  to  be  deemed  a  part  of  the  statute  Minn.  39,  80  N.  W.  774,  877.] 
itself,  and  enters  into  and  becomes  a  part  a  Washington,  J.,  in  Odgen  v.  Saunders, 
of  the  obligation  of  the  contract ;  ami  no  12  Wheat.  213,  259.  As  to  the  indirect 
subsequent  change  in  construction  can  be  modification  of  contracts  by  the  opera- 
suffered  to  defeat  or  impair  the  contracts  tion  of  police  laws,  see  ante,  pp.  399,  400, 
already  entered  into.  Douglass  v.  Pike  notes  ;  post,  pp.  831-851. 
County,  101  U.  S.  677,  and  cases  cited. 


406 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


be  altered  according  to  the  will  of  the  State,  provided  the  altera- 
tion does  not  impair  the  obligation  of  the  contract ; l  and  it  does 
not  impair  it,  provided  it  leaves  the  parties  a  substantial  remedy, 
according  to  the  course  of  justice  as  it  existed  at  the  time  the 
contract  was  made.2 

Changes  in  Remedies.  It  has  accordingly  been  held  that  laws 
changing  remedies  for  the  enforcement  of  legal  contracts,  or 
abolishing  one  remedy  where  two  or  more  existed,  may  be 
perfectly  valid,  even  though  the  new  or  the  remaining  remedy 
be  less  convenient  than  that  which  was  abolished,  or  less  prompt 
and  speedy.3 

"  Without  impairing  the  obligation  of  the  contract,  the  remedy 
may  certainly  be  modified  as  the  wisdom  of  the  nation  shall 


1  Bronson  v.  Kinzie,  1  How.  311,  316, 
per  Taney,  Ch.  J.     ^Whether  impairing 
remedy  impairs  obligation  of  contract,  see 
note  to  26  L.  ed.  U.  S.  132.] 

2  Stocking  v.  Hunt,  3  Denio,  274 ;  Van 
Baumbach  v.  Bade,  9  Wis.  559 ;  Bronson 
v.  Kinzie,   1    How.   316 ;   McCraoken    v. 
Hay  ward,  2  How.  608;  Butler  v.  Palmer, 
1  Hill,  324 ;  Van  Rensselaer  v.  Snycler,  9 
Barb.  302,  and  13  N.  Y.  299;  Conkey  v. 
Hart,   14  N.  Y.  22;  Guild  v.  Rogers,  8 
Barb.  502;   Story  v.  Furman,  25  N.  Y. 
214;  Coriell  v.  Ham,  4  Greene    (Iowa), 
455;    Hey  ward   v.   Judd,    4   Minn.   483; 
Swift  y.  Fletcher,  6  Minn.  550;  Maynes 
v.  Moore,  16  Ind.  116;  Smith  v.  Packard, 
12  Wis.  371;  Grosvenor  v.  Chesley,  48 
Me.  369;  Van  Rensselaer  v.  Ball,  19  N. 
Y.  100 ;  Van  Rensselaer  v.  Hays,  19   N. 
Y.  68 ;  Litchfield  v.  McComber,  42  Barb. 
288 ;  Paschal  v.  Perez,  7  Tex.  348 ;  Auld 
v.  Butcher,  2  Kan.  135 ;  Kenyon  v.  Stew- 
art, 44  Pa.  St.  179;  Clark  v.  Martin,  49 
Pa.  St.  299;  Rison  v.  Farr,  24  Ark.  161 ; 
Oliver  v.  McClure,  28  Ark.  555;  Holland 
v.  Dickerson,  41  Iowa,  367  ;  Chicago  Life 
Ins.  Co.  ?>.  Auditor,  101  111.  82 ;  Wales  v. 
Wales,  119  Mass.  89  ;  Sanders   v.  Hills- 
borough   Insurance   Co.,  44  N.  H.  238 ; 
Huntzinger  v.  Brock,   3   Grant's   Cases, 
243;   Mechanics',  &c.  Bank   Appeal,  31 
Conn.  63 ;    Garland   v.   Brown's   Adm'r, 
23  Gratt.  173 ;  Chattaroi  Ry.  Co.  v.  Kin- 
ner,  81  Ky.  221.     A  requirement  that  be- 
fore a  mandamus  shall  issue  to  compel 
the  receipt  in  accordance  with  contract 
of  coupons  for  taxes,  the  petitioner  shall 
pay  the  tax,  and  on  proving  the  genuine- 
ness of  the  coupons  shall  have  it  refunded, 


is  valid,  though  adopted  after  the  forma- 
tion of  the  contract.  Antoni  v.  Green- 
how,  107  U.  S.  769,  2  Sup.  Ct.  Rep.  91  ; 
Moore  v.  Greenhow,  1 14  U.  S.  338,  5  Sup. 
Ct.  Rep.  1020.  See  Rousseau  v.  New  Or- 
leans, 35  La.  Ann.  557.  A  statute  pro- 
viding for  a  review  of  judgments  does  not 
enter  into  contracts  so  that  it  may  not  be 
changed.  Rupert  v.  Martz,  116  Ind.  72, 18 
N.  E.  381.  See  United  Cos.  v.  Weldon,  47 
N.  J.  L.  59 ;  State  v.  Slevin,  16  Mo.  App, 
541.  But  the  collection  of  a  special  tax 
cannot  be  hindered  by  requiring,  after  it 
is  voted,  a  special  collection  bond  with 
local  sureties:  Edwards  v.  Williamson, 
70  Ala.  145;  or  a  new  and  cumbrous 
mode  of  collection.  Seibert  v.  Lewis, 
122  U.  S.  284,  7  Sup.  Ct.  Rep.  1190. 

3  Ogden  v.  Saunders,  12  Wheat.  213 ; 
Beers  v.  Haughton,  9  Pet.  329 ;  Tennes- 
see v.  Sneed,  96  U.  S.  69 ;  Bumgardner 
v.  Circuit  Court,  4  Mo.  50;  Tarpley  r. 
Hamer,  17  Miss.  310;  Danks  v.  Quack- 
enbush.  1  Denio,  128^  3  Denio,  594, 
and  1  N.  Y.  129 ;  Bronson  v.  Newberry, 
2  Doug.  (Mich.)  38;  Rockwell  v.  Hub- 
bell's  Admr's,  2  Doug.  (Mich.)  197  ;  Evans 
v.  Montgomery,  4  W.  &  S.  218;  Hollo- 
way  u.  Sherman,  12  Iowa,  282 ;  Sprecker 
v.  Wakeley,  11  Wis.  432;  Smith  r.  Pack- 
ard, 12  Wis.  371 ;  Porter  v.  Mariner,  60 
Mo.  364;  Morse  v.  Goold,  11  N.  Y.  281 ; 
Penrose  v.  Erie  Canal  Co.,  56  Pa.  St.  46; 
Smith  v.  Van  Gilder,  26  Ark.  527  ;  Coosa 
River  St.  B.  Co.  v.  Barclay,  30  Ala.  120 ; 
Baldwin  v.  Newark,  38  N.  J.  158:  Moore 
v.  State,  43  N.  J.  203;  Newark  Savings 
Bank  v.  Forman,  33  N.  J.  Eq.  436  ;  Simp- 
son v.  Savings  Bank,  56  N.  H.  466. 


CH.  IX.] 


FEDEEAL   PKOTECTION   TO   PERSOX,   ETC. 


407 


direct." J  To  take  a  strong  instance  :  although  the  law  at  the 
time  the  contract  is  made  permits  the  creditor  to  take  the  body 
of  his  debtor  in  execution,  there  can  be  no  doubt  of  the  right 
to  abolish  all  laws  for  this  purpose,  leaving  the  creditor  to  his 
remedy  against  property  alone.  "  Confinement  of  the  debtor 
may  be  a  punishment  for  not  performing  his  contract,  or  may  be 
allowed  as  a  means  of  inducing  him  to  perform  it.  But  the  State 
may  refuse  to  inflict  this  punishment,  or  may  withhold  this  means, 
and  leave  the  contract  in  full  force.  Imprisonment  is  no  part  of 
the  contract,  and  simply  to  release  the  prisoner  does  not  impair 
the  obligation."2  Nor  is  there  any  constitutional  objection  to 


1  Sturges  v.  Crowninshield,  4  Wheat. 
122,  200,  per  Marshall,  Ch.  J. ;  Ward  »?. 
Farwell,  97  III.  593.  A  statute  allowing 
the  defence  of  want  of  consideration  in  a 
sealed  instrument  previously  given  does 
not  violate  the  obligation  of  contracts. 
Williams  v.  Haines,  27  Iowa,  251.  See 
further  Parsons  v.  Casey,  28  Iowa,  431 ; 
Curtis  v.  Whitney,  13  Wall.  68 ;  Cook  v. 
Gregg,  46  N.  Y.  439.  Right  accruing 
under  stipulation  in  a  note  to  waive  pro- 
cess and  confess  judgment  may  be  taken 
away.  Worsham  v.  Stevens,  66  Tex.  89, 
17  S.  W.  404.  A  statutory  judgment  lien 
may  be  taken  away.  Watson  v.  New 
York  Central  R.  R.  Co.,  47  N.  Y.  157  ; 
Woodbury  v.  Grimes,  1  Col.  100.  Contra, 
Gunn  v.  Barry,  15  Wall.  610.  The  law 
may  be  so  changed  that  a  judgment  lien 
shall  not  attach  before  a  levy.  Moore  v. 
Holland,  16  S.  C.  15.  It  may  be  ex- 
tended before  it  has  expired.  Ellis  v. 
Jones,  61  Mo.  180.  The  mode  of  per- 
fecting a  lien  may  be  changed  before  it 
has  actually  attached.  Whitehead  v. 
Latham,  83  N.  C.  232.  The  value  of  a 
mechanic's  lien  may  not  be  materially 
affected  by  a  statute  making  consum- 
mate a  previously  inchoiite  right  of 
dower.  Buser  v.  Shepard,  107  Ind.  417, 
8  N.  E.  280.  The  obligation  of  the 
contract  is  not  impaired  if  a  substantial 
remedy  remains.  Richmond  v.  Rich- 
mond, &c.  R.  R.  Co.,  21  Gratt.  611. 
See  Mabry  v.  Baxter,  11  Heisk.  682; 
Edwards  v.  Kearzey,  96  U.  S.595;  Bald- 
win v.  Newark,  38  N.  J.  158;  Augusta 
Bank  v.  Augusta,  49  Me.  507  ;  Thistle  v. 
Frostbury  Coal  Co,  10  Md.  129.  It  is 
competent  to  provide  by  law  that  all 
mortgages  not  recorded  by  a  day  speci- 
fied shall  be  void.  Vance  v.  Vance,  32 


La.  Ann.  186  ;  aff.  108  U.  S.  514,  2  Sup. 
Ct.  Rep.  854.  See  Gilfillan  v.  Union 
Canal  Co.,  109  U  S.  401,  3  Sup.  Ct.  Rep. 
304  ;  Gurnee  v.  Speer,  68  Ga.  711. 

Where  the  individual  liability  of  offi- 
cers or  stockholders  in  a  corporation  is  a 
part  of  the  contract  itself,  it  cannot  be 
changed  or  abrogated  as  to  existing  debts. 
Hawthorne  r.  Calef,  2  Wall.  10  ;  Corning 
v.  McCullough,  1  N.  Y.  47;  Story  v. 
Furman,  25  N.  Y.  214 ;  Norris  n.  Wren- 
shall,  34  Md.  494 ;  Brown  v.  Hitchcock, 
36  Ohio  St.  667 ;  Providence  Savings  In- 
stitute r.  Skating  Rink,  52  Mo.  452 ;  St. 
Louis,  &c.  Co.  v.  Harbine,  2  Mo.  App. 
134.  But  where  it  is  imposed  as  a  pen- 
alty for  failure  to  perform  some  corpo- 
rate or  statutory  duty,  it  stands  on  the 
footing  of  all  other  penalties,  and  may 
be  revoked  in  the  discretion  of  the  legis- 
lature. Union  Iron  Co.  v.  Pierce,  4  Biss. 
327;  Bay  City,  &c.  Co.  v.  Austin,  21 
Mich.  390;  Breitung  v.  Lindauer,  37 
Mich.  217 ;  Gregory  v.  Denver  Bank, 
3  Col.  332.  See  Coffin  v.  Rich,  45  Me. 
507 ;  Weidenger  v.  Spruance,  101  111. 
278.  £  Where  formerly  when  building 
subject  to  mechanic's  lien  stood  upon 
mortgaged  premises,  it  had  upon  fore- 
closure of  lien  to  be  sold  and  removed 
from  premises,  provision  may  be  made 
by  statute  that  the  court  when  deeming 
it  to  be  for  best  interests  of  parties  may 
order  land  and  building  sold  at  the  same 
time,  giving  mortgagee  priority  of  claim 
upon  proceeds  of  land  and  lienor  priority 
upon  those  of  buildings.  Red  Riv.  V.  Nat. 
Bk.  v.  Craig,  181  U.  S.  548,  21  Sup.  Ct. 
Rep.  703.] 

2  Sturges  v.  Crowninshield,  4  Wheat. 
122,  per  Marshall,  Ch.  J. ;  Mason  v.  Haile, 
12  Wheat.  370  ;  Beers  v.  Haughton,  9  Pet. 


408 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


such  a  modification  of  those  laws  which  exempt  certain  portions 
of  a  debtor's  property  from  execution  as  shall  increase  the  exemp- 
tions to  any  such  extent  as  shall  not  take  away  or  substantially 
impair  the  remedy,  nor  to  the  modifications  being  made  applicable 
to  contracts  previously  entered  into.  The  State  "  may,  if  it  thinks 
proper,  direct  that  the  necessary  implements  of  agriculture,  or  the 
tools  of  the  mechanic,  or  articles  of  necessity  in  household  furni- 
ture, shall,  like  wearing-apparel,  not  be  liable  to  execution  on 
judgments.  Regulations  of  this  description  have  always  been 
considered,  in  every  civilized  community,  as  properly  belonging 
to  the  remedy,  to  be  exercised  or  not,  by  every  sovereignty,  ac- 
cording to  its  own  views  of  policy  and  humanity.  It  must  reside 
in  every  State  to  enable  it  to  secure  its  citizens  from  unjust  and 
harassing  litigation,  and  to  protect  them  in  those  pursuits  which 
are  necessary  to  the  existence  and  well-being  of  every  commun- 
ity." 1  But  a  homestead  exemption  law,  where  none  existed 
before,  cannot  be  applied  to  contracts  entered  into  before  its 
enactment;2  and  in  several  recent  cases  the  authority  to  increase 
exemptions  and  make  them  applicable  to  existing  contracts  has 
been  altogether  denied,3  on  the  ground  that,  while  professedly 


329;  Penniman's  Case,  103  U.  S.  714; 
Sommers  v.  Johnson,  4  Vt.  278,  24  Am. 
Dec.  604;  Ware  v.  Miller,  9  S.  C.  13; 
Bronson  v.  Newberry.  2  Doug.  (Mich.) 
38 ;  Maxey  v.  Loyal,  38  Ga.  531.  A  spe- 
cial act  admitting  a  party  imprisoned  on 
a  judgment  for  tort  to  take  the  poor  debt- 
or's oath  was  sustained  in  Matter  of 
Nichols,  8  R.  I.  50.  £In  Alabama,  where 
imprisonment  for  fraud  is  not  permitted, 
a  law  making  receipt  of  deposits  by  an 
insolvent  banker  a  crime  was  held  in- 
valid. Can-  v.  State,  106  Ala.  35,  34 
L.  R.  A.  634,  54  Am.  St.  17,  17  So.  350; 
see  note  to  this  case  in  L.  R.  A.  upon 
constitutionality  of  imprisonment  for 
debt.  Guest  who  defrauds  inn-keeper 
may  be  imprisoned.  State  v.  Yardley, 
95  Tenn.  546,  32  S.  W.  481,  34  L.  R.  A. 
656.] 

i  Bronson  v.  Kinzie,  1  How.  311,  315, 
per  Tanei/,  Ch.  J. ;  Rockwell  v.  Hubbell's 
Adm'rs,  2  Doug.  (Mich.),  197  ;  Quacken- 
bush  v.  Danks,  1  Denio,  128,  3  Denio,  594, 
and  1  N.  Y.  129 ;  Morse  v.  Goold,  11  N.  Y. 
281;  Sprecker  v.  Wakeley,  11  Wis.  432; 
Cusic  v.  Douglas,  3  Kan.  123  ;  Maxey  v. 
Loyal,  38  Ga.  531 ;  Hardeman  v.  Downer, 
39  Ga.  425  ;  Hill  v.  Kessler,  63  N.  C.  437  ; 
Farley  r.  Dowe,  45  Ala.  324 ;  Sneider  v. 


Heidelberger,  45  Ala.  126  ;  In  re  Kennedy, 
2  S.  C.  216 ;  Martin  v.  Hughes,  67  N.  C. 
293  ;  Maull  v.  Vaughn,  45  Ala.  134 ;  Breit- 
ung  v.  Lindauer,  37  Mich.  217;  Coleman 
v.  Ballandi,  22  Minn.  144.  [^Assignments 
for  purpose  of  evading  exemption  laws 
may  be  prohibited.  Sweeney  v.  Hunter, 
145  Pa.  363,  22  Atl.  653,  14  L.  R.  A.  594.] 

2  Gunn  v.  Barry,  15  Wall.  610;  Ed- 
wards v.  Kearzey,  96  U.  S.  595 ;  Home- 
stead Cases,  22  Gratt.  266;  Lessley  v. 
Phipps,  49  Miss.  790;  Foster  v.  Byrne, 
76  Iowa,  295,  35  N.  W.  513,  41  N.  W.  22; 
Squire  v.  Mudgett,  61  N.  H.  149.  It  may, 
however,  be  made  applicable  to  previous 
rights  of  action  for  torts.  Parker  v.  Sav- 
age, 6  Lea,  406 ;  McAfee  v.  Covington,  71 
Ga.  272.  [^Statute  providing  that  general 
assignment  for  benefit  of  creditors  shall 
dissolve  all  attachments  made  within  ten 
days  prior  thereto,  is  invalid  as  applied  to 
contracts  made  when  right  of  attachment 
was  absolute.  Peninsular  Lead  &  C.  Wks. 
v.  Union  Oil  &  P.  Co.,  100  Wis.  488,  76 
N.  W.  359,  42  L.  R.  A.  331,  69  Am.  St. 
934.] 

8  Johnson  v.  Fletcher,  54  Miss.  628, 
28  Am.  Rep.  388 :  Wilson  v.  Brown,  68 
Ala.  62,  29  Am.  Rep.  727;  Duncan  v. 
Barnett,  11  S.  C.  333,  32  Am.  Rep.  476 ; 


CH.  IX.]  FEDERAL   PROTECTION   TO   PERSON,   ETC.  409 

operating  upon  the  remedy  only,  they  in  effect  impair  the  obliga- 
tion of  the  contract.1 

And  laws  which  change  the  rules  of  evidence  relate  to  the 
remedy  only ;  and  while,  as  we  have  elsewhere  shown,  such  laws 
may,  on  general  principles,  be  applied  to  existing  causes  of  action, 
so,  too,  it  is  plain  that  they  are  not  precluded  from  such  applica- 
tion by  the  constitutional  clause  we  are  considering.2  And  it  has 
been  held  that  the  legislature  may  even  take  away  a  common-law 
remedy  altogether,  without  substituting  any  in  its  place,  if  another 
and  efficient  remedy  remains.  Thus,  a  law  abolishing  distress 
for  rent  has  been  sustained  as  applicable  to  leases  in  force  at  its 
passage;3  and  it  was  also  held  that  an  express  stipulation  in  the 
lease,  that  the  lessor  should  have  this  remedy,  would  not  prevent 
the  legislature  from  abolishing  it,  because  this  was  a  subject  con- 
cerning which  it  was  not  competent  for  the  parties  to  contract  in 
such  manner  as  to  bind  the  hands  of  the  State.  In  the  language 
of  the  court :  "  If  this  is  a  subject  on  which  parties  can  contract, 
and  if  their  contracts  when  made  become  by  virtue  of  the  Con- 
stitution of  the  United  States  superior  to  the  power  of  the  legis- 
lature, then  it  follows  that  whatever  at  any  time  exists  as  part 
of  the  machinery  for  the  administration  of  justice  may  be  per- 
petuated, if  parties  choose  so  to  agree.  That  this  can  scarcely 
have  been  within  the  contemplation  of  the  makers  of  the  Con- 
stitution, and  that  if  it  prevail  as  law  it  will  give  rise  to  grave 
inconveniences,  is  quite  obvious.  Every  such  stipulation  is  in  its 

Harris  v.  Austell,  2  Bax.  148;  Wright  v.  31  S.   C.  1,  9  S.  E.  726;  post,  pp.  533- 

Straub,  64  Tex.  64;   Cochran  v.  Miller,  637.    On  this  subject  see  the  discussions 

74  Ala.  60 ;  Colin  v.  Hoffman,  45  Ark.  in  the  federal  courts.     Sturges  v.  Crown- 

376.     \Jte  Estate  of  Heilbron,  14  Wash,  inshield,  4  Wheat.  122  ;  Ogden  v.  Saun- 

636,  45  Pae.  153,  35  L.  R.  A.  602.     See  ders,  12  Wheat.  213  ;  Bronson  v.  Kinzie, 

also  Canadian  &  A.  M.  &  Trust  Co.  r.  1  How.  311 ;  McCracken  v.  Hayward,  2 

Blake,  24  Wash.  102,  63  Pac.  1100.]  How.  608;  Curtis  r.  Whitney.  13  Wall.  68. 

1  "  Statutes  pertaining  to  the  remedy  An    act  declaring  that  no  policy  of  life 
are  merely  such  as  relate  to  the  course  insurance  shall  be  received  in  evidence, 
and  form  of  proceedings,  but  do  not  affect  when  the  application  is  referred  to  in  it, 
the  substance  of  a  judgment  when  pro-  unless  a  copy  thereof  is  attached  to  it,  is 
nounced."    Per  Merrick, Ch.  J.,in  Mortun  valid.      New   Era  Life  Ass.   r.   Musser, 
v.  Valentine,  15  La.  Ann.  150.     See  Wat-  120  Pa.  St.  384,  14  All.  155.    But  the  rule 
son  i?.  N.  Y.  Central  R.  R.  Co.,  47  N.  Y.  that  failure  to  register  evidences  of  titles 
157;  Edwards  v.  Kearzey,  96  U.  S.  595.  shall  not  render  them  inadmissible  in  evi- 
But  if  after  the  debt  is  contracted  and  be-  dence,  cannot  be  changed  by  a  new  con- 
fore  judgment  upon  it,  the  debtor  marries,  stitution.    This  is  put  on  the  ground  that 
it  is  held  in  Tennessee  that  he  is  thereby  the  only  means  to  establish  and  enforce 
entitled  to  the  exemption  in  land  owned  the  contract   would   be   thus   destroyed. 
by  him  before.     Dye  v.  Cook,  88  Tenn.  Texas  Mex.  Ry.  Co.  v.  Locke,  74  Tex. 
275,  12  S.  W.  631.  370,  12  S.  W  80. 

2  Neass  v.  Mercer,  15  Barb.  318;  Rich          a  Van  Rensselaer  v.  Snyder,  9  Barb. 
v.   Flanders,  39  N.  H.  304 ;    Howard  v.  302,  and  13  N.  Y.  299 ;  Guild  v.  Rogers, 
Moot,  64  N.  Y.  262  ;  Henry  v.   Henry,  8  Barb.  502 ;  Conkey  i>.  Hart,  14  N.  Y.  22. 


410  CONSTITUTIONAL   LIMITATIONS.  [GIL  IX. 

own  nature  conditional  upon  the  lawful  continuance  of  the  pro- 
cess. The  State  is  no  party  to  their  contract.  It  is  bound  to 
afford  adequate  process  for  the  enforcement  of  rights ;  but  it  has 
not  tied  its  own  hands  as  to  the  modes  by  which  it  will  administer 
justice.  Those  from  necessity  belong  to  the  supreme  power  to 
prescribe;  and  their  continuance  is  not  the  subject  of  contract 
between  private  parties.  In  truth,  it  is  not  at  all  probable  that 
the  parties  made  their  agreement  with  reference  to  the  possible 
abolition  of  distress  for  rent.  The  first  clause  of  this  special 
provision  is,  that  the  lessor  may  distrain,  sue,  re-enter,  or  re- 
sort to  any  other  legal  remedy,  and  the  second  is,  that  in  cases  of 
distress  the  lessee  waives  the  exemption  of  certain  property  from 
the  process,  which  by  law  was  exempted.  This  waiver  of  exemp- 
tion was  undoubtedly  the  substantial  thing  which  the  parties  had 
in  view ;  but  yet  perhaps  their  language  cannot  be  confined  to 
this  object,  and  it  may  therefore  be  proper  to  consider  the  con- 
tract as  if  it  had  been  their  clear  purpose  to  preserve  their  legal 
remedy,  even  if  the  legislature  should  think  fit  to  abolish  it.  In 
that  aspect  of  it  the  contract  was  a  subject  over  which  they  had 
no  control." 1 

But  a  law  which  deprives  a  party  of  all  legal  remedy  must 
necessarily  be  void.  "  If  the  legislature  of  any  State  were  to 
undertake  to  make  a  law  preventing  the  legal  remedy  upon  a 
contract  lawfully  made  and  binding  on  the  party  to  it,  there  is  no 
question  that  such  legislature  would,  by  such  act,  exceed  its  legit- 
imate powers.  Such  an  act  must  necessarily  impair  the  obligation 
of  the  contract  within  the  meaning  of  the  Constitution."2  This 
has  been  held  in  regard  to  those  cases  in  which  it  was  sought  to 
deprive  certain  classes  of  persons  of  the  right  to  maintain  suits 
because  of  their  having  participated  in  rebellion  against  the  gov- 


1  Conkey  v.  Hart,  14  N.  Y.  22,  30;  only  a  barren  right  to  sue,  is  void.   State 

citing  Handy  v.  Cliatfield,  23  Wend.  35;  v.   Bank   of  South  Carolina,  1  S.  C.  63. 

Mason   v.  Haile,  12  Wheat.  370;  Stock-  As  the  States  are  not  suable  except  at 

ing  v.  Hunt,  3  Denio,  274 ;  and  Van  Rens-  their  own  option,  the  laws  which  they 

selaer  v.    Snyder,    13    N.   Y.   299.      See  may  pass  for  the  purpose  they  may  re- 

Briscoe  v.  Anketell,  28  Miss.  361.  peal  at  discretion.     Railroad  Co.  v.  Ten- 

2  Call   v.   Hagger,  8   Mass.  430.     See  nessee,  101  U.  S.  337;   Railroad  Co.  v. 

Osborn  v.  Nicholson,  13  Wall.  662 ;  U.  S.  Alabama,  101  U.  S.  832;  State  v.  Bank, 

v.   Conway,   Hempst.    313  ;    Johnson    v.  8  Bax.  395 ;  and  this  even  after  suit  has 

Bond,  Hempst.  533  ;  West  v.  Sansom,  44  been  instituted.     Home  v.  State,  84  N.  C. 

Ga.  295.     See  Griffin  v.  Wilcox,  21   Ind.  3(52 ;   Railroad  Co.   v.  Tennessee,  supra. 

370;  Penrose  v.  Erie  Canal  Co.,  56  Pa.  FjThe  more  so  where  the  judgment  of  the 

St.  46;  Thompson  v.  Commonwealth,  81  court  is  only  recommendatory.     Baltzer 

Pa.  St.  314  ;  post,  p.  517.    An  act  with-  v.  North  Carolina,  161  U.  S.  240,  1.6  Sup. 

drawing  all  the  property  of  a  debtor  from  Ct.  Rep.  500.] 
the   operation  of  legal   process,  leaving 


CH.  IX.]  FEDERAL   PROTECTION    TO   PERSON,   ETC.  411 

ernment.1  And  where  a  statute  does  not  leave  a  part}'  a  sub- 
stantial remedy  according  to  the  course  of  justice  as  it  existed 
at  the  time  the  contract  was  made,  but  shows  upon  its  face  an 
intention  to  clog,  hamper,  or  embarrass  the  proceedings  to  enforce 
the  remedy,  so  as  to  destroy  it  entirely,  and  thus  impair  the  con- 
tract so  far  as  it  is  in  the  power  of  the  legislature  to  do  it,  such 
statute  cannot  be  regarded  as  a  mere  regulation  of  the  remedy, 
but  is  void,  because  a  substantial  denial  of  right.2  But  a  judg- 
ment for  a  tort  is  not  a  contract,  since  it  is  not  based  upon  the 
assent  of  parties.3 

It  has  also  been  held  where  a  statute  dividing  a  town  and  in- 
corporating a  new  one  enacted  that  the  new  town  should  pay  its 
proportion  towards  the  support  of  paupers  then  constituting  a 
charge  against  the  old  town,  that  a  subsequent  statute  exoner- 
ating the  new  town  from  this  liability  was  void,  as  impairing  the 
contract  created  by  the  first-mentioned  statute;4  but  there  are 
cases  which  have  reached  a  different  conclusion,  reasoning  from 
the  general  and  almost  unlimited  control  which  the  State  retains 
over  its  municipalities.5  In  any  case  the  lawful  repeal  of  a  stat- 
ute cannot  constitutionally  be  made  to  destroy  contracts  which 
have  been  entered  into  under  it ;  these  being  legal  when  made, 
they  remain  valid  notwithstanding  the  repeal.6 

1  Rison  K.  Farr,  24  Ark.  611 ;  McFar-  tered  into  before  the  passage  of  the  law. 
land  v.  Butler,  8  Minn.  116;  Jackson  v.  Walker  v.  Whiteliead,  16  Wall.  314. 
Butler,  8  Minn.  117.  But  there  is  nothing  2  Oatman  r.  Bond,  16  Wis.  20.  As  to 
to  preclude  the  people  of  a  State,  in  an  control  of  remedies,  see  post,  p.  615. 
amendment  to  their  constitution,  taking  8  Louisiana  v.  New  Orleans,  109  U.  S. 
away  rights  of  action,  or  other  rights,  so  285,  3  Sup.  Ct.  Rep.  211  ;  Freeland  v. 
long  as  they  abstain  from  impairing  the  Williams,  131  U.  S.  405,  9  Sup.  Ct.  Rep. 
obligation  of  contracts,  and  from  impos-  763 ;  Peerce  v.  Kitzmiller,  19  W.  Va.  564. 
ing  punishments.  The  power  to  do  so  In  the  former  case  a  judgment  for  injury 
has  been  exercised  with  a  view  to  the  done  by  a  mob  became  uncollectible  by 
quieting  of  controversies  and  the  restora-  the  diminution  by  legislation  of  the  taxing 
tion  of  domestic  peace  after  the  late  civil  power  of  the  city.  In  the  two  latter,  re- 
war.  Thus,  in  Missouri  and  some  other  covery  for  a  tort  committed  as  an  act  of 
States,  all  rights  of  action  for  anything  war  was  forbidden  after  judgment  by 
done  by  the  State  or  Federal  military  au-  constitutional  amendment.  Both  the  en- 
thorities  during  the  war  were  taken  away  actment  and  the  amendment  were  upheld, 
by  constitutional  provision  ;  and  the  au-  See  also,  State  v.  New  Orleans,  38  La. 
thority  to  do  this  was  fully  supported.  Ann.  119,  and  cases  post,  p.  517,  note  3- 
Drehman  v.  Strifel,  41  Mo.  184,  in  error,  4  Bowdoinham  v.  Richmond,  6  Me. 
8  Wall.  595.  And  see  Hess  v.  Johnson,  112. 

3  W.  Va.  645.    A  remedy  also  may  be  6  See  ante,  pp.  268,  269,  and  cases  cited 

denied  to  a  party  until  he  has  performed  in  notes. 

his  duty  to  the  State  in  respect  to  the  6  Tuolumne  Redemption  Co.  i>.  Sedg- 

demand  in  suit;  e.g.  paid  the  tax  upon  wick,  15  Cal.  515;  McCauley  v.  Brooks, 

the  debt  sued  for.    Walker  v.  Whiteliead,  16  Cal.  11 ;  Commonwealth  v.  New  Bed- 

43  Ga.  538;  Garrett  v.  Cordell,   43  Ga.  ford  Bridge,  2  Gray,  339 ;  State  v.  Phalen, 

366;  Welborn  v.  Akin,  44  Ga.  420.     But  3  Harr.  441;   State  v.  Hawthorn,  9  Mo. 

this  is  denied  as   regards   contracts  en-  389. 


412  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

So  where,  by  its  terms,  a  contract  provides  for  the  payment  of 
money  by  one  party  to  another,  and,  by  the  law  then  in  force, 
property  would  be  liable  to  be  seized,  and  sold  on  execution  to 
the  highest  bidder,  to  satisfy  any  judgment  recovered  on  such 
contract,  a  subsequent  law,  forbidding  property  from  being  sold 
on  execution  for  less  than  two-thirds  the  valuation  made  by  ap- 
praisers, pursuant  to  the  directions  contained  in  the  law,  though 
professing  to  act  only  on  the  remedy,  amounts  to  a  denial  or  ob- 
struction of  the  rights  accruing  by  the  contract,  and  is  directly 
obnoxious  to  the  prohibition  of  the  Constitution.1  So  a  law  which 
takes  away  from  mortgagees  the  right  to  possession  under  their 
mortgages  until  after  foreclosure,  is  void,  because  depriving  them 
of  the  right  to  the  rents  and  profits,  which  was  a  valuable  portion 
of  the  right  secured  by  the  contract.  "  By  this  act  the  mortgagee 
is  required  to  incur  the  additional  expense  of  a  foreclosure,  before 
obtaining  possession,  and  is  deprived  of  the  right  to  add  to  his 
security,  by  the  perception  of  the  rents  and  profits  of  the  premises, 
during  the  time  required  to  accomplish  this  and  the  time  of  re- 
demption, and  during  that  time  the  rents  and  profits  are  given  to 
another,  who  may  or  may  not  appropriate  them  to  the  payment 
of  the  debt,  as  he  chooses,  and  the  mortgagee  in  the  mean  time 
is  subjected  to  the  risk,  often  considerable,  of  the  depreciation  in 
the  value  of  the  security."  2  So  a  law  is  void  which  extends  the 

1  McCracken  v.  Hay  ward,  2  How.  608;  N.  C.  554;   Billiard  v.  Moore,  65  N.  C. 

Willard  v.  Longstreet,  2  Doug.  (Mich.)  540;  Pharis  v.  Dice,  21  Gratt.  303  ;  Thor- 

172 ;  Rawley  v.  Hooker,  21  Ind.  144.     So  ington  v.  Smith,  8  Wall.  1.    A  statute  is 

a  law  which,  as  to  existing   mortgages  bad  which  permits  in  such  case  a  recov- 

forecloseable  by  sale,  prohibits  the  sale  ery  of  what  a  jury  may  think  is  the  fair 

for  less  than  half  the  appraised  value  of  value  of  the  property  sold.    Effinger  v. 

the  land,  is  void  for  the   same    reason.  Kenney,  115  U.  S.  566,  6  Sup.  Ct.  Rep. 

Gantly's  Lessee  v.  Ewing,  3  How.  707 ;  179. 

Bronson  v.  Kinzie,  1  How.  311.     See  to          2  Mundy  v.  Monroe,  1  Mich.  68,  76; 

like  effect,  Robards   v.  Brown,  40  Ark.  Blackwood  v.  Vanvleet,   11   Mich.   252. 

423;  Collins  v.  Collins,  79  Ky.  88.     So  Compare  Dikeman  v.  Dikeman,  11  Paige, 

one  which  takes  away  the  power  of  sale.  484;  James  v.  Stull,  9  Barb.  482;  Cook 

O'Brien  v.  Krenz,  36  Minn.  136, 30  N.  W.  v.  Gray,  2  Houst.  456.     In  the  last  case 

458.     And  a  law  authorizing  property  to  it  was  held  that  a  statute  shortening  the 

be  turned  out  in  satisfaction  of  a  contract  notice  to  be  given  on  foreclosure  of  a 

is  void.     Abercrombie  v.  Baxter,  44  Ga.  mortgage  under  the  power  of  fale,  from 

36.    The  "  scaling  laws,"  so  called,  under  twenty-four  to  twelve  weeks,  was  valid 

which  contracts  made  while  Confederate  as  affecting  the  remedy  only;  and  that  a 

notes  were  the  only  currency,  are  allowed  stipulation  in  a  mortgage  that  on  default 

to  be  satisfied  on  payment  of  a  sum  equal  being   made  in  payment  the  mortgagee 

to  what  the  sum  called  for  by  them  in  might  sell  "  according  to  law,"  meant  ac- 

Confederate  notes  was  worth  when  they  cording  to  the  law  as  it  should  be  when 

were  made,  have  been  sustained,  but  this  sale  was  made.     But  see  Ashuelot  R.  R. 

is  on  the  assumption  that  the  contracts  Co.  v.  Eliot,  52  N.  H.  387,  and  what  is  said 

are  enforced  as  near  as  possible  accord-  on   the   general    subject   in   Cochran    r. 

ing  to  the  actual  intent.     Harmon  r.  Wai-  Darcy,  6  Rich.  125.    A  redemption  law 

lace,  2  S.  C.  208 ;  Robeson  v.  Brown,  63  cannot  take  from  the  mortgagee  the  right 


CH.  IX.] 


FEDERAL   PROTECTION   TO   PERSON,   ETC. 


413 


time  for  the  redemption  of  lands  sold  on  execution,  or  for  delin- 
quent taxes,  after  the  sales  have  been  made ;  for  in  such  a  case 
the  contract  with  the  purchaser,  and  for  which  he  has  paid  his 
money,  is,  that  he  shall  have  title  at  the  time  then  provided  by 
the  law ;  and  to  extend  the  time  for  redemption  is  to  alter  the 
substance  of  the  contract,  as  much  as  would  be  the  extension  of 
the  time  for  payment  of  a  promissory  note.1  So  a  law  which 
shortens  the  time  for  redemption  from  a  mortgage,  after  a  fore- 
closure sale  has  taken  place,  is  void ;  the  rights  of  the  party 
being  fixed  by  the  foreclosure  and  the  law  then  in  force,  and  the 
mortgagor  being  entitled,  under  the  law,  to  possession  of  the  land 
until  the  time  for  redemption  expires.2  And  where  by  statute  a 


to  recover  rents  from  the  owner  in  pos- 
session after  foreclosure  sale.  Travellers 
Ins.  Co.  v.  Brouse,  83  Ind.  62.  But  the 
debtor's  tenant  in  possession  may  be 
made  primarily  liable  to  the  mortgagee 
instead  of  to  the  debtor.  Edwards  v. 
Johnson,  105  Ind.  594,  5  N.  E.  716.  In 
Berthold  v.  Fox,  13  Minn.  501,  it  was  de- 
cided that  in  the  case  of  a  mortgage  given 
while  the  law  allowed  the  mortgagee 
possession  during  the  period  allowed  for 
redemption  after  foreclosure,  sucli  law 
might  be  so  changed  as  to  take  away  this 
right.  But  this  seems  doubtful.  In 
Baldwin  v.  Flagg,  43  N.  J.  495,  it  was  held 
that  where  bond  and  mortgage  had  been 
given,  it  was  not  competent  to  provide  by 
subsequent  legislation  that  the  mortgage 
should  be  first  foreclosed,  and  resort  to 
the. bond  only  had  in  case  of  deficiency. 
Nor  that  the  foreclosure  sale  should  be 
opened  if  a  judgment  is  had  upon  the 
bond.  Coddington  v.  Bispham,  36  N.  J. 
Eq.  574.  See  Morris  v.  Carter,  46  N.  J.  L. 
260 ;  Toffey  r.  Atcheson,  42  N.  J.  Eq.  182, 
6  Atl.  885.  A  stipulation  in  a  chattel 
mortgage  that  the  mortgagee  may  take 
possession  whenever  he  deems  himself 
insecure,  is  not  to  be  impaired  by  subse- 
quent legislation  forbidding  him  to  do  so 
without  just  cause.  Boice  v.  Boice,  27 
Minn.  371,  7  N.  W.  687.  Reducing  the 
rate  of  interest  payable  on  redemption  to 
the  foreclosure  purchaser  violates  no  con- 
tract with  the  mortgagee.  Conn.  Mut. 
Ins.  Co.  v.  Cushuian,  108  U.  S.  51,  2  Sup. 
Ct.  Rep.  236. 

1  Robinson  v.  Howe,  13  Wis.  341 ;  Dike- 
man  v.  Dikeman,  11  Paige,  484;  Goenen 
v.  Schroeder,  8  Minn.  387  ;  January  K, 
January,  7  T.  B.  Monr.  &2,  18  Am.  Dec. 


211;  Greenfield  v.  Dorris,  1  Sneed,  550. 
[Barnitz  v.  Beverly,  163  U.  S.  118;  16 
Sup.  Ct.  Rep.  1042,  rev.  55  Kan.  466, 
42  Pac.  725,  31  L.  R.  A.  74.]  But  see 
Stone  v.  Basset,  4  Minn.  298 ;  Hey  ward 
v.  Judd,  4  Minn.  483;  Freeborn  v.  Petti- 
bone,  5  Minn.  277;  Davis  v.  Rupe,  114 
Ind.  588,  17  N.  E.  163.  A  provision  that 
the  right  to  redeem  from  a  pre-existing 
mortgage  shall  not  expire  if  a  creditor  of 
the  mortgagor  comes  into  equity  and  gets 
a  decree  to  enable  him  to  fulfil  the  con- 
ditions of  the  mortgage  and  hold  the 
property,  is  void  as  against  the  mort- 
gagee. Phinney  v.  Phinney,  81  Me.  450. 
So,  on  the  other  hand,  a  law  is  void  which 
takes  away  an  existing  right  of  a  creditor 
of  the  mortgagor  to  redeem  from  the  sale. 
O'Brien  v.  Krenz,  36  Minn.  136,  30  N.  W. 
458. 

2  Cargill  v.  Power,  1  Mich.  369.  The 
contrary  ruling  was  made  in  Butler  v. 
Palmer,  1  Hill,  324,  by  analogy  to  the 
Statute  of  Limitations.  The  statute,  it 
was  said,  was  no  more  in  effect  than 
saying:  "Unless  you  redeem  within  the 
shorter  time  prescribed,  you  shall  have 
no  action  for  a  recovery  of  the  land,  nor 
shall  your  defence  against  an  action  be 
allowed,  provided  you  get  possession." 
And  in  Robinson  v.  Howe,  13  Wis.  341, 
346,  the  court,  speaking  of  a  similar  right 
in  a  party,  say  :  "  So  far  as  his  right  of 
redemption  was  concerned,  it  was  not 
derived  from  any  contract,  but  was  given 
by  the  law  only ;  and  the  time  within 
which  he  might  exercise  it  might  be 
shortened  by  the  legislature,  provided  a 
reasonable  time  was  left  in  which  to  ex- 
ercise it,  without  impairing  the  obligation 
of  any  contract.  And  see  Smith  v.  Pack- 


414 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  IX. 


purchaser  of  lands  from  the  State  had  the  right,  upon  the  for- 
feiture of  his  contract  of  purchase  for  the  non-payment  of  the 
sum  due  upon  it,  to  revive  it  at  any  time  before  a  public  sale  of 
the  lands,  by  the  payment  of  all  sums  due  upon  the  contract,  with 
a  penalty  of  five  per  cent,  it  was  held  that  this  right  could  not  be 
taken  away  by  a  subsequent  change  in  the  law  which  subjected 
the  forfeited  lands  to  private  entry  and  sale.1  And  a  statute 
which  authorizes  stay  of  execution,  for  an  unreasonable  or  indef- 
inite period,  on  judgments  rendered  on  pre-existing  contracts,  is 
void,  as  postponing  payment,  and  taking  away  all  remedy  during 
the  continuance  of  the  stay.2  And  a  law  is  void  on  this  ground 
which  declares  a  forfeiture  of  the  charter  of  a  corporation  for  acts 
or  omissions  which  constituted  no  cause  of  forfeiture  at  the  time 
they  occurred.3  And  it  has  been  held  that  where  a  statute  au- 


ard,  12  Wis.  371,  to  the  same  effect.  An 
increase  of  the  rate  of  interest  to  be  paid 
on  redemption  of  a  pre-existing  mortgage 
is  bad.  Hillebert  v.  Porter,  28  Minn.  496, 
11  N.  W.  84. 

1  State  v.   Commissioners   of  School 
and   University   Lands,  4  Wis.  414.     A 
right  to  reimbursement  if  a  tax  purchase 
is  set  aside  cannot  by  subsequent  legis- 
lation be  taken  away  from  the  purchaser 
of  a  tax  title.     State  v.  Foley,  30  Minn. 
350,  15  N.  W.  375. 

2  Chadwick  v.  Moore,  8  W.  &  S.  49 ; 
Bunn  v.  Gorgas,  41  Pa.  St.  441;  Town- 
send  v.  Townsend,  Peck,  1,  14  Am.  Dec. 
722;   Stevens  v.  Andrews,  31   Mo.  205. 
Hasbrouck    v.    Shipman,   16   Wis.   296 ; 
Jacobs  v.  Small  wood,  63  N.  C.  112;  Web- 
ster v.  Rose,  6  Heisk.  93 ;   Edwards  v. 
Kearzey,  96  U.  S.  595.     In  Breitenbach 
v.  Bush,  44  Pa.  St.  313,  and  Coxe  v.  Mar- 
tin, 44  Pa.  St.  322,  it  was  held  that  an 
act  staying  all  civil  process  against  volun- 
teers who  had  enlisted  in  the  national  ser- 
vice for   three   years  or  during  the  war 
was   valid,  —  "during    the   war"   being 
construed  to  mean  unless  the  war  should 
sooner  terminate.     See  also  State  v.  Ca- 
rew,  13  Rich.  498.    A  general  law  that  all 
suits  pending  should  be  continued  until 
peace  between  the  Confederate  States  and 
the  United  States,  was  held  void  in  Burt 
v.  Williams,  24  Ark.  94.    See  also  Taylor 
v.  Stearns,  18  Gratt.  244;   Hudspeth   v. 
Davis,  41  Ala.  389;  Aycock  v.  Martin,  37 
Ga.  124;  Coffman  v.  Bank  of  Kentucky, 
40   Miss.   29;   Jacobs    v.   Smallwood,  63 
N.  C.  112;  Cutts  v.  Hardee,  38  Ga.  350; 


Sequestration  Cases,  30  Tex.  688.  A  law 
permitting  a  year's  stay  upon  judgments 
where  security  is  given  was  held  valid  in 
Farnsworth  v.  Vance,  2  Cold.  108;  but 
this  decision  was  overruled  in  Webster  v. 
Rose,  6  Heisk.  93,  19  Am.  Rep.  583.  A 
statute  was  held  void  which  stayed  all 
proceedings  against  volunteers  who  had 
enlisted  "  during  the  war,"  this  period 
being  indefinite.  Clark  v.  Martin,  3 
Grant's  Cas.  393.  In  Johnson  v.  Higgins, 
3  Met.  (Ky.)  566,  it  was  held  that  the  act 
of  the  Kentucky  legislature  of  May  24, 
1861,  which  forbade  the  rendition  in  all 
the  courts  of  the  State,  of  any  judgment 
from  date  till  January  1st,  1862,  was  valid. 
It  related,  it  was  said,  not  to  the  remedy 
for  enforcing  a  contract,  but  to  the  courts 
which  administer  the  remedy  ;  and  those 
courts,  in  a  legal  sense,  constitute  no  part 
of  the  remedy.  A  law  exempting  sol- 
diers from  civil  process  until  thirty  days 
after  their  discharge  irom  military  service 
was  held  valid  as  to  all  contracts  subse- 
quently entered  into,  in  Burns  v.  Craw- 
ford, 34  Mo.  330.  And  see  McCormick 
v.  Rusch,  15  Iowa,  127.  A  statute  sus- 
pending limitation  laws  during  the  exist- 
ence of  civil  war,  and  until  the  State  was 
restored  to  her  proper  relations  to  the 
Union,  was  sustained  in  Bender  v.  Craw- 
ford, 33  Tex.  745.  Compare  Bradford  v. 
Shine,  13  Fla.  393. 

8  People  v.  Jackson  &  Michigan  Plank 
Road  Co.,  9  Mich.  285,  per  Chrisliancy,  J. ; 
State  v.  Tombeckbee  Bank,  2  Stew.  30. 
See  Ireland  w.  Turnpike  Co.,  19  Ohio  St. 
369. 


CH.  IX.]       FEDERAL  PROTECTION  TO  PERSON,  ETC.          415 

thorized  a  municipal  corporation  to  issue  bonds,  and  to  exercise 
the  power  of  local  taxation  in  order  to  pay  them,  and  persons 
bought  and  paid  value  for  bonds  issued  accordingly,  this  power 
of  taxation  is  part  of  the  contract,  and  cannot  be  withdrawn  until 
the  bonds  are  satisfied  ;  that  an  attempt  to  repeal  or  restrict  it 
by  statute  is  void ;  and  that  unless  the  corporation  imposes  and 
collects  the  tax  in  all  respects  as  if  the  subsequent  statute  had 
not  been  passed,  it  will  be  compelled  to  do  so  by  mandamus.1 
And  it  has  also  been  held  that  a  statute  repealing  a  former 
statute,  which  made  the  stock  of  stockholders  in  a  corporation 
liable  for  its  debts,  was,  in  respect  to  creditors  existing  at  the 
time  of  the  repeal,  a  law  impairing  the  obligation  of  contracts.2 
In  each  of  these  cases  it  is  evident  that  substantial  rights  were 
affected ;  and  so  far  as  the  laws  which  were  held  void  operated 
upon  the  remedy,  they  either  had  an  effect  equivalent  to  import- 
ing some  new  stipulation  into  the  contract,  or  they  failed  to  leave 
the  party  a  substantial  remedy  such  as  was  assured  to  him  by  the 
law  in  force  when  the  contract  was  made.  In  Pennsylvania  it 
has  been  held  that  a  statute  authorizing  a  stay  of  execution  on 
contracts  in  which  the  debtor  had  waived  the  right  was  uncon- 
stitutional ;3  but  it  seems  to  us  that  an  agreement  to  waive  a 
legal  privilege  which  the  law  gives  as  a  matter  of  State  policy 
cannot  be  binding  upon  a  party,  unless  the  law  itself  provides  for 
the  waiver.4 

Where,  however,  by  the  operation  of  existing  laws,  a  contract 
cannot  be  enforced  without  some  new  action  of  a  party  to  fix  his 
liability,  it  is  as  competent  to  prescribe  by  statute  the  requisites 
to  the  legal  validity  of  such  action  as  it  would  be  in  any  case  to 
prescribe  the  legal  requisites  of  a  contract  to  be  thereafter  made. 
Thus,  though  a  verbal  promise  is  sufficient  to  revive  a  debt  barred 
by  the  Statute  of  Limitations  or  by  bankruptcy,  yet  this  rule  may 
be  changed  by  a  statute  making  all  such  future  promises  void  un- 

1  Von  Hoffman  v.  Quincy,  4  Wall.  535 ;  284,  7  Sup.  Ct.  Rep.  1190.     For  a  similar 

Murray  v.  Charleston,  96  U.  S.  432;  Lou-  principle,   see    Sala   v.   New    Orleans,    2 

mand   v.   New  Orleans,   102   U.   S.  203;  Woods,  188. 

Wolff   v.   New  Orleans,  103  U.  S.  358;  2  Hawthorne    v.    Calef,    2   Wall.   10. 

Nelson  v.  St.  Martin's  Parish,  111  U.  S.  QJpon  individual  liability  of  stockhold- 

716,  4  Sup.  Ct.  Rep.  648 ;    Beckwith  v.  ers  for  debts  of  corporation,  see  note  to 

Racine,  7  Biss.  142.    The  liability  cannot  40  L.  ed.  U.  S.  751.] 

be  escaped  by  turning  a  city  into  a  mere  3  Billmeyer  v.  Evans,  40  Pa.  St.  324 ; 

taxing  district.      Mobile  v.  Watson,  116  Lewis   v.   Lewis,  47   Pa.   St.   127.      See 

U.  S.  289,  6  Sup.  Ct.  Rep.  398;  O'Connor  Laucks'  Appeal,  24  Pa.  St.  426;  Case  v. 

v.  Memphis,  6  Lea,  730.    See  also  Soutter  Dunmore,  23  Pa.  St.  93;  Bowman  v.  Smi- 

v.  Madison,  15  Wis.  30;  Smith  v.  Apple-  ley,  31  Pa.  St.  225. 

ton,  19  Wis.  468 ;  Rahway  v.  Munday,  44  *  See  Conkey  v.  Hart,  14  N.  Y.  22 ; 

N.  J.  L.  395;  Seibert  v.  Lewis,  122  U.  S.  Handy  v.  Chatfield,  23  Wend.  35. 


416  CONSTITUTIONAL   LIMITATIONS.  [CH.  IX. 

less  in  writing.1  It  is  also  equally  true  that  where  a  legal  im- 
pediment exists  to  the  enforcement  of  a  contract  which  parties 
have  entered  into,  the  constitutional  provision  in  question  will 
not  preclude  the  legislature  from  removing  such  impediment  and 
validating  the  contract.  A  statute  of  that  description  would  not 
impair  the  obligation  of  contracts,  but  would  perfect  and  enforce 
it.2  And  for  similar  reasons  the  obligation  of  contracts  is  not 
impaired  by  continuing  the  charter  of  a  corporation  for  a  certain 
period,  in  order  to  the  proper  closing  of  its  business.3 

State  Insolvent  Laws.  In  this  connection  some  notice  may 
seem  requisite  of  the  power  of  the  States  to  pass  insolvent  laws, 
and  the  classes  of  contracts  to  which  they  maybe  made  to  apply. 
As  this  whole  subject  has  been  gone  over  very  often  and  very 
fully  by  the  Supreme  Court  of  the  United  States,  and  the  impor- 
tant questions  seem  at  last  to  be  finally  set  at  rest,  and  moreover 
as  it  is  comparatively  unimportant  whenever  a  federal  bankrupt 
law  exists,  we  content  ourselves  with  giving  what  we  understand 
to  be  the  conclusions  of  the  court. 

1.  The  several  States  have  power  to  legislate  on  the  subject  of 
bankrupt  and  insolvent  laws,  subject,  however,  to  the  authority 
conferred  upon  Congress  by  the  Constitution  to  adopt  a  uniform 
system  of  bankruptcy,  which  authority,  when  exercised,  is  para- 
mount, (a)  and  State  enactments  in  conflict  with  those  of  Congress 
upon  the  subject  must  give  way.4 

1  Joy  v.  Thompson,  1  Doug.   (Mich.)          3  Foster  v.  Essex  Bank,  16  Mass.  245. 
373;  Kingley  v.  Cousin.*,  47  Me.  91.  [[Upon -the  protection    of   contracts   by 

2  As  where  the  defence  of  usury  to  a  the  constitution,  see  article  in   3(3  Am. 
contract  is  taken  away  by  statute.    Welsh  L.  Rev.  70.] 

v.  Wadsworth,  30  Conn.   149 ;    Curtis  v.          4  Sturges  v,  Crowninshield,  4  Wheat. 

Leavitt,  15  N.  Y.  9.      And  see  Wood  v.  122 ;    Farmers'  &    Mechanics'    Bank    v. 

Kennedy,  19  Ind.  68,  and  the  cases  cited,  Smith,  6  Wheat.  131 ;  Ogden  v.  Saunders, 

post,  pp.  635-537.      £But  the  validation,  12  Wheat.  213;  Baldwin  v.  Hale,  1  Wall, 

of  an  invalid  contract  cannot  be  made  to  223 ;    QBrown  v.   Smart,  145  U.   S.  454, 

relate  back  so  as  to  take  precedence  of  a  12  Sup.  Ct.  Rep.  958.  aff.  69  Md.  320, 

lien  which  attached  after  the  invalid  con-  17   Atl.    1101 ;    Ketcham   v.    McNamara, 

tract  was  created,  but  before  it  was  vali-  72  Conn.  709,  46  Atl.  146,  50  L.  R.  A. 

dated.     Merchants'  Bank  of  Danville  v.  641.] 
Ballou,  98  Va.  112,  32  S.  E.  481,  44  L.  R. 
A.  306.] 

(a)  p'  After  an  adjudication  in  bankruptcy,  an  action  in  replevin  in  a  State  court 
cannot  be  commenced  and  maintained  against  the  bankrupt  to  recover  property  in 
the  possession  of  and  claimed  by  the  bankrupt  at  the  time  of  that  adjudication,  and 
in  the  possession  of  a  referee  in  bankruptcy  at  the  time  when  the  action  of  replevin 
is  begun ; "  and  if  under  such  attempted  action  in  replevin,  any  such  property  is 
seized,  "  the  district  court  sitting  in  bankruptcy  "  has  "jurisdiction  by  summary  pro- 
ceedings to  compel  the  return  of  the  property  seized."  Per  Gray,  J ,  in  White  v. 
Schloerb,  178  U.  S.  542,  20  Sup.  Ct.  Rep.  1007.  Bankruptcy  law  merely  suspends 
State  insolvency  laws,  so  that  when  it  is  repealed  they  revive.  Butler  v.  Gorely,  146 


CH.  IX.]        FEDERAL  PROTECTION  TO  PERSON,  ETC.          417 

2.  Such  State  laws,  however,  discharging  the  person  or  the 
property  of  the  debtor,  and  thereby  terminating  the  legal  obliga- 
tion of  the  debts,  cannot  constitutionally  be  made  to  apply. to 
contracts  entered  into  before  they  were  passed,  but  they  may  be 
made  applicable  to  such  future  contracts  as  can  be  considered  as 
having  been  made  in  reference  to  them.1 

3.  Contracts    made  within  a  State    where    an    insolvent   law 
exists,  between  citizens  of  that  State,  are  to  be  considered  as 
made  in  reference  to  the  law,  and  are  subject  to  its  provisions. 
But  the  law  cannot  apply  to  a  contract  made  in  one  State  be- 
tween a  citizen  thereof  and  a  citizen  of  another  State,2  nor  to 
contracts  not  made  within  the  State,  even  though  made  between 
citizens  of  the  same  State,3  except,  perhaps,  where  they  are  citi- 
zens of  the  State  passing  the  law.4     And  where  the  contract  is 
made  between  a  citizen  of  one  State  and  a  citizen  of  another, 
the  circumstance  that  the  contract  is  made  payable  in  the  State 
where  the  insolvent  law  exists  will  not  render  such  contract  sub- 
ject to  be  discharged  under  the  law.5     If,  however,  the  creditor 
in  any  of  these  cases  makes  himself  a  party  to  proceedings  under 
the  insolvent  law,  he  will  be  bound  thereby  like  any  other  party 
to  judicial  proceedings,  and  is   not  to  be  heard  afterwards  to 
object  that  his  debt  was  protected  by  the  Constitution  from  the 
reach  of  the  law.6 

The  New  Amendments  to  the  Federal  Constitution.  New  provi- 
sions for  personal  liberty,  and  for  the  protection  of  the  right  to 
life,  liberty,  and  property,  are  made  by  the  thirteenth  and  four- 
teenth amendments  to  the  Constitution  of  the  United  States ;  and 

1  Ogden  v.  Saunders,  12  Wheat.  213 ;          8  McMillan     v.     McNeill,    4     Wheat 
[Brown  v.  Smart,  145  U.  S.  454,  12  Sup.     209. 

Ct.  Rep.  958,  aff.  69  Md.  320, 17  All.  1101 ;          *  Marsh  v.  Putnam,  3  Gray,  561. 
Hans  v.  Louisiana,  134  U.  S.  1,  10  Sup.          *  Baldwin  t>.  Hale,  1  Wall.  223;  Bald- 

Ct.  Rep.  504.]  win  v.  Bank  of  Newbury,  1  Wall.  234; 

2  Ogden  v.  Saunders,  12  Wheat.  213;  Gilman  v.  Lockwood,  4  Wall.  409.     See 
Springer  v.  Foster,  2  Story,  383;  Boyle  v.  also  Norris  v.  Atkinson,  64  N.  H.  87,  5 
Zacharie,  6  Pet.  348;  Woodhull  v.  Wag-  Atl.  710. 

ner,  Baldw.  296;   Suydam  v.  Broadnax,          «  Clay  v.  Smith,  3  Pet.  411;  Baldwin 

14  Pet.  67 ;  Cook  v.  Moffat,  5  How.  295;  v.  Hale,  1  Wall.  223  ;  Gilman  v.  Lockwood, 

Baldwin  v.  Hale,  1  Wall.  223 ;  [Hammond  4  Wall.  409  ;  Perley  v.  Mason,  64  N.  H.  6, 

Beef  &  P.  Co.  v.  Best,  91  Me.  431,  40  Atl.  3  Atl.  629. 
338,  42  L.  R.  A.  528.  j 

U.  S.  303,  13  Sup.  Ct.  Rep.  84,  aff.  147  Mass.  8,  16  N.  E.  734.  And  upon  effect  of 
removal  of  a  Federal  bar  to  operation  of  a  State  statute,  see  Blair  v.  Ostrander,  109 
Iowa,  204,  80  N.  W.  330,  47  L.  R.  A.  469.  That  supersession  of  State  insolvency  law 
may  be  only  partial,  see  State  v.  Superior  Court  for  King  Co.,  20  Wash.  545,  56  Pac. 
35,  45  L.  R,  A.  177,  and  upon  relation  of  bankruptcy  law  to  State  laws  upon  insol- 
vency and  assignments,  see  note  to  this  case  in  L.  R.  A.] 

27 


418  CONSTITUTIONAL  LIMITATIONS.  [CH.  IX. 

these  will  be  referred  to  in  the  two  succeeding  chapters.1  The 
most  important  clause  in  the  fourteenth  amendment  is  that  part 
of  .section  one  which  declares  that  all  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein  they  re- 
side.2 This  provision  very  properly  puts  an  end  to  any  question 
of  the  title  of  the  freedmen  and  others  of  their  race  to  the  rights 
of  citizenship;  but  it  may  be  doubtful  whether  the  further  pro- 
visions of  the  same  section  surround  the  citizen  with  any  pro- 
tections additional  to  those  before  possessed  under  the  State 
constitutions;  though,  as  a  principle  of  State  constitutional  law 
has  now  been  made  a  part  of  the  Constitution  of  the  United 
States,  the  effect  will  be  to  make  the  Supreme  Court  of  the  United 
States  the  final  arbiter  of  cases  in  which  a  violation  of  this  prin- 
ciple by  State  laws  is  complained  of,  inasmuch  as  the  decisions  of 
the  State  courts  upon  laws  which  are  supposed  to  violate  it  will 
be  subject  to  review  in  that  court  on  appeal.3 

1  See  ante,  pp.   14-17;    post,  pp.  423,  before.     This  amendment  of  the  Consti- 
567.  tution  does  not  concentrate  power  in  the 

2  The  complete  text  of  this  section  is  general  government  for  any  purpose  of 
as  follows  :  "  Section  1.  All  persons  born  police  government  within  the  States ;  its 
or  naturalized  in  the  United  States,  and  object  is  to  preclude  legislation  by  any 
subject   to   the  jurisdiction  thereof,  are  State  which  shall  "abridge  the  privileges 
citizens  of  the  United  States,  and  of  the  or  immunities  of  citizens  of  the  United 
State  wherein  they  reside.    No  State  shall  States,"  or  "deprive  any  person  of  life, 
make   or  enforce   any  law   which   shall  liberty,  or  property  without  due  process 
abridge  the  privileges  and  immunities  of  of  law,"  or  "  deny  to  any  person  within 
citizens  of  the  United  States  ;  nor  shall  its  jurisdiction   the  equal  protection   of 
any  State  deprive  any  person  of  life,  lib-  the  laws;"  and  Congress  is  empowered 
erty,  or  property  without  due  process  of  to  pass  all  laws  necessary  to  render  such 
law,  nor  deny  to  any  person  within  its  unconstitutional  State  legislation  ineffect- 
jurisdiction  the  equal  protection  of  the  ual.      This   amendment   has  received  a 
laws."  very  full  examination  at  the  hands  of  the 

8  See  ante,  pp.  24-36.    Notwithstand-  Supreme  Court  of  the  United  States  in 

ing  this  section,  the  protection  of  all  citi-  the  Slaughter-House  Case,  16  Wall.  36, 

zens  in  their  privileges  and  immunities,  and  in  United  States  v.  Cruikshank,  92 

and  in  their  right  to  an  impartial  adminis-  U.   S.   542,    with   the  conclusion   above 

tration  of  the  laws,  is  just  as  much  the  stated.     See  Story  on  Const.   (4th  ed.) 

business  of  the  individual  State  as  it  was  App.  to  Vol.  II. 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  419 


CHAPTER  X. 

OP   THE   CONSTITUTIONAL   PROTECTIONS   TO    PERSONAL   LIBERTY. 

ALTHOUGH  the  people  from  whom  we  derive  our  laws  now  pos- 
sess a  larger  share  of  civil  and  political  liberty  than  any  other 
in  Europe,  there  was  a  period  in  their  history  when  a  consider- 
able proportion  were  in  a  condition  of  servitude.  Of  the  servile 
classes  one  portion  were  villeins  regardant,  or  serfs  attached  to 
the  soil,  and  transferable  with  it,  but  not  otherwise,1  while  the 
other  portion  were  villeins  in  gross,  whose  condition  resembled 
that  of  the  slaves  known  to  modern  law  in  America.2  How  these 
people  became  reduced  to  this  unhappy  condition,  it  may  not  be 
possible  to  determine  at  this  distance  of  time  with  entire  accu- 
racy ; 3  but  in  regard  to  the  first  class,  we  may  suppose  that  when 
a  conqueror  seized  the  territory  upon  which  he  found  them  living, 
he  seized  also  the  people  as  a  part  of  the  lawful  prize  of  war, 
granting  them  life  on  condition  of  their  cultivating  the  soil  for 
his  use  ;  and  that  the  second  were  often  persons  whose  lives  had 
been  spared  on  the  field  of  battle,  and  whose  ownership,  in  accord- 
ance with  the  custom  of  barbarous  times,  would  pertain  to  the 
persons  of  their  captors.  Many  other  causes  also  contributed  to 
reduce  persons  to  this  condition.4  At  the  beginning  of  the  reign 
of  John  it  has  been  estimated  that  one-half  of  the  Anglo-Saxons 
were  in  a  condition  of  servitude,  and  if  we  go  back  to  the  time  of 

1  Litt.  §  181 ;  2  Bl.  Com.  92.    "  They  tude,  used  and  employed  in  the  most  ser- 
originally  held  lands  of  their  lords  on  con-  vile  works  ;  and  belonging,  they  and  their 
dition  of  agricultural  service,  which  in  a  children  and  effects,  to  the  lord  of  the  soil, 
certain  sense  was  servile,  but  in  reality  like  the  rest  of  the  stock  or  cattle  upon 
was  not  so,  as  the  actual  work  was  done  it.' "     Reeves,  History  of  English  Law, 
by  the  theows,  or  slaves.  .  .  .  They  did  Ft.  I.  c.  1. 

not  pay  rent,  and  were  not  removable  at         8  As  to  slavery  among  the  Anglo-Sax- 

pleasure ;  they  went  with  the  land  and  ons,  see  Stubbs,  Const.  Hist,  of  England, 

rendered  services,  uncertain  in  their  na-  ch.  V. 

ture,  and  therefore  opposed  to  rent.  They  4  For  a  view  of  the  condition  of  the 
were  the  originals  of  copyholders."  Note  servile  classes,  see  Wright, Domestic  Man- 
to  Reeves,  History  of  English  Law,  Pt.  I.  ners  and  Sentiments,  101,  102  ;  Crabbe, 
c.  1.  History  of  English  Law  (ed.  of  1829), 

2  Litt.  §181;  2  Bl.  Com. 92.     "These  8,  78,  365;    Hallam,   Middle  Ages,  Pt. 
are  the  persons  who  are  described  by  Sir  II.  c.  2 ;  Vaughan,  Revolutions  in  Eng- 
William  Temple  as  'a  sort  of  people  who  lish  History,  Book  2,  c.  8;  Broom,  Const, 
were  in  a  condition  of  downright  servi-  Law,  74  et  seq. 


42  J  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

the  Conquest,  we  find  a  still  larger  proportion  of  the  people  held 
as  the  property  of  their  lords,  and  incapable  of  acquiring  and 
holding  any  property  as  their  own.1  Their  treatment  was  such 
as  might  have  been  expected  from  masters  trained  to  war  and 
violence,  accustomed  to  think  lightly  of  human  life  and  human 
suffering,  and  who  knew  little  of  and  cared  less  for  any  doctrine 
of  human  rights  which  embraced  within  its  scope  others  besides 
the  governing  classes. 

It  would  be  idle  to  attempt  to  follow  the  imperceptible  steps  by 
which  involuntary  servitude  at  length  came  to  an  end  in  England. 
It  was  never  abolished  by  statute,2  and  the  time  when  slavery 
ceased  altogether  cannot  be  accurately  determined.3  The  causes 
were  at  work  silently  for  centuries ;  the  historian  did  not  at  the 
time  note  them ;  the  statesman  did  not  observe  them ;  they  were 
not  the  subject  of  agitation  or  controversy  ;  but  the  time  arrived 
when  the  philanthropist  could  examine  the  laws  and  institutions 
of  his  country,  and  declare  that  slavery  had  ceased  to  be  recog- 
nized, though  at  what  precise  point  in  legal  history  the  condition 
became  unlawful  he  might  not  with  certainty  specify.  Among 
the  causes  of  its  abrogation  he  might  be  able  to  enumerate :  1. 
That  the  slaves  were  of  the  same  race  with  their  masters.  There 
was  therefore  not  only  an  absence  of  that  antipathy  which  is 
often  found  existing  when  the  ruling  and  the  ruled  are  of  differ- 
ent races,  and  especially  of  different  color,  but  instead  thereof  an 
active  sympathy  might  often  be  supposed  to  exist,  which  would 
lead  to  frequent  emancipations.  2.  The  common  law  presumed 
every  man  to  be  free  until  proved  to  be  otherwise ;  and  this  pre- 

1  Hume,  History  of  England,  Vol.  I.  more  of  this  kind  of  servitude.     And  see 
App.  1.  Crabbe,  History  of  English  Law  (ed.  of 

2  Harrington  on  the  Statutes  (3d  ed.),  1829),  574.     This  author  says   that  vil- 
272.  leinage  had  disappeared  by  the  time  of 

8  Mr.  Hargrave  says,  at  the  commence-  Charles  II.     Kurd  says  in  1661.     Law  of 

ment  of  the  seventeenth  century.   20  State  Freedom  and   Bondage,   Vol.   I.  p.  136. 

Trials,  40 ;  May,  Const.  Hist.  c.  11.    And  And  see  2  Bl.  Com.  96.    Lord  Campbell's 

Mr.  Barrington  (on  the  Statutes  3d  ed.  p.  Lives  of  the  Chief  Justices,  c.  5.    Mac- 

278)  cites  from  Rymer  a  commission  from  aulay  says  there  were  traces  of  slavery 

Queen  Elizabeth  in  the  year  1574,  directed  under  the  Stuarts.     History  of  England, 

to  Lord  Burghley  and  Sir  Walter  Mild-  c.  1.     Hume  (History  of  England,  c.  23) 

may,  for  inquiring  into  the  lands,  tene-  thinks  there  was  no  law  recognizing  it 

ments,  and  other  goods  of  all  her  bondmen  after  the  time  of  Henry  VII.,  and  that  it 

and  bondwomen  in  the  counties  of  Corn-  had  ceased  before  the  death  of  Elizabeth, 

wall,  Devonshire,  Somerset,  and  Glouces-  Froude  (History  of  England,  c.  1)  says  in 

ter,  such  as  were  by  blood  in  a  slavish  con-  the  reign  of  Henry  VIII.  it  had  practically 

dition,  by  being  born  in  any  of  her  manors,  ceased.    Mr.  Christian  says  the  last  claim 

and  to  compound  with  any  or  all  of  such  of  villeinage  which  we  find  recorded  in 

bondmen  or  bondwomen  for  their  manu-  our  courts  was  in  15th  James  I.   Noy,  27  ; 

mission  and  freedom.     And  this  commis-  11  State  Trials,  342.    Note  to  Blackstone, 

sion,  he  says,  in  connection   with   other  Book  2,  p.  96. 
circumstances,  explains  why  we  hear  no 


CH.  X.]  CONSTITUTIONAL  PROTECTIONS,  ETC.  421 

sumption,  when  the  slave  was  of  the  same  race  as  his  master,  and 
had  no  natural  badge  of  servitude,  must  often  have  rendered  it 
extremely  difficult  to  recover  the  fugitive  who  denied  his  thral- 
dom. 3.  A  residence  for  a  year  and  a  day  in  a  corporate  town 
rendered  the  villein  legally  free ; l  so  that  to  him  the  towns  con- 
stituted cities  of  refuge.  4.  The  lord  treating  him  as  a  freeman 
—  as  by  receiving  homage  from  him  as  tenant,  or  entering  into 
a  contract  with  him  under  seal  —  thereby  emancipated  him,  by 
recognizing  in  him  a  capacity  to  perform  those  acts  which  only  a 
freeman  could  perform.  5.  Even  the  lax  morals  of  the  times 
were  favorable  to  liberty,  since  the  condition  of  the  child  followed 
that  of  the  father  ; 2  and  in  law  the  illegitimate  child  was  nullius 
filius,  —  had  no  father.  And,  6.  The  influence  of  the  priesthood 
was  generally  against  slavery,  and  must  often  have  shielded  the 
fugitive  and  influenced  emancipations  by  appeals  to  the  con- 
science, especially  when  the  master  was  near  the  close  of  life  and 
the  conscience  naturally  most  sensitive.3  And  with  all  these  in- 
fluences there  should  be  noted  the  further  circumstance,  that  a 
class  of  freemen  was  always  near  to  the  slaves  in  condition  and 
suffering,  with  whom  they  were  in  association,  and  between  whom 
and  themselves  there  were  frequent  intermarriages,4  and  that 
from  these  to  the  highest  order  in  the  State  there  were  successive 
grades ;  the  children  of  the  highest  gradually  finding  their  way 
into  those  below  them,  and  ways  being  open  by  which  the  chil- 
dren of  the  lowest  might  advance  themselves,  by  intelligence, 
energy,  or  thrift,  through  the  successive  grades  above  them,  until 
the  descendants  of  dukes  and  earls  were  found  cultivating;  the 


1  Crabbe,  History  of  English  Law  (ed.  "  Whereas  God  created  all  men  free,  but 
of   1829),  79.      But  this  was  only  as  to  afterwards  the  laws  and  customs  of  na- 
third   persons.     The  claim   of    the  lord  tions  subjected  some  under  the  yoke  of 
might  be  made  within  three  years.     Ibid,  servitude,  we  think  it  pious  and  meritori- 
And  see  Mackintosh,  History  of  England,  ous  with  God  to  manumit  Henry  Knight,  a 
c.  4.  tailor,  and  John  Herle,  a  husbandman,  our 

2  Harrington  on  Statutes  (3d  ed.),  276,  natives,  as  being  born  within  the  manor 
note  ;  2   Bl.  Com.  93.     But  in  the  very  of  Stoke  Clymercysland,  in  our  county  of 
quaint  account  of "  Villeinage  and  Nief-  Cornwall,  together   with  all   their  issue 
ty,"  in  Mirror  of  Justices,  §  28,  it  is  said,  born  or  to  be  born,  and  all  their  goods, 
among  other  things,  that  "  those  are  vil-  lands,  and  chattels  acquired,  so  as  the  said 
leins  who  are  begotten  of  a  freeman  and  persons  and  their  issue  shall  from  hence- 
a  nief,  and  born  out  of  matrimony."   The  forth  by  us  be  free  and  of  free  condition." 
ancient  rule  appears  to  have  been  that  Barrington  on  Statutes  (3d ed.),  275.    See 
the  condition  of  the  child  followed  that  of  Mackintosh,    History   of  England,   c.   4. 
the  mother  ;  but  this  was  changed  in  the  Compare  this  with  a  deed  of  manumission 
time   of  Henry    I.      Crabbe,   History   of  in  Massachusetts,  to  be  found  in  Sumner's 
English  Law  (ed.  of  1829),  78;  Hallam,  Speeches,  11.289;  Memoir  of  Chief  Jus- 
Middle  Ages,  Pt.  II.  c.  2.  tice  Parsons,  by  his  son,  176,  note. 

3  In   1514,   Henry  VIII.  manumitted  *  Wright,  Domestic  Manners  and  Sen- 
two  of  his  villeins  in  the  following  words  :  timents,  112. 


422 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


soil,  and  the  man  of  obscure  descent  winning  a  place  among  the 
aristocracy  of  the  realm,  through  his  successful  exertions  at  the 
bar  or  his  services  to  the  State.  Inevitably  these  influences  must 
at  length  overthrow  the  slavery  of  white  men  which  existed  in 
England,1  and  no  other  ever  became  established  within  the  realm. 
Slavery  was  permitted,  and  indeed  fostered,  in  the  colonies ;  in 
part  because  a  profit  was  made  of  the  trade,  and  in  part  also  be- 
cause it  was  supposed  that  the  peculiar  products  of  some  of  them 
could  not  be  profitably  cultivated  with  free  labor  ;2  and  at  times 
masters  brought  their  slaves  with  them  to  England  and  removed 
them  again  without  question,  until  in  Sommersett's  Case,  in  1771, 
it  was  ruled  by  Lord  Mansfield  that  slavery  was  repugnant  to  the 
common  law,  and  to  bring  a  slave  into  England  was  to  emanci- 
pate him.3  , 

The  same  opinion  had  been  previously  expressed  by  Lord  Holt 
but  without  authoritative  decision.4 

In  Scotland  a  condition  of  servitude  continued  to  a  later  period. 
The  holding  of  negroes  in  slavery  was  indeed  held  to  be  illegal 
soon  after  the  Sommersett  Case  ;  but  the  salters  and  colliers  did 
not  acquire  their  freedom  until  1799,  nor  without  an  act  of  Par- 


1  Macaulay  (History  of  England,  c.  1) 
says  the  chief  instrument   of  emancipa- 
tion was  the  Christian  religion.     Mack- 
intosh   (History  of  England,   c.  4),  also, 
attributes  to  the  priesthood   great   influ- 
ence in  this  reform,  not  only  by  their  di- 
rect appeals  to  the  conscience,  but  by  the 
judges,  who  were  ecclesiastics,  multiply- 
ing presumptions  and  rules  of  evidence 
consonant  to  the  equal  and  humane  spirit 
which  breathes  throughout  the  morality 
of  the  Gospel.     Hume   (History  of  Eng- 
land, c.  23)  seems  to  think  emancipation 
was  brought  about  by  selfish  considera- 
tions on  the  part  of  the  barons,  and  from 
a  conviction  that  the  returns  from  their 
lands  would  be  increased  by  changing  vil- 
leinage into  socage  tenures. 

2  Robertson,  America,  Book  9  ;    Ban- 
croft, United  States,  Vol.  I.  c.  5. 

3  Lofft,  18;  20  Howell  State  Trials,  1; 
Life  of  Granville  Sharp,  by  Hoare,  c.  4  ; 
Hurd,   Law  of  Freedom   and   Bondage, 
Vol.  I.  p.  189.      The  judgment  of  Lord 
Mansfield  is  said  to  have  been  delivered 
with  evident  reluctance.    20  State  Trials, 
79 ;  per  Lord  Stowell,  2  Hagg.  Adm.  105, 
110 ;  Broom,  Const.  Law,   105.      Of  the 
practice  prior  to  the  decision  Lord  Stow- 
ell said  :  "  The  personal  traffic  in  slaves 


resident  in  England  had  been  as  public 
and  as  authorized  in  London  as  in  any  of 
our  West  India  Islands.  They  were  sold 
on  the  Exchange,  and  other  places  of 
public  resort,  by  parties  themselves  resi- 
dent in  London,  and  witli  as  little  reserve 
as  they  would  have  been  in  any  of  our 
West  India  possessions.  Such  a  state  of 
tilings  continued  without  impeachment 
from  a  very  early  period  up  to  nearly  the 
end  of  the  last  century."  The  Slave 
Grace,  2  Hagg.  Adm.  105.  In  this  case  it 
was  decided  that  if  a  slave,  carried  by  his 
master  into  a  free  country,  voluntarily 
returned  with  him  to  a  country  where 
slavery  was  allowed  by  the  local  law,  the 
status  of  slave  would  still  attach  to  him, 
and  the  master's  right  to  his  service  be 
resumed.  Mr.  Broom  collects  the  author- 
ities on  this  subject  in  general,  in  the  notes 
to  Sommersett's  Case,  Const.  Law,  105. 

4  "  As  soon  as  a  slave  comes  into  Eng- 
land, he  becomes  free ;  one  may  be  a 
villein  in  England,  but  not  a  slave." 
Holt,  Ch.  J.,  in  Smith  v.  Brown,  2  Salk. 
666.  See  also  Smith  v.  Gould,  Ld.  Raym, 
1274  ;  s.  c.  Salk.  666.  There  is  a  learned 
note  in  Quincy's  Rep.  94,  collecting  the 
English  authorities  on  the  subject  of 
slavery. 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


423 


liainent.1     A  previous  statute  for  their  enfranchisement  through 
judicial  proceedings  had  proved  ineffectual.2 

The  history  of  slavery  in  this  country  pertains  rather  to  general 
history  than  to  a  work  upon  State  constitutional  law.  Through- 
out the  land  involuntary  servitude  is  abolished  by  constitutional 
amendment,  except  as  it  may  be  imposed  in  the  punishment  of 
crime.3  Nor  do  we  suppose  the  exception  will  permit  the  convict 
to  be  subjected  to  other  servitude  than  such  as  is  under  the  con- 
trol and  direction  of  the  public  authorities,  in  the  manner  hereto- 
fore customary.  The  laws  of  the  several  States  allow  the  letting 
of  the  services  of  the  convicts,  either  singly  or  in  numbers,  to 
contractors  who  are  to  employ  them  in  mechanical  trades  in  or 
near  the  prison,  and  under  the  surveillance  of  its  officers ;  but  it 
might  well  be  doubted  if  a  regulation  which  should  suffer  the 
convict  to  be  placed  upon  the  auction  block  and  sold  to  the 
highest  bidder,  either  for  life  or  for  a  term  of  years,  would  be  in 
harmony  with  the  constitutional  prohibition.  It  is  certain  that  it 
would  be  open  to  very  grave  abuses,  and  it  is  so  inconsistent  with 
the  general  sentiment  in  countries  where  slavery  does  not  exist, 
that  it  may  well  be  believed  not  to  have  been  within  the  under- 
standing of  the  people  in  incorporating  the  exception  with  the 
prohibitory  amendment.4 


1  39  Geo.  III.  c.  56. 

2  May's  Const.  Hist.  c.  11. 

8  Amendments  to  Const,  of  U.  S.  art. 
13.  See  Story  on  the  Constitution  (4th 
ed.),  c.  46,  for  the  history  of  this  article, 
and  the  decisions  bearing  upon  it.  The 
Maryland  act  for  the  apprenticing  of  col- 
ored children,  which  made  important  and 
invidious  distinctions  between  them  and 
white  children,  and  gave  the  master  prop- 
erty rights  in  their  services  not  given  in 
other  cases,  was  held  void  under  this  arti- 
cle. Matter  of  Turner,  1  Abb.  U.  S.  84. 
This  thirteenth  amendment  conferred  no 
political  rights,  and  left  the  negro  under 
all  his  political  disabilities.  Marshall  v. 
Donovon,  10  Bush,  681.  See  also  United 
States  v.  Cruikshank,  94  U.  S.  542.  Con- 
tracts for  personal  services  cannot,  as  a 
general  rule,  be  enforced,  and  applica- 
tion to  be  discharged  from  service  under 
them  on  habeas  corpus  is  evidence  that 
the  service  is  involuntary.  Cases  of  ap- 
prenticeship and  cases  of  military  and 
naval  service  are  exceptional.  A  person 
over  twenty-one  years  of  age  cannot  bind 
himself  as  apprentice.  Clark's  Case,  1 
Blackf.  122,  12  Am.  Dec.  213. 


*  The  State  has  no  power  to  imprison 
a  child  in  a  house  of  correction  who  has 
committed  no  crime,  on  a  mere  allegation 
that  he  is  "  destitute  of  proper  parental 
care,  and  is  growing  up  in  mendicancy, 
ignorance,  idleness,  and  vice."  People  v. 
Turner,  55  111.  280, 8  Am.  Rep.  645.  But 
a  female  child  who  begs  in  public  or  has 
no  proper  parental  care,  may  be  confined 
in  an  industrial  school.  County  of  Mc- 
Lean v.  Humphrey,  104  111.  378;  citing 
Milwaukee  Industrial  School  v.  Super- 
visors, 40  Wis.  328;  Roth  v.  House  of 
Refuge,  31  Md.  329.  See,  further,  that 
under  proper  safeguards  vagrant  children 
may  be  so  committed,  House  of  Refuge  v. 
Ryan,  37  Ohio  St.  197 ;  Prescott  v.  State, 
19  Ohio  St.  184,  2  Am.  Rep.  388 ;  Farnham 
v.  Pierce,  141  Mass.  203,  6  N.  E.  830  ;  Peo- 
ple v.  N.  Y.  Catholic  Protectory,  101  N.  Y. 
195,  4  N.  E,  177.  £That  in  cases  of  com- 
mitment of  vicious  and  incorrigible  youth 
to  reform  schools  jury  trial  is  unneces- 
sary, see  State  v.  Brown,  60  Minn.  353,  52 
N.  W.  935,  16  L.  R.  A.  691,  and  note; 
also  Lee  v.  McClelland,  157  Ind.  84,  60 
N.  E.  692.  Court  has  no  power  in  civil 
action  for  damages  to  person  to  compel 


424  CONSTITUTIONAL  LIMITATIONS.  [CH.  X. 

The  common  law  of  England  permits  the  impressment  of  sea- 
faring men  to  man  the  royal  navy  ; 1  but  this  species  of  servitude 
was  never  recognized  in  the  law  of  America.2  The  citizen  may 
doubtless  be  compelled  to  serve  his  country  in  her  wars ;  but 
the  common  law  as  adopted  by  us  lias  never  allowed  arbitrary 
discriminations  for  this  purpose  between  persons  of  different 
avocations. 

Unreasonable  Searches  and  Seizures,  (a) 
Near  in  importance  to  exemption  from  any  arbitrary  control  of 

plaintiff  to  submit  her  body  to  inspection  172,  20  Sup.  Ct.  Rep.  617.     But  sheriff 

by  defendant's  physicians  outside  of  court  may  lawfully    photograph    his    prisoner 

for  purpose  of  obtaining  evidence.     All  and  take  physical  measurements  of  him, 

Buch  inspection  must  be  made  in  court,  etc.,  for  purposes  of  future  identification. 

U.  P.  Ry.  Co.  v.  Botsf ord,  141  U.  S.  250,  State  v.  Clausmeier,  154  Ind.  599,  57  N.  E. 

11  Sup.  Ct.  Rep.  1000.     Contra,  Lane  v.  641,  50  L.  R.  A.  73J 
Spokane  Falls  &N.R.  Co.,  21  Wash.  119,          1  Broadfoot's  Case,   18   State    Trials, 

57  Pac.  367,  46  L.   R.  A.  153;  Wanek  v.  1323;  Fost.  Cr.  Law,  178;  Rex  v.  Tubbs, 

Winona,  78  Minn.  98,  80  N.  W.  851,  46  Cowp.  512;  Ex  parte  Fox,  5  State  Trials, 

L.  R.  A.  448 ;  Ala.  G.  S.  R.  Co.  v.  Hill,  90  276 ;  1  Bl.  Com.  419 ;  Broom,  Const.  Law, 

Ala.  71,8  So.  90,  9  L.  R.  A.  412, 24  Am.  St.  116. 

764.     See  in  this  connection  Lyon  v.  Man-          2  There  were  cases  of  impressment  in 

hattan  R.  Co.,  142  N.  Y.  298,  37  N.  E.  113,  America  before  the  Revolution,  but  they 

25  L.  R.  A.  402 ;  McQuigan  v.  Delaware,  were  never  peaceably  acquiesced  in  by 

L.  &  W.  R.  Co.,  129  N.  Y.  50, 29  N.E.235,  the    people.     See    Life    and  Times    of 

14  L.  R.  A.  466,  and  note,  26  Am.  St.  507  ;  Warren,  55. 
Camden  &  S.  R.  Co.  v.  Stetson,  177  U.  S. 

(a)  [^Search  made  by  permission  of  agent  or  servant  in  possession  is  not  unreason- 
able, nor  is  the  taking  away  of  an  article  there  found,  the  agent  consenting  thereto, 
a  prohibited  seizure.  State  v.  Griswold,  67  Conn.  290,  34  Atl.  1046,  33  L.  R.  A.  227. 
Where  a  boiler  exploded,  killing  several  persons  and  wounding  many  others,  and  the 
person  in  charge  was  prosecuted  for  criminal  negligence,  the  property  owner  may 
object  to  an  order  of  court  delivering  the  wreck  and  premises  into  the  custody  of  a 
police  officer,  charged  to  keep  them  unmolested  until  the  time  of  trial,  although  it  is 
probable  that  in  the  absence  of  such  custody,  much  valuable  real  evidence  will  be 
lost.  Newberry  v.  Carpenter,  107  Mich.  567,  65  N.  W.  630,  31  L.  R.  A.  163,  61  Am. 
St.  346.  The  court  cannot  compel  a  plaintiff  to  submit  a  horse,  over  whose  condi- 
tion the  controversy  arises,  to  the  inspection  of  a  veterinary  surgeon,  even  though 
the  inspection  is  to  be  made  in  the  presence  of  the  plaintiff  or  his  agent.  Martin  v. 
Elliott,  106  Mich.  130, 03  N.  W.  998, 31  L.  R.  A.  169  ;  but  a  statute  requiring  one  person 
to  submit  his  property  to  inspection  of  another  for  purpose  of  procuring  evidence  to 
aid  that  other  in  enforcing  his  rights  is  valid.  Montana  Co.  v.  St.  Louis  Mining  and 
M.  Co.,  152  U.  S.  160,  14  Sup.  Ct.  Rep  506.  With  regard  to  inspection  of  person  to 
procure  evidence,  see  note  1,  page  442,  ante.  In  Potter  r.  Beale,  50  Fed.  Rep.  860, 
the  order  of  a  court  that  a  master  should  searcli  the  trunk  of  the  president  of  an  in- 
solvent national  bank  and  deliver  to  such  president  his  private  papers,  and  to  the 
receiver  all  belonging  to  the  bank,  was  held  to  be  in  violation  of  the  prohibition 
against  unreasonable  searches  and  seizures.  Money  in  possession  of  prisoner  under 
arrest  can  be  taken  from  him  only  when  there  are  reasonable  grounds  for  believing 
it  to  be  connected  with  the  crime  charged  or  that  it  may  be  used  as  evidence. 
Ex  parte  Hum,  92  Ala.  102,  9  So.  515,  13  L.  R.  A.  120,  25  Am.  St.  23.  Pawnbroker 
may  be  compelled  to  take  out  license,  and  to  keep  list  of  property  received  and  per- 
sons from  whom  received,  and  to  exhibit  such  property  and  list  to  inspection  of 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  425 

the  person  (a)  is  that  maxim  of  the  common  law  which  secures 
to  the  citizen  immunity  in  his  home  against  the  prying  eyes  of 
the  government,  and  protection  in  person,  property,  and  papers 
against  even  the  process  of  the  law,  except  in  a  few  specified 
cases.  The  maxim  that  "every  man's  house  is  his  castle,"1  is 

1  Broom's    Maxims,    321 ;     Ilsley    v.  see  Delafoile  v.  State,  54  N.  J.  L.  381,  24 

Nichols,  12   Pick.   270;    Swain    v.   Miz-  All.  557, 16  L.  R.  A.  500,  and  note.]     The 

ner,  8  Gray,  182;  People  v.  Hubbard,  24  eloquent  passage  in  Chatham's  speech  on 

Wend.  369,  35  Am.   Dec.  628  ;  Curtis  v.  General  Warrants  is  familiar :"  Thepoor- 

Hubbard,  4  Hill,  437  ;  Bailey  v.  Wright,  est  man  may,  in  his  cottiige,  bid  defiance 

39   Mich.    96.      QThat    officer   may    not  to  all  the  forces  of  the  Crown.     It  may 

break  and  enter  to  serve  a   writ  of  re-  be  frail ;  its   roof  may  shake  ;  the  wind 

plevin,  see  Kelley  v.  Schuyler,  20  R.  I.,  may  blow  through    it;    the   storm    may 

432,  39  Atl.  893,  44  L.  R.  A.  435.     House-  enter;  the  rain  may  enter  ;  but  the  King 

holder  may  kill  in  defending  h:s  house  of  England  may  not  enter ;  all  his  force 

against  attack.     Wilson  v.  State,  30  Fla.  dares  not  cross  the  threshold  of  the  ruined 

234,  11  So.  656,  17  L.  R.  A.  654.     As  to  tenement."      And    see   Lieber  on   Civil 

when  officer  may  enter  without  warrant,  Liberty  and   Self-Government,  c.  6. 

mayor  and  police  officers.  Shuman  v.  Fort  Wayne,  127  Ind.  109,  26  N.  E.  560,  11 
L.  R.  A.  378,  and  note. 

Statute  authorizing  vendors  of  liquors  to  sue  out  search  warrants  to  secure  bottles 
not  returned  by  customers  is  unconstitutional.  Lippman  v.  People,  175  111.  101,  51 
N.  E.  872.3 

(a)  [^Sheriff  may  take  photographs,  measurements,  etc.,  of  his  prisoner  for  pur- 
poses of  future  identification.  State  v.  Clausmeier,  154  Ind.  599,  57  N.  E.  541,  50 
L.  R.  A.  73.  But  a  person  cannot  be  lawfully  arrested  merely  because  he  is  a  "  sus- 
picious person,"  and  any  statute  which  attempts  to  authorize  such  arrest  is  void 
under  the  clause  prohibiting  unreasonable  seizures.  Stoutenburgh  v.  Frazier,  16 
D.  C.  App.  229,  48  L.  R.  A.  220.  Prisoner  discharged  upon  parol  may  be  summarily 
arrested  and  recommitted.  Fuller  v.  State,  122  Ala.  32,  26  So.  146,  45  L.  R.  A.  602. 
Arrest  under  warrant  not  supported  by  oath  or  affirmation  is  illegal.  State  v. 
Higgins,  51  S.  C.  51,  28  S.  E.  15,  38  L.  R.  A.  561.  But  witness  refusing  to  testify 
before  grand  jury  may  be  summarily  imprisoned  by  a  justice  of  the  peace  upon  com- 
plaint of  the  grand  jury.  Re  Clark,  65  Conn.  17,  31  Atl.  522,  28  L.  R.  A.  242.  Such 
power  to  imprison  is  judicial  however  and  cannot  be  conferred  upon  a  county  attor- 
ney. Re  Sims,  54  Kan.  1,  37  Pac.  135,  25  L.  R.  A.  110,  45  Am.  St.  261 ;  nor  upon  a 
board  of  tax  commissioners,  Langenberg  v.  Decker,  131  Ind.  471,  31  N.  E.  190,  16 
L.  R.  A.  108.  Statute  may  authorize  arrest  without  warrant  in  case  of  misdemeanor 
committed  in  presence  of  officer,  as  well  as  in  case  of  breach  of  peace.  Burroughs  v. 
Eastman,  101  Mich.  419,  59  N.  W.  817,  24  L.  R.  A.  859;  45  Am.  St.  419.  Person 
cannot  be  surrendered  to  foreign  government  except  in  accordance  with  treaty  stip- 
ulations. Ex  parte  McCabe,  46  Fed.  Rep.  363,  12  L.  R.  A.  589.  Chairman  of  board 
of  county  commissioners  may  be  authorized  by  statute  to  remove  summarily  to  the 
pauper's  place  of  legal  settlement  any  pauper  who  applies  for  public  support.  Lovell 
v.  Seeback,  45  Minn.  465,  48  N.  W.  23,  11  L.  R.  A.  667.  Person  arrested  without  ex- 
tradition process  in  sister  State  is  illegally  detained  and  is  entitled  to  be  discharged 
upon  habeas  corpus.  Re  Robinson,  29  Neb.  135,  45  N.  W.  267,  8  L.  R.  A.  398,  26  Am. 
St.  378;  but  see  cases  cited  in  note.  Person  brought  into  State  by  extradition  pro- 
ceedings and  there  tried  or  discharged  cannot  be  arrested  upon  civil  process  until  a 
reasonable  time  has  elapsed  in  which  he  might  have  returned  to  the  State  from 
which  he  was  brought.  Moletor  v.  Sinnen,  76  Wis.  308,  44  N.  W.  1099,  7  L.  R.  A. 
817,  20  Am.  St.  71.  Person  arrested  without  warrant  can  be  detained  only  so  long 
as  is  reasonably  necessary  to  obtain  a  legal  warrant.  Leger  v.  Warren,  62  Ohio  St. 
600,  57  N.  E.  506,  51  L.  R.  A.  193.3 


426 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


made  a  part  of  our  constitutional  law  in  the  clauses  prohibiting 
unreasonable  searches  and  seizures,  and  has  always  been  looked 
upon  as  of  high  value  to  the  citizen. 

If  in  English  history  we  inquire  into  the  original  occasion  for 
these  constitutional  provisions,  we  shall  probably  find  it  in  the 
abuse  of  executive  authority,  and  in  the  unwarrantable  intrusion 
of  executive  agents  into  the  houses  and  among  the  private  papers 
of  individuals,  in  order  to  obtain  evidence  of  political  offences 
either  committed  or  designed.  The  final  overthrow  of  this  prac- 
tice is  so  clearly  and  succinctly  stated  in  a  recent  work  on  the 
constitutional  history  of  England,  that  we  cannot  refrain  from 
copying  the  account  in  the  note  below.1 


1  "Among  the  remnants  of  a  juris- 
prudence which  had  favored  preroga- 
tive at  the  expense  of  liberty  was  that  of 
the  arrest  of  persons  under  general  war- 
rants, without  previous  evidence  of  their 
guilt  or  identification  of  their  persons. 
This  practice  survived  the  Revolution, 
and  was  continued  without  question,  on 
the  ground  of  usage,  until  the  reign  of 
George  III.,  when  it  received  its  death- 
blow from  the  boldness  of  Wilkes  and 
the  wisdom  of  Lord  Camden.  This  ques- 
tion was  brought  to  an  issue  by  No.  45 
of  the  '  North  Briton,'  already  so  often 
mentioned.  There  was  a  libel,  but  who 
was  the  libeller  ?  Ministers  knew  not, 
nor  waited  to  inquire,  after  the  accus- 
tomed forms  of  law;  but  forthwith  Lord 
Halifax,  one  of  the  secretaries  of  state, 
issued  a  warrant,  directing  four  mes- 
sengers, taking  with  them  a  constable,  to 
search  for  the  authors,  printers,  and  pub- 
lishers ;  and  to  apprehend  and  seize  them, 
together  with  their  papers,  and  bring  them 
in  safe  custody  before  him.  No  one  hav- 
ing been  charged  or  even  suspected,  — 
no  evidence  of  crime  having  been  of- 
fered,—  no  one  was  named  in  this  dread 
instrument.  The  offence  only  was  pointed 
at,  not  the  offender.  The  magistrate  who 
should  have  sought  proofs  of  crime  de- 
puted this  office  to  his  messengers.  Armed 
with  their  roving  commission,  they  set 
fortli  in  quest  of  unknown  offenders  ;  and, 
unable  to  take  evidence,  listened  to  ru- 
mors, idle  tales,  and  curious  guesses. 
They  held  in  their  hands  the  liberty  of 
every  man  whom  they  were  pleased  to 
suspect.  Nor  were  they  triflers  in  their 
work.  In  three  days  they  arrested  no 
less  than  forty-nine  persons  on  suspicion, 


—  many  as  innocent  as  Lord  Halifax  him- 
self. Among  the  number  was  Dryden 
Leach,  a  printer,  whom  they  took  from 
his  bed  at  night.  They  seized  his  papers, 
and  even  apprehended  his  journeymen 
and  servants.  He  had  printed  one  num- 
ber of  the  '  North  Briton,'  and  was  then 
reprinting  some  other  numbers ;  but  as  lie 
happened  not  to  have  printed  No.  45,  he 
was  released  without  being  brought  be- 
fore Lord  Halifax.  They  succeeded,  how- 
ever, in  arresting  Kearsley,  the  publisher, 
and  Balfe,  the  printer,  of  the  obnoxious 
number,  witli  all  their  workmen.  From 
them  it  was  discovered  that  Wilkes  was 
the  culprit  of  whom  they  were  in  search  ; 
but  the  evidence  was  not  on  oath;  and 
the  messengers  received  verbal  directions 
to  apprehend  Wilkes  under  the  general 
warrant.  Wilkes,  far  keener  than  the 
crown  lawyers,  not  seeing  his  own  name 
there,  declared  it  '  a  ridiculous  warrant 
against  the  whole  English  nation,'  and  re- 
fused to  obey  it.  But  after  being  in  cus- 
tody of  the  messengers  for  some  hours,  in 
his  own  house,  he  was  taken  away  in  a 
chair,  to  appear  before  the  secretaries  of 
state.  No  sooner  had  he  been  removed 
than  the  messengers,  returning  to  his 
house,  proceeded  to  ransack  his  drawers, 
and  carried  off  all  his  private  papers,  in- 
cluding even  his  will  and  his  pocket-book. 
When  brought  into  the  presence  of  Lord 
Halifax  and  Lord  Egremont,  questions 
were  put  to  Wilkes  which  he  refused  to 
answer ;  whereupon  he  was  committed 
close  prisoner  to  the  Tower,  denied  the 
use  of  pen  and  paper,  and  interdicted 
from  receiving  the  visits  of  his  friends, 
or  even  of  his  professional  advisers. 
From  this  imprisonment,  however,  he 


CH.  X.] 


CONSTITUTIONAL  PROTECTIONS,  ETC. 


427 


The  history  of  this  controversy  should  be  read  in  connection 
with  that  in  America  immediately  previous  to  the  American  Revo- 


was  shortly  released  on  a  writ  of  habeas 
corpus,  by  reason  of  his  privilege  as  a 
member  of  the  House  of  Commons. 

"  Wilkes  and  the  printers,  supported 
by  Lord  Temple's  liberality,  soon  ques- 
tioned the  legality  of  the  general  war- 
rant. First,  several  journeymen  printers 
brought  action  against  the  messengers. 
On  the  first  trial  Lord  Chief  Justice  Pratt 

—  not   allowing  bad   precedents    to    set 
aside  the  sound  principles  of  English  law 

—  held  that  the  general  warrant  was  il- 
legal ;  that  it  was  illegally  executed ;  and 
that  the  messengers  were  not  indemnified 
by  statute.     The  journeymen  recovered 
three  hundred  pounds  damages  ;  and  the 
other  plaintiffs  also  obtained  verdicts.   In 
all  these  cases,  however,  bills  of  excep- 
tions were  tendered   and   allowed.     Mr. 
Wilkes  himself  brought  an  action  against 
Mr.  Wood,  under-secretary  of  state,  who 
had  personally  superintended  the  execu- 
tion of  the  warrant.     At  this  trial  it  was 
proved  that  Mr.  Wood  and  the  messen- 
gers, after  Wilkes's  removal  in  custody, 
had  taken  entire  possession  of  his  house, 
refusing  admission   to  his  friends ;    had 
sent  for  a  blacksmith,  who  opened  the 
drawers  of  his  bureau;  and  having  taken 
out  the  papers,  had  carried  them  away  in 
a  sack,  without  taking  any  list  or  inven- 
tory.    All  his  private  manuscripts  were 
seized,  and  his  pocket-book  filled  up  the 
mouth  of  the  sack.     Lord  Halifax  WHS 
examined,  and  admitted  that  the  warrant 
had  been  made  out  three  days  before  he 
had  received  evidence  that  Wilkes  was 
the  author  of  the  'North  Briton.'     Lord 
Chief  Justice  Pratt  thus  spoke  of  the  war- 
rant :  '  The   defendant   claimed   a  right, 
under  precedents,  to  force  persons'  houses, 
break  open  escritoires,  and  seize  their  pa- 
pers upon  a  general  warrant,  where  no 
inventory   is   made   of   the   things    thus 
taken    away,    and   where   no   offenders' 
names  are  specified  in  the  warrant,  and 
therefore  a  discretionary  power  given  to 
messengers  to  search  wherever  their  sus- 
picions may  chance  to  fall.     If  such  a 
power  is  truly  invested  in  a  secretary  of 
state,  and  he  can  delegate  this  power,  it 
certainly  may  affect  the  person  and  prop- 
erty of  every  man  in  this  kingdom,  and  is 
totally  subversive  of  the  liberty  of  the 


subject.'  The  jury  found  a  verdict  for 
the  plaintiff,  with  one  thousand  pounds 
damages. 

"Four  days  after  Wilkes  had  obtained 
his  verdict  against  Mr.  Wood,  Dryden 
Leach,  the  printer,  gained  another  ver- 
dict, with  four  hundred  pounds  damages, 
against  the  messengers.  A  bill  of  excep- 
tions, however,  was  tendered  and  received 
in  this  as  in  other  cases,  and  came  on  for 
hearing  before  the  Court  of  King's  Bench 
in  1765.  After  much  argument  and  the 
citing  of  precedents  showing  the  practice 
of  the  secretary  of  state's  office  ever 
since  the  Revolution,  Lord  Mansfield  pro- 
nounced the  warrant  illegal,  saying:  'It 
is  not  fit  that  the  judging  of  the  informa- 
tion should  be  left  to  the  discretion  of  the 
officer.  The  magistrate  should  judge, 
and  give  certain  directions  to  the  officer.' 
The  other  three  judges  agreed  that  the 
warrant  was  illegal  and  bad,  '  believing 
that  no  degree  of  antiquity  can  give  sanc- 
tion to  an  usage  bad  in  itself.'  The 
judgment  was  therefore  affirmed. 

"  Wilkes  had  also  brought  actions  for 
false  imprisonment  against  both  the  sec- 
retaries of  state.  Lord  Egremont's  death 
put  an  end  to  the  action  against  him;  and 
Lord  Halifax,  by  pleading  privilege,  and 
interposing  other  delays  unworthy  of  his 
position  and  character,  contrived  to  put 
off  his  appearance  until  after  Wilkes  had 
been  outlawed,  when  he  appeared  and 
pleaded  the  outlawry.  But  at  length,  in 
1769,  no  further  postponement  could  be 
contrived ;  the  action  was  tried,  and 
Wilkes  obtained  no  less  than  four  thou- 
sand pounds  damages.  Not  only  in  this 
action,  but  throughout  the  proceedings, 
in  which  persons  aggrieved  by  the  general 
warrant  had  sought  redress,  the  govern- 
ment offered  an  obstinate  and  vexatious 
resistance.  The  defendants  were  harassed 
by  every  obstacle  which  the  law  per- 
mitted, and  subjected  to  ruinous  costs. 
The  expenses  which  government  itself 
incurred  in  these  various  actions  were 
said  to  have  amounted  to  one  hundred 
thousand  pounds. 

"  The  liberty  of  the  subject  was  further 
assured  at  this  period  by  another  remark- 
able judgment  of  Lord  Camden.  In  No- 
vember, 1762,  the  Earl  of  Halifax,  as 


428 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


lution,  in  regard  to  writs  of  assistance  issued  by  the  courts  to 
the  revenue  officers,  empowering  them,  in  their  discretion,  to 
search  suspected  places  for  smuggled  goods,  and  which  Otis  pro- 
nounced "  the  worst  instrument  of  arbitrary  power,  the  most 
destructive  of  English  liberty  and  the  fundamental  principles  of 
law,  that  ever  was  found  in  an  English  law  book ; "  since  they 
placed  "the  liberty  of  every  man  in  the  hands  of  every  petty 
officer."  l  All  these  matters  are  now  a  long  way  in  the  past ;  but 

secretary  of  state,  had  issued  a  warrant  power,  so  assumed  by  the  secretary  of 
directing  certain  messengers,  taking  a  state,  is  an  execution  upon  all  the  party's 
constable  to  their  assistance,  to  search  for  papers  in  the  first  instance.  His  house  is 
John  Entinck.  clerk,  the  author  or  one  rifled;  his  most  valuable  papers  are  taken 
concerned  in  the  writing  of  several  num-  out  of  his  possession,  before  the  paper, 
bers  of  the  'Monitor,  or  British  Free-  for  which  he  is  charged,  is  found  to  be 
holder,'  and  to  seize  him,  together  with  criminal  by  any  competent  jurisdiction, 
his  books  and  papers,  and  bring  him  in  and  before  he  is  convicted  either  of  writ- 
safe  custody  before  the  secretary  of  state,  ing,  publishing,  or  being  concerned  in 
In  execution  of  this  warrant,  the  mes-  the  paper.'  It  had  been  found  by  the 
sengers  apprehended  Mr.  Entinck  in  his  special  verdict  that  many  such  warrants 
house,  and  seized  the  books  and  papers  had  been  issued  since  the  Revolution ; 
in  his  bureau,  writing-desk,  and  drawers,  but  he  wholly  denied  their  legality.  He 
This  case  differed  from  that  of  Wilkes,  as  referred  the  origin  of  the  practice  to  the 
the  warrant  specified  the  name  of  the  Star  Chamber,  which,  in  pursuit  of  libels, 
person  against  whom  it  was  directed.  In  had  given  search-warrants  to  their  mes- 
respect  of  the  person,  it  was  not  a  general  senger  of  the  press,  —  a  practice  which, 
warrant,  but  as  regards  the  papers,  it  after  the  abolition  of  the  Star  Chamber, 
was  a  general  search-warrant, — not  speci-  had  been  revived  and  authorized  by  the 
fying  any  particular  papers  to  be  seized,  licensing  act  of  Charles  II.,  in  the  person 
but  giving  authority  to  the  messengers  to  of  the  secretary  of  state.  And  he  con- 
take  all  his  books  and  papers  according  jectured  that  this  practice  had  been  con- 


to  their  discretion. 


tinued  after  the  expiration  of  that  act, — 


"  Mr.  Entinck  brought  an  action  of  a  conjecture  shared  by  Lord  Mansfield 
trespass  against  the  messengers  for  the  and  the  Court  of  King's  Bench.  With 
seizure  of  his  papers,  upon  which  a  jury  the  unanimous  concurrence  of  the  other 
found  a  special  verdict,  with  three  hun-  judges  of  his  court,  this  eminent  magis- 
dred  pounds  damages.  This  special  ver-  trate  now  finally  condemned  this  danger- 
diet  was  twice  learnedly  argued  before  ous  and  unconstitutional  practice."  May's 
the  Court  of  Common  Pleas,  where,  at  Constitutional  History  of  England,  c.  11. 
length,  in  1765,  Lord  Camden  pronounced  See  also  Semayne's  Case,  5  Coke,  91 ;  1 
an  elaborate  judgment.  He  even  doubted  Smith's  Lead.  Cas.  183;  Entinck  v.  Car- 
the  right  of  the  secretary  of  state  to  com-  rington,  2  Wils.  275,  and  19  State  Trials, 
mit  persons  at  all,  except  for  high  treason ;  1030  ;  note  to  same  case  in  Broom,  Const. 
but  in  deference  to  prior  decisions,  the  Law,  6 13;  Money  ».  Leach,  Burr.  1742; 
court  felt  bound  to  acknowledge  the  right.  Wilkes's  Case,  2  Wils.  151,  and  19  State 
The  main  question,  however,  was  the  Trials,  1405.  For  debates  in  Parliament 
legality  of  a  search  warrant  for  papers,  on  the  same  subject,  see  Hansard's  De- 
'If  this  point  should  be  determined  in  bates,  Vol.  XV.  pp.  1393-1418  ;  Vol.  XVI. 
favor  of  the  jurisdiction,'  said  Lord  Cam-  pp.  6  and  209.  In  further  illustration  of 
den,  'the  secret  cabinets  and  bureaus  of  the  same  subject,  see  De  Lolme  on  the 
every  subject  in  this  kingdom  will  be  English  Constitution,  c.  18 ;  Story  on 
thrown  open  to  the  search  and  inspection  Const.  §§  1901,  1902;  Bell  v.  Clapp,  10 
of  a  messenger,  whenever  the  secretary  Johns.  263,  6  Am.  Dec.  339;  Sailly  v. 
of  state  shall  see  fit  to  charge,  or  even  to  Smith,  11  Johns.  500. 
suspect,  a  person  to  be  the  author,  printer,  1  Works  of  John  Adams,  Vol.  II.  pp. 
or  publisher  of  a  seditious  libel.'  'This  623,  524;  2  Hildreth's  U.  S.  499;  4  Ban- 


CII.  X.]  CONSTITUTIONAL    PROTECTIONS,    ETC.  429 

it  has  not  been  deemed  unwise  to  repeat  in  the  State  constitu- 
tions, as  well  as  in  the  Constitution  of  the  United  States,1  the 
principles  already  settled  in  the  common  law  upon  this  vital 
point  in  civil  liberty. 

For  the  service  of  criminal  process,  the  houses  of  private  par- 
ties are  subject  to  be  broken  and  entered  under  circumstances 
which  are  fully  explained  in  the  works  on  criminal  law,  and  need 
not  be  enumerated  here.  And  there  are  also  cases  where  search- 
warrants  are  allowed  to  be  issued,  under  which  an  officer  may  be 
protected  in  the  like  action.  But  as  search-warrants  are  a  species 
of  process  exceedingly  arbitrary  in  character,  and  which  ought 
not  to  be  resorted  to  except  for  very  urgent  and  satisfactory 
reasons,  the  rules  of  law  which  pertain  to  them  are  of  more  than 
ordinary  strictness ;  and  if  the  party  acting  under  them  expects 
legal  protection,  it  is  essential  that  these  rules  be  carefully 
observed. 

In  the  first  place,  they  are  only  to  be  granted  in  the  cases  ex- 
pressly authorized  by  law ;  and  not  generally  in  such  cases  until 
after  a  showing  made  before  a  judicial  officer,  under  oath,  that  a 
crime  has  been  committed,  and  that  the  party  complaining  has 
reasonable  cause  to  suspect  that  the  offender,  or  the  property 
which  was  the  subject  or  the  instrument  of  the  crime,  is  concealed 
in  some  specified  house  or  place.2  And  the  law,  in  requiring  a 
showing  of  reasonable  cause  for  suspicion,  intends  that  evidence 
shall  be  given  of  such  facts  as  shall  satisfy  the  magistrate  that 
the  suspicion  is  well  founded  ;  for  the  suspicion  itself  is  no  ground 
for  the  warrant  except  as  the  facts  justify  it.3 

In  the  next  place,  the  warrant  which  the  magistrate  issues 
must  particularly  specify  the  place  to  be  searched  and  the  object 
for  which  the  search  is  to  be  made.  If  a  building;  is  to  be 


croft's  U.  S.  414  ;  Quincy,  Mass.  Reports,  embarrass,  annoy,  and  obstruct  the  mer- 

61.     See  also  the  appendix  to  these  re-  chant  in  his  business  were  not  borne  in 

ports,  p.  395,  for  a  history  of  writs  of  mind.     The   federal  decisions,  however, 

assistance.  go  very  far  to  establish  the  doctrine  that, 

1  U.  S.  Const.  4th  Amendment.     The  in   matters  of   revenue,   the  regulations 

scope  of  this  work  does  not  call  for  finy  Congress   sees   fit  to  establish,  however 

discussion  of  the  searches  of  private  prem-  unreasonable  thej'  may  seem,  must  pre- 

ises,  and  seizures  of  books  and  papers,  vail.     For  a  very  striking  case,  see  Hen- 

which  are  made  under  the  authority,  or  derson's  Distilled  Spirits,  14  Wall.  44. 
claim  of  authority,  of  the  revenue  laws          -  2  Hale,  P.  C.  142;  Bishop,  Cr.  Pro. 

of  the  United  States.     Perhaps,  under  no  §§  716-719;  Archbold,  Cr.  Law,  147.    An 

other  laws  are  such  liberties   taken   by  officer   may  base  a  complaint  upon  the 

ministerial  officers ;  and  it  would  be  sur-  information  of  a  third  person.     Collins  v. 

prising  to  find  oppressive  action  on  their  Lean,  68  Cal.  284. 

part  so  often  submitted  to  without  legal         8  Commonwealth  v.  Lottery  Tickets, 

contest,  if  the  facilities  they  possess  to  5  Cush.  869;  Else  v.  Smith,  1  D.  &  R.  97. 


430  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

searched,  the  name  of  the  owner  or  occupant  should  be  given;1 
or,  if  not  occupied,  it  should  be  particularly  described,  so  that  the 
officer  will  be  left  to  no  discretion  in  respect  to  the  place ;  and  a 
misdescription  in  regard  to  the  ownership,2  or  a  description  so 
general  that  it  applies  equally  well  to  several  buildings  or  places, 
would  render  the  warrant  void  in  law.3  Search-warrants  are 
always  obnoxious  to  very  serious  objections ;  and  very  great  par- 
ticularity is  justly  required  in  these  cases  before  the  privacy  of  a 
man's  premises  is  allowed  to  be  invaded  by  the  minister  of  the 
law.4  And  therefore  a  designation  of  goods  to  be  searched  for 
as  "  goods,  wares,  and  merchandises,"  without  more  particular 
description,  has  been  regarded  as  insufficient,  even  in  the  case  of 
goods  supposed  to  be  smuggled,5  where  there  is  usually  greater 
difficulty  in  giving  description,  and  where,  consequently,  more 
latitude  should  be  permitted  than  in  the  case  of  property  stolen. 

Lord  Hale  says :  "  It  is  fit  that  such  warrants  to  search  do 
express  that  search  be  made  in  the  daytime ;  and  though  I  do 
not  say  they  are  unlawful  without  such  restriction,  yet  they  are 
very  inconvenient  without  it ;  for  many  times,  under  pretence  of 
searches  made  in  the  night,  robberies  and  burglaries  have  been 
committed,  and  at  best  it  creates  great  disturbance."  6  And  the 
statutes  upon  this  subject  will  generally  be  found  to  provide  for 
searches  in  the  daytime  only,  except  in  very  special  cases. 

The  warrant  should  also  be  directed  to  the  sheriff  or  other 
proper  officer,  and  not  to  private  persons ;  though  the  party 
complainant  may  be  present  for  the  purposes  of  identification,7 
and  other  assistance  can  lawfully  be  called  in  by  the  officer  if 
necessary. 

The  warrant  must  also  command  that  the  goods  or  other  arti- 

1  Stone  v.  Dana,  5  Met.  98.     See  Bell     v.   Certain   Liquors,   146   Mass.   509,   16 
v.  Rice,  2  J.  J.  Marsh.  44,  19  Am.  Dec.     N.  E.  298. 

12'J.  *  A  warrant  for  searching  a  dwelling- 

2  Sandford  v.  Nichols,  13  Mass.  286;  house  will  not  justify  a  forcible  entry  into 
8.  c.  7  Am.  Dec.  151 ;  Allen  v.  Staples,  6  a    barn    adjoining    the    dwelling-house. 
Gray,  491.  Jones  v.  Fletcher,  41  Me.  254  ;   Downing 

8  Thus  a  warrant  to  search  the  "houses  v.  Porter,  8  Gray,  639;  Bishop,  Cr.  Pro. 

and  buildings  of  Hiram  Lie  and  Henry  §§  716-719. 

Ide,"  is  too  general.     Humes  v.  Tabor,          6  Sandford  v.  Nichols,  13  Mass.  286, 

1  R.  I.  464.     See  McGlinchy  v.  Barrows,  7  Am.  Dec.  151 ;  Archbold,  Cr.  Law,  143. 

41  Me.  74;  Ashley  v.  Peterson,  25  Wis.  "A  certain  quantity  of  rum  being  about 

021;   Com.  v.  Intox.  Liquors,  140  Mass,  and  not  exceeding  100  gallons"  is  suffi- 

287,  3  N.  E.  4.     So  a   warrant  for  the  cient.     State  v.  Fitzpatrick,  16  R.  I.  54, 

arrest  of  an  unknown  person  under  the  11  Atl.  Rep.  767. 

designation   of  John   Doe,  without  fur-         6  2  Hale,  P.  C.  150.     See  Archbold, 

ther    description,    is    void.       Common-  Cr.  Law  (7th  ed.),  146;  Com.  v.  Hinds, 

wealth  v.  Crotty,  10  Allen,  403.    For  de-  145  Mass.  182,  13  N.  E.  397. 
scriptions  held  sufficient,  see  Wright  v.         1  2   Hale,   P.  C.  160;    Archbold,   Cr. 

Dressel,  140  Mass.  147,  3  N.  E.  6 ;  Com.  Law  (7th  ed.),  145. 


en.  x.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


431 


cles  to  be  searched  for,  if  found,  together  with  the  party  in  whose 
custody  they  are  found,  be  brought  before  the  magistrate,  to  the 
end  that,  upon  further  examination  into  the  facts,  the  goods,  and 
the  party  in  whose  custody  they  were,  may  be  disposed  of  accord- 
ing to  law.1  And  it  is  a  fatal  objection  to  such  a  warrant  that  it 
leaves  the  disposition  of  the  goods  searched  for  to  the  ministerial 
officer,  instead  of  requiring  them  to  be  brought  before  the  magis- 
trate, that  he  may  pass  his  judgment  upon  the  truth  of  the  com- 
plaint made;  and  it  would  also  be  a  fatal  objection  to  a  statute 
authorizing  such  a  warrant  if  it  permitted  a  condemnation  or 
other  final  disposition  of  the  goods,  without  notice  to  the  claimant, 
and  without  an  opportunity  for  a  hearing  being  afforded  him.2 

The  warrant  is  not  allowed  for  the  purpose  of  obtaining  evi- 
dence of  an  intended  crime ;  but  only  after  lawful  evidence  of  an 
offence  actually  committed.3  Nor  even  then  is  it  allowable  to 
invade  one's  privacy  for  the  sole  purpose  of  obtaining  evidence 
against  him,4  except  in  a  few  special  cases  where  that  which  is 
the  subject  of  the  crime  is  supposed  to  be  concealed,  and  the 
public  or  the  complainant  has  an  interest  in  it  or  in  its  destruc- 


1  2  Hale,  P.  C.  150;  Bella-.  Clapp,  10 
Johns.  263,  6  Am.  Dec.  339;   Hibhard  v. 
People,  4  Mich.  126;   Fisher  v.  McGirr, 
1  Gray,  1.      If  the  statute  ordains  that 
the  warrant  shall  require  the  officer  to 
to  make  an  inventory,  one  omitting  this 
command  is  no  protection,  though  in  fact 
an    inventory   is    made    by   the    officer. 
Hussey  v.  Davis,  58  N.  H.  317. 

2  The  "  Search  and   Seizure "  clause 
in  some  of  the  prohibitory  liquor  laws 
was  held  void  on  this  ground.     Fisher  v. 
McGirr,  1  Gray,  1 ;    Greene  v.  Briggs,  1 
Curtis,  311 ;   Hibbard  v.  People,  4  Mich. 
126.    See  also  Matter  of  Morton,  10  Mich. 
208;    Sullivan   v.  Oneida,   61    111.   242; 
State  v.  Snow,  3  R.  I.  64,  for  a  somewhat 
similar  principle.    It  is  not  competent  by 
law  to  empower  a  magistrate  on  mere 
infornvition,    or    on    his    own    personal 
knowledge,  to  seize  and  destroy  gaming- 
tables or  devices  without  a  hearing  and 
trial.    Lowry  v.  Rainwater,  70  Mo.  152, 
35  Am.  Rep.  420.    An  act  which  declared 
that  all  nets,  &c.  used  in  catching  fish  in 
violation  thereof  should  be  forfeited,  and 
might  be  seized  and  destroyed  or  sold  by 
the  peace  officer,  was  declared  void  in 
Hey  Sing  Jeck  ?•.  Anderson,  57  Cal.  251. 
After  seizure  of  money  and  acquittal  of 
larceny,  the  money  must  be  delivered  to 


defendant.  State  v.  Williams,  61  Iowa, 
517,  16  N.  W.  586. 

8  We  do  not  say  that  it  would  be  in- 
competent to  authorize,  by  statute,  the 
issue  of  search-warrants  for  the  preven- 
tion of  offences  in  some  cases ;  but  it  is 
difficult  to  state  any  case  in  which  it 
might  be  proper,  except  in  such  cases  of 
attempts,  or  of  preparations  to  commit 
crime,  as  are  in  themselves  criminal. 
QSlot  machine  to  be  used  as  a  gambling 
device.  Its  seizure  justified  to  prevent 
the  offence.  Board  of  Police  Com'rs  v. 
Wagner,  93  Md.  182,  48  Atl.  465,  62 
L.  R,  A.  775.] 

4  The  fourth  amendment  to  the  Con- 
stitution of  the  United  States,  found  also 
in  many  State  constitutions,  would  clearly 
preclude  the  seizure  of  one's  papers  in 
order  to  obtain  evidence  against  him ; 
and  the  spirit  of  the  fifth  amendment  — 
that  no  person  shall  be  compelled  in  a 
criminal  case  to  give  evidence  against 
himself  —  would  also  forbid  such  seizure. 
[State  v.  Slamon,  73  Vt.  212,  60  Atl. 
1097,  87  Am.  St.  711.  In  this  last  case 
it  was  held  a  violation  of  the  constitu- 
tional right  to  take  a  letter  while  search- 
ing for  stolen  goods  by  virtue  of  a 
search-warrant."] 


432  CONSTITUTIONAL   LIMITATIONS.  [CH.  X 

tiou.  Those  special  cases  are  familiar,  and  well  understood  in  the 
law.  Search-warrants  have  heretofore  been  allowed  to  search 
for  stolen  goods,  for  goods  supposed  to  have  been  smuggled  into 
the  country  in  violation  of  the  revenue  laws,  for  implements  of 
gaming  or  counterfeiting,  for  lottery  tickets  or  prohibited  liquors 
kept  for  sale  contrary  to  law,  for  obscene  books  and  papers  kept 
for  sale  or  circulation,  and  for  powder  or  other  explosive  and 
dangerous  material  so  kept  as  to  endanger  the  public  safety.1  A 
statute  which  should  permit  the  breaking  and  entering  a  man's 
house,  and  the  examination  of  books  and  papers  with  a  view  to 
discover  the  evidence  of  crime,  might  possibly  not  be  void  on 
constitutional  grounds  in  some  other  cases ;  but  the  power  of 
the  legislature  to  authorize  a  resort  to  this  process  is  one  which 
can  properly  be  exercised  only  in  extreme  cases,  and  it  is  better 
oftentimes  that  crime  should  go  unpunished  than  that  the  citizen 
should  be  liable  to  have  his  premises  invaded,  his  desks  broken 
open,  his  private  books,  letters,  and  papers  exposed  to  prying 
curiosity,  and  to  the  misconstructions  of  ignorant  and  suspicious 
persons,  —  and  all  this  under  the  direction  of  a  mere  ministerial 
officer,  who  brings  with  him  such  assistants  as  he  pleases,  and 
who  will  select  them  more  often  with  reference  to  physical 
strength  and  courage  than  to  their  sensitive  regard  to  the  rights 
and  feelings  of  others.  To  incline  against  the  enactment  of  such 
laws  is  to  incline  to  the  side  of  safety.2  In  principle  they  are 

1  These  are  the  most  common  cases,  cannot  be  excused.     The  importance  of 
but  in  the  following,  search-warrants  are  public  confidence  in  the  inviolability  of 
also  sometimes  provided  for  by  statute :  correspondence    through    the    post-office 
books  and  papers  of  a  public  character,  cannot  well  be  overrated ;  and  the  propo- 
retained    from    their    proper    custod}- ;  sition  to  permit  letters  to  be  opened  at 
females    supposed    to    be    concealed    in  the   discretion  of   a   ministerial    officer, 
houses  of  ill-fame;   children  enticed   or  would  excite  general   indignation.     See 
kept  away  from   parents  or  guardians;  Ex parte  Jackson,  96  U. S.  727.    In  Maine 
concealed  weapons  ;   counterfeit  money,  it  has  been  decided  that  a  telegraph  oper- 
and forged  bills  or  papers.      See   cases  ator  may  be  compelled  to  disclose  the 
under   English    statutes    specified    in    4  contents  of  a  message  sent  by  him  for 
Broom  and  Hadley's  Commentaries,  332.  another  party,  and  that  no  rule  of  public 

2  Instances  sometimes  occur  in  which  policy  would  forbid.     State  v.  Litchfield, 
ministerial  officers  take  such  liberties  in  68  Me.  267.     The  case  is  treated  as  if  no 
endeavoring  to  detect  and  punish  offend-  other  considerations  were  involved  than 
ers,  as  are  even  more  criminal  than  the  those  which  arise  in  the  ordinary  case  of 
offences  they  seek  to  punish.     The  em-  a   voluntary   disclosure   by   one   private 
ployment  of  spies  and  decoys  to  lead  men  person    to    another,    without    necessity. 
on  to  the  commission  of  crime,  on  the  Such,  however,  is  not  the  nature  of  the 
pretence  of  bringing  criminals  to  justice,  communication  made  to  the  operator  of 
cannot  be  too  often  or  too  strongly  con-  the  telegraph.    That  instrument  is  used 
demned;    and  that  prying  into   private  as  a  means  of  correspondence,  and  as  a 
correspondence    by    officers    which    has  valuable,  and  in  many  cases  an  indispen- 
sometimes   been  permitted  by  post-mas-  sable,  substitute  for  the  postal  facilities ; 
ters,  is  directly  in  the  face  of  the  law,  and  and  the  communication  is  made,  not  be- 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


433 


objectionable;  in  the  mode  of  execution  they  are  necessarily- 
odious  ;  and  they  tend  to  invite  abuse  and  to  cover  the  commis- 
sion of  crime.  We  think  it  would  generally  be  safe  for  the  legis- 
lature to  regard  all  those  searches  and  seizures  "  unreasonable  " 
which  have  hitherto  been  unknown  to  the  law,  and  on  that  ac- 
count to  abstain  from  authorizing  them,  leaving  parties  and  the 
public  to  the  accustomed  remedies.1 


cause  the  party  desires  to  put  the  oper- 
ator in  possession  of  facts,  but  because 
transmission  without  it  is  impossible.  It 
is  not  voluntary  in  any  other  sense  than 
this,  that  the  party  makes  it  rather  than 
deprive  himself  of  the  benefits  of  this 
great  invention  and  improvement.  The 
reasons  of  a  public  nature  for  maintaining 
the  secrecy  of  telegraphic  communication 
are  the  same  with  those  which  protect 
correspondence  by  mail ;  and  though  the 
operator  is  not  a  public  officer,  that  cir- 
cumstance appears  to  us  immaterial.  He 
fulfils  an  important  public  function,  and 
the  propriety  of  his  preserving  inviolable 
secrecy  in  regard  to  communications  is 
so  obvious,  that  it  is  common  to  provide 
statutory  penalties  for  disclosures.  If  on 
grounds  of  public  policy  the  operator 
should  not  voluntarily  disclose,  why  do 
not  the  same  considerations  forbid  the 
courts  compelling  him  to  do  so  ?  Or  if 
it  be  proper  to  make  him  testify  to  the 
correspondence  by  telegraph,  what  good 
reason  can  be  given  why  the  postmaster 
should  not  be  made  subject  to  the  process 
of  subpoena  for  a  like  purpose,  and  com- 
pelled to  bring  the  correspondence  which 
passes  through  his  hands  into  court,  and 
open  it  for  the  purposes  of  evidence  ? 
This  decision  has  been  followed  in  some 
other  cases.  Henisler  v.  Freedman,  2 
Pars.  Sel.  Cas.  (Pa.)  274;  First  National 
Bank  of  Wheeling  v.  Merchants'  National 
Bank,  7  W.  Va.  544;  Ex  parte  Brown,  72 
Mo.  83,  37  Am.  Rep.  426 ;  Woods  v.  Mil- 
ler, 55  Iowa,  168,  7  N.  W.  484 ;  U.  S.  v. 
Hunter,  15  Fed.  Eep.  712.  See  Gray, 
Communication  by  Telegraph,  ch.  v. 

We  should  suppose,  were  it  not  for  the 
opinions  to  the  contrary  by  tribunals  so 
eminent,  that  the  public  could  not  be  en- 
titled to  a  man's  private  correspondence, 
whether  obtainable  by  seizing  it  in  the 
mails,  or  by  compelling  the  operator  of 
the  telegraph  to  testify  to  it,  or  by  requir- 
ing his  servants  to  take  from  his  desks 


his  private  letters  and  journals,  and  bring 
them  into  court  on  subpoena  duc.es  tecum. 
Any  such  compulsory  process  to  obtain  it 
seems  a  most  arbitrary  and  unjustifiable 
seizure  of  private  papers ;  such  an  "  un- 
reasonable seizure"  as  is  directly  con- 
demned by  the  Constitution.  In  England, 
the  secretary  of  state  sometimes  issues 
his  warrant  for  opening  a  particular  let- 
ter, where  he  is  possessed  of  such  facts 
as  he  is  satisfied  would  justify  him  with 
the  public;  but  no  American  officer  or 
body  possesses  such  authority,  and  its 
usurpation  should  not  be  tolerated.  Let- 
ters and  sealed  packages  subject  to  letter 
postage  in  the  mail  can  be  opened  and 
examined  only  under  like  warrant,  issued 
upon  similar  oath  or  affirmation,  particu- 
larly describing  the  thing  to  be  seized,  as 
is  required  when  papers  are  subjected  to 
search  in  one's  own  household.  Ex  parte 
Jackson,  96  U.  S.  727.  See  this  case  for 
a  construction  of  the  law  of  Congress  for 
excluding  improper  matter  from  the  mails. 
For  an  account  of  the  former  and  present 
English  practice  on  opening  letters  in  the 
mail,  see  May,  Constitutional  History, 
c.  11 ;  Todd,  Parliamentary  Government, 
Vol.  I.  p.  272 ;  Broom,  Const.  Law,  615. 

1  A  search-warrant  for  libels  and  other 
papers  of  a  suspected  party  was  illegal  at 
the  common  law.  See  11  State  Trials, 
313,  321 ;  Archbold,  Cr.  Law  (7th  ed.), 
141 ;  Wilkes  v.  Wood,  19  State  Trials, 
1153.  "Search-warrants  were  never  re- 
cognized by  the  common  law  as  processes 
which  might  be  availed  of  by  individuals 
in  the  course  of  civil  proceedings  or  for 
the  maintenance  of  any  mere  private 
right;  but  their  use  was  confined  to  the 
case  of  public  prosecutions  instituted  and 
pursued  for  the  suppression  of  crime  and 
the  detection  and  punishment  of  crimi- 
nals. Even  in  those  cases,  if  we  may  rely 
on  the  authority  of  Lord  Coke,  their  le- 
gality was  formerly  doubted ;  and  Lord 
Camden  said  they  crept  into  the  law  by 


28 


434 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


We  have  said  that  if  the  officer  follows  the  command  of  his 
warrant,  he  is  protected;  and  this  is  so  even  when  the  complaint 
proves  to  have  been  unfounded.1  But  if  he  exceed  the  command 
by  searching  in  places  not  described  therein,  or  by  seizing  persons 
or  articles  not  commanded,  he  is  not  protected  by  the  warrant, 
and  can  only  justify  himself  as  in  other  cases  where  he  assumes 
to  act  without  process.2  Obeying  strictly  the  command  of  his 
warrant,  he  may  break  open  outer  or  inner  doors,  and  his  justi- 
fication does  not  depend  upon  his  discovering  that  for  which  he 
is  to  make  search.3 

In  other  cases  than  those  to  which  we  have  referred,  and  sub- 
ject to  the  general  police  power  of  the  State,  the  law  favors  the 
complete  and  undisturbed  dominion  of  every  man  over  his  own 
premises,  and  protects  him  therein  with  such  jealousy  that  he 
may  defend  his  possession  against  intruders,  in  person  or  by  his 
servants  or  guests,  even  t3  the  extent  of  taking  the  life  of  the 
intruder,  if  that  seem  essential  to  the  defence.4 


imperceptible  practice.  But  their  legal- 
ity IIHS  long  been  considered  to  be  estab- 
lished on  the  ground  of  public  necessity  ; 
because  without  them  felons  and  other 
malefactors  would  escape  detection." 
Merrick,  J.,  in  Robinson  v.  Richardson, 
13  Gray  456.  "  To  enter  a  man's  house," 
said  Lord  Camden,  "  by  virtue  of  a  name- 
less warrant,  in  order  to  procure  evidence, 
is  worse  than  the  Spanish  Inquisition,  — 
a  law  under  which  no  Englishman  would 
wish  to  live  an  hour."  See  his  opinion 
in  Entinck  v.  Carrington,  19  State  Trials, 
1029  ;  8.  c.  2  Wils.  275,  and  Broom,  Const. 
Law,  558  ;  Huckleu  Money,  2  Wils.  205; 
Leach  v.  Money,  19  State  Trials,  1001; 
s.  c.  3  Burr.  1892 ;  and  1  W.  Bl.  555 ; 
note  to  Entinck  v.  Carrington,  Broom, 
Const.  Law,  613.  [That  the  evidence 
was  obtained  by  an  unlawful  search  and 
seizure  is  not  sufficient  to  make  it  inad- 
missible. Williams  v.  State,  100  Ga.  511, 
28  S.  E.  624,  39  L.  R.  A.  269.  An  order 
compelling  one  to  deliver  his  private  pa- 
pers to  another  who  has  no  ownership  in 
them  is  in  violation  of  the  constitutional 
provision  against  unwarrantable  seizures. 
Ex  parte  Clarke,  126  Cal.  235,  68  Pac. 
546,  77  Am.  St.  176.] 

1  Barnard  v.  Bartlett,  10  Cush.  501. 
After  the  goods  seized  are  taken  before 
the  magistrate,  the  officer  is  not  liable  for 
them  to  the  owner.  Collins  v.  Lean,  68 
Cal.  284,  9  Pac.  173. 


2  Crozier  v.  Cudney,  9  D.  &  R.  224 ; 
Same  case,  6  B.  &  C.  232  ;  State  v.  Bren- 
nan's  Liquors,  25  Conn.  278.  Where  the 
warrant  was  for  the  search  of  the  person, 
and  the  goods  were  found  on  the  floor  of 
the  room  where  lie  was,  their  seizure  was 
held  lawful.  Collins  v.  Lean,  68  Cal.  284, 
9  Pac.  173. 

8  2  Hale,  P.  C.  151 ;  Barnard  v.  Bart- 
lett, 10  Cush.  501. 

*  That  in  defence  of  himself,  any 
member  of  his  family,  or  his  dwelling, 
a  man  has  a  right  to  employ  all  necessary 
violence,  even  to  the  taking  of  life,  see 
Shorter  v.  People,  2  N.  Y.  193;  Yates  v. 
People,  32  N.  Y.  509 ;  Logue  v.  Common- 
wealth, 38  Pa.  St.  265;  Pond  v.  People, 
8  Mich.  150 ;  Maher  v.  People,  24  111.  211 ; 
Bohannan  v.  Commonwealth,  8  Bush,  481, 
8  Am.  Rep.  474;  Bean  v.  State,  25  Tex. 
App.  346.  But  except  where  a  forcible 
felony  is  attempted  against  person  or 
property,  he  should  avoid  such  conse- 
quences, if  possible,  and  cannot  justify 
standing  up  and  resisting  to  the  death, 
when  the  assailant  might  have  been 
avoided  by  retreat.  People  v.  Sullivan, 
7  N.  Y.  396 ;  Carter  ».  State,  82  Ala.  13, 
2  So.  766.  But  a  man  assaulted  in  his 
dwelling  is  under  no  obligation  to  re- 
treat ;  his  house  is  his  castle,  which  he 
may  defend  to  any  extremity.  And  this 
means  not  simply  the  dwelling-house 
proper,  but  includes  whatever  is  within 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  435 

Quartering  Soldiers  in  Private  Houses. 

A  provision  is  found  incorporated  in  the  constitution  of  nearly 
every  State,  that  "  no  soldier  shall  in  time  of  peace  be  quartered 
in  any  house  without  the"  consent  of  the  owner,  nor  in  time  of  war 
but  in  a  manner  to  be  prescribed  by  law."  To  us,  after  four- 
fifths  of  a  century  have  passed  away  since  occasion  has  existed 
for  complaint  of  the  action  of  the  government  in  this  particular, 
the  repetition  of  this  declaration  seems  to  savor  of  idle  form  and 
ceremony  ;  but  "  a  frequent  recurrence  to  the  fundamental  prin- 
ciples of  the  Constitution  "  can  never  be  unimportant,  and  indeed 
may  well  be  regarded  as  "  absolutely  necessary  to  preserve  the 
advantages  of  liberty,  and  to  maintain  a  free  government."  1  It 
is  difficult  to  imagine  a  more  terrible  engine  of  oppression  than 
the  power  in  the  executive  to  fill  the  house  of  an  obnoxious  per- 
son with  a  company  of  soldiers,  who  are  to  be  fed  and  warmed  at 
his  expense,  under  the  direction  of  an  officer  accustomed  to  the 
exercise  of  arbitrary  power,  and  in  whose  presence  the  ordinary 
laws  of  courtesy,  not  less  than  the  civil  restraints  which  protect 
person  and  property,  must  give  way  to  unbridled  will ;  who  is 
sent  as  an  instrument  of  punishment,  and  with  whom  insult  and 
outrage  may  appear  quite  in  the  line  of  his  duty.  However  con- 
trary to  the  spirit  of  the  age  such  a  proceeding  may  be,  it  may 
always  be  assumed  as  possible  that  it  may  be  resorted  to  in  times 
of  great  excitement,  when  party  action  is  generally  violent ;  and 
"  the  dragonnades  of  Louis  XIV.  in  France,  of  James  II.  in  Scot- 
land, and  those  of  more  recent  and  present  date  in  certain  coun- 
tries, furnish  sufficient  justification  for  this  specific  guaranty."2 
The  clause,  as  we  find  it  in  the  national  and  State  constitutions, 
has  come  down  to  us  through  the  Petition  of  Right,  the  Bill  of 
Rights  of  1688,  and  the  Declaration  of  Independence ;  and  it  is 


the  curtilage  as  understood  at  the  com-  the  cases   above  cited ;    also  Schnier  v. 

mon  law.     Pond  v.  People,  8  Mich.  150;  People,  23  111.  17;  Patten  v.  People,  18 

State   v.   Middleham,   62   Iowa,  150,   17  Mich.  314;  Hinton  v.  State,  24  Tex.  454  ; 

N.  W.  446 ;  State  v.  Scheele,  57  Conn.  307,  People  v.  Flanagan,  60  Cal.  2.     But  the 

18  Atl.  256;  Parrish  r.  Com.,  81  Va.  1  ;  belief  must  be  bona  fide  and  upon  rea- 

Bledsoe  v.  Com.,  11  S.  W.  84,  7  S.  W.  sonable  grounds.      State  v.  Peacock,  40 

Rep.  884  (Ky.).     And  in  deciding  what  Ohio  St.  3,'}3. 

force  it  is  necessary  to  employ  in  resist-          1  Constitutions  of  Massachusetts,  New 

ing  the  assault,  a  person  must  act  upon  Hampshire,  Vermont,    Florida,   Illinois, 

the  circumstances  as  they  appear  to  him  and  North  Carolina.     See  also  Constitu- 

at  the  time ;  and  he  is   not  to  be  held  tions  of  Virginia,  Nebraska,  and  Wiscon- 

criminal  because  on  a  calm  survey  of  the  sin  for  a  similar  declaration, 
facts  afterwards  it  appears  that  the  force          2  Lieber,  Civil  Liberty  and  Self-Gov- 

employed  in  defence  was  excessive.     See  ernment,  c.  11. 


436 


CONSTITUTIONAL   LIMITATIONS. 


[en.  x. 


but  a  branch  of  the  constitutional  principle,  that  the  military  shall 
in  time  of  peace  be  in  strict  subordination  to  the  civil  power.1 

Criminal  Accusations. 

Perhaps  the  most  important  of  the  protections  to  personal 
liberty  consists  in  the  mode  of  trial  which  is  secured  to  every 
person  accused  of  crime.  At  the  -common  law,  accusations  of 
felony  were  made  in  the  form  of  an  indictment  by  a  grand  jury  ; 
and  this  process  is  still  retained  in  many  of  the  States,2  while 
others  have  substituted  in  its  stead  an  information  filed  by  the 
prosecuting  officer  of  the  State  or  county.  The  mode  of  investi- 
gating the  facts,  however,  is  the  same  in  all ;  and  this  is  through 
a  trial  by  jury,  surrounded  by  certain  safeguards  which  are  a  well- 
understood  part  of  the  system,  and  which  the  government  cannot 
dispense  with. 


1  Story  on  the  Constitution,  §§  1899, 
1900;    Rawle  on    Constitution,   126.     In 
exceptional  cases,  however,  martial  law 
may  be  declared  and  enforced   whenever 
the  ordinary  legal  authorities  are  unable 
to  maintain  the  public  peace  and  suppress 
violence  and  outrage.     Todd,  Parliamen- 
tary   Government    in   England,    Vol.    I. 
p.  342;  1  Bl.  Com  413-415.     As  to  mar- 
tial law  in  general,  see  Ex  parte  Milligan, 
4  Wall.  129. 

2  The   accusation,  whether  by  indict- 
ment or  information,  must  be  sufficiently 
specific  fairly  to  apprise  the  respondent 
of  the  nature  of  the  charge  against  him, 
so  that  he  may  know  what  he  is  to  an- 
swer, and  so  that  the  record  may  show, 
as  far  as  may  be,  for  what  he  is  put  in 
jeopardy.    Whitney  v.  State,  10  Ind.  404  ; 
State  v.  O'Flaherty,  7  Nev.  153 ;  State  v. 
McKenna,  16  R.  I.  398,  17  All.  Rep.  51. 
The  legislature  may  allow  simplification 
of   old   forms   of    indictment.     Coin.    v. 
Freelove,   150  Mass.  66,  22  N.  E.  Rep. 
435.     As   to  amendment  of  indictments, 
see  p.  327.     A  law  authorizing  commit- 
ment without    examination,   upon    sum- 
mary arrest,  of  a  pardoned  convict  for 
violating  the  condition  of  his  pardon,  is 
invalid.     People  v.  Moore,  62  Mich.  496, 
29  N.  W.  80.     The  indictment  for  a  State 
offence  can  only  be  by  the  grand  jury  of 
the  county  of  offence.     Ex  parte  Slater, 
72   Mo.   102;  Weyrich  v.  People,  89  111. 
90.    The  fourteenth  amendment  to  the 
federal  Constitution  is   not   violated  by 
dispensing  with  a  grand  jury.     Hurtado 


v.  California,  110  U.  S.  516,  4  Sup.  Ct. 
Rep.  111,292;  Kalloch  v.  Superior  Court, 
66  Cal.  229  ;  State  v.  Boswell,  104  Ind. 
541,  4  N.  E.  675.  [[Prosecution  by  "in- 
formation "  is  due  process.  Balla  v.  Ne- 
braska, 176  U.  S.  83,  20  Supt.  Ct.  Rep. 
287.]  Nor  does  it  forbid  a  grand  jury  of 
seven,  if  a  State  law  so  provides.  Hau- 
senfluck  v.  Com.,  85  Va.  702,  8  S.  E.  Rep. 
683.  In  the  federal  courts  infamous  crimes 
must  be  prosecuted  by  indictment,  and 
they  are  held  to  be  such  as  are  punished 
by  imprisonment  in  a  penitentiary  with  or 
without  hard  labor.  Ex  parte  W\\son, 
114  U.  S.  417,  5  Sup.  Ct.  Rep.  935; 
Mackin  v.  United  States,  117  U.  S.  348, 
6  Sup.  Ct.  Rep.  777  ;  United  States  v. 
De  Walt,  128  U.  S.  393,  9  Sup.  Ct.  Rep. 
111.  See  State  v.  West,  42  Minn.  147,  43 
N,  W.  845.  Compare  State  v.  Nolan,  15 
R.  I.  529,  10  Atl.  481.  [Re  Butler,  84  Me. 
25,  24  Atl.  456,  17  L.  R.  A:764,  and  note 
on  infamous  crimes  ;  that  the  judge  in 
charging  the  grand  jury  must  be  tem- 
perate in  his  language,  see  Clair  v.  State, 
40  Neb.  534,  59  N.  W.  118,  28  L.  R.  A. 
367,  and  note.  Upon  number  of  jurors 
necessary  or  proper  to  act  on  grand  jury, 
see  State  v.  Belvel,  89  Iowa,  405,  56  N.  W. 
545,  27  L.  R.  A.  846,  and  note  ;  organiza- 
tion of  grand  jury,  State  v.  Noyes,  87 
Wis.  340,  58  N.  W.  386,  27  L.  R.  A.  776, 
and  note,  41  Am.  St.  45.  Concurrence 
of  nine  cannot  be  made  sufficient  by 
statute  where  constitution  does  not  so 
provide.  State  v.  Barker,  107  N.  C.  913, 
12  S.  E.  115,  10  L.  R.  A.  50,  and  note.} 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


437 


First,  we  may  mention  that  the  humanity  of  our  law  always 
presumes  an  accused  party  innocent  until  he  is  proved  to  be 
guilty.  This  is  a  presumption  which  attends  all  the  proceedings 
against  him,  from  their  initiation  until  they  result  in  a  verdict, 
which  either  finds  the  party  guilty  or  converts  the  presumption 
of  innocence  into  an  adjudged  fact.1 

If  there  were  any  mode  short  of  confinement  which  would, 
with  reasonable  certainty,  insure  the  attendance  of  the  accused 
to  answer  the  accusation,  it  would  not  be  justifiable  to  inflict 
upon  him  that  indignity,  when  the  effect  is  to  subject  him,  in  a 
greater  or  less  degree,  to  the  punishment  of  a  guilty  person, 


1  See  Sullivan  v.  Oneida,  61  111.  242. 
An  act  making  the  fact  of  killing  of 
cattle  by  a  railroad  train  prima  facie  evi- 
dence of  negligence,  and  such  negligence 
a  misdemeanor  on  the  part  of  the  super- 
intendent and  president,  is  void  as  de- 
priving of  this  presumption.  State  v. 
Divine,  98  N.  C.  778,  4  S.  E.  477.  It  is 
sometimes  claimed  that  where  insanity 
is  set  up  as  a  defence  in  a  criminal  case, 
the  defendant  takes  upon  himself  the 
burden  of  proof  to  establish  it,  and  tliat 
he  must  make  it  out  beyond  a  reasonable 
doubt.  See  Clark  v.  State,  12  Ohio,  494 ; 
Loeffner  v.  State,  10  Ohio,  N.  s.  599; 
Bond  v.  State,  23  Ohio,  N.  s.  346  ;  State  v. 
Felton,  32  Iowa,  49 ;  McKenzie  v.  State, 
42  Ga.  334;  Bos  well  v.  Commonwealth, 
20  Gratt.  800 ;  Baccigalupo  v .  Common- 
wealth, 33  Gratt.  807,  36  Am.  Rep.  795 ; 
State  v.  Hoyt,  47  Conn.  518;  Wright 
v.  People,  4  Neb.  407 ;  State  v.  Pratt, 
1  Houst.  C.  C  249;  State  v.  Hurley,  1 
Houst.  C.  C.  28 ;  State  v.  De  Ranee,  34 
La.  An.  186.  Or  at  least  by  a  clear  pre- 
ponderance of  evidence.  Boswell  v. 
State,  63  Ala.  307,  35  Am.  Rep.  20;  State 
v.  Redemeier,  71  Mo.  173,  36  Am.  Rep. 
462;  Webb  v.  State,  9  Tex.  App.  490; 
Johnson  v.  State,  10  Tex.  App.  571  ; 
State  v.  Coleman,  27  La.  An.  691;  State 
v.  Strauder,  11  W.  Va.  745,  823;  Ortwein 
v.  Commonwealth,  76  Pa.  St.  414,  18  Am. 
Rep.  420;  Stater.  Starling, 6  Jones  (N.  C .), 
366;  State  v.  Payne,  80  N.  C.  609;  State 
v.  Smith,  63  Mo.  267;  People  v.  Mc- 
Donnell, 47  Cal.  134  ;  Commonwealth  v. 
Eddy,  7  Gray,  583;  Danforth  v.  State,  75 
Ga.  614  ;  Ball  v.  Com  ,  81  Ky.  662  ;  State 
v.  Bundy,  24  S.  C.  439.  Other  well-con- 
sidered cases  do  not  support  this  view. 
The  burden  of  proof,  it  is  held,  rests 


throughout  upon  the  prosecution  to  es- 
tablish all  the  conditions  of  guilt ;  and 
the  presumption  of  innocence  that  all  the 
while  attends  the  prisoner  entitles  him  to 
an  acquittal,  if  the  jury  are  not  reason- 
ably satisfied  of  his  guilt.  See  State  v. 
Marler,  2  Ala.  43;  Commonwealth  v. 
Myers,  7  Met.  500;  Polk  v.  State,  19 
Ind.  170;  Chase  v.  People,  40  111.  352: 
People  v.  Schryver,  42  N.  Y.  1 ;  Stevens 
v.  State,  31  Ind.  485;  State  v.  Pike,  49 
N.  H.  399;  State  v.  Jones,  50  N.  H.  349  ; 
People  v.  McCann,  16  N.  Y.  58;  Common- 
wealth v.  Kimball,  24  Pick.  373;  Com- 
monwealth v.  Dana,  2  Met.  340;  Hopps 
v.  People,  31  111.  385 ;  People  v.  Garbutt, 
17  Mich.  23 ;  State  v.  Klinger,  43  Mo.  127 ; 
State  v.  Hundley,  46  Mo.  414;  State  v. 
Lowe,  93  Mo.  547,  6  S.  W.  889;  Ballard 
v.  State,  19  Neb.  609,  28  N.  W.  271 ;  State 
v.  Crawford,  11  Kan.  32 ;  Brotherton  r. 
People,  75  N.  Y.  159;  O'Connell  v.  Peo- 
ple, 87  N.  Y.  377 ;  Pollard  P.  State,  53 
Miss.  410;  Cunningham  v.  State,  56  Miss. 
269,  31  Am.  Rep.  360.  But  the  prosecu- 
tion may  rely  upon  the  presumption  of 
sanity  which  exists  in  all  cases,  until  the 
defence  puts  in  evidence  which  creates  a 
reasonable  doubt.  People  v.  Finley,  38 
Mich.  482.  And  see  Guetig  v.  State,  66 
Ind.  94,  32  Am.  Rep.  99.  A  statute  may 
require  insanity  to  be  specially  pleaded. 
Bennett  v.  State,  57  Wis.  69, 14  N.  W.  912. 
FJAccused  is  entitled  to  appear  without 
manacles  unless  he  is  violent  and  dis- 
orderly. Keeping  him  manacled  at  trial 
will  cause  a  reversal  of  a  judgment  against 
him.  State  v.  Williams,  18  Wash.  47,  50 
Pac.  580,  39  L.  R.  A.  821,  63  Am.  St.  869. 
Upon  this  right,  see  note  to  this  case  in 
L.  R.  A. 3 


438  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

while  as  yet  it  is  not  determined  that  he  has  committed  any 
crime.  If  the  punishment  on  conviction  cannot  exceed  in  sever- 
ity the  forfeiture  of  a  large  sum  of  money,  then  it  is  reasonable 
to  suppose  that  such  a  sum  of  money,  or  an  agreement  by  respon- 
sible parties  to  pay  it  to  the  government  in  case  the  accused 
should  fail  to  appear,  would  be  sufficient  security  for  his  attend- 
ance ;  and  therefore,  at  the  common  law,  it  was  customary  to 
take  security  of  this  character  in  all  cases  of  misdemeanor ;  one 
or  more  friends  of  the  accused  undertaking  for  his  appearance 
for  trial,  and  agreeing  that  a  certain  sum  of  money  should  be 
levied  .of  their  goods  and  chattels,  lands  and  tenements,  if  he 
made  default.  But  in  the  case  of  felonies,  the  privilege  of  giving 
bail  before  trial  was  not  a  matter  of  right ;  and  in  this  country, 
although  the  criminal  code  is  much  more  merciful  than  it  for- 
merly was  in  England,  and  in  some  cases  the  allowance  of  bail 
is  almost  a  matter  of  course,  there  are  others  in  which  it  is  dis- 
cretionary with  the  magistrate  to  allow  it  or  not,  and  where  it 
will  sometimes  be  refused  if  the  evidence  of  guilt  is  strong  or  the 
presumption  great.  Capital  offences  are  not  generally  regarded 
as  bailable ;  at  least,  after  indictment,  or  when  the  party  is 
charged  by  the  finding  of  a  coroner's  jury ; 1  and  this  upon  the 
supposition  that  one  who  may  be  subjected  to  the  terrible  punish- 
ment that  would  follow  a  conviction,  would  not  for  any  mere 
pecuniary  considerations  remain  to  abide  the  judgment.2  And 
where  the  death  penalty  is  abolished  and  imprisonment  for  life 
substituted,  it  is  believed  that  the  rule  would  be  the  same  not- 
withstanding this  change,  and  bail  would  still  be  denied  in  the 
case  of  the  highest  offences,  except  under  very  peculiar  circum- 
stances.3 In  the  case  of  other  felonies  it  is  not  usual  to  refuse 
bail,  and  in  some  of  the  State  constitutions  it  has  been  deemed 
important  to  make  it  a  matter  of  right  in  all  cases  except  on 
capital  charges  "  when  the  proof  is  evident  or  the  presumption 
great."  * 

1  Matter  of  Barronet,  1  El.  &  Bl.  1;  Gratt.  705;   People  v.  Smith,  1  Cal.  9; 

Ex  parte  Tayloe,  5  Cow.  39.    In  homicide  People  v.  Van  Home,  8  Barb.  158.     In 

it  is  said  bail  should  be  refused  if  the  England  when  all  felonies  were  capital 

evidence  is  such   that  the  judge  would  it  was  discretionary  with  the  courts  to 

sustain  a  capital  conviction  upon  it.     Ex  allow  bail  before  trial.    4  Bl.  Com.  297, 

parte  Brown,  65  Ala.  446.  and  note. 

a  State  r.  Summons,  19  Ohio,  139.  4  The  constitutions  of  a  majority  of 

3  The  courts  have  power  to  bail,  even  the  States  now  contain  provisions  to  this 

in  capital  cases.     United  States  v.  Hamil-  effect.     And  see  Foley  v.  People,  1  111. 

ton,  3  Dall.  17  ;  United  States  v.  Jones,  3  81 ;  Ullery  v.  Commonwealth,  8  B.  Monr. 

Wash.  209;   State  v.  Rockafellow,  6  N.  J.  3;   Shore  v.  State,  6  Mo.  640;    State  v. 

332;     Commonwealth     v.    Semmes,    11  Summons,  19  Ohio,  139  ;  Ex  parte  Wray, 

Leigh,  665 ;  Commonwealth  v.  Archer,  6  30  Miss.  673 ;    Moore  v.  State,  36  Miss. 


CM.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  439 

When  bail  is  allowed,  unreasonable  bail  is  not  to  be  required  ; 
but  the  constitutional  principle  that  demands  this  is  one  which, 
from  the  very  nature  of  the  case,  addresses  itself  exclusively  to 
the  judicial  discretion  and  sense  of  justice  of  the  court  or  magis- 
trate empowered  to  fix  upon  the  amount.  That  bail  is  reasonable 
which,  in  view  of  the  nature  of  the  offence,  the  penalty  which 
the  law  attaches  to  it,  and  the  probabilities  that  guilt  will  be 
established  on  the  trial,  seems  no  more  than  sufficient  to  secure 
the  party's  attendance.  In  determining  this,  some  regard  should 
be  had  to  the  prisoner's  pecuniary  circumstances ;  that  which  is 
reasonable  bail  to  a  man  of  wealth  being  equivalent  to  a  denial 
of  right  if  exacted  of  a  poor  man  charged  with  the  like  offence. 
When  the  court  or  magistrate  requires  greater  security  than  in 
his  judgment  is  needful  to  secure  attendance,  and  keeps  the  pris- 
oner in  confinement  for  failure  to  give  it,  it  is  plain  that  the  right 
to  bail  which  the  constitution  attempts  so  carefully  to  secure  has 
been  disregarded ;  and  though  the  wrong  is  one  for  which,  in 
the  nature  of  the  case,  no  remedy  exists,  the  violation  of  consti- 
tutional privilege  is  aggravated,  instead  of  being  diminished,  by 
that  circumstance.1 

The  presumption  of  innocence  is  an  absolute  protection  against 
conviction  and  punishment,  except  either,  first,  on  confession  in 
open  court ;  or,  second,  on  proof  which  places  the  guilt  beyond 
any  reasonable  doubt.  Formerly,  if  a  prisoner  arraigned  for 
felony  stood  mute  wilfully,  and  refused  to  plead,  a  terrible  mode 
was  resorted  to  for  the  purpose  of  compelling  him  to  do  so ;  and 
this  might  even  end  in  his  death : 2  but  a  more  merciful  proceed- 
ing is  now  substituted ;  the  court  entering  a  plea  of  not  guilty 
for  a  party  who,  for  any  reason,  fails  to  plead  for  himself. 

137  ;    Ex  parte  Banks,  28  Ala.  89  ;  Ex  ony,  and  misdemeanors,  wilfully  standing 

parte  Dykes,  83  Ala.  114,  3  So.  306  ;  Ex  mute  was  equivalent  to  a  conviction,  and 

parte  Kendall,  100  Ind.  599;  In  re  Mali-  the  same  punishment  might  be  imposed; 

son,  36  Kan.  725, 14  Pac.  144  ;     Matter  of  but  in  other  cases  there  could  be  no  trial 

Troia,  64    Cal.  152,  28   Pac.   231.     ^Re  or  judgment  without  plea;  and  an  accused 

Losasso,  15  Col.  163,   24  Pac.    1080,   10  party  might  therefore  sometimes  stand 

L.  R.  A.  847,  and  note.]  mute  and  suffer  himself  to  be  pressed  to 

1  The  magistrate  in  taking  bail  exer-  death,  in  order  to  save  his  property  from 
cises   an    authority   essentially  judicial,  forfeiture.     Poor  Giles  Corey,  accused  of 
Regina  v.  Badger,  4  Q.  B.  468;  Linford  v.  witchcraft,  was  perhaps  the  only  person 
Fitzroy,  13  Q.  B.  240.     As  to  his  duty  to  ever  pressed  to  death  for  refusal  to  plead 
look  into  the  nature  of  the  charge  and  in   America,   3  Bancroft's  U.   S.   93;    2 
the  evidence  to  sustain  it,  see  Barronet's  Hildreth's  U.  S.  160.     For  English  cases, 
Case,   1   El.   &   Bl.  1.     See  Carmody  v.  see  Cooley's  Bl.  Com.  325,  note.    Now  in 
State,  105  Ind.  546,  5  N.  E.  679,  as  to  fix-  England  the  court  enters  a  plea  of  not 
ing  amount  of  bail  in  advance  for  differ-  guilty  for  a  prisoner  refusing  to  plead, 
ent  classes  of  cases.  and  the  trial  proceeds  as  in  other  cases. 

2  4  Bl.  Com.  32  i.     In  treason,  petit  fel- 


440  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

Again,  it  is  required  that  the  trial  be  speedy  ;  and  here  also  the 
injunction  is  addressed  to  the  sense  of  justice  and  sound  judg- 
ment of  the  court.1  In  this  country,  where  officers  are  specially 
appointed  or  elected  to  represent  the  people  in  these  prosecutions, 
their  position  gives  them  an  immense  power  for  oppression  ;  and 
it  is  to  be  feared  they  do  not  always  sufficiently  appreciate  the 
responsibility,  and  wield  the  power  with  due  regard  to  the  legal 
rights  and  privileges  of  the  accused.2  When  a  person  charged 
with  crime  is  willing  to  proceed  at  once  to  trial,  no  delay  on  the 
part  of  the  prosecution  is  reasonable,  except  only  that  which  is 
necessary  for  proper  preparation  and  to  secure  the  attendance  of 
witnesses.3  Very  much,  however,  must  be  left  to  the  judgment 
of  the  prosecuting  officer  in  these  cases;  and  the  court  would 
not  compel  the  government  to  proceed  to  trial  at  the  first  term 
after  indictment  found  or  information  filed,  if  the  officer  who 
represents  it  should  state,  under  the  responsibility  of  his  official 
oath,  that  he  was  not  and  could  not  be  ready  at  that  time.4  But 
further  delay  would  not  generally  be  allowed  without  a  more 
specific  showing  of  the  causes  which  prevent  the  State  proceeding 
to  trial,  including  the  names  of  the  witnesses,  the  steps  taken  to 
procure  them,5  and  the  facts  expected  to  be  proved  by  them,  in 
order  that  the  court  might  judge  of  the  reasonableness  of  the 


1  Speedy  trial  is  said  to  mean  a  trial  trial  under  the   belief   that   certain  wit- 
so  soon  after  indictment  as  the  prosecu-  nesses  for  the  State  were  absent,  when  in 
tion  can,  by  a  fair  exercise  of  reasonable  fact  they  were  present  and  kept  in  con- 
diligence,  prepare  for  trial ;  regard  being  cealment  by  this  functionary.     Curtis  v. 
had  to  the  terms  of  court.    United  States  State,  6  Cold.  9. 

v.  Fox,  3  Mont.  512;  Creston  v.  Nye,  74  3  See  this  discussed  in  Ex  parte  Stan- 
Iowa,  369,  37  N.  W.  777.  If  it  becomes  ley,  4  Nev.  113;  [jind  In  re  Begerow,  133 
necessary  to  adjourn  the  court  without  Cal.  349,  65  Pac.  828,  85  Am.  St.  178.  A 
giving  trial,  the  prisoner  should  be  bailed,  valuable  monographic  note  to  this  case 
though  not  otherwise  entitled  to  it.  Ex  discussing  the  law  of  this  clause  of  the 
parte  Caplis,  58  Miss.  358.  constitution  is  found  at  pages  187  to  204 

2  It  is  the  duty  of  the  prosecuting  at-  inclusive  of  85  Am.  St.] 
torney  to  treat  the  accused  with  judicial  *  Watts  v.  State,  26  Ga.  231. 
fairness:  to  inflict  injury  at  the  expense  5  The  Flaheas  Corpus  Act,  31  Ch.  II. 
of  justice  is  no  part  of  the  purpose  for  c.  2,  §  1,  required  a  prisoner  charged  with 
which  he  is  chosen.    Unfortunately,  how-  crime  to  be  released  on  bail,  if  not  in- 
ever,  we  sometimes  meet  with  cases  in  dieted  the  first  term  after  the  commit- 
which   these   officers    appear    to   regard  ment,  unless  the  king's  witnesses   could 
themselves  as  the  counsel  for  the  com-  not  be  obtained;  and  that  he  should  be 
plaining  party  rather  than  the  impartial  brought  to  trial  as  early  as  the   second 
representatives   of   public   justice.     But  term  after  the  commitment.     The  prin- 
we  trust  it  is  not  often  that  cases  occur  ciples  of  this  statute  are  considered  as 
like    one    in    Tennessee,   in   which    the  having  been  adopted  into  the  American 
Supreme  Court  felt   called  upon   to   set  common  law.     Post,  p.  490.     See  In  re 
aside  a  verdict  in  a  criminal  case,  where  Garvey,  7  Col.  502,  4  Pac.  758 ;  In  re  Ed- 
by  the  artifice  of  the  prosecuting  officer  wards,  35  Kan.  99,  10  Pac.  639. 

the  prisoner  had  been  induced  to  go  to 


CH.  X.]  CONSTITUTIONAL    PROTECTIONS,   ETC.  441 

application,  and  that  the  prisoner  might,  if  he  saw  fit  to  take  that 
course,  secure  an  immediate  trial  by  admitting  that  the  witnesses, 
if  present,  would  testify  to  the  facts  which  the  prosecution  have 
claimed  could  be  proved  by  them.1 

It  is  also  requisite  that  the  trial  be  public.  By  this  is  not 
meant  that  every  person  who  sees  fit  shall  in  all  cases  be  per- 
mitted to  attend  criminal  trials ;  because  there  are  many  cases 
where,  from  the  character  of  the  charge  arid  the  nature  of  the 
evidence  by  which  it  is  to  be  supported,  the  motives  to  attend 
the  trial  on  the  part  of  portions  of  the  community  would  be  of 
the  worst  character,  and  where  a  regard  to  public  morals  and 
public  decency  would  require  that  at  least  the  young  be  excluded 
from  hearing  and  witnessing  the  evidences  of  human  depravity 
which  the  trial  must  necessarily  bring  to  light.  The  requirement 
of  a  public  trial  is  for  the  benefit  of  the  accused ;  that  the  public 
may  see  he  is  fairly  dealt  with  and  not  unjustly  condemned,  and 
that  the  presence  of  interested  spectators  may  keep  his  triers 
keenly  alive  to  a  sense  of  their  responsibility  and  to  the  impor- 
tance of  their  functions ;  and  the  requirement  is  fairly  observed 
if,  without  partiality  or  favoritism,  a  reasonable  proportion  of  the 
public  is  suffered  to  attend,  notwithstanding  that  those  persons 
whose'  presence  could  be  of  no  service  to  the  accused,  and  who 
would  only  be  drawn  thither  by  a  prurient  curiosity,  are  excluded 
altogether.2 

1  Such  an  admission,  if  made  by  the  citizens  and  taxpayers  are  excluded  from 
prisoner,  is  binding  upon  him,  and   dis-  court  room  to  such  an  extent  that  only  a 
penses  with  the  necessity  of  producing  very   few  are   admitted,   while   there  is 
the  witnesses.      United   States  v.  Sacra-  ample  room  for  them  in  the  court  room, 
mento,  2  Mont.  239,  25  Am.  Rep.  742 ;  and  many  apply  for  admission  and  are 
Hancock  r.   State,   14    Tex.   App.   392  ;  refused.    People  v.  Murray,  89  Mich.  276, 
State  v.  Fooks,  65  Iowa,  452,  21  N.  W.  60  N.  W.  995,  14  L.  R.  A.  809,  and  note, 
773.     But  in    general   the   right  of  the  28  Am.  St.  294.     Not  only  is  the  accused 
prisoner  to  be  confronted  with  the  wit-  entitled  to  a  public  trial,  but  also,  that 
nesses  against  him  cannot  be  waived  in  such  trial  shall  be  in  a  court  in  which 
advance.     Bell  v.  State,  '2  Tex.  App.  216,  each  step  shall  be  in  the  presence  of  the 
28  Am.  Rep.  429.     Nor  can  lie  be  forced  presiding  judge  of  the  court  who  has  full 
to  admit  what  an  absent  witness  would  authority  to  protect  his  every  legal  right, 
testify  to.     Wills  v.  State,  73  Ala.  362.  Where  the  judge  calls  an  attorney  to  the 
A  statute  forbidding  a  continuance  if  the  bench  and  leaves   him  in  charge  while 
prosecutor  admits  that  defendant's  absent  the  judge  absents  himself  from  the  court 
witness   would   testify  as   stated   in   the  room  for  a  quarter  of  an  hour,  the  trial 
affidavit  for  continuance,  is  void.     State  going  on  in  the  meantime,  there  is  a  dis- 
v.  Berkley,  92  Mo.  41,  4  S.  W.  24.  solution  of  the  court,  and  the  trial  is  void, 

2  See  People  v.  Kerrignn,  73  Cal.  222,  and  a  new  trial  will  be  ordered.     Ellerbee 
14  Pac.  849;  People  v.  Swafford,  65  Cal.  v.  State,  75  Miss.  622.  22  So.  950,  41  L. 
223,  3  Pac.  809;   Grirnmett  v.  State,  22  R.  A.  6(59,  and  see  note  to  this  case  in 
Tex.   App.   36,  2   S.   W.   631 ;    State  v.  L.  R.  A.  upon  when  temporary  absence 
Brooks,  92  Mo.  642,  6  S.  W.  257,  330.  of  judge  is  fatal  to  the  trial.] 

QRight  to  a  public  trial  is  violated  where 


442 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


But  a  far  more  important  requirement  is  that  the  proceeding 
to  establish  guilt  shall  not  be  inquisitorial.  A  peculiar  excellence 
of  the  common-law  system  of  trial  over  that  which  has  prevailed 
in  other  civilized  countries,  consists  in  the  fact  that  the  accused 
is  never  compelled  to  give  evidence  against  himself.  Much  as 
there  was  in  that  system  that  was  heartless  and  cruel,  it  recog- 
nized fully  the  dangerous  and  utterly  untrustworthy  character  of 
extorted  confessions,  and  was  never  subject  to  the  reproach  that 
it  gave  judgment  upon  them.1 


1  See  Lieber's  paper  on  Inquisitorial 
Trials,  Appendix  to  Civil  Liberty  and 
Self-Government.  Also  the  article  on 
Criminal  Procedure  in  Scotland  and  Eng- 
land, Edinb.  Review,  Oct.,  1858  Qand  one 
in  15  Harv.  L.  Rev.  610,  on  the  History  of 
the  Privilege  against  Self-Crimination. 
See  also  an  article  on  "  Physical  Exami- 
nations in  Divorce  Cases  "  in  35  Am.  L. 
Rev.  698,  and  one  on  "Physical  Exami- 
nations in  Personal  Injury  Cases  "  in  1 
Mich.  L.  Rev.  193,  277.]  And  for  an 
illustration  of  inquisitorial  trials  in  our 
own  day,  see  Trials  of  Troppman  and 
Prince  Pierre  Bonaparte,  Am.  Law  Re- 
view, Vol.  V.  p.  14.  Judge  Foster  relates 
from  Whitelocke,  that  the  Bishop  of  Lon- 
don having  said  to  Felton,  who  had  as- 
sassinated the  Duke  of  Buckingham,  "  If 
you  will  not  confess  you  must  go  to  the 
rack,"  the  man  replied,  "If  it  must  be  so, 
I  know  not  whom  I  may  accuse  in  the 
extremity  of  my  torture,  —  Bishop  Laud, 
perhaps,  or  any  lord  of  this  board." 
"  Sound  sense,"  adds  Foster,  "  in  the 
mouth  of  an  enthusiast  and  ruffian." 
Laud  having  proposed  the  rack,  the  mat- 
ter was  shortly  debated  at  the  board,  and 
it  ended  in  a  reference  to  the  judges,  wfio 
unanimously  resolved  that  the  rack  could 
not  be  legally  used.  De  Lolme  on  Consti- 
tution of  England  (ed.  of  1807),  p.  181, 
note  ;  4  Bl  Com.  325;  Broom,  Const.  Law, 
148 ;  Trial  of  Felton,  3  State  Trials,  368, 
371 ;  Fortescue  De  Laud,  c.  22,  and  note 
by  Amos ;  Brodie,  Const.  Hist.  c.  8.  A 
legislative  body  has  no  more  right  than 
a  court  to  make  its  examination  of  par- 
ties or  witnesses  inquisitorial.  Emery's 
Case,  107  Mass.  172.  See  further,  Horst- 
man  v.  Kaufman,  97  Pa.  St.  147 ;  Black- 
well  v.  State,  67  Ga.  76  ;  State  v.  Lurch, 
12  Oreg.  95,  6  Pac.  405.  [The  right  to 
refuse  to  answer  any  question,  the  answer 
to  which  might  incriminate  the  witness,  is 


not  sufficiently  preserved  by  a  statute 
which  provides  merely  that  such  answer 
shall  never  be  given  against  the  witness 
in  any  trial  to  which  he  may  be  subjected. 
If  it  is  desired  to  compel  him  to  answer 
such  question,  he  must  be  made  absolutely 
exempt  from  trial  and  punishment  for 
any  offence  thus  disclosed  in  pertinent 
response  to  the  question  which  he  is  com- 
pelled to  answer.  This  applies  to  proceed- 
ings before  grand  juries  and  legislative 
committees  as  well  as  trial  juries.  See 
Counselman  v.  Hitchcock,  142  U.  S.  647, 
12  Sup.  Ct.  Rep.  195,  where  the  sub- 
ject is  fully  discussed  by  Mr.  Justice 
Blatchford.  See  review  of  Counselman 
v.  Hitchcock,  5  Harv.  L.  Rev.  24 ;  In  re 
Walsh,  104  Fed.  Rep.  518;  In  re  Scott, 
95  Fed.  Rep.  816,  and  In  re  Rosser,  96 
Fed.  Rep.  305,  are  decided  on  authority  of 
Counselman  v.  Hitchcock,  supra ;  Mackel 
v.  Rochester,  102  Fed.  Rep.  314,  seems  op- 
posed to  the  doctrine  of  that  case.  And 
where  he  is  made  absolutely  exempt  from 
trial  and  punishment  for  any  offence  thus 
disclosed,  he  is  compellable  to  answer. 
Brown  v.  Walker,  161  U.  S.  591,  16  Sup. 
Ct.  Rep.  644,  5  Inters.  Com.  Rep.  369; 
Ex  parte  Cohen,  104  Cal.  524,  38  Pac. 
364,  26  L.  R.  A.  423,  43  Am.  St.  127; 
Re  Buskett,  106  Mo.  602,  17  S.  W.  753, 
14  L.  R.  A.  407,  and  note,  27  Am.  St. 
378 ;  Bradley  v.  Clarke,  133  Cal.  196,  65 
Pac.  395.  For  a  case  where  the  court 
was  extremely  tender  of  the  recalcitrant 
witness,  see  Ex  parte  Miskimins,  8  Wyo. 
392,  68  Pac.  411,  49  L.  R.  A.  831,  and 
see  also  the  dissenting  opinion  of  Knight, 
J.  Property  of  the  accused,  other  than 
his  papers,  even  though  seized  upon  his 
own  premises  without  authority  and  by 
a  trespass,  may  be  introduced  in  evi- 
dence against  him.  State  v.  Griswold, 
67  Conn.  290,  34  Atl.  1046,  33  L.  R.  A. 
227.  Witness  is  privileged  not  to  be  com- 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


443 


It" is  the  law  in  some  of  the  States,  when  a  person  is  charged 
•with  crime,  and  is  brought  before  an  examining  magistrate,  and 
the  witnesses  in  support  of  the  charge  have  been  heard,  that  the 
prisoner  may  also  make  a  statement  concerning  the  transaction 
charged  against  him,  and  that  this  may  be  used  against  him  on 
the  trial  if  supposed  to  have  a  tendency  to  establish  guilt.  But 
the  prisoner  is  to  be  first  cautioned  that  he  is  under  no  obligation 
to  answer  any  question  put  to  him  unless  he  chooses,  and  that 
whatever  he  says  and  does  must  be  entirely  voluntary.1  He  is 
also  to  be  allowed  the  presence  and  advice  of  counsel ;  and  if  that 
privilege  is  denied  him  it  may  be  sufficient  reason  for  discrediting 
any  damaging  statements  he  may  have  made.2  When,  however, 
the  statute  has  been  complied  with,  and  no  species  of  coercion 
appears  to  have  been  employed,  the  statement  the  prisoner  may 
have  made  is  evidence  which  can  be  used  against  him  on  his  trial, 
and  is  generally  entitled  to  great  weight.3  And  in  any  other 
case  except  treason  4  the  confession  of  the  accused  may  be  re- 
ceived in  evidence  to  establish  his  guilt,  provided  no  circumstance 
accompanies  the  making  of  it  which  should  detract  from  its 
weight  in  producing  conviction. 


pelled  to  testify  against  himself  in  con- 
tempt proceedings.  Ex  pdrte  Gould,  99 
Cal.  360,  33  Pac.  1112,  21  L.  R.  A.  751,  37 
Am.  St.  57.  Officer  of  corporation  can- 
not be  compelled  to  report  under  oath 
whether  corporation  has  violated  Anti- 
Trust  Act.  State  v.  Simmons  Hardware 
Co.,  109  Mo.  118,  18  S.  W.  1125,  15  L.  R. 
A.  676.  Testimony  as  to  marks  and  scars 
introduced  to  identify  prisoner  is  not  in- 
admissible because  obtained  by  forcible 
examination  of  prisoner's  body.  O'Brien 
v.  State,  125  Ind.  38,  25  N.  E.  137,  9  L. 
R.  A.  323,  and  note.  But  see  State  v. 
Height,  —  Iowa,  — ,  91  N.  W.  935,  in  which 
case  physicians  making  a  compulsory 
physical  examination  of  the  accused  were 
not  permitted  to  testify.  An  action  to 
exclude  a  foreign  corporation  from  the 
State  is  a  civil  action,  and  the  defendant 
corporation  may  be  compelled  to  give 
evidence  against  itself.  State  v.  Standard 
Oil  Co.,  61  Neb.  28,  84  N.  W.  413.] 

1  See  Rev.  Stat.  of  New  York,  Pt.  4, 
c.  2,  tit.  2,  §§  14-16. 

2  Rex  v.  Ellis,  Ry.  &  Mood.  432.    How- 
ever, there  is  no  absolute  right  to  the  pres- 
ence of  counsel,  or  to  publicity  in  these 
preliminary  examinations,   unless  given 
by  statute.   Cox  v.  Coleridge,  1  B.  &  C.  37. 


8  It  should  not,  however,  be  taken  on 
oath,  and  if  it  is,  that  will  be  sufficient 
reason  for  rejecting  it.  Rex  v.  Smith,  1 
Stark.  242 ;  Rex  v.  Webb,  4  C.  &  P.  564  ; 
Rex  v.  Lewis,  6  C.  &  P.  161 ;  Rex  v.  River, 
7  C.  &  P.  177  ;  Reginav.  Pikesley,  9  C.  & 
P.  124 ;  People  v.  McMahon,  15  N.  Y.  384. 
"The  view  of  the  English  judges,  that 
an  oath,  even  where  a  party  is  informed 
he  need  answer  no  questions  unless  he 
pleases,  would,  with  most  persons,  over- 
come that  caution,  is,  I  think,  founded 
on  good  reason  and  experience.  I  think 
there  is  no  country  —  certainly  there  is 
none  from  which  any  of  our  legal  no- 
tions are  borrowed  —  where  a  prisoner 
is  ever  examined  on  oath."  People  v. 
Thomas,  9  Mich.  314,  318,  per  Camp- 
bell, J.  A  person  compelled  to  testify 
before  the  grand  jury  cannot  be  indicted 
upon  evidence  so  secured.  State  v. 
Gardiner,— Minn.— ,  92  N.  W.  529 
(Dec.  19,  1902).  See  upon  the  general 
subject,  Greenleaf  on  Evidence,  ed.  16, 
§  333  a,  and  notes. 

4  In  treason  there  can  be  no  conviction 
unless  on  the  testimony  of  two  witnesses 
to  the  same  ov^rt  act,  or  on  confession  in 
open  court.  Const,  of  United  States,  art 
3,  §3. 


444  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

But  to  make  it  admissible  in  any  case  it  ought  to  appear  that 
it  was  made  voluntarily,  and  that  no  motives  of  hope  or  fear  were 
employed  to  induce  the  accused  to  confess.1  The  evidence  ought 
to  be  clear  and  satisfactory  that  the  prisoner  was  neither  threat- 
ened nor  cajoled  into  admitting  what  very  possibly  was  untrue. 
Under  the  excitement  of  a  charge  of  crime,  coolness  and  self- 
possession  are  to  be  looked  for  in  very  few  persons  ;  and  however 
strongly  we  may  reason  with  ourselves  that  no  one  will  confess  a 
heinous  offence  of  which  he  is  not  guilty,  the  records  of  criminal 
courts  bear  abundant  testimony  to  the  contrary.  If  confessions 
could  prove  a  crime  beyond  doubt,  no  act  which  was  ever  pun- 
ished criminally  would  be  better  established  than  witchcraft ; 2 
and  the  judicial  executions  which  have  been  justified  by  such 
confessions  ought  to  constitute  a  solemn  warning  against  the  too 
ready  reliance  upon  confessions  as  proof  of  guilt  in  any  case. 
As  "  Mr.  Justice  ParJce  several  times  observed,"  while  holding 
one  of  his  circuits,  "  too  great  weight  ought  not  to  be  attached  to 
evidence  of  what  a  party  has  been  supposed  to  have  said,  as  it 
very  frequently  happens,  not  only  that  the  witness  has  misunder- 
stood what  the  party  has  said,  but  that  by  unintentionally  alter- 
ing a  few  of  the  expressions  really  used,  he  gives  an  effect  to  the 
statement  completely  at  variance  with  what  the  party  really  did 
say."  3  And  when  the  admission  is  full  and  positive,  it  perhaps 
quite  as  often  happens  that  it  has  been  made  under  the  influence 
of  the  terrible  fear  excited  by  the  charge,  and  in  the  hope  that 
confession  may  ward  off  some  of  the  consequences  likely  to  follow 
if  guilt  were  persistently  denied. 

A  confession  alone  ought  not  to  be  sufficient  evidence  of  the 
corpus  delicti.  There  should  be  other  proof  that  a  crime  has 
actually  been  committed  ;  and  the  confession  should  only  be 
allowed  for  the  purpose  of  connecting  the  defendant  with  the 


1  See    Smith    v.   Commonwealth,   10  employed  freely  in  cases  of  alleged  witch- 
Gratt.   734 ;    Sliifflet  v.   Commonwealth,  craft,  but  the  delusion  was  one  which 
14  Gratt.  652;  Page  v.  Commonwealth,  27  often  seized  upon  the  victims  as  well  as 
Gratt.  954 ;  Williams  i?.  Commonwealth,  tlieir  accusers,  and  led  the  former  to  freely 
27  Gratt.  997;    United   States  v.  Cox,  1  confess  the  most  monstrous  and  impossible 
Cliff.  6,  21;  Jordan's  Case,  32  Miss.  382;  actions.     Much  curious  and  valuable  in- 
Runnels  v.  State,  28  Ark.  121 ;  Common-  formation  on  this  subject  may  be  found 
wealth  v.  Holt,  121  Mass.  61 ;   Miller  v.  in  "  Superstition   and   Force,"  by   Le;i ; 
People,  39  111.  457.  "  A    Physician's    Problems,"   by   Elam  ; 

2  See  Mary  Smith's  Case,  2  Howell's  and  Lecky,  History  of  Rationalism. 
State  Trials,  1049 ;  Case  of  Essex  Witches,  8  Note  to  Earle  v.  Picken,  5  C.  &  P. 
4  Howell's  State  Trials,  817  ;  Case  of  Suf-  542.     See  also  1  Greenl.  Ev.  §  214,  and 
folk  Witches,  6  Howell's  State  Trials,  647 ;  note  ;  Commonwealth  v.  Curtis,  97  Mass. 
Case  of  Devon  Witches,  8  Ho  well's  State  574;  Derby  v.  Derby,  21  N.  J.  Eq.  36; 
Trials,  1017.    It  is  true  that  torture  was  State  v.  Chambers,  39  Iowa,  179. 


CH.  X.] 


CONSTITUTIONAL  PROTECTIONS,  ETC. 


445 


offence.1  And  if  the  party's  hopes  or  fears  are  operated  upon  to 
induce  him  to  make  it,  this  fact  will  be  sufficient  to  preclude  the 
confession  being  received ;  the  rule  upon  this  subject  being  so 
strict  that  even  saying  to  the  prisoner  it  will  be  better  for  him  to 
confess,  has  been  decided  to  be  a  holding  out  of  such  inducements 
to  confession,  especially  when  said  by  a  person  having  a  prisoner 
in  custody,  as  should  render  the  statement  obtained  by  means  of 
it  inadmissible.2  If,  however,  statements  have  been  made  before 


1  In  Stringfellow  v.  State,  26  Miss.  157, 
a  confession  of  murder  was  held  not  suf- 
ficient to  warrant  conviction,  unless  the 
death  of  the  person  alleged  to  have  been 
murdered  was  shown  by  other  evidence. 
In  People  ?;.  Hennessy,  15  Wend.  147,  it 
was  decided  that  a  confession  of  embez- 
zlement by  a  clerk  would  not  warrant  a 
conviction  where  that  constituted  the  sole 
evidence  that  an  embezzlement  had  been 
committed.       So   on    an   indictment   for 
blasphemy,  the  admission  by  the  defend- 
ant that  he  spoke  the  blasphemous  charge, 
is  not  sufficient  evidence  of  the  uttering. 
People  v.  Porter,  2  Park.  Cr.  R.  14.   And 
see  State  v.  Guild,  10  N.  J.  163,  18  Am. 
Dec.  404;   Long's  Case,   1    Hayvv.   524; 
People  v.  Lambert,  5  Mich.  349;  Ruloff  v. 
State,  18  N.  Y.  179;  Hector  v.  State,  2 
Mo.  166,  22  Am.  Dec.  454;  Roberts  v. 
People,  11  Col.  213, 17  Pac.  637;  Winslow 
v.  State,  76  Ala.  42. 

2  Rex  v.  Enoch,  5  C.  &  P.  539;  State 
v.  Bostick,  4  Harr.  563 ;  Boyd  v.  State, 
2    Humph.   390;   Morehead    v.    State,   9 
Humph.  635;  Commonwealth  v.  Taylor, 
6  Gush.  605 ;  Rex  v.  Partridge,  7  C.  &  P. 
551 ;  Commonwealth  v.  Curtis,  97  Mass. 
574 ;  State  v.  Staley,  14  Minn.  105 ;  Frain 
v.  State,  40  Ga.  529;  Austine  v.  State,  51 
III.  236;  People  o.  Phillips,  42  N.  Y.  200; 
State  v.  Brokman,  46  Mo.  566 ;  Common- 
wealth v.  Mitchell,  117  Mass.  431 ;  Com- 
monwealth v.  Sturtivant,  117  Mass.  122; 
Corley  v.  State,  50  Ark.  305,  7  S.  W.  255. 
Mr.  Phillips   states   the   rule  thus:    "A 
promise  of  benefit  or  favor,  or  threat  or 
intimation  of  disfavor,  connected  with  the 
subject  of  the  charge,  held  out  by  a  per- 
son having  authority  in  the  matter,  will 
be  sufficient  to  exclude  a  confession  made 
in    consequence    of    such    inducements, 
either  of  hope  or  fear.    The  prosecutor,  or 
the  prosecutor's  wife  or  attorney,  or  the 
prisoner's  master  or  mistress,  or  a  con- 
stable, or  a  person  assisting  him  in  the 


apprehension  or  custody,  or  a  magistrate 
acting  in  the  business,  or  other  magistrate, 
has  been  respectively  looked  upon  as 
having  authority  in  the  matter;  and  the 
same  principle  applies  if  the  inducement 
has  been  held  out  by  a  person  without 
authority,  but  in  the  presence  of  a  person 
who  has  such  authority,  and  with  his 
sanction,  either  express  or  implied."  1 
Phil.  Ev.  by  Cowen,  Hill,  and  Edwards, 
544,  and  cases  cited.  But  we  think  the 
better  reason  is  in  favor  of  excluding 
confessions  where  inducements  have  been 
held  out  by  any  person,  whether  acting 
by  authority  or  not.  Rex  v.  Simpson, 
1  Mood.  C.  C.  410;  State  v.  Guild,  10 
N.  J.  163,  18  Am.  Dec.  404;  Spears  v. 
State,  2  Ohio  St.  583;  Commonwealth  v. 
Knapp,  9  Pick.  496;  Rex  v.  Clewes,  4 
C.  &  P.  221 ;  Rex  v.  Kingston,  4  C.  &  P. 
387 ;  Rex  v.  Dunn,  4  C.  &  P.  543;  Rex  v. 
Walkley,  6  C.  &  P.  175;  Rex  v.  Thomas, 
6  C.  &  P.  353.  "  The  reason  is,  that  in 
the  agitation  of  mind  in  which  the  party 
charged  is  supposed  to  be,  he  is  liable  to 
be  influenced  by  the  hope  of  advantage 
or  fear  of  injury  to  state  things  which 
are  not  true."  Per  Morton,  J.  in  Common- 
wealth v.  Knapp,  9  Pick.  496,  502 ;  People 
v.  McMahon,  15  N.  Y.  387.  There  are 
not  wanting  many  opposing  authorities, 
which  proceed  upon  the  idea,  that  "a 
promise  made  by  an  indifferent  person, 
who  interfered  officiously  without  any 
kind  of  authority,  and  promised  without 
the  means  of  performance,  can  scarcely 
be  deemed  sufficient  to  produce  any  effect, 
even  on  the  weakest  mind,  as  an  induce- 
ment to  confess."  1  Greenl.  Ev.  §223. 
No  supposition  could  be  more  fallacious; 
and,  in  point  of  fact,  a  case  can  scarcely 
occur  in  which  some  one,  from  age,  su- 
perior wisdom,  or  experience,  or  from  his 
relations  to  the  accused  or  to  the  prose- 
cutor, would  not  be  likely  to  exercise 
more  influence  upon  his  mind  than  some 


446 


CONSTITUTIONAL    LIMITATIONS. 


[CH.  X. 


the  confession  which  were  likely  to  do  away  with  the  effect  of 
the  inducements,  so  that  the  accused  cannot  be  supposed  to  have 


of  the  persons  who  are  regarded  as  "  in 
authority  "  under  the  rule  as  stated  by 
Mr.  Phillips.  Mr.  Greenleaf  thinks  that, 
while  as  a  rule  of  law  all  confessions  made 
to  persons  in  authority  should  be  rejected, 
"  promises  and  threats  by  private  persons, 
however,  not  being  found  so  uniform  in 
their  operation,  perhaps  may,  with  more 
propriety,  be  treated  as  mixed  questions 
of  law  and  fact;  the  principle  of  law, 
that  a  confession  must  be  voluntary,  being 
strictly  adhered  to,  and  the  question, 
whether  the  promises  or  threats  of  the 
private  individuals  who  employed  them 
were  sufficient  to  overcome  the  mind  of 
the  prisoner,  being  left  to  the  discretion 
of  the  judge  under  all  the  circumstances 
of  the  case."  1  Greenl.  Ev.  §  223.  This 
is  a  more  reasonable  rule  than  that  which 
admits  such  confessions  under  all  circum- 
stances ;  but  it  is  impossible  for  a  judge  to 
say  whether  inducements,  in  a  particular 
case,  have  influenced  the  mind  or  not;  if 
their  nature  were  such  that  they  were 
calculated  to  have  that  effect,  it  is  safer, 
and  more  in  accordance  with  the  humane 
principles  of  our  criminal  law,  to  presume, 
in  favor  of  life  and  liberty,  that  the  con- 
fessions were  "  forced  from  the  mind  by 
the  flattery  of  hope,  or  by  the  torture  of 
fear"  (per  Eyre,  C.  B.,  Warickshall's 
Case,  1  Leach,  C.  C.  299),  and  exclude 
them  altogether.  In  case  of  doubt  as  to 
the  fact  that  the  confession  was  voluntary, 
the  jury  should  be  left  to  exclude  it,  if 
they  think  it  involuntary.  Com.  v.  Preece, 
140  Mass.  276,  5  N.  E.  494;  People  v. 
Barker,  60  Mich.  277,  27  N.  W.  639.  In 
Ellis  i'.  State,  65  Miss.  44,  3  So.  188,  it  is 
held  the  duty  of  the  court  to  decide 
whether  it  was  voluntary,  and  that  the 
jury  may  or  may  not  believe  it  true,  if 
admitted.  This  whole  subject  is  very 
fully  considered  in  note  to  2  Leading 
Criminal  Cases,  182.  And  see  Whart. 
Cr.  Law,  §  686  et  seq.  The  cases  of 
People  v.  McMahon,  15  N.  Y.  385,  and 
Commonwealth  v.  Curtis,  97  Mass.  574, 
have  carefully  considered  the  general 
subject.  In  the  second  of  these,  the 
prisoner  had  asked  the  officer  who  made 
the  arrest,  whether  ne  had  better  plead 
guilty,  and  the  officer  had  replied  that 
"  as  a  general  thing  it  was  better  for  a 


man  who  was  guilty  to  plead  guilty,  for 
he  got  a  lighter  sentence."  After  this  he 
made  statements  which  were  relied  upon 
to  prove  guilt.  These  statements  were 
not  allowed  to  be  given  in  evidence.  Per 
Foster,  J. :  "  There  is  no  doubt  that  any 
inducement  of  temporal  fear  or  favor 
coming  from  one  in  authority,  which  pre- 
ceded and  may  have  influenced  a  confes- 
sion, will  cause  it  to  be  rejected,  unless 
the  confession  is  made  under  such  circum- 
stances as  show  that  the  influence  of  the 
inducement  has  passed  away.  No  cases 
require  more  careful  scrutiny  than  those 
of  disclosures  made  by  a  party  under  ar- 
rest to  the  officer  who  has  him  in  custody, 
and  in  none  will  slighter  threats  or  prom- 
ises of  favor  exclude  the  subsequent  con- 
fessions. Commonwealth  v.  Taylor,  5 
Gush.  610 ;  Commonwealth  v.  Tuckerman, 
10  Gray,  193;  Commonwealth  v.  Morey, 
1  Gray,  461.  '  Saying  to  the  prisoner  that 
.it  will  be  the  worse  for  him  if  he  does 
not  confess,  or  that  it  will  be  the  better  for 
him  if  he  does,  is  sufficient  to  exclude  the 
confession,  according  to  constant  experi- 
ence.' 2  Hale,  P.  C.  659 ;  1  Greenl.  Ev. 
§  219;  2  Bennett  and  Heard's  Lead.  Cr. 
Cas.  164 ;  Ward  v.  State,  50  Ala.  120. 
Each  case  depends  largely  on  its  own 
special  circumstances.  But  we  have  be- 
fore us  an  instance  in  which  the  officer 
actually  held  out  to  the  defendant  the 
hope  and  inducement  of  a  lighter  sen- 
tence if  he  pleaded  guilty.  And  a  deter- 
mination to  plead  guilty  at  the  trial,  thus 
induced,  would  naturally  lead  to  an  im- 
mediate disclosure  of  guilt."  And  the 
court  held  it  an  unimportant  circumstance 
that  the  advice  of  the  officer  was  given  at 
the  request  of  the  prisoner,  instead  of  be- 
ing volunteered.  A  voluntary  confession 
obtained  by  artifice  is  admissible.  State 
v.  Brooks,  92  Mo.  542,  5  S.  W.  257,  330 ; 
Heldt  v.  State,  20  Neb.  492,  30  N.  W.  626. 
So,  if  made  in  response  to  a  simple  request 
by  the  officer  in  charge  of  the  person. 
Ross  v.  State,  67  Md.  286,  10  Atl.  218. 
Statements  made  to  the  grand  jury  as  in- 
dividuals in  the  jury  room  are  admissible. 
State  v.  Coffee,  66  Conn.  399, 16  Atl.  151. 
But  not  those  made  to  a  coroner  by  an 
ignorant  foreigner,  without  counsel,  or 
knowledge  of  his  rights.  People  v. 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,  ETC.  447 

acted  under  their  influence,  the  confession  may  be  received  in 
evidence ; 1  but  the  showing  ought  to  be  very  satisfactory  on 
this  point  before  the  court  should  presume  that  the  prisoner's 
hopes  did  not  still  cling  to,  or  his  fears  dwell  upon,  the  first 
inducements.2 

Before  prisoners  were  allowed  the  benefit  of  assistance  from 
counsel  on  trials  for  high  crimes,  it  was  customary  for  them  to 
make  such  statements  as  they  saw  fit  concerning  the  charge 
against  them,  during  the  progress  of  the  trial,  or  after  the  evi- 
dence for  the  prosecution  was  put  in ;  and  upon  these  statements 
the  prosecuting  officer  or  the  court  would  sometimes  ask  ques- 
tions, which  the  accused  might  answer  or  not  at  his  option.  And 
although  this  practice  has  now  become  obsolete,  yet  if  the  accused 
in  any  case  should  manage  or  assist  in  his  own  defence,  and 
should  claim  the  right  of  addressing  the  jury,  it  would  be  difficult 
to  confine  him  to  "  the  record "  as  the  counsel  may  be  confined 
in  his  argument.  A  disposition  has  been  manifested  of  late  to 
allow  the  accused  to  give  evidence  in  his  own  behalf ;  and  statutes 
to  that  effect  are  in  existence  in  some  of  the  States,  the  operation 
of  which  is  believed  to  have  been  generally  satisfactory.3  These 
statutes,  however,  cannot  be  so  construed  as  to  authorize  com- 
pulsory process  against  an  accused  to  compel  him  to  disclose 
more  than  he  chooses ;  they  do  not  so  far  change  the  old  system 
as  to  establish  an  inquisitorial  process  for  obtaining  evidence ; 
they  confer  a  privilege,  which  the  defendant  may  use  at  his 
option.  If  he  does  not  choose  to  avail  himself  of  it,  unfavorable 
inferences  are  not  to  be  drawn  to  his  prejudice  from  that  circum- 
stance ; 4  and  if  he  does  testify,  he  is  at  liberty  to  stop  at  any 

Mondon,  103  N.   Y.   211,   8  N.   E.   496.  State,  19  Tex.  A  pp.  593 ;  Coffee  v.  State, 

The  rule  does   not  cover   statements  of  25  Fla.  501,  6  So.  493;  QPeople  v.  Stewart, 

facts  not  involving  guilt,  but  which  in  75  Mich.  21,  42  N.  W.  662.]     Before  the 

connection  with  other  facts  may  tend  to  confession  can  be  received,  it   must  be 

show  it.     People  v.  Le  Roy,  65  Cal.  613,  shown   by    the   prosecution   that   it  was 

4  Pac.  649.     See,  upon  the  general  sub-  voluntary.     State  v.  Garvey,  28  La.  Ann. 

ject  of  admissibility  of  confessions  with  955,  26  Am.  Rep.  123.     Compare  Hopt  v. 

reference  to  their  voluntary  character,  Utah,  110  U.  S.  574,  4  Sup.  Ct.  Rep.  202. 
Greenleaf  en  Evidence,  ed.  16,  §§  219-230.  8  See  American  Law  Register,  Vol.V. 

1  State  v.  Guild,  10  N.  J.  163,  18  Am.  N.  s.  pp.   129,  705;  Ruloff  v.  People,  45 
Dec.    404;    Commonwealth    v.   Harman,  N.  Y.  213.     As  such  statutes  do  not  com- 
4  Pa.  St.  269;  State  v.  Vaigneur,  5  Rich.  pel.  even  morally,  a  defendant  to  testify, 
391 ;  Rex  v.  Cooper,  5  C.  &  P.  535;  Rex  they  are  valid.     People  v.  Courtney,  94 
v.  Howes,  6  C.  &P.  404;  Rex  v.  Richards,  N.  Y.  490.     In  Tennessee,  the  prisoner's 
6  C.  &  P.  318;  Thompson  v.   Common-  statement  is  not,  in  a  legal  sense,  testi- 
wealth,  20  Gratt.  724.  mony,  but  the  jury  may  nevertheless  be- 

2  See  State  v.  Roberts,   1  Dev.  259 ;  lieve  and  act  upon  it.     Wilson  v.  State, 
Rex.  v.  Cooper,  5  C.  &  P.  535  ;  Thompson  3  Heisk.  342. 

v.  Commonwealth,  20  Gratt.  724;  State  *  People  v.  Tyler,  36  Cal.  522;  State 
v.  Lowhorne,  66  N.  C.  538  ;  Thompson  v.  v.  Cameron,  40  Vt.  555.  For  a  case  rest- 


448 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


point  he  chooses,  and  it  must  be  left  to  the  jury  to  give  a  state- 
ment, which  he  declines  to  make  a  full  one,  such  weight  as,  under 


ing  upon  an  analogous  principle,  see  Carne 
v.  Litchfield,  2  Mich.  340.  A  different 
view  would  seem  to  be  taken  in  Maine. 
See  State  v.  Bartlett,  55  Me.  200.  The 
views  of  the  court  are  thus  stated  in  the 
recent  case  of  State  v.  Cleaves,  59  Me. 
298,  8  Am.  Rep.  422.  The  judge  below 
had  instructed  the  jury  that  the  fact  that 
the  defendant  did  not  go  upon  the  stand 
to  testify  was  a  proper  matter  to  be  taken 
into  consideration  by  them  in  determin- 
ing the  question  of  her  guilt  or  innocence. 
This  instruction  was  sustained.  Appleton, 
Ch.  J.  "It  has  been  urged  that  this 
view  of  the  law  places  the  prisoner  in  an 
embarrassed  condition.  Not  so.  The  em- 
barrassment of  the  prisoner,  if  embar- 
rassed, is  the  result  of  his  own  previous 
misconduct,  not  of  the  law.  If  innocent, 
he  will  regard  the  privilege  of  testifying 
as  a  boon  justly  conceded.  If  guilty,  it 
is  optional  with  the  accused  to  testify  or 
not,  and  he  cannot  complain  of  the  elec- 
tion he  may  make.  If  he  does  not  avail 
himself  of  the  privilege  of  contradiction 
or  explanation,  it  is  his  fault  if  by  his 
own  misconduct  or  crime  he  has  placed 
himself  in  such  a  situation  that  lie  pre- 
fers any  inferences  which  may  be  drawn 
from  his  refusal  to  testify,  to  those  which 
must  be  drawn  from  his  testimony,  if 
truly  delivered.  The  instruction  given 
was  correct,  and  in  entire  accordance 
with  the  conclusions  to  which,  after 
mature  deliberation,  we  have  arrived. 
State  v.  Bartlett,  55  Me.  200;  State  v. 
Lawrence,  57  Me.  375." 

In  People  v.  Tyler,  36  Cal.  522,  529, 
Sawyer,  Ch.  J.,  expresses  the  contrary 
view  as  follows  :  "  At  the  trial,  by  his  plea 
of  not  guilty,  the  party  charged  denies 
the  charge  against  him.  This  is  itself  a 
positive  act  of  denial,  and  puts  upon  the 
people  the  burden  of  affirmatively  prov- 
ing the  offence  alleged  against  him. 
When  he  lias  once  raised  this  issue  by 
his  plea  of  not  guilty,  the  law  says  he 
shall  thenceforth  be  deemed  innocent  till 
he  is  proved  to  be  guilty  ;  and  both  the 
common  law  and  the  statute  give  him  the 
benefit  of  any  reasonable  doubt  arising 
on  the  evidence.  Now,  if  at  the  trial, 
when  for  all  the  purposes  of  the  trial  the 
burden  is  on  the  people  to  prove  the  of- 


fence charged  by  affirmative  evidence, 
and  the  defendant  is  entitled  to  rest  upon 
his  plea  of  not  guilty,  an  inference  of 
guilt  could  legally  be  drawn  from  his  de- 
clining to  go  upon  the  stand  as  a  witness, 
and  again  deny  the  charge  against  him  in 
the  form  of  testimony,  he  would  practi- 
cally if  not  theoretically,  by  his  act  de- 
clining to  exercise  his  privilege,  furnish 
evidence  of  his  guilt  that  might  turn  the 
scale  and  convict  him.  In  this  mode  lie 
would  indirectly  and  practically  be  de- 
prived of  the  option  which  the  law  gives 
him,  and  of  the  benefit  of  the  provision 
of  the  law  and  the  Constitution,  which 
say  in  substance  that  he  shall  not  be  com- 
pelled to  criminate  himself.  If  the  infer- 
ence in  question  could  be  legally  drawn, 
the  very  act  of  exercising  his  option,  as 
to  going  upon  the  stand  as  a  witness, 
which  he  is  necessarily  compelled  by  the 
adoption  of  the  statute  to  exercise  one 
way  or  the  other,  would  be,  at  least  to  the 
extent  of  the  weight  given  by  the  jury  to 
the  inference  arising  from  his  declining 
to  testify,  a  crimination  of  himself.  What- 
ever the  ordinary  rule  of  evidence,  with 
reference  to  inferences  to  be  drawn  from 
the  failure  of  parties  to  produce  evidence 
that  must  be  in  their  power  to  give,  we 
are  satisfied  that  the  defendant,  with  re- 
spect to  exercising  his  privilege  under  the 
provisions  of  the  act  in  question,  is  enti- 
tled to  rest  in  silence  and  security  upon 
his  plea  of  not  guilty,  and  that  no  infer- 
ence of  guilt  can  be  properly  drawn 
against  him  from  his  declining  to  avail 
himself  of  the  privilege  conferred  upon 
him  to  testify  in  his  own  behalf;  that  to 
permit  such  an  inference  would  be  to  vio- 
late the  principles  and  the  spirit  of  the 
Constitution  and  the  statute,  and  defeat 
rather  than  promote  the  object  designed 
to  be  accomplished  by  the  innovation  in 
question."  See  also  Commonwealth  v. 
Bonner,  97  Mass.  587;  Commonwealth  v. 
Morgan,  107  Mass.  109;  Commonwealth 
f.  Nichols,  114  Mass.  285,  19  Am.  Rep. 
346;  Commonwealth  v.  Scott,  123  Mass. 
239,  25  Am.  Rep.  87 ;  Bird  v.  State,  50  Ga. 
585.  In  New  York  and  Ohio,  by  statute, 
unfavorable  inferences  are  not  allowed  to 
be  drawn  from  the  fact  of  the  defendant 
not  offering  himself  as  a  witness.  See 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


449 


the  circumstances,  they  think  it  entitled  to ; l  otherwise  the  stat- 
ute must  have  set  aside  and  overruled  the  constitutional  maxim 
which  protects  an  accused  party  against  being  compelled  to  testify 
against  himself,  and  the  statutory  privilege  becomes  a  snare  and 
a  danger.2 


Brandon  v.  People,  42  N.  Y.  265 ;  Connors 
v.  People,  60  N.  Y.  240;  Stover  n.  People, 
66  N.  Y.  316;  Calkins  v.  State,  18  Ohio 
St.  366. 

In  Devries  v.  Phillips,  63  N.  C.  53,  the 
Supreme  Court  of  North  Carolina  held  it 
not  admissible  for  counsel  to  comment  to 
the  jury  on  the  fact  that  the  opposite 
party  did  not  come  forward  to  be  sworn 
as  a  witness  as  the  statute  permitted.  In 
Michigan  the  wife  of  an  accused  party 
may  be  sworn  as  a  witness  with  his  as- 
sent; but  it  has  been  held  that  his  failure 
to  call  her  was  not  to  subject  him  to  in- 
ferences of  guilt,  even  though  the  case 
was  such  that,  if  his  defence  was  true, 
his  wife  must  have  been  cognizant  of 
the  facts.  Knowles  v.  People,  15  Mich. 
408. 

When  a  defendant  in  a  criminal  case 
takes  the  stand  in  his  own  behalf,  he  is 
subject  to  impeachment  like  other  wit- 
nesses. Fletcher  v.  State,  49  Ind.  124, 
19  Am.  Rep.  673;  Mershon  r.  State,  61 
Ind.  14;  State  v.  Beal,  68  Ind.  345; 
Morrison  v.  State,  76  Ind.  335;  Common- 
wealth v.  Bonner,  97  Mass.  687 ;  Com- 
monwealth v.  Gallagher,  126  Mass.  54; 
State  v.  Hardin,  46  Iowa,  623,  26  Am. 
Eep.  174;  Gifford  v.  People,  87  111.  211. 
As  to  the  extent  to  which  a  prisoner  may 
be  cross-examined,  see  Hanoff  v.  State, 
37  Ohio  St.  178;  People  v.  Noelke,  94 
N.  Y.  137;  State  v.  Clinton,  67  Mo.  380; 
State  ».  Saunders,  14  Oreg.  300,  12  Pac. 
441 ;  People  v.  O'Brien,  60  Cal.  602. 6  Pac. 
695.  [[That  cross-examination  may  be 
full  and  searching,  see  Filzpatriek  v. 
United  States,  178  U.  S.  304,  20  Sup.  Ct. 
Rep.  944.]  On  the  whole  subject  of  the 
accused  as  witness,  see  4  Grim.  Law  Mag. 
323 

i  In  State  v.  Ober,  52  N.  H.  459,  13 
Am.  Rep.  88,  the  defendant  was  put  on 
trial  for  an  illegal  sale  of  liquors ;  and 
having  offered  himself  as  a  witness,  was 
asked  on  cross-examination  a  question 
directly  relating  to  the  sale.  He  declined 
to  answer,  on  the  ground  that  it  might 
tend  to  criminate  him.  Being  convicted, 


it  was  alleged  for  error  that  the  court 
suffered  the  prosecuting  officer  to  com- 
ment on  this  refusal  to  the  jury.  The 
Supreme  Court  held  this  no  error.  This 
ruling  is  in  entire  accord  with  the  prac- 
tice which  has  prevailed  without  question 
in  Michigan,  and  which  has  always  as- 
sumed that  the  right  of  comment,  where 
the  party  makes  himself  his  own  witness, 
and  then  refuses  to  answer  proper  ques- 
tions, was  as  clear  as  the  right  to  exemp- 
tion from  unfavorable  comment  when 
he  abstains  from  asserting  his  statutory 
privilege. 

The  case  of  Conners  v.  People,  50  N.  Y. 
240,  is  different.  There  the  defendant, 
having  taken  the  stand  as  a  witness,  ob- 
jected to  answer  a  question ;  but  was 
directed  by  the  court  to  do  so,  and  obeyed 
the  direction.  This  was  held  no  error 
because  he  had  waived  his  privilege.  If 
the  defendant  had  persisted  in  refusing 
we  are  not  advised  what  action  the  court 
would  have  deemed  it  proper  to  take,  and 
it  is  easy  to  conceive  of  serious  embar- 
rassments in  such  a  case.  Under  the 
Michigan  practice,  when  the  court  had 
decided  the  question  to  be  a  proper  one 
it  would  have  been  left  to  the  defendant 
to  answer  or  not  at  his  option,  but  if  he 
failed  to  answer  what  seemed  to  the  jury 
a  proper  inquiry,  it  would  be  thought  sur- 
prising if  they  gave  his  imperfect  state- 
ment much  credence.  On  this  point  see 
further  State  v.  Wentworth,  65  Me.  234, 
20  Am.  Rep.  688;  State  v.  Witham,  72 
Me.  531. 

As  to  extent  to  which  comment  may 
be  made  upon  the  defendant's  testimony 
or  his  failure  to  make  it  full,  see  Ileldt 
v.  State,  20  Neb.  492,  30  N.  W.  626  ;  Watt 
v.  People,  126  III.  9, 18  N.  E.  340 ;  State  v. 
Graves,  95  Mo.  510,  8  S.  W.  739 ;  State 
v.  Ward,  61  Vt.  153,  17  Atl.  Rep.  483. 

2  The  statute  of  Michigan  of  1861, 
p.  169,  removed  the  common-law  disa- 
bilities of  parties  to  testify  and  added, 
"  Nothing  in  this  act  shall  be  construed 
as  giving  the  right  to  compel  a  defendant 
in  criminal  cases  to  testify  ;  but  any  such 
29 


450 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


The  testimony  for  the  people  in  criminal  cases  can  only,  as  a 
general  rule,  be  given  by  witnesses  who  are  present  in  court.1 


defendant  shall  be  at  liberty  to  make  a 
statement  to  the  court  or  jury,  and  may 
be   cross-examined  on    any   such    state- 
ment."    It  has  been  held  that  this  state- 
ment should  not  be  under  oath.     People 
v.  Thomas,  9  Mich.  314.     That  its  pur- 
pose was  to  give  every  person  on  trial 
for  crime  an  opportunity  to  make  full  ex- 
planation to  the  jury,  in  respect  to  the 
circumstances   given   in  evidence  which 
are  supposed  to  have  a  bearing  against 
him.      Annis  v.  People,    13   Mich.   511. 
That  the  statement   is   evidence   in   the 
case,  to  which  the  jury  can  attach  such 
weight  as   they   think  it  is  entitled  to. 
Maher  v.  People,  10  Mich.  21±    That  the 
court  has  no  right  to  instruct  the  jury 
that,  when  it  conflicts  with  the  testimony 
of  an  unimpeached  witness,   they  must 
believe  the  latter  in  preference.     Durant 
r.  People,  13  Mich.  351.     And  that  the 
prisoner  while  on  the  stand,  is  entitled  to 
the  assistance  of  counsel  in  directing  his 
attention  to   any  branch  of  the  charge, 
that  he  may  make  explanations  concern- 
ing it  if  he  desires.     Annis  v.  People,  13 
Mich.  511.     The  prisoner  does  not  cease 
to  be  a  defendant  by  becoming  a  witness, 
nor  forfeit  rights  by  accepting  a  privilege. 
In  People  v.  Thomas,  9  Mich.  321,  Camp- 
bell, J.,  in  speaking  of  the  right  which  the 
statute  gives  to  cross-examine  a  defend- 
ant  who  has  made  his  statement,  says : 
"  And  while  his  constitutional  right  of 
declining  to  answer  questions  cannot  be 
removed,  yet  a  refusal  by  a  party  to  an- 
swer any  fair  question,  not  going  outside 
of  what  he  has  offered  to  explain,  would 
have  its  proper  weight  with  the  jury." 
See  Commonwealth  v.  Mullen,  97  Mass. 
547 ;  Commonwealth  v.  Curtis,  97  Mass. 
674 ;     Commonwealth     r.    Morgan,    107 
Mass.  199.     In  Florida   under   a   similar 
statute  the  prisoner  may  make  his  state- 
ment even  after  the  evidence  is  closed. 
Higginbotham    v.    State,     19    Fla.    557. 
[^Defendant  may  be  compelled  to  testify 
against  his  interest  in  civil  cases.     Levy 
v.  Superior  Court  of  San  Francisco,  105 
Cal.  600,  38  Pac.  965, 29  L.  R.  A.  811,  and 
note  in  L.  R.  A.    And  in  criminal  cases 
the  accused  may  be  compelled  to  stand  up 
before  the  jury  for  identification.     People 
v.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003, 


28  L.  R.  A.  699,  43  Am.  St.  741,  and  note 
in  L.  R.  A.  Where  accused  offers  him- 
self as  witness  he  may  be  cross-examined. 
People  v.  Tice.  131  N.  Y.  651,  30  N.  E. 
494,  15  L.  R.  A.  669,  and  note.  The  con- 
stitutional maxim  which  protects  one 
from  testifying  against  himself  is  avail- 
able to  one  though  he  is  not  on  trial. 
Counselman  v.  Hitchcock,  142  U.  S.  547, 
12  Sup.  Ct.  Rep.  195.3 

1  State  v.  Thomas,  64  N.  C.  74  ;  Good- 
man v.  State,  Meigs,  197  ;  Jackson  v. 
Commonwealth,  19  Gratt.  656.  See 
Skaggs  v.  State,  108  Ind.  63,  8  N.  E.  695. 
By  the  old  common  law,  a  party  accused 
of  felony  was  not  allosved  to  call  wit- 
nesses to  contradict  the  evidence  for  the 
Crown  ;  and  this  seems  to  have  been  on 
some  idea  that  it  would  be  derogatory  to 
the  royal  dignity  to  permit  it.  After- 
wards, when  they  were  permitted  to  be 
called,  they  made  their  statements  with- 
out oath ;  and  it  was  not  uncommon  for 
both  the  prosecution  and  the  court  to 
comment  upon  their  testimony  as  of  little 
weight  because  unsworn.  It  was  not 
until  Queen  Anne's  time  that  they  were 
put  under  oath. 

The  rule  that  the  prisoner  shall  be  con- 
fronted with  the  witnesses  against  him 
does  not  preclude  such  documentary  evi- 
dence to  establish  collateral  facts  as  would 
be  admissible  under  the  rules  of  the  com- 
mon law  in  o'her  cases.  United  States 
;;.  Benner,  Baldw.  234 ;  United  States  v. 
Little,  2  Wash.  C.  C.  159;  United  States 
v.  Ortega,  4  Wash.  C.  C.  531 ;  People  v. 
Jones,  24  Mich.  215.  But  the  corpus  de- 
licti—  e.  g.  the  fact  of  marriage  in  an  in- 
dictment for  bigamy  —  cannot  be  proved 
by  certificates.  People  v.  Lambert,  6 
Mich.  349.  Compare  Patterson  v.  State, 
17  Tex.  App.  102.  fJOn  right  to  be  con- 
fronted with  witnesses,  see  Motes  v. 
United  States,  178  U.  S.  458,  20  Sup.  Ct. 
Rep.  993 ;  also  Gore  v.  State,  52  Ark.  285, 
12  S.  W.  564,  5  L.  R.  A.  832,  and  note. 
Jury  may  view  the  premises  where  the 
crime  was  committed,  and  the  prisoner 
has  no  right  to  be  present.  People  v. 
Thorn,  156  N.  Y.  286,  50  N.  E.  947,  42 
L.  R.  A.  368 ;  upon  view  by  jury,  see  note 
to  this  case  in  L.  R.  A.] 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


451 


The  defendant  is  entitled  to  be  confronted  with  the  witnesses 
against  him ; l  and  if  any  of  them  be  absent  from  the  Common- 
wealth, so  that  their  attendance  cannot  be  compelled,  or  if  they 
be  dead,  or  have  become  incapacitated  to  give  evidence,  there  is 
no  mode  by  which  their  statements  against  the  prisoner  can  be 
used  for  his  conviction.2  The  exceptions  to  this  rule  are  of  cases 
which  are  excluded  from  its  reasons  by  their  peculiar  circum- 
stances; but  they  are  far  from  numerous.  If  the  witness  was 
sworn  before  the  examining  magistrate,  or  before  a  coroner,  and 
the  accused  had  an  opportunity  then  to  cross-examine  him,  or  if 
there  were  a  former  trial  on  which  he  was  sworn,  it  seems  allow- 
able to  make  use  of  his  deposition,  or  of  the  minutes  of  his  ex- 
amination, if  the  witness  has  since  deceased,  or  is  insane,  or  sick 
and  unable  to  testify,  or  has  been  summoned  but  appears  to  have 
been  kept  away  by  the  opposite  party.3  So, 'also,  if  a  person  is 


1  Bell   v.  State,  2  Tex.  App.  216,  28 
Am.   Rep.  429.     It  has  been  held  com- 
petent, even  in  a  criminal  case,  to  make 
the   certificate  of  the  proper  official  ac- 
countant  prima    facie    evidence    of    an 
official  delinquency  in  the  tax  collector. 
Johns  v.  State,  65  Md.  350.     QSo  a  stat- 
ute making  evidence  that  a  bank  failed 
and  that  deposits   were   received   by  an 
officer  of  the  bank  shortly  before  the  fail- 
ure, prima  facie  evidence  of  a  taking  with 
knowledge  of  insolvency  is  valid.     State 
v.  Buck,  120  Mo.  479,  25  S.  W.  573.     See 
also,  People  v.  Cannon,  139  N.  Y.  32,  34 
N.  E.  759,  36  Am.  St.  668.3 

It  is  not  competent  for  the  legislature 
to  make  reputation  evidence  against  an 
accused  of  a  public  offence,  —  e.  g.  of 
keeping  a  place  for  the  sale  of  liquors,  — 
which  the  jury  are  bound  to  follow. 
State  v.  Beswick,  13  R.  L  211;  contra, 
State  v.  Thomas,  47  Conn.  546,  36  Am. 
Rep.  98.  It  may  be  made  sufficient  evi- 
dence, provided  the  jury,  while  free  to 
convict  upon  it,  are  not  bound  to  do  so. 
State  v.  Wilson,  15  R.  I.  180,  1  Atl.  415. 
QThe  prisoner  must  be  allowed  to  see  wit- 
ness's face  and  to  be  near  enough  to  hear 
what  witness  says  and  to  watch  its  effect 
upon  jury.  State  v.  Mannion,  19  Utah, 
505,  57  Pac.  542, 45  L.  R.  A.  638.  Record 
which  does  not  show  the  prisoner  present 
during  the  entire  trial  is  fatally  defective. 
French  v.  State,  85  Wis.  400,  55  N.  W. 
666,  21  L.  R.  A.  402,  39  Am.  St.  855.] 

2  People  t-.  Howard,  60  Mich.  239,  15 
N.  W.  101.     But  a  statute  may  give  the 


prisoner  the  right  to  take  depositions  out 
of  the  State  upon  condition  that  the  State 
shall  have  the  like  right.  Butler  v.  State, 
97  Ind.  378. 

3  1  Greenl.  Ev.  §§  163-166;  Bishop, 
Cr.  Pro.  §§  520-527;  Whart.  Cr.  Law, 
§  667 ;  2  Phil.  Ev.  by  Cowen,  Hill,  and 
Edwards,  217,  229;  Beets  v.  State,  Meigs, 
108;  Kendricks  v.  State,  10  Humph.  479; 
United  States  v.  McComb,  5  McLean,  286; 
Summons  v.  State,  5  Ohio  St.  325;  Pope 
v.  State,  22  Ark.  371;  Brown  v.  Com- 
monwealth, 73  Pa.  St.  321 ;  Johnson  v. 
State,  1  Tex.  App.  333 :  O'Brien  v.  Com- 
monwealth, 6  Bush,  663 ;  Commonwealth 
v.  Richards,  18  Pick.  434;  People  v.  Mur- 
phy, 45  Cal.  137;  People  v.  Devine,  46 
Cal.  45;  Davis  v.  State,  17  Ala.  354; 
Marler  v.  State,  67  Ala.  56;  State  v. 
Johnson,  12  Nev.  121;  State  v.  Hooker, 
17  Vt.  658;  State  v.  Elliott,  90  Mo.  350, 
2  S.  W.  411;  Hair  v.  State,  16  Neb.  601, 
21  N.  W.  464;  State  v.  Fitzgerald,  63 
Iowa,  268,  19  N.  W.  202.  fJMattox  r. 
United  States,  156  U.  S.  237,  15  Sup.  Ct. 
Rep.  337 ;  s.  c.  146  U.  S.  140,  13  Sup.  Ct. 
Rep.  50.  Contra,  Cline  v.  State,  36  Tex. 
Crim.  320,  36  S.  W.  1099,  37  S.  W.  722, 
61  Am.  St.  850.  See,  upon  this  right  of 
confrontation,  note  to  Cline?'.  State, supra, 
61  Am.  St.  886,  and  dissenting  opinion  of 
Henderson,  J.,  in  same  case.J  Compare 
Puryear  v.  State,  63  Ga.  692;  State  v. 
Campbell,  1  Rich.  124.  That  the  legis- 
lature may  make  the  notes  of  the  official 
stenographer  evidence  in  a  subsequent 
trial,  see  State  v.  Frederic,  69  Me.  400, 


452 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


on  trial  for  homicide,  the  declarations  of  the  party  whom  he  is 
charged  with  having  killed,  if  made  under  the  solemnity  of  a 
conviction  that  he  was  at  the  point  of  death,  and  relating  to 
matters  of  fact  concerning  the  homicide,  which  passed  under  his 
own  observation,  may  be  given  in  evidence  against  the  accused ; 
the  condition  of  the  party  who  made  them  being  such  that  every 
motive  to  falsehood  must  be  supposed  to  have  been  silenced,  and 
the  mind  to  be  impelled  by  the  most  powerful  considerations  to 
tell  the  truth.1  Not  that  such  evidence  is  of  very  conclusive 
character ;  it  is  not  always  easy  for  the  hearer  to  determine  how 
much  of  the  declaration  related  to  what  was  seen  and  positively 
known,  and  how  much  was  surmise  and  suspicion  only ;  but  it  is 
admissible  from  the  necessity  of  the  case,  and  the  jury  must 
judge  of  the  weight  to  be  attached  to  it. 

In  cases  of  felony,  where  the  prisoner's  life  or  liberty  is  in 
peril,  he  has  the  right  to  be  present,  and  must  be  present,  during 
the  whole  of  the  trial,  and  until  the  final  judgment.  If  he  be 
absent,  either  in  prison  or  by  escape,  there  is  a  want  of  jurisdic- 
tion over  the  person,  and  the  court  cannot  proceed  with  the  trial, 
or  receive  the  verdict,  or  pronounce  the  final  judgment.2  But 
misdemeanors  may  be  tried  in  the  absence  of  the  accused. 


3  Am.  Cr.  R.  78.  See  People  v.  Sligh, 
48  Mich.  54, 11  N.  W.  782.  Whether  evi- 
dence that  the  witness  cannot  be  found 
after  diligent  inquiry,  or  is  out  of  the 
jurisdiction,  would  be  sufficient  to  let  in 
proof  of  his  former  testimony,  see  Bui. 
N.  P.  239,  242 ;  Rex  r.  Hagan,  8  0.  &  P. 
167 ;  Sills  v.  Brown,  9  C.  &  P.  601 ;  People 
v.  Chung  Ah  Chue,  57  Cal.  567.  Evi- 
dence of  a  witness  at  a  former  trial,  alive 
but  out  of  the  State,  is  inadmissible. 
Owens  v.  State,  63  Miss.  450. 

i  Greenl.  Ev.  §  156;  1  Phil.  Ev.  by 
Cowen,  Hill,  and  Edwards,  285-289; 
Whart.  Cr.  Law,  §§  669-682 ;  Donnelly  v. 
State,  26  N.  J.  463 ;  Anthony  v.  State, 
Meigs,  265;  Hill's  Case,  2  Gratt.  594; 
State  v.  Freeman,  1  Speers,  57;  State  v. 
Brunetto,  13  La.  Ann.  45;  Dunn  v.  State, 
2  Ark.  229 ;  Mose  v.  State,  35  Ala.  421 ; 
Brown  v.  State,  32  Miss.  433;  Whitley  v. 
State,  38  Ga.  70;  State  v.  Quick,  15  Rich. 
158 ;  Jackson  v.  Commonwealth,  19  Gratt. 
656 ;  State  v.  Oliver,  2  Houst  585 ;  People 
v.  Simpson,  48  Mich.  474,  12  N.  W.  6G2; 
State  v.  Saunders,  11  Oreg.  300,  12  Pac. 
441 ;  State  v.  Vansant,  80  Mo.  67.  This 
whole  subject  was  largely  considered  in 


Morgan  v.  State,  31  Ind.  193;  State  v. 
Framburg,  40  Iowa,  555. 

2  See  Andrews  v.  State,  2  Sneed.  550; 
Jacobs  v.  Cone,  5  S.  &  R.  335 ;  Witt  v. 
State,  5  Cold.  11;  State  v.  Alman,  64 
N.  C.  364 ;  Gladden  v.  State,  12  Fla.  577 ; 
Maurer  v.  People,  43  N.  Y.  1 ;  note  to 
Winchell  v.  State,  7  Cow.  525;  Hopt  v. 
.Utah,  110  U.  S.  574,  4  Sup.  Ct.  Rep. 
202 ;  Smith  v.  People,  8  Col.  457,  8  Pac. 
920;  State  v.  Kelly,  97  N.  C.  404,  2  S.  E. 
185.  In  capital  cases  the  accused  stands 
upon  all  his  rights,  and  waives  nothing. 
Nomaque  i\  People,  Breese,  145 ;  Demp- 
sey  v.  People,  47  111.  325 ;  People  v. 
McKay,  18  Johns.  217 ;  Burley  v.  State, 
1  Neb.  385.  The  court  cannot  make  an 
order  changing  the  venue  in  a  criminal 
case  in  the  absence  of  and  without  notice 
to  the  defendant.  Ex  parte  Brynn,  44 
Ala.  404.  Nor  in  the  course  of  the  trial 
allow  evidence  to  be  given  to  the  jury  in 
his  absence,  even  though  it  be  that  of  a 
witness  which  had  been  previously  re- 
duced to  writing.  Jackson  v.  Common- 
wealth, 19  Gratt.  656;  Wade  v.  State,  12 
Ga.  25.  See  People  v.  Bragle,  88  N.  Y. 
585.  And  in  a  capital  case  the  record 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


453 


The  Traverse  Jury. 

Accusations  of  criminal  conduct  are  tried  at  the  common  law 
by  jury;1  and  wherever  the  right  to  this  trial  is  guaranteed  by 
the  constitution  without  qualification  or  restriction,  it  must  be 
understood  as  retained  in  all  those  cases  which  were  triable 
by  jury  at  the  common  law,2  and  with  all  the  common-law  inci- 


must  affirmatively  show  the  presence  of 
the  accused  at  the  trial,  and  when  the 
verdict  is  received  and  sentence  pro- 
nounced. Dougherty  v.  Commonwealth, 
69  Pa.  St.  286.  As  to  right  to  be  present, 
at  a  view  of  the  locus  in  quo,  see  People 
v.  Lowrey,  70  Cal.  193,  11  Pac.  605; 
State  v.  Congdon,  14  R.  I.  458 ;  Schular 
v.  State,  105  Lid.  289, 4  N.  E.  870 ;  People 
v.  Thorn,  156  N.  Y.  286,  50  N.  E.  947,  4 
L.  R.  A.  368,  and  note  in  L.  R.  A.,  at 
argument  of  motion  for  a  new  trial : 
People  v.  Ormsby,  48  Mich.  494, 12  N.  W. 
671 ;  State  v.  Jefcoat,  20  S.  C.  383  ;  Bond 
v.  Com.,  83  Va.  581,  3  S.  E.  149;  when 
jury  come  in  for  further  instructions : 
Shipp  v.  State,  11  Tex.  App.  46 ;  Roberts 
v.  State,  111  Ind.  340, 12  N.  E.  500;  State 
v.  Myrick,  38  Kan.  238, 16  Pac.  330 ;  State 
v.  Jones,  29  S.  C.  201,  7  S.  E.  Rep.  296. 
Whether  an}-  of  the  steps  in  the  trial  can 
be  taken  in  the  defendant's  absence  if  he 
is  under  bail,  see  Barton  *'.  State,  67  Ga. 
653;  Sahlinger  v.  People,  102  III.  241; 
State  v.  Smith,  90  Mo.  37,  1  S.  W.  753; 
Gore  v.  State,  52  Ark.  285,  12  S.  W.  564, 
6  L.  R.  A.  832.  Qlf  the  accused  wilfully 
absents  himself  pending  the  trial,  it  may 
proceed  in  his  absence.  Gore  v.  State, 
52  Ark.  285,  12  S.  W.  664,  5  L.  R.  A.  832, 
and  note/] 

1  See  in  general  Thompson  and  Mer- 
riam  on  Juries.  It  is  worthy  of  note  that 
all  that  is  extant  of  the  legislation  of  the 
Plymouth  Colony  for  the  first  five  years, 
consists  of  the  single  regulation,  "  that 
all  criminal  facts,  and  also  all  manner  of 
trespasses  and  debts  between  man  and 
man,  shall  be  tried  by  the  verdict  of 
twelve  honest  men,  to  be  impanelled  by 
authority,  in  form  of  a  jury,  upon  their 
oath."  1  Palfrey's  New  England,  340. 
L~Upon  right  to  trial  by  jury,  see  Thomp- 
son v.  Utah,  170  U.  S.  343,  18  Sup.  Ct. 
Rep.  620,  and  note  to  42  L.  ed.  U.  S.  1061. 
The  right  to  trial  by  jury  may  be  con- 
ditioned upon  furnishing  an  affidavit  of 
merits  in  actions  ex  contractu.  Fidelity 


&  Deposit  Co.  v.  United  States,  —  U.  S. 
— ,  23  Sup.  Ct.  Rep.  120  (Dec.  1.  1902).] 
2  Cases  of  contempt  of  court  were 
never  triable  by  jury;  and  the  object  of 
the  power  would  be  defeated  in  many 
cases  if  they  were.  The  power  to  punish 
contempts  summarily  is  incident  to  courts 
of  record.  King  v.  Almon,  8  St.  Trials, 
63;  Respublica  r.  Oswald,  1  Dall.  319, 
1  Am.  Dec.  246 ;  Mariner  v.  Dyer,  2  Me. 
165;  Morrison  v.  McDonald,  21  Me.  650; 
State  v.  White,  T.  U.  P.  Chart.  136; 
Yates  v.  Lansing,  9  Johns.  395,  6  Am. 
Dec.  290;  Sanders  v.  Metcalf,  1  Tenn. 
Ch.  419;  Clark  v.  People,  1  111.  340,  12 
Am.  Dec.  177 ;  People  v.  Wilson,  64  111. 
195,  16  Am.  Rep.  528;  State  v.  Morrill, 
16  Ark.  384 ;  Gorham  v.  Luckett,  6  B. 
Monr.  638 ;  State  v.  Woodfin,  5  Ired.  199 ; 
Ex parte  Adams,  25  Miss.  883;  State  v. 
Copp,  15  N.  H.  212;  State  v.  Mathews, 
37  N.  H.  450;  Neel  v.  State,  9  Ark.  259; 
State  v.  Tipton,  1  Blackf.  166 ;  Middle- 
brook  v.  State,  43  Conn.  259;  Garrigus  v. 
State,  93  Ind.  239;  Chafee  v.  Quidnick 
Co.,  13  R.  I.  442.  rJTinsley  v.  Anderson, 
171  U.  S.  101,  18  Sup.  Ct.  Rep.  805.  Upon 
powers  of  court  to  punish  for  contempt, 
see  note  to  22  L.  ed.  U.  S.  205;  limits  to 
rule  of  no  review  of  contempt  proceedings, 
note  to  22  L.  ed.  U.  S.  354.  Also,  Smith 
v.  Speed,  —  Okla.  — ,  55  L.  R.  A.  402. 
A  court  of  review  may  cut  down  an 
excessive  verdict  and  give  judgment  for 
the  modified  amount  without  violating 
the  right  to  a  jury  trial.  Burdick  v. 
Missouri  Pacific  Ry.  Co.  123  Mo.  221, 
27  S.  W.  453.]  This  is  true  of  the  federal 
courts.  United  States  v.  Hudson,  7 
Cranch,  32;  United  States  v.  New  Bed- 
ford Bridge,  1  Wood.  &  M.  401.  See 
Ex  parte  Robinson,  19  Wall.  505;  Ex 
parte  Terry,  128  U.  S.  289,  9  Sup.  Ct. 
Rep.  77.  The  legislature  may  designate 
the  cases  in  which  a  court  may  punish 
summarily.  In  re  Oldham,  89  N.  C.  23; 
State  v.  McClaugherty,  33  W.  Va.  250, 
10  S.  E.  Rep.  407.  Whether  justices  of 


454 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


dents  to  a  jury  trial,  so  far,  at  least,  as  they  can  be  regarded 
as  tending  to  the  protection  of  the  accused.1  (a) 


the  peace  may  punish  contempts  in  the 
absence  of  any  statute  conferring  the 
power,  will  perhaps  depend  on  whether 
the  justice's  court  is  or  is  not  deemed  a 
court  of  record.  See  Lining  v.  Bentham, 
2  Bay,  1 ;  Re  Cooper,  32  Vt.  253 ;  Ex  parte 
Kerrigan,  33  N.  J.  345;  Rhinehart  v. 
Lance,  43  N.  J.  311,  39  Am.  Rep.  692. 
But  court  commissioners  have  no  such 
power.  In  re  Remington,  7  Wis.  643; 
Haight  v.  Lucia,  36  Wis.  355;  Ex  parte 
Perkins,  29  Fed.  Rep.  900 :  nor  notaries ; 
Burtt  v.  Pyle,  89  Ind.  398;  but  see  Dogge 


v.  State,  21  Neb.  272,  31  N.  W.  929.  Nor 
can  the  legislature  confer  it  upon  munici- 
pal councils.  Whitcomb's  Case,  120 
Mass.  118.  As  the  courts  in  punishing 
contempts  are  dealing  with  cases  which 
concern  their  own  authority  and  dignity, 
and  which  are  likely  to  suggest,  if  not  to 
excite,  personal  feelings  and  animosities, 
the  case  should  be  plain  before  they 
should  assume  the  authority.  Bachelder 
v.  Moore,  42  Cal.  415.  See  Storey  v. 
People,  79  111.  45 ;  Hollingsworth  v.  Du- 
ane,  Wall.  C.  C.  77 ;  Ex  parte  Bradley, 


1  See  note  to  p.  590,  post.  A  citizen 
not  in  the  land  or  naval  service,  or  in  the 
militia  in  actual  service,  cannot  be  tried 
by  court-martial  or  military  commission, 
on  a  charge  of  discouraging  volunteer 
enlistments  or  resisting  a  military  con- 
scription. In  re  Kemp,  16  Wis.  359.  See 
Ex  parte  Milligan,  4  Wall.  2.  The  con- 
stitutional right  of  trial  by  jury  extends 
to  newly  created  offences.  Plimpton  v. 
Somerset,  33  Vt.  283;  State  v.  Peterson, 
41  Vt.  504.  Contra,  Tims  v.  State,  26  Ala. 
165  [case  of  an  inferior  offence].  But  not 
to  offences  against  city  by-laws.  McGear 
v.  Woodruff,  33  N.  J.  213.  Ex  parte 
Schmidt,  24  S.  C.  363 ;  Wong  v.  Astoria, 
13  Oreg.  538,  11  Pac.  205;  Lieberman  v. 
State,  26  Neb.  464,  42  N.  W.  419;  Man- 
kato  v.  Arnold,  36  Minn.  62,  30  N.  W. 
305.  COgden  v.  City  of  Madison,  111 
Wis.  413,  87  N.  W.  568,  55  L.  R.  A.  506J 
Otherwise  if  the  offence  is  a  crime.  In 
re  Rolfs,  30  Kan.  758,  1  Pac.  523 ;  Creston 
v.  Nye,  74  Iowa,  369,  37  N.  W.  777.  A 
provision  in  an  excise  law,  authorizing 
the  excise  board  to  revoke  licenses,  is 
not  void  as  violating  the  constitutional 
right  of  jury  trial.  People  v.  Board  of 
Commissioners,  59  N.  Y.  92.  See  LaCroix 
v.  Co.  Com'rs,  60  Conn.  321.  fJA  jury 
may  by  statute  be  dispensed  with  where 
the  defendant  pleads  guilty,  and  the  court 
may  be  empowered  to  examine  witnesses 
and  determine  from  their  testimony  what 


is  the  degree  of  the  offence.  This  is  true 
even  in  capital  cases.  Hallinger  v.  Davis, 
146  U.  S.  314,  13  Sup.  Ct.  Rep.  105;  and 
see  note  to  36  L.  ed.  U.  S.  986;  State 
r.  Almy,  67  N.  H.  274,  28  All.  372,  22 
L.  R.  A.  744;  Craig  v.  State,  49  Ohio  St. 
415,  30  N.  E.  1120,  16  L.  R.  A.  358.  The 
jury  may  by  law  be  required  to  be  drawn 
from  a  special  list  secured  by  a  special 
commissioner  by  eliminating  unfit  persona 
from  the  general  list.  People  v.  Dunn, 
157  N.  Y.  528,  52  N.  E.  572,  43  L.  R.  A. 
247.  Fixing  of  period  of  sentence  is  no 
part  of  constitutional  function  of  jury  of 
which  it  cannot  be  deprived.  Miller  v. 
State,  149  Ind.  607,  49  N.  E.  894,  40 
L.  R.  A.  109.  Statute  authorizing  dis- 
missal of  part  of  jury  and  receipt  of  ver- 
dict from  remainder  is  void.  McRae  v. 
Grand  Rapids,  L.  &  D.  R.  Co.,  93  Mich. 
399,  53  N.  W.  5(51,  17  L.  R.  A.  750. 
Where  the  Constitution  gives  right  to 
trial  by  jury  in  civil  cases,  it  is  a  viola- 
tion of  that  right  for  the  court  to  take 
the  question  of  negligence  from  the  jury 
though  the  facts  are  undisputed  if  dif- 
ferent inferences  may  be  drawn  from 
such  facts.  Shobert  v.  May,  —  Oreg.  — , 
66  Pac.  466,  65  L.  R.  A.  810.  The  power 
of  a  court  to  set  aside  the  verdict  of  a 
jury  as  against  the  weight  of  evidence 
is  not  in  conflict  with  the  constitutional 
right  to  trial  by  jury.  Hintz  v.  Mich. 
Cent.  Ry.  Co.,  —  Mich.  — ,  93  N.  W.  634.] 


(a)  FJBut  any  State  is  competent  to  establish  through  its  constitution  a  jury  of 
fewer  than  twelve  persons  for  the  trial  of  criminal  charges,  and  it  may  probably 
provide  that  less  than  the  whole  number  of  jurors  may  render  a  verdict.  Maxwell 
v.  Dow,  176  U.  S.  581,  20  Sup.  Ct.  Rep.  448,  494.  M.  was  tried  upon  an  information 
filed  by  the  prosecuting  attorney  of  a  Utah  county,  charging  him  with  robbery.  He 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  455 

A  petit,  petty,  or  traverse  jury  is  a  body  of  twelve  men,  who 
are  sworn  to  try  the  facts  of  a  case,  as  they  are  presented  in 

7  Wall.  364.    If  the  contempt  is  in  the  L.  R.  A.  159,  70  Am.  St.  280;  Dahnke  v. 

presence  of  the  court,  it  may  be  punished  People,'  168  111.  102,  48  N.  E.  137,  39  L.  R. 

without  notice  or  opportunity  for  defence.  A.  197;  Dixon  v.  People,  168  111.  179,  48 

Exparte  Terry,  128  U.  S.  289,  9  Sup.  Ct.  N.  E.  108,  39  L.  R.  A.  116;  State  v.  Cir- 

Rep  77.     See  State  v.  Gibson,  33  W.  Va.  cuit  Court,  97  Wis.  1,  72  N.  VV.  193,  38 

97,  10  S.  E.  Rep.  58.    A  libellous  publi-  L.  R.  A.  554,  65  Am.  St.  90 ;  Re  Huron, 

cation  as  to  a  pending  cause  may  be  pun-  58  Kan.  152,  48  Pac.  574,  36  L.  R.  A.  822, 

ished  as  a  contempt.     Coopers.  People,  6'2   Am.  St.  614,  and  note  in  L.  R.  A.; 

13  Col.   373,   22   Pac.   Rep.   790.     [The  Coleman  v.  Roberts,  113  Ala.  323,  21  So. 

power  to  punish  a  party  for  contempt  of  449,  36  L.  R.  A.  84,  69  Am.  St.  Ill ;  Ex 

court  cannot  be  so  used  as  to  deprive  him  parte  Senior,  37  Fla.  1,  19  So.  652,  32  L. 

of  his  right  to  a  defense  upon  the  merits  R.  A.  133 ;  Dailey  v.  Superior  Court  of 

in  the  principal  case.     A  decree  pro  con-  San  Francisco,  112  Cal.  94,  44  Pac.  458, 

fesso    entered    after    striking    a    party's  32  L.  R.  A.  273,  53  Am.  St.  160;  Clair 

answer  from  the  files  as  a  punishment  for  v.  State,  40  Neb.  534,  59  N.  W.  118,  28 

his  refusal  to  obey  an  order  of  the  court  L.  R.  A.  367 ;  Mullin  v.  People,  15  Col. 

is  void  for  want  of  due  process.     Hovey  437,  24  Pac.  880, 9  L.  R.  A.  566,  and  note, 

i'.  Elliott,  167  U.  S.  409,  17  Sup.  Ct.  Rep.  22  Am.  St.  414;  Thomas  v.  People,  14 

841,  aff.  145  N.  Y.  126, 39  N.  E.  841.     See  Col.   254,  23  Pac.  326,  9   L.  R.  A.  569. 

the  whole  subject  of  contempts  very  fully  Court  has  no  inherent  power  to  prohibit 

discussed  by  Mr.  Justice  White  in  deliv-  the  publication  of  testimony  given  before 

ering  the   opinion  of   the   court  in  this  it.     Re  Sliortridge,  99  Cal.  526,  34  Pac. 

case.    See,  also,  Carter  v.  Commonwealth,  227,  21  L.  R.  A.  755,  37  Am.  St.  78.] 

96  Va.  791,  32  S.  E.  780,  45  L.  R.  A.  310;  Charges  of  vagrancy  and  disorderly 

Telegram    Newspaper    Co.   v.   Common-  conduct  were  never  triable  by  jury.     See 

wealth,  172  Mass.  2(J4,  52  N.  E.  445,  44  full  review  by  Alvey,  J.,  in  State  v.  Glenn, 

was  tried  before  a  jury  composed  of  but  eight  jurors,  was  convicted,  sentenced  to 
imprisonment  in  the  State  prison,  and  duly  committed. 

Section  13,  Article  1,  of  the  Constitution  of  Utah  provides:  "Offences  heretofore 
required  to  be  prosecuted  by  indictment  shall  be  prosecuted  by  information  after 
examination  and  commitment  by  a  magistrate,  unless  the  examination  be  waived 
by  the  accused  with  the  consent  of  the  State,  or  by  indictment,  with  or  without  sucli 
examination  and  commitment.  The  grand  jury  shall  consist  of  seven  persons,  five 
of  whom  must  concur  to  find  an  indictment;  but  no  grand  jury  shall  be  drawn  or 
summoned  unless  in  the  opinion  of  the  judge  of  the  district  public  interest  demands 
it."  Section  10,  Article  1,  of  that  Constitution  is  as  follows  :  "  In  capital  cases  the 
right  of  trial  by  jury  shall  remain  inviolate.  In  courts  of  general  jurisdiction,  except 
in  capital  cases,  a  jury  shall  consist  of  eight  jurors.  In  courts  of  inferior  jurisdic- 
tion, a  jury  shall  consist  of  four  jurors.  In  criminal  cases  the  verdict  shall  be  unani- 
mous. In  civil  cases  three-fourths  of  the  jurors  may  find  a  verdict.  A  jury  in  civil 
cases  shall  be  waived  unless  demanded." 

M.  after  incarceration  "  applied  to  the  supreme  court  of  the  State  for  a  writ  of 
habeas  corpus,  and  alleged  in  his  sworn  petition  that  he  was  a  natural-born  citizen  of 
the  United  States,  and  that  his  imprisonment  was  unlawful  because  he  was  prose- 
cuted under  an  information  instead  of  by  indictment  by  a  grand  jury,  and  was  tried 
by  a  jury  composed  of  eight  instead  of  twelve  jurors.  He  specially  set  up  and 
claimed  (1)  that  to  prosecute  him  by  information  abridged  his  privileges  and  immu- 
nities as  a  citizen  of  the  United  States,  under  Article  5  of  the  Amendments  to  the 
Constitution  of  the  United  States,  and  also  violated  section  1  of  Article  14  of  those 
Amendments;  (2)  that  a  trial  by  jury  of  only  eight  persons  abridged  his  privileges 
and  immunities  as  a  citizen  of  the  United  States,  under  Article  6,  and  also  violated 
section  1  of  Article  14  of  such  Amendments;  (3)  that  a  trial  by  such  a  jury,  and  his 
subsequent  imprisonment  by  reason  of  the  verdict  of  that  jury,  deprived  him  of  hia 


456  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

the  evidence  placed  before  them.  Any  less  than  this  number  of 
twelve  would  not  be  a  common-law  jury,  and  not  such  a  jury 

54  Md.  572.  Also  State  v.  Anderson,  40  the  Chinese  exclusion  act  object  that  he 
N.  J.  224.  Petty  offences  need  not  be  so  was  not  given  a  jury  trial  of  his  claimed 
tried.  Ex  parte  Wooten,  62  Miss.  174 ;  right  to  remain.  Fong  Yue  Ting  v. 
Inwood  v.  State,  42  Ohio  St.  186;  Ex  United  States,  149  U.  S.  698,  13  Sup.  Ct. 
parte  Marx,  86  Va.  40,  9  S.  E.  617.  Rep.  1016.  The  procedure  in  equity  to 
QNor  are  breaches  of  the  rules  pre-  enforce  a  mechanics'  lien  is  not  in  con- 
scribed  for  the  discipline  of  the  national  flict  with  the  constitutional  right  to  trial 
guard.  State  v.  Wagener,  74  Minn.  518,  by  jury.  Hathorne  V.Panama  Park  Co., 
77  N.  W.  424,  42  L.  R.  A.  749.  Nor  is  —  Fla.  — ,  32  So.  812.]  But  one  may 
a  summary  proceeding  for  a  restraining  not  be  imprisoned  for  two  years  as  an 
order.  Ex  parte  Keeler,  45  S.  C.  537,  23  habitual  drunkard  upon  a  chamber  order. 
S.  E.  865,  31  L.  R.  A.  678,  55  Am.  St.  785.  State  v.  Ryan,  70  Wis.  676,  36  N.  W.  823. 
But  an  offence  triable  by  jury  at  time  QAnd  a  commitment  until  further 
of  adoption  of  Constitution  cannot  subse-  order  of  court  is  void  for  indefiniteness. 
quently  be  made  triable  without  jury  in  Ex  parte  Curtis,  10  Okla.  660,  63  Pac. 
the  first  instance.  Miller  v.  Com. ,88  Va.  963.  That  right  to  jury  extends  to  trial 
618, 14  S.  E.  161,  342,  979,  15  L.  R.  A.  441,  of  issues  of  fact  in  quo  warranto  proceed- 
and  note.  The  provision  being  consid-  ings,  see  Buckman  v.  State,  34  Fla.  48, 
ered  does  not  require  trial  by  jury  of  15  So.  697,  24  L.  R.  A.  806,  and  note, 
offences  before  consuls  under  the  au-  But  not  to  actions  of  book-account.  Hall 
thority  of  treaty  stipulations,  though  such  v.  Armstrong,  65  Vt.  421,  26  Atl.  592,  20 
offence  was  committed  on  the  deck  of  an  L.  R.  A.  366.  Nor  to  assessment  of  dam- 
American  vessel.  Ross  v.  Mclntyre,  140  ages  for  negligence  on  default  of  answer. 
U.  S.  453, 11  Sup.  Ct.  Rep.  897.  Nor  can  Dean  v.  Willamette  Bridge  Co.,  22  Oreg. 
one  ordered  to  leave  this  country  under  167,- 29  Pac.  440,  15  L.  R.  A.  614/] 

liberty  without  due  process  of  law,  in  violation  of  section  1  of  Article  14,  which  pro- 
vides that  no  State  shall  deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law." 

"The  supreme  court  of  the  State,  after  a  hearing  of  the  case,  denied  the  petition 
for  a  writ,  and  remanded  the  prisoner  to  the  custody  of  the  keeper  of  the  State 
prison  to  undergo  the  remainder  of  his  sentence ;  and  he  then  sued  out  a  writ  of 
error  and  brought  the  case"  before  the  Supreme  Court  of  the  United  States. 

Said  that  court,  speaking  by  Mr.  Justice  Peckham :  "  The  objection  that  the 
proceeding  by  information  does  not  amount  to  due  process  of  law  has  been  hereto- 
fore overruled,  and  must  be  regarded  as  settled  by  the  case  of  Hurtado  v.  California, 
110  U.  S.  516,  4  Sup.  Ct.  Rep.  111,292.  The  case  has  since  been  frequently  ap- 
proved. Hallinger  v.  Davis,  146  U.  S.  314,  322,  991,  13  Sup.  Ct.  Rep.  105;  McNulty 
v.  California,  149  U.  S.  645,  13  Sup.  Ct  Rep.  959;  Hodgson  v.  Vermont,  168  U.  S. 
262,  272,  18  Sup.  Ct.  Rep.  80;  Holden  v.  Hardy,  169  U.  S.  366,  384,  18  Sup.  Ct.  Rep. 
383;  Brown  v.  New  Jersey,  175  U.  S.  172,  176,  20  Sup.  Ct.  Rep.  77;  Bolln  v.  Ne- 
braska, 176  U.  S.  83,  20  Sup.  Ct.  Rep.  287. 

"  But  the  plaintiff  in  error  contends  that  the  Hurtado  case  did  not  decide  the 
question  whether  the  State  law  violated  that  clause  in  the  Fourteenth  Amendment 
which  provides  that  no  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States.  ...  In  a  Federal  court  no 
person  can  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime  unless  by 
indictment  by  a  grand  jury,  with  the  exceptions  stated  in  the  Fifth  Amendment. 
Yot  this  amendment  was  held  in  the  Hurtado  case  not  to  apply  to  a  prosecution  for 
murder  in  a  State  court  pursuant  to  a  State  law.  The  claim  was  made  in  that  case 
(and  referred  to  in  the  opinion)  that  the  adoption  of  the  Fourteenth  Amendment 
provided  an  additional  security  to  the  individual  against  oppression  by  the  States 
themselves,  and  limited  their  powers  to  the  same  extent  as  the  amendments  thereto- 
fore adopted  had  limited  the  powers  of  the  federal  government.  By  holding  that 
the  conviction  upon  an  information  was  valid,  the  court  necessarily  held  that  the 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,  ETC.  457 

as  the  Constitution  guarantees  to  accused  parties,  when  a  less 

indictment  was  not  necessary ;  that  exemption  from  trial  for  an  infamous  crime, 
excepting  under  an  indictment,  was  not  one  of  those  privileges  of  a  citizen  of  the 
United  States  which  a  State  was  prohibited  from  abridging.  The  whole  case  was 
probably  regarded  as  involved  in  the  question  as  to  due  process  of  law.  The  par- 
ticular objection  founded  upon  the  privileges  and  immunities  of  citizens  of  the 
United  States  is  now  taken  and  insisted  upon  in  this  case." 

That  the  first  ten  Amendments  to  the  Constitution  of  the  United  States  "  were 
intended  as  restraints  and  limitations  upon  the  powers  of  the  general  government, 
.  .  .  and  did  not  have  any  effect  upon  the  powers  of  the  respective  States  .  .  .  has 
been  many  times  decided,"  citing  Spies  v.  Illinois,  123  U.  S.  86,  131,  166,  8  Sup.  Ct. 
Rep.  21 ;  Holden  v.  Hardy,  169  U.  S.  366,  382,  787,  18  Sup.  Ct.  Rep.  383;  Brown  v. 
New  Jersey,  175  U.  S.  172,  174,  20  Sup.  Ct.  Hep.  77.  These  cases  cite  many  others 
to  the  same  effect.  That  the  Fourteenth  Amendment  did  not  extend  these  restric- 
tions to  the  States  was  decided  in  the  Slaughter-House  Cases,  16  Wall.  36. 

In  conclusion,  Mr.  Justice  Peckham  says:  "It  appears  to  us  that  the  questions 
whether  a  trial  in  criminal  cases  not  capital  shall  be  by  a  jury  composed  of  eight 
instead  of  twelve  jurors,  and  whether  in  case  of  an  infamous  crime  a  person  shall 
only  be  liable  to  be  tried  after  presentment  or  indictment  of  a  grand  jury,  are  emi- 
nently proper  to  be  determined  by  the  citizens  of  each  State  for  themselves,  and  do 
not  come  within  the  clause  of  the  amendment  under  consideration,  so  long  as  all 
persons  within  the  jurisdiction  of  the  State  are  made  liable  to  be  proceeded  against 
by  the  same  kind  of  procedure  and  to  have  the  same  kind  of  trial,  and  the  equal 
protection  of  the  laws  is  secured  to  them.  Caldwell  v.  Texas,  137  U.  S.  692,  11  Sup. 
Ct.  Rep.  224;  Leeper  v.  Texas,  139  U.  S.  462,  11  Sup  Ct.  Rep.  577.  It  is  emphati- 
cally the  case  of  the  people  by  their  organic  law  providing  for  their  own  affairs,  and 
we  are  of  opinion  they  are  mucli  better  judges  of  what  they  ought  to  have  in  these 
respects  than  any  one  else  can  be.  Tlie  reasons  given  in  the  learned  and  most  able 
opinion  of  Mr.  Justice  Matthews,  in  the  Hurtado  case,  for  the  judgment  therein  ren- 
dered, apply  with  equal  force  in  regard  to  a  trial  by  a  jury  of  less  than  twelve 
jurors.  The  right  to  be  proceeded  against  only  by  indictment,  and  the  right  to  a 
trial  by  twelve  jurors,  are  of  the  same  nature,  and  are  subject  to  the  same  judgment, 
and  the  people  in  the  several  States  have  the  same  right  to  provide  by  their  organic 
law  for  the  change  of  both  or  either.  Under  this  construction  of  the  amendment 
there  can  be  no  just  fear  that  the  liberties  of  the  citizen  will  not  be  carefully  pro- 
tected by  the  States  respectively.  It  is  a  case  of  self-protection,  and  the  people  can 
be  trusted  to  look  out  and  care  for  themselves.  There  is  no  reason  to  doubt  their 
willingness  or  their  ability  to  do  so,  and  when  providing  in  their  Constitution  and 
legislation  for  the  manner  in  which  civil  or  criminal  actions  shall  be  tried,  it  is  in 
entire  conformity  with  the  character  of  the  Federal  government  that  they  should 
have  the  right  to  decide  for  themselves  what  shall  be  the  form  and  character  of  the 
procedure  in  such  trials,  whether  there  shall  be  an  indictment  or  an  information  only, 
whether  there  be  a  jury  of  twelve  or  a  lesser  number,  and  whether  the  verdict  must 
be  unanimous  or  not.  These  are  matters  which  have  no  relation  to  the  character  of 
the  Federal  government.  As  was  stated  by  Mr.  Justice  Brewer,  in  delivering  the 
opinion  of  the  court  in  Brown  v.  New  Jersey,  175  U.  S.  172,  20  Sup.  Ct.  Rep.  77,  the 
State  has  full  control  over  the  procedure  in  its  courts,  both  in  civil  and  criminal 
cases,  subject  only  to  the  qualification  that  such  procedure  must  not  work  a  denial 
of  fundamental  rights  or  conflict  with  specific  and  applicable  provisions  of  the 
Federal  Constitution.  The  legislation  in  question  is  not,  in  our  opinion,  open  to 
either  of  these  objections. 

"  Judged  by  the  various  cases  in  this  court,  we  think  there  is  no  error  in  this 
record,  and  the  judgment  of  the  Supreme  Court  of  Utah  must  therefore  be  affirmed." 
To  this  there  was  a  vigorous  dissenting  opinion  by  Mr.  Justice  Ilarlan,  chiefly  upon 
the  ground  that  the  holding  of  the  court  made,  the  amendment  clause  in  question 
only  declaratory  of  the  earlier  law.] 


458 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X 


number  is  not  allowed  in  express  terms  (a)  ;  and  the  necessity  of 
a  full  panel  could  not  be  waived  —  at  least  in  case  of  felony  — 
even  by  consent.1  The  infirmity  in  case  of  a  trial  by  jury  of  less 
than  twelve,  by  consent,  would  be  that  the  tribunal  would  be  one 


i  Work  v.  State,  2  Ohio  St.  296 ;  Can- 
cemi  v.  People,  18  N.  Y.  128;  Brown  v. 
State,  8  Blackf.  561;  2  Lead.  Cr.  Cas. 
337;  Hill  v.  People,  16  Midi.  351.  And 
see  State  v.  Cox,  3  Eng.  436 ;  Murphy  v. 
Commonwealth,  1  Met.  (Ky.)  365;  Tyzee 
v.  Commonwealth,  2  Met.  (Ky.)  1;  Suite 
v.  Mansfield,  41  Mo.  470;  Brown  v.  State, 
16  Ind.  496;  Opinions  of  Judges,  41  N.  H. 
550;  Lincoln  v.  Smith,  27  Vt.  328;  Dow- 
ling's  Case,  13  Miss.  664;  Tillmann  v. 
Arlles,  13  Miss.  373;  Vaughan  v.  Seade, 
30  Mo.  600;  Kleinschmidt  v.  Dumphy, 
1  Mont.  118;  Allen  v.  State,  54  Ind.  461 ; 
State  v.  Everett,  14  Minn.  447 ;  State  v. 
Lockwood,  43  Wis.  403  j  State  v.  Davis, 
66  Mo.  484;  Williams  v.  State,  12  Ohio 
St.  622;  Allen  v.  State,  54  Ind.  461; 
Swart  v.  Kimball,  43  Mich.  443,  5  N.  W. 
635;  Mays  v.  Com.,  82  Va.  550;  Harris 
v.  People,  128  III.  585,  21  N.  E.  563;  State 
v.  Stewart,  89  N.  C.  563.  In  Common- 
wealth v.  Dailey,  12  Cush.  80,  it  was  held 
that,  in  a  case  of  misdemeanor,  the  con- 
sent of  the  defendant  that  a  verdict  might 
be  received  from  eleven  jurors  was  bind- 
ing up*on  him,  and  the  verdict  was  valid. 
See  also  State  v.  Borowsky,  11  Nev.  119; 
Murphy  v.  Commonwealth,  1  Met.  (Ky.) 
365;  Connelly  v.  State,  60  Ala.  89,  31 
Am.  Rep.  34;  State  v.  Sackett,  39  Minn. 
69,  38  N.  W.  773.  No  distinction  is  made 
in  the  last  case  between  felony  and  mis- 
demeanor in  this  regard.  In  Iowa  the 


right  to  jury  trial  is  regarded  as  a  per- 
sonal privilege  which  may  be  waived. 
State  v.  Poison,  29  Iowa,  133;  State  v. 
Kaufman,  51  Iowa,  578,  2  N.  W.  275, 
33  Am.  Hep.  148.  But  not  in  case  of 
homicide.  State  v.  Carman,  63  Iowa,  130, 
18  N.  W.  691.  And  in  Connecticut  and 
Ohio,  under  statutes  permitting  a  defend- 
ant in  a  criminal  case  to  elect  to  be  tried 
by  the  court,  his  election  is  held  to  bind 
him.  State  v.  Worden,  46  Conn.  349, 
33  Am.  Rep.  27;  Dillingham  v.  State, 
5  Ohio  St.  280.  Such  a  statute  is  valid: 
Edwards  v.  State,  45  N.  J.  L.  419 ;  except 
as  to  a  capital  case.  Murphy  v.  State,  97 
Ind.  579.  In  Hill  v.  People,  16  Mich.  356, 
it  was  decided  that  if  one  of  the  jurors 
called  was  an  alien,  the  defendant  did 
not  waive  the  objection  by  failing  to 
challenge  him,  if  he  was  not  aware  of 
the  disqualification ;  and  if  the  court  re- 
fused to  set  aside  the  verdict  on  affidavits 
showing  these  facts,  the  judgment  upon 
it  would  be  reversed  on  error.  The  case 
of  State  v.  Quarrel,  2  Bay,  150,  is  contra. 
The  case  of  State  v.  Stone,  3  111.  326,  in 
which  it  was  held  competent  for  the 
court,  even  in  a  capital  case,  to  strike  off 
a  juryman  after  he  was  sworn,  because 
of  alienage,  affords  some  support  for  Hill 
v.  People.  £"  Struck  "  juries  are  permis- 
sible. Lommen  ?'.  Minneapolis  Gaslight 
Co ,  65  Minn.  196,  68  N.  W.  53,  33  L.  R.  A. 
437,  60  Am.  St.  450Q 


(a)  QThat  a  jury  composed,  as  at  common  law,  of  twelve  jurors  was  intended  by 
the  Sixth  Amendment  to  the  Federal  Constitution,  see  Thompson  v.  Utah,  170  U.  S. 
343,  349,  18  Sup.  Ct.  Rep.  620;  and  that  their  verdict  shall  be  unanimous  in  all 
Federal  courts  where  a  jury  trial  is  held,  see  American  Pub.  Co.  v.  Fisher,  166  U.  S. 
464,  17  Sup.  Ct.  Rep.  618,  and  Springville  v.  Thomas,  166  U.  S.  707,  17  Sup.  Ct.  Rep. 
717.  See  also  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1,  19  Sup.  Ct.  Rep.  580. 
Upon  number  of  jurymen  necessary  to  jury,  etc.,  see  note  to  14  L.  ed.  U.  S.  394. 
With  regard  to  grand  jury,  and  that  it  must,  unless  otherwise  expressly  stated  in 
constitution,  consist  of  not  less  than  twelve,  whose  verdict  must  be  concurred  in  by 
twelve,  see  State  v  Hartley,  22  Nev.  342,  40  Pac.  372,  28  L.  11.  A.  33,  and  note. 
Under  the  constitution  of  Wyoming  providing  that  the  right  to  a  jury  trial  in  crim- 
inal cases  shall  remain  inviolate,  but  that  in 'civil  cases  a  jury  may  consist  of  less 
than  twelve,  it  is  held  that  a  statute  providing  that  a  verdict  might  be  found  in 
civil  cases  by  an  agreement  of  three-fourths  of  the  jurors  is  void.  First  Nat'l 
Bank  of  Rock  Springs  ?;.  Foster,  9  Wyo.  157,  61  Pac.  466,  63  Pac.  1056,  54  L.  R.  A. 
549.] 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


459 


unknown  to  the  law,  created  by  mere  voluntary  act  of  the  parties  ; 
and  it  would  in  effect  be  an  attempt  to  submit  to  a  species  of 
arbitration  the  question  whether  the  accused  has  been  guilty  of 
an  offence  against  the  State.  But  in*those  cases  which  formerly 
were  not  triable  by  jury,  if  the  legislature  provide  for  such  a  trial 
now,  they  may  doubtless  create  for  the  purpose  a  statutory  tri- 
bunal, composed  of  any  number  of  persons,  and  no  question  of 
constitutional  power  or  right  could  arise. 

Many  of  the  incidents  of  a  common-law  trial  by  jury  are  essen- 
tial elements  of  the  right.  The  jury  must  be  indifferent  between 
the  prisoner  and  the  Commonwealth ;  and  to  secure  impartiality 
challenges  are  allowed,  not  only  for  cause,1' but  also  peremptory 
without  assigning  cause.  The  jury  must  also  be  summoned  from 
the  vicinage  where  the  crime  is  supposed  to  have  been  com- 
mitted;2 and  the  accused  will  thus  have  the  benefit  on  his  trial 


1  Inability  to  read  and  write  may  be 
made    good   cause  for   challenge.      Mc- 
Campbell  v.  State,  9  Tex.  App.  124,  35 
Am.  Rep.  726.     But  not  inability  to  un- 
derstand English,  in  New  Mexico,  in  the 
absence  of  statute.     Terr.  v.  Komine,  2 
New  Mexico,  114.     See,  on  the  subject 
of  challenges  for  opinion  formed,  Hayes 
o.  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  Rep. 
350;   Spies  v.  Illinois,  123  U.  S.  131,  8 
Sup.  Ct.  Rep.  21 ;  Hopt  v.  Utah,  120  U.  S. 
430,  7  Sup.  Ct.  Rep.  614  ;  Palmer  v.  State, 
42   Ohio    St.   596;    State  i;.  Munchrath, 
78  Iowa,  268, 43  N.  W.  211.     FJCoughlin  v. 
People,  144  111.  140, 33  N.  E.  1,  19  L.  R.  A. 
67;  and  upon  challenges  generally,  notes 
to  41  L.  ed.  U.  S.  104  and  20  L.  ed.  U.  S. 
659.] 

2  Offences  against  tbe  United  States 
are  to  be  tried  in  the  district,  and  those 
against  the  State  in  the  county  in  which 
they  are  charged  to  have  been  committed : 
Swart  v.  Kimball,  43  Mich.  443,  5  N.  W. 
635 ;  but  courts  are  generally  empowered, 
on  the  application  of  an  accused  party,  to 
order  a  change  of  venue,  where  for  any 
reason  a  fair  and  impartial  trial  cannot 
be  had  in  the  locality.     See  Hudson  v. 
State,  3  Cold.  355;   Rowan  r.  State,  30 
Wis.  129;    State  v.   Mooney,   10  Iowa, 
607  ;   State  v.  Read,  49  Iowa,   85  ;  Way- 
rick  v.  People,  89  111.  90 ;  Manly  ».  State, 
52  Ind.  215;   Gut  v.  State,  9  Wall.  35; 
State  v.  Albee,  61   N.  H.   423.     [State 
v.  McCarty,  52  Ohio  St.  363,  39  N.   E. 
1041,  27  L.  R.  A.  534.]     It  has  been  held 
incompetent  to  order  such  a  change  of 


venue  on  the  application  of  the  prosecu- 
tion. Kirk  v.  State,  1  Cold,  344.  See 
also  Wheeler  v.  State,  24  Wis.  52 ;  Osborn 
v.  State,  24  Ark.  629.  [People  v.  Powell, 
87  Cal.  348,  25  Pac.  481,  11  L.  R.  A.  75.] 
And  in  another  case  in  Tennessee  it  was 
decided  that  a  statute  which  permitted 
offences  committed  near  the  boundary 
line  of  two  counties  to  be  tried  in  either 
was  an  invasion  of  the  constitutional 
principle  stated  in  the  text.  Armstrong 
v.  State,  1  Cold.  338.  See  also  State  v. 
Denton,  6  Cold.  539.  Contra,  State  v. 
Robinson,  14  Minn.  447;  Willis  v.  State, 
10  Tex.  App.  493.  [Statute  providing 
that  where  the  blow  is  struck  outside  the 
state  and  the  stricken  one  dies  within  the 
state,  the  crime  shall  be  deemed  to  have 
been  committed  at  the  place  of  death  was 
sustained  in  Exparte  McNeely,  36  W.  Va. 
84,  14  S.  E.  436,  16  L.  R.  A.  226,  32  Am. 
St.  831.  Jury  cannot  be  summoned  from 
country  districts  to  exclusion  of  residents 
of  city  in  which  crime  occurred.  Zanone 
v.  State,  97  Tenn.  101,  36  S.  W.  711,  35 
L.  R.  A.  556.] 

The  case  of  Dana  decided  by  Judge 
Blatckford,  when  U.  S.  District  Judge  for 
the  southern  district  of  New  York,  is  of 
interest  in  this  connection.  The  "  New 
York  Sun,"  of  which  Mr.  Charles  A.  Dana 
was  editor-in-chief,  published  an  article 
reflecting  upon  the  public  conduct  of  an 
official  at  Washington.  This  article  was 
claimed  to  be  a  libel.  The  actual  offence, 
if  any,  was  committed  in  New  York  ;  but 
a  technical  publication  also  took  place  in 


460 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


of  his  own  good  character  and  standing  with  his  neighbors,  if 
these  he  has  preserved ;  and  also  of  such  knowledge  as  the  jury 
may  possess  of  the  witnesses  who  may  give  evidence  against  him. 
He  will  also  be  able  with  more  certainty  to  secure  the  attendance 
of  his  own  witnesses.  The  jury  must  unanimously  concur  in  the 
verdict  (a).  This  is  a  very  old  requirement  in  the  English  com- 
mon law,  and  it  has  been  adhered  to,  notwithstanding  very  eminent 
men  have  assailed  it  as  unwise  and  inexpedient.1  And  the  jurors 
must  be  left  free  to  act  in  accordance  with  the  dictates  of  their 
judgment.  The  final  decision  of  the  facts  is  to  rest  with  them, 
and  interference  by  the  court  with  a  view  to  coerce  them  into  a 
verdict  against  their  convictions  is  unwarrantable  and  irregular. 
A  judge  is  not  justified  in  expressing  his  conviction  to  the  jury 
that  the  defendant  is  guilty  upon  the  evidence  adduced.2  Still 


Washington,  by  the  sale  of  papers  there. 
The  offended  party  chose  to  have  his 
complaint  tried  summarily  by  a  police 
justice  of  the  latter  city,  instead  of  sub- 
mitting it  to  a  jury  required  to  be  indiffer- 
ent between  the  parties.  A  federal  com- 
missioner issued  a  warrant  for  Mr.  Dana's 
arrest  in  New  York  for  transportation  to 
Washington  for  trial ;  but  Judge  Blatch- 
ford  treated  the  proceeding  with  little  re- 
spect, and  ordered  Mr.  Dana's  discharge. 
Matter  of  Dana,  7  Ben.  1.  It  would  have 
been  a  singular  result  of  a  revolution 
where  one  of  the  grievances  complained 
of  was  the  assertion  of  a  right  to  send 
parties  abroad  for  trial,  if  it  should  have 
been  found  that  an  editor  might  be  seized 
anywhere  in  the  Union  and  transported 
by  a  federal  officer  to  every  territory  into 
which  his  paper  might  find  its  way,  to  be 
tried  in  each  in  succession  for  offences 
which  consisted  in  a  single  act  not  actu- 
ally done  in  any  of  them.  QJpon  right 
of  accused  to  object  to  local  judge  for 
prejudice,  see  State  v.  Kent,  4  N.  D.  577, 
62  N.  W.  631,  27  L.  R,  A.  686.] 

1  For  the  origin  of  this  principle,  see 
Forsyth,  Trial  by  Jury,  c.  11.  The  re- 
quirement of  unanimity  does  not  prevail 
in  Scotland,  or  on  the  Continent.  Among 
the  eminent  men  who  have  not  approved 


it  may  be  mentioned  Locke  and  Jeremy 
Bentham.  See  Forsyth,  supra;  Lieber, 
Civil  Liberty  and  Self-Government,  c.  20. 
(^Unanimity  necessary.  American  Pub- 
lishing Co.  v.  Fisher,  166  U.  S.  464,  17 
Sup.  Ct.  Rep.  618;  Springville  City  v. 
Thomas,  166  U.  S.  707,  17  Sup.  Ct.  Rep. 
717.] 

2  A  judge  who  urges  his  opinion  upon 
the  facts  to  the  jury  decides  the  cause, 
while  avoiding  the  responsibility.  How 
often  would  a  jury  be  found  bold  enough 
to  declare  their  opinion  in  opposition  to 
that  of  the  judge  upon  the  bench,  whose 
words  would  fall  upon  their  ears  with  all 
the  weight  which  experience,  learning, 
and  commanding  position  must  always 
carry  with  them  ?  What  lawyer  would 
care  to  sum  up  his  case,  if  he  knew  that 
the  judge,  whose  words  would  be  so  much 
more  influential,  was  to  declare  in  his 
favor,  or  would  be  bold  enough  to  argue 
the  facts  to  the  jury,  if  he  knew  the  judge 
was  to  declare  against  him  ?  Blackstone 
has  justly  remarked  that  "in  settling  and 
adjusting  a  question  of  fact,  when  in- 
trusted to  any  single  magistrate,  partial- 
ity and  injustice  have  an  ample  field  to 
range  in  ;  either  by  boldly  asserting  that 
to  be  proved  which  is  not  so,  or  by  more 
artfully  suppressing  some  circumstances, 


(a)  [Tint  see  the  note  on  Maxwell  v.  Dow,  note  (a),  page  454,  ante.  And  upon 
number  and  agreement  of  jurors  necessary  to  constitute  a  valid  verdict,  see  note  to 
43  L.  R.  A.  33.  See  also  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  33  Fla.  608,  15 
So.  257,  24  L.  R.  A.  272,  and  note.  That  statute  may  make  majority  of  three-fourths 
sufficient  in  civil  cases,  where  the  constitution  expressly  so  provides,  see  Hess  v. 
White,  9  Utah,  61,  33  Pac.  243,  24  L.  R.  A.  277  J 


CH.  X.]  CONSTITUTIONAL   PKOTECTIONS,  ETC.  461 

less  would  he  be  justified  in  refusing  to  receive  and  record  the 
verdict  of  the  jury,  because  of  its  being,  in  his  opinion,  rendered 
in  favor  of  the  prisoner  when  it  ought  not  to  have  been  (a). 

He  discharges  his  duty  of  giving  instructions  to  the  jury  when 
he  informs  them  what  in  his  view  the  law  is  which  is  applicable 
to  the  case  before  them,  and  what  is  essential  to  constitute  the 
offence  charged;  and  the  jury  should  be  left  free  and  unbiased 
by  his  opinion  to  determine  for  themselves  whether  the  facts  in 
evidence  are  such  as,  in  the  light  of  the  instructions  of  the  judge, 
make  out  beyond  any  reasonable  doubt  that  the  accused  party  is 
guilty  as  alleged.1 

How  far  the  jury  are  to  judge  of  the  law  as  well  as  of  the  facts, 
is  a  question,  a  discussion  of  which  we  do  not  propose  to  enter 
upon.  If  it  be  their  choice  to  do  so,  they  may  return  specially 
what  facts  they  find  established  by  the  evidence,  and  allow  the 
court  to  apply  the  law  to  those  facts,  and  thereby  to  determine 
whether  the  party  is  guilty  or  not.  But  they  are  not  obliged  in 
any  case  to  find  a  special  verdict ;  they  have  a  right  to  apply  for 
themselves  the  law  to  the  facts,  and  to  express  their  own  opinion, 
upon  the  whole  evidence,  of  the  defendant's  guilt.  Where  a 

stretching  and  warping  others,  and  dis-  opposition  of  the  judges,  they  almost  all 
tinguishing  away  the  remainder."  3  BI.  spitefully  followed  this  course.  I  myself 
Com.  380.  These  are  evils  which  jury  heard  one  judge  say  :  'As  the  legislature 
trial  is  designed  to  prevent;  but  the  effort  requires  me  to  give  my  own  opinion  in 
must  be  vain  if  the  judge  is  to  control  by  the  present  case,  I  am  of  opinion  that  this 
his  opinion,  where  the  law  has  given  him  is  a  diabolically  atrocious  libel.'"  Upon 
no  power  to  command.  In  Lord  Camp-  this  subject,  see  McGuffie  v.  State,  17  Ga. 
bell's  Lives  of  the  Chancellors,  c.  181,  the  497 ;  State  v.  McGinnis,  5  Nev.  337 ;  Pit- 
author  justly  condemns  the  practice  with  tock  v.  O'Niell,  63  Pa.  St.  253.  3  Am.  Rep. 
some  judges  in  libel  cases,  of  expressing  544;  People  v.  Gastro,  75  Mich.  127,  42 
to  the  jury  their  belief  in  the  defendant's  N.  W.  937. 

guilt.  On  the  trial  of  parties,  charged  1  The  independence  of  the  jury,  with 
with  a  libel  on  the  Empress  of  Russia,  respect  to  the  matters  of  fact  in  issue  be- 
Lord  Kenyan,  sneering  at  the  late  Libel  fore  them,  was  settled  by  Penn's  Case,  6 
Act,  said  :  "I  am  bound  by  my  oath  to  Howell's  State  Trials,  951,  and  by  Bush- 
declare  my  own  opinion,  and  I  should  el's  Case,  which  grew  out  of  it,  and  is 
forget  my  duty  were  I  not  to  say  to  you  reported  in  Vaughan's  Reports,  135.  A 
that  it  is  a  gross  libel."  Upon  this  Lord  very  full  account  of  these  cases  is  also 
Campbell  remarks:  "Mr.  Fox's  act  only  found  in  Forsytli  on  Trial  by  Jury,  397. 
requires  the  judges  to  give  their  opinion  See  Bushel's  Case  also  in  Broom's  Const. 
on  matters  of  law  in  HI  el  cases  as  in  Law,  120,  nnd  the  valuable  note  thereto, 
other  cases.  But  did  any  judge  ever  say,  Bushel  was  foreman  of  the  jury  which 
'Gentlemen,  I  am  of  opinion  that  this  is  refused  to  find  a  verdict  of  guilty  at  the 
a  wilful,  malicious,  and  atrocious  mur-  dictation  of  the  court,  and  he  was  pun- 
der1?'  For  a  considerable  time  after  ished  as  for  contempt  of  court  for  his  re- 
the  act  passed,  against  the  unanimous  fusal,  but  was  released  on  habeas  corpus. 

(a)  QBut  when  verdict  is  unintelligible  or  its  parts  are  repugnant  the  jury  may  be 
sent  back  to  correct  it.  Grant  v.  State,  33  Fla.  291,  14  So.  757,  23  L.  R.  A.  723,  and 
note  upon  correction  of  Yerdict/] 


462  CONSTITUTIONAL  LIMITATIONS-  [CH.  X. 

general  verdict  is  thus  given,  the  jury  necessarily  determine  in 
their  own  mind  what  the  law  of  the  case  is  j1  and  if  their  deter- 
mination is  favorable  to  the  prisoner,  no  mode  is  known  to  the 
law  in  which  it  can  be  reviewed  or  reversed.  A  writ  of  error 
does  not  lie  on  behalf  of  the  Commonwealth  to  reverse  an  ac- 
quittal, unless  expressly  given  by  statute ; 2  nor  can  a  new  trial 
be  granted  in  such  a  case;3  but  neither  a  writ  of  error  nor  a 
motion  for  a  new  trial  could  remedy  an  erroneous  acquittal  by 
the  jury,  because,  as  they  do  not  give  reasons  for  their  verdict, 
the  precise  grounds  for  it  can  never  be  legally  known,  and  it  is 
always  presumable  that  it  was  given  in  favor  of  the  accused  be- 
cause the  evidence  was  not  sufficient  in  degree  or  satisfactory  in 
character;  and  no  one  is  at  liberty  to  allege  or  assume  that  they 
have  disregarded  the  law. 

Nevertheless,  as  it  is  the  duty  of  the  court  to  charge  the  jury 
upon  the  law  applicable  to  the  case,  it  is  still  an  important  ques- 
tion whether  it  is  the  duty  of  the  jury  to  receive  and  act  upon  the 
law  as  given  to  them  by  the  judge,  or  whether,  on  the  other  hand, 
his  opinion  is  advisory  only,  so  that  they  are  at  liberty  either  to 
follow  it  if  it  accords  with  their  own  convictions,  or  to  disregard 
it  if  it  does  not. 

In  one  class  of  cases,  that  is  to  say,  in  criminal  prosecutions 
for  libels,  it  is  now  very  generally  provided  by  the  State  constitu- 
tions, or  by  statute,  that  the  jury  shall  determine  the  law  and  the 

1  "As  the  main  object  of  the  institution  dence  of  the  truth  as  constituting  no  de- 
of  the  trial  by  jury  is  to  guard  accused  fence,  but  Hamilton  appealed  to  the  jury 
persons  against  all  decisions  whatsoever  as  the  judges  of  the  law,  and  secured 
by  men  invested  with  any  permanent  an  acquittal.  Street's  Council  of  Re- 
official  authority,  it  is  not  only  a  settled  vision,  71. 

principle  that  the  opinion  which  the  judge  2  See  State  v.  Reynolds,  4  Hay  w.  110 ; 

delivers  has  no  weight  but  such  as  the  United  States  v.  More,  3   Cranch,    174; 

jury  choose  to  give  it,  but  their  verdict  People  v.  Dill,  2  111.  257;  People  v.  Royal, 

must  besides  [unless  they  see  fit  to  return  2  111.  557  ;  Commonwealth  v.  Cummings, 

a  special  finding]  comprehend  the  whole  3  Cush.  212  ;  People  v.  Corning,  2  N.  Y. 

matter  in  trial,  and  decide  as  well  upon  9;  State  v,  Kemp,  17  Wis.  669;  compare 

the  fact  as  upon  the  point  of  law  that  may  State  v.  Robinson,  37  La.  Ann.  673.     A 

arise  out  of  it ;  in  other  words,  they  must  constitutional  provision,  saving  "  to  the 

pronounce  both  on  the  commission  of  a  defendant  the  right  of  appeal  "in  criminal 

certain  fact,  and   on    the    reason  which  cases,  does  not,  by  implication,  preclude 

makes  such  fact  to  be  contrary  to  law."  the  legislature  from  giving  to  the  prose- 

De  Lolme  on   the  Constitution  of  Eng-  cution  the  same  right,     State  v.  Ta.lt,  22 

land,  c.  13.     In  January,  1735,  Zenger,  Iowa,  143.     Compare  People  v.  Webb,  38 

the  publisher  of  Zenger's  Journal  in  New  Cal.  467 ;  State  v.  Lee,  10  R.  I  494. 

York,  was  informed  against  for  a  libel  on  3  People  v.  Comstock,  8  Wend.  649; 

the    governor   and   other  officers  of  the  State  v.  Brown,  16    Conn.  54;    State  v. 

king  in  the  province.     He  was  defended  Kanouse,  20  N.  J.  115;  State  v.  Burns, 

by   Hamilton,  a   Quaker    lawyer   from  8  Tex.  118;  State  v.  Taylor,!  Hawks, 

Philadelphia,  who  relied  upon  the  truth  462. 
ns  a  defence.     The  court  excluded   evi- 


CH.  X.] 


CONSTITUTIONAL  PROTECTIONS,  ETC. 


463 


facts.1  How  great  a  change  is  made  in  the  common  law  by  these 
provisions  it  is  difficult  to  say,  because  the  rule  of  the  common 
law  was  not  very  clear  upon  the  authorities ;  but  for  that  very 
reason,  and  because  the  law  of  libel  was  sometimes  administered 
with  great  harshness,  it  was  certainly  proper  and  highly  desirable 
that  a  definite  and  liberal  rule  should  be  thus  established.2 

In  all  other  cases  the  jury  have  the  clear  legal  right  to  return 
a  simple  verdict  of  guilty  or  not  guilty,  and  in  so  doing  they 
necessarily  decide  such  questions  of  law  as  well  as  of  fact  as  are 
involved  in  the  general  question  of  guilt.  If  their  view  conduce 
to  an  acquittal,  their  verdict  to  that  effect  can.  neither  be  reviewed 


1  See  Constitutions  of  Alabama,  Con- 
necticut, California,  Delaware,  Georgia, 
Kentucky,  Maine,  Michigan,  Missouri, 
Nebraska,  New  York, Pennsylvania, South 
Carolina,  Tennessee,  and  Texas.  See 
post,  p.  696,  note.  That  of  Maryland 
makes  the  jury  judges  of  the  law  in 
all  criminal  cases;  and  the  same  rule  is 
established  by  constitution  or  statute  in 
some  other  States.  In  Holder  v.  State, 
5  Ga.  444,  the  following  view  was  taken 
of  such  a  statute  :  "  Our  penal  code  de- 
clares, '  On  every  trial  of  a  crime  or  of- 
fence contained  in  this  code,  or  for  any 
crime  or  offence,  the  jury  shall  be  judges 
of  the  law  and  the  fact,  and  shall  in 
every  case  give  a  general  verdict  of 
guilty  or  not  guilty,  and  on  the  acquittal 
of  any  defendant  or  prisoner,  no  new  trial 
shall  on  any  account  be  granted  by  the 
court.'  Juries  were,  at  common  law,  in 
some  sense  judges  of  the  law.  Having 
the  right  of  rendering  a  general  verdict, 
that  right  involved  a  judgment  on  the  law 
as  well  as  the  facts,  yet  not  such  a  judg- 
ment as  necessarily  to  control  the  court. 
The  early  commentators  on  the  common 
law,  notwithstanding  they  concede  this 
right,  yet  hold  that  it  is  the  duty  of  the 
jury  to  receive  the  law  from  the  court. 
Thus  Blackstone  equivocally  writes : 
'  And  such  public  or  open  verdict  may  be 
either  general,  guilty  or  not.  guilty,  or  spe- 
cial, setting  forth  all  the  circumstances  of 
the  case,  and  praying  the  judgment  of  the 
court  whether,  for  instance,  on  the  facts 
stated,  it  be  murder  or  manslaughter,  or 
no  crime  at  all.  This  is  where  they  doubt 
the  matter  of  the  law,  and  therefore  choose 
to  leave  it  to  the  determination  of  the 
court,  though  they  have  an  unquestion- 
able right  of  determining  upon  all  the 


circumstances,  and  of  finding  a  general 
verdict,  if  they  think  proper  so  to  hazard  a 
breach  of  their  oaths,'  &c.  4  Bl.  Com. 
361;  Co.  Lit.  228  a;  2  Hale,  P.  C.  313. 
Our  legislature  have  left  no  doubt  about 
this  matter.  The  juries  in  Georgia  can 
find  no  special  verdict  at  law.  They  are 
declared  to  be  judges  of  the  law  and  the 
facts,  and  are  required  in  every  case  to 
give  a  general  verdict  of  guilty  or  not 
guilty  ;  so  jealous,  and  rightfully  jealous, 
were  our  ancestors  of  the  influence  of  the 
State  upon  the  trial  of  a  citizen  charged 
with  crime.  We  are  not  called  upon  in  this 
case  to  determine  the  relative  strength  of 
the  judgment  of  the  court  and  the  jury, 
upon  the  law  in  criminal  cases,  and  shall 
express  no  opinion  thereon.  We  only 
say  it  is  the  right  and  duty  of  the  court 
to  declare  the  law  in  criminal  cases  as 
well  as  civil,  and  that  it  is  at  the  same 
time  the  right  of  the  jury  to  judge  of  the 
law  as  well  as  of  the  facts  in  criminal 
cases.  I  would  not  be  understood  as 
holding  that  it  is  not  the  province  of  the 
court  to  give  the  law  of  the  case  distinctly 
in  charge  to  the  jury;  it  is  unquestion- 
ably its  privilege  and  its  duty  to  instruct 
them  as  to  what  the  law  is.  and  officially 
to  direct  their  finding  as  to  the  law,  yet 
at  the  same  time  in  such  way  as  not  to 
limit  the  range  of  their  judgment."  See 
also  McGuffie  v.  State,  17  Ga.  497;  Clem 
v.  State,  31  Ind.  480 ;  and/>os(,p.652,  et  seq. 
2  For  a  condensed  history  of  the  strug- 
gle in  England  on  this  subject,  see  May's 
Constitutional  History,  c.  9.  See  also 
Lord  Campbell's  Lives  of  the  Chancellors, 
c.  178;  Introduction  to  Speeches  of  Lord 
Erskine,  edited  by  James  L.  High ;  For- 
syth's  Trial  by  Jury,  c.  12. 


464 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


nor  set  aside.  In  such  a  case,  therefore,  it  appears  that  they  pass 
upon  the  law  as  well  as  the  facts,  and  that  their  finding  is  con- 
clusive. If,  on  the  other  hand,  their  view  leads  them  to  a  verdict 
of  guilty,  and  it  is  the  opinion  of  the  court  that  such  verdict  is 
against  law,  the  verdict  will  be  set  aside  and  a  new  trial  granted. 
In  such  a  case,  although  they  have  judged  of  the  law,  the  court 
sets  aside  their  conclusion  as  improper  and  unwarranted.  But  it 
is  clear  that  the  jury  are  no  more  the  judges  of  the  law  when  they 
acquit  than  when  they  condemn,  and  the  different  result  in  the 
two  cases  comes  from  the  merciful  maxim  of  the  common  law, 
which  will  not  suffer  an  accused  party  to  be  twice  put  in  jeopardy 
for  the  same  cause,  however  erroneous  may  have  been  the  first 
acquittal.  In  theory,  therefore,  the  rule  of  law  would  seem  to 
be,  that  it  is  the  duty  of  the  jury  to  receive  and  follow  the  law  as 
delivered  to  them  by  the  court ;  and  such  is  the  clear  weight  of 
authority.1 

There  are,  however,  opposing  decisions,2  and  it  is  evident  that 


*  United  States  v.  Battiste,  2  Sum. 
240;  Stettinus  v.  United  States,  6  Craneh, 
C.  C.  673 ;  United  States  v.  Morris,  1  Curt. 
63;  United  States  v.  Riley,  6  Blatch. 
204;  United  States  v.  Greathouse,  4 
Sawyer,  459;  Montgomery  v.  State,  11 
Ohio,  427 ;  Bobbins  v.  State,  8  Ohio  St. 
131 ;  Commonwealth  v.  Porter,  10  Met. 
2o3 ;  Commonwealth  v,  Anthes,  5  Gray, 
185;  Commonwealth  v.  Bock,  10  Gray,  4 ; 
State  v.  Peace,  1  Jones,  251 ;  Handy  v. 
State,  7  Mo.  607 ;  Nels  v.  State,  2  Tex. 
280;  State  v.  Tally,  23  La.  Ann.  677; 
State  v.  Tisdale,  41  La.  Ann.  338,  6  So. 
579;  People  v.  Pine,  2  Barb.  566;  Car- 
penter v.  People,  8  Barb.  603 ;  People 
v.  Finnigan,  1  Park  C.  R.  147 ;  Safford  v. 
People,  1  Park  C.  R.  474;  McMath  v. 
State,  55  Ga.  303 ;  Hamilton  v.  People, 
29  Mich.  173  ;  McGowan  v.  State,  9  Yerg. 
184;  Pleasant  v.  State,  13  Ark.  360; 
Montee  v.  Commonwealth,  3  J.  J.  Marsh. 
132  ;  Commonwealth  v.  Van  Tuyl,  1  Met. 
(Ky.)  1;  Pierce  v.  State,  13  N.  H.  536; 
People  v.  Stewart,  7  Cat.  40;  Mullinex  v. 
People,  76  111.  211;  Batre  v.  State,  18 
Ala.  119;  reviewing  previous  cases  in  the 
same  State.  "As  the  jury  have  the 
right,  and  if  required  by  the  prisoner  are 
bound  to  return  a  general  verdict  of 
guilty  or  not  guilty,  they  must  neces- 
sarily, in  the  discharge  of  this  duty,  de- 
cide such  questions  of  law  as  well  as  of 
fact  as  are  involved  in  the  general  ques- 
tion, and  there  is  no  mode  in  which  their 


opinions  upon  questions  of  law  can  be 
reviewed  by  this  court  or  by  any  other 
tribunal.  But  this  does  not  diminish  the 
obligation  resting  upon  the  court  to  ex- 
plain the  law.  The  instructions  of  the 
court  in  matters  of  law  may  safely  guide 
the  consciences  of  the  jury,  unless  they 
know  them  to  be  wrong ;  and  when  the 
jury  undertake  to  decide  the  law  (as  they 
undoubtedly  have  the  power  to  do)  in  op- 
position to  the  advice  of  the  court,  they 
assume  a  high  responsibility,  and  should 
be  very  careful  to  see  clearly  that  they 
are  right."  Commonwealth  v.  Knapp, 
10  Pick.  496 ;  cited  with  approval  in  Mc- 
Gowan v.  State,  9  Yerg.  195,  and  Dale  v. 
State,  10  Yerg.  655.  And  see  Kane  v. 
Commonwealth,  89  Pa.  St.  522,  33  Am. 
Rep.  787  ;  Habersham  v.  State,  56  Ga.  61, 
2  Am.  Cr.  Rep.  45;  Hunt  v.  State,  81 
Ga.  140,  7  S.  E.  142.  Even  where  the 
jury  are  judges  of  the  law  and  facts  and 
instructions  are  only  advisory,  error  in 
the  charge  is  prejudicial.  State  v.  Rice, 
66  Iowa,  431  ;  Hudelson  v.  State,  94  Ind. 
426.  Even  if  there  is  no  dispute,  a  court 
cannot  direct  a  conviction.  United  States 
v.  Taylor,  3  McCrary,  500. 

2  See  especially  State  v.  Croteau,  23 
Vt.  14,  where  will  be  found  a  very  full 
and  carefully  considered  opinion,  holding 
that  at  the  common  law  the  jury  are  the 
judges  of  the  law  in  criminal  cases.  See 
also  State  v.  Wilkinson,  2  Vt.  280;  Doss 
v.  Commonwealth,  1  Gratt.  657;  State  r. 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


465 


the  judicial  prerogative  to  direct  conclusively  upon  the  law  can- 
not be  carried  very  far  or  insisted  upon  with  much  pertinacity, 
when  the  jury  have  such  complete  power  to  disregard  it,  without 
the  action  degenerating  into  something  like  mere  scolding.  Upon 
this  subject  the  remarks  of  Mr.  Justice  Baldwin,  of  the  Supreme 
Court  of  the  United  States,  to  a  jury  assisting  him  in  the  trial  of 
a  criminal  charge,  and  which  are  given  in  the  note,  seem  pecul- 
iarly dignified  and  appropriate,  and  at  the  same  time  to  embrace 
about  all  that  can  properly  be  said  to  a  jury  on  this  subject.1 


Jones,  5  Ala.  666  ;  State  v.  Snow,  18  Me. 
346;  State  v.  Allen,  1  McCord,  625,  10 
Am.  Dec.  687 ;  Armstrong  v.  State,  4 
Blackf.  247 ;  Warren  v.  State,  4  Blackf. 
150 ;  Stocking  v.  State,  7  Ind.  326  ;  Lynch 
v.  State,  9  Ind.  541 ;  Nelson  v.  State,  2 
Swan,  482;  People  v.  Thayers,  1  Park. 
C.  R.  596 ;  People  v.  Videto,  1  Park.  C. 
R.  603.  The  subject  was  largely  dis- 
cussed in  People  v.  Croswell,  3  Johns. 
Cas.  337.  In  Virginia,  it  is  said  that 
unless  instructions  are  asked,  a  court 
should  in  general  not  instruct  the  jury 
upon  the  law ;  Dejarnette  v.  Com.,  75 
Va.  867,  and  in  Maryland  it  seems  to 
be  optional  witli  the  court  to  instruct 
them.  Broil  v.  State,  45  Md.  356. 

1  "  In  repeating  to  you  what  was  said 
on  a  former  occasion  to  another  jury, 
that  you  have  the  power  to  decide  on  the 
law  as  well  as  the  facts  of  this  case,  and 
are  not  bound  to  find  according  to  our 
opinion  of  the  law,  we  feel  ourselves  con- 
strained to  make  some  explanations  not 
then  deemed  necessary,  but  now  called 
for  from  the  course  of  the  defence.  You 
may  find  a  general  verdict  of  guilty  or 
not  guilty,  as  you  think  proper,  or  you 
may  find  the  facts  specially,  and  leave 
the  guilt  or  innocence  of  the  prisoner  to 
the  judgment  of  the  court.  If  your  ver- 
dict acquit  the  prisoner,  we  cannot  grant 
a  new  trial,  however  much  we  may  differ 
with  you  as  to  the  law  which  governs  the 
case;  and  in  this  respect  a  jury  are  the 
judges  of  the  law,  if  they  choose  to  be- 
come so.  Their  judgment  is  final,  not 
because  they  settle  the  law,  but  because 
they  think  it  not  applicable,  or  do  not 
choose  to  apply  it  to  the  case. 

"But  if  a  jury  find  a  prisoner  guilty 
against  the  opinion  of  the  court  on  the 
law  of  the  case,  a  new  trial  will  be  granted. 
No  court  will  pronounce  a  judgment  on 
a  prisoner  against  what  they  believe  to 


be  the  law.  On  an  acquittal  there  is  no 
judgment ;  and  the  court  do  not  act,  and 
cannot  judge,  there  remaining  nothing  to 
act  upon. 

"  This,  then,  you  will  understand  to  be 
what  is  meant  by  your  power  to  decide 
on  the  law  ;  but  you  will  still  bear  in 
mind  that  it  is  a  very  old,  sound,  and 
valuable  maxim  in  law,  that  the  court 
answers  to  questions  of  law,  and  the  jury 
to  facts.  Every  day's  experience  evinces 
the  wisdom  of  this  rule."  United  States 
f.  Wilson,  Baldw.  108.  We  quote  also 
from  an  Alabama  case :  "  When  the 
power  of  juries  to  find  a  general  verdict, 
and  consequently  their  right  to  determine 
without  appeal  both  law  and  fact,  is  ad- 
mitted, the  abstract  question  whether  it 
is  or  is  not  their  duty  to  receive  the  law 
from  the  court  becomes  rather  a  question 
of  casuistry  or  conscience  than  one  of 
law;  nor  can  we  think  that  anything  is 
gained  in  the  administration  of  criminal 
justice  by  urging  the  jury  to  disregard 
the  opinion  of  the  court  upon  the  law  of 
the  case.  It  must,  we  think,  be  admitted, 
that  the  judge  is  better  qualified  to  ex- 
pound the  law,  from  his  previous  train- 
ing, than  the  jury  ;  and  in  practice,  unless 
he  manifests  a  wanton  disregard  of  the 
rights  of  the  prisoner,  —  a  circumstance 
which  rarely  happens  in  this  age  of  the 
world  and  in  this  country,  —  his  opinion 
of  the  law  will  be  received  by  the  jury  as 
an  authoritative  exposition,  from  their 
conviction  of  his  superior  knowledge  of 
the  subject.  The  right  of  the  jury  is 
doubtless  one  of  inestimable  value,  es- 
pecially in  those  cases  where  it  may  be 
supposed  that  the  government  has  an  in- 
terest in  the  conviction  of  the  criminal; 
but  in  this  country,  where  the  govern- 
ment in  all  its  branches,  executive,  legis- 
lative, and  judicial,  is  created  by  the 
people,  and  is  in  fact  their  servant,  we 


30 


466 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


One  thing  more  is  essential  to  a  proper  protection  of  accused 
parties,  and  that  is,  that  one  shall  not  be  subject  to  be  twice  put 
in  jeopardy  upon  the  same  charge.  One  trial  and  verdict  must, 
as  a  general  rule,  protect  him  against  any  subsequent  accusation 
of  the  same  offence,1  whether  the  verdict  be  for  or  against  him, 


are  unable  to  perceive  why  the  jury 
should  be  invited  or  urged  to  exercise 
this  right  contrary  to  their  own  convic- 
tions of  their  capacity  to  do  so,  without 
danger  of  mistake.  It  appears  to  us  that 
it  is  sufficient  that  it  is  admitted  that  it  is 
their  peculiar  province  to  determine  facts, 
intents,  and  purposes;  that  it  is  their 
right  to  find  a  general  verdict,  and  conse- 
quently that  they  must  determine  the 
law;  and  whether  in  the  exercise  of  this 
right  they  will  distrust  the  court  as  ex- 
pounders of  the  law,  or  whether  they  will 
receive  the  law  from  the  court,  must  be 
left  to  their  own  discretion  under  the 
sanction  of  the  oath  they  have  taken." 
State  v.  Jones,  5  Ala.  672.  But  as  to 
this  case,  see  Batre  v.  State,  18  Ala.  119. 

It  cannot  be  denied  that  discredit  is 
sometimes  brought  upon  the  administra- 
tion of  justice  by  juries  acquitting  parties 
who  are  sufficiently  shown  to  be  guilty, 
and  where,  had  the  trial  been  by  the 
court,  a  conviction  would  have  been  sure 
to  follow.  In  such  cases  it  must  be  sup- 
posed that  the  jury  have  been  controlled 
by  their  prejudices  or  their  sympathies. 
However  that  may  be,  it  by  no  means 
follows  that  because  the  machinery  of 
jury  trial  does  not  work  satisfactorily  in 
every  case,  we  must  therefore  condemn 
and  abolish  the  system,  or,  what  is  still 
worse,  tolerate  it,  and  3-et  denounce  it 
as  being  unworthy  of  public  confidence. 
The  remarks  of  Lord  Erskine,  the  most 
distinguished  jury  lawyer  known  to  Eng- 
lish history,  may  be  quoted  as  peculiarly 
appropriate  in  this  connection  :  "  It  is  of 
the  nature  of  everything  that  is  great 
and  useful,  both  in  the  animate  and  in- 
animate world,  to  be  wild  and  irregular, 
and  we  must  be  content  to  take  them 
with  the  alloys  which  belong  to  them,  or 
live  without  them.  .  .  .  Liberty  herself, 
the  last  and  best  gift  of  God  to  his  crea- 
tures, must  be  taken  just  as  she  is.  You 
might  pare  her  down  into  bashful  regu- 
larity, shape  her  into  a  perfect  model  of 
severe,  scrupulous  law ;  but  she  would 
then  be  liberty  no  longer  ;  and  you  must 
be  content  to  die  under  the  lash  of  this 


inexorable  justice  which  you   have  ex- 
changed for  the  banners  of  freedom." 

The  province  of  the  jury  is  sometimes 
invaded  by  instructions  requiring  them 
to  adopt,  as  absolute  conclusions  of  law, 
those  deductions  which  they  are  at  liberty 
to  draw  from  a  particular  state  of  facts, 
if  they  regard  them  as  reasonable :  such 
as  that  a  homicide  must  be  presumed 
malicious,  unless  the  defendant  proves  the 
contrary ;  which  is  a  rule  contradictory 
of  the  results  of  common  observation  ; 
or  that  evidence  of  a  previous  good  char- 
acter in  the  defendant  ought  to  be  dis- 
regarded, unless  the  other  proof  presents 
a  doubtful  case  ;  which  would  deprive  an 
accused  party  of  his  chief  protection  in 
many  cases  of  false  accusations  and  con- 
spiracies. See  People  v.  Garbutt,  17 
Mich.  9;  People  v.  Lamb,  2  Keyes,  860; 
State  v.  Henry,  5  Jones  (N.  C.),  66  ;  Har- 
rington v.  State,  19  Ohio  St.  269;  Silvus 
v.  State,  22  Ohio  St.  90 ;  State  v.  Patter- 
son, 45  Vt.  308;  Remsen  v.  People,  43 
N.  Y.  6 ;  Kistler  v.  State,  64  Ind.  400- 
Upon  the  presumption  of  malice  in  homi- 
cide, the  reader  is  referred  to  the  Review 
of  the  Trial  of  Professor  Webster,  by 
Hon.  Joel  Parker,  in  the  North  American 
Review,  No.  72,  p.  178.  See  also,  upon 
the  functions  of  judge  and  jury  respec- 
tively, the  cases  of  Commonwealth  v. 
Wood,  11  Gray,  86;  Maher  v.  People,  10 
Mich.  212  ;  Commonwealth  v.  Billings,  97 
Mass.  405;  State  v.  Patterson,  63  N.  C. 
620;  State  v.  Newton,  4  Nev.  410.  QSee, 
upon  the  right  of  the  jury  to  pass  upon 
the  law,  note  to  State  v.  Whitmore  in  42 
Am.  St.  Rep.  290-295;  13  Am.  Law  Reg. 
355,  and  7  Crim.  Law  Mag.  652.  No 
more  scholarly  contribution  to  the  dis- 
cussion of  this  general  subject  of  "Law 
and  Fact  in  Jury  Trials  "  can  be  found 
than  in  the  late  Professor  Thayer's  "  Pre- 
liminary Evidence  at  the  Common  Law," 

c.5.: 

1  By  the  same  offence  is  not  signified 
the  same  eo  nomine,  but  the  same  crim- 
inal act  or  omission.  Hershfield  v.  State, 
11  Tex.  App.  '207;  Wilson  v.  State,  24 
Conn.  57;  State  v.  Thornton,  37  Mo.  360; 


CH.  X.] 


CONSTITUTIONAL   PKOTECTIONS,   ETC. 


467 


and  whether  the  courts  are  satisfied  with  the  verdict  or  not.  We 
shall  not  attempt  in  this  place  to  collect  together  the  great 
number  of  judicial  decisions  bearing  upon  the  question  of  legal 
jeopardy,  and  the  exceptions  to  the  general  rule  above  stated ;  for 
these  the  reader  must  be  referred  to  the  treatises  on  criminal 
law,  where  the  subject  will  be  found  to  be  extensively  treated. 
It  will  be  sufficient  for  our  present  purpose  to  indicate  very 
briefly  some  general  principles. 

A  person  is  in  legal  jeopardy  when  he  is  put  upon  trial,  before 
a  court  of  competent  jurisdiction,  upon  indictment  or  information 
which  is  sufficient  in  form  and  substance  to  sustain  a  conviction, 
and  a  jury  has  been  charged  with  his  deliverance.1  And  a  jury  is 


Holt  v.  State,  38  Ga.  187  ;  Commonwealth 
v.  Hawkins,  11  Bush,  603;  People  v. 
'Majors,  65  Cal.  138,  3  Pac.  597  ;  People  v. 
Stephens,  79  Cal.  428,  21  Pac.  856;  State 
v.  Colgate,  31  Kan.  611,  3  Pac.  346 ;  State 
v.  Mikesell,  70  Iowa,  176,  30  N.  W.  474 ; 
Hurst  v.  State,  86  Ala.  604,  6  So.  120; 
Moore  v.  State,  71  Ala.  307.  [[The  same 
act  may  be  an  offence  against  two  or 
more  jurisdictions,  and  each  may  punish 
it.  He  Chapman,  166  U.  S.  661,  17  Sup. 
Ct.  Rep.  677 ;  Crosslcy  v.  California,  168 
U.  S.  640,  18  Sup.  Ct.  Rep.  242;  s.  c  ,  be- 
low, People  v.  Worden,  113  Cal.  569,  45 
Pac.  844.  Where  accused  is  acquitted  of 
the  offence  charged,  he  cannot  thereafter 
be  prosecuted  for  perjury  in  swearing  that 
he  did  not  commit  the  offence  charged. 
Cooper  v.  Commonwealth,  106  Ky.909,  51 
S.  W.  789,  45  L.  R.  A.  216.  That  same 
act  may  involve  two  offences  against  the 
State,  see  Commonwealth  v.  Vaughn,  101 
Ky.  603,  42  S.  W.  117,  45  L.  R.  A.  858, 
and  note  thereto  in  L.  R.  A.  Where 
putative  father  is  liable  to  fine,  no  appeal 
can  be  allowed  against  successful  defend- 
ant in  a  bastardy  proceeding.  State  v. 
Ostwalt,  118  N.  C.  1208,  24  S.  E.  660,  32 
L.  R.  A.  396.  Statute  giving  State  right 
of  appeal  upon  questions  of  law  in  crim- 
inal cause  is  valid.  State  v.  Lee,  65  Conn. 
265,  30  Atl.  1110,  27  L.  R.  A.  498,48  Am. 
St.  202.] 

1  Commonwealth  v.  Cook,  6  S.  &  R. 
586;  Stater.  Norvell,  2  Yerg.  24;  Wil- 
liams v.  Commonwealth,  2  Gratt.  568 ; 
People  v.  McGowan,  17  Wend.  386; 
Mounts  v.  State,  14  Ohio,  295;  Price  v. 
State,  19  Ohio,  423;  Wright ».  State,5Ind. 
292 ;  State  v.  Nelson,  26  Ind.  366 ;  State 
v.  Spier,  1  Dev.  491 ;  State  v.  Ephraim, 


2  Dev.  &  Bat.  162;  Commonwealth  v. 
Tuck,  20  Pick.  356;  People  v.  Webb, 
28  Cal.  467;  People  v.  Cook,  10  Mich. 
164 ;  State  v.  Ned,  7  Port.  217 ;  State  v. 
Callendine,  8  Iowa,  288 ;  [State  v.  Rook, 
61  Kan.  382,  59  Pac.  653,  49  L.  R.  A.  186  ; 
State  v.  Richardson,  47  S.  C.  166,  25  S.  E. 
220,  35  L.  R.  A.  238J  If  a  defendant 
is  arraigned  before  a  justice  who  has 
jurisdiction,  and  pleads  guilt}',  and  the 
prosecutor  dismisses  the  case,  he  has  been 
in  jeopardy.  Boswell  v.  State,  111  Ind. 
47.  It  cannot  be  said,  however,  that  a 
party  is  in  legal  jeopardy  in  a  prosecu- 
tion brought  about  by  his  own  procure- 
ment; and  a  former  conviction  or  acquit- 
tal is  consequently  no  bar  to  a  second 
indictment,  if  the  former  trial  was  brought 
about  by  the  procurement  of  the  defend- 
ant, and  the  conviction  or  acquittal  was 
the  result  of  fraud  or  collusion  on  his 
part.  Commonwealth  v.  Alderman,  4 
Mass.  477 ;  State  v.  Little,  1  N.  H.  257 ; 
State  v.  Lowry,  1  Swan,  35;  State  v. 
Green,  16  Iowa,  239.  See  also  State  v. 
Reed,  26  Conn.  202 ;  Bigham  v.  State,  59 
Miss.  529  ;  State  v.  Simpson,  28  Minn.  66, 
9  N.  W.  78;  McFarland  v.  State,  68  Wis. 
400,  32  N.  W.  226.  And  if  a  jury  is 
called  and  sworn,  and  then  discharged 
for  the  reason  that  it  is  discovered  the 
defendant  has  not  been  arraigned,  this 
will  not  constitute  a  bar.  United  States 
v.  Riley,  5  Blatch.  204.  In  State  v.  Gar- 
vey,  42  Conn.  232,  it  is  held  that  a  prose- 
cution nol.  pressed  after  the  jury  is  sworn 
is  no  bar  to  a  new  prosecution,  "  If  the 
prisoner  does  not  claim  a  verdict,  but 
waives  his  right  to  insist  upon  it."  See 
Hoffman  v.  State,  20  Md.  425.  QSee 
notes  to  21  L.  ed.  U.  S.  872,  6  L.  ed.  U.  S. 


468 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


said  to  be  thus  charged  when  they  have  been  impanelled  and 
sworn.1  The  defendant  then  becomes  entitled  to  a  verdict  which 
shall  constitute  a  bar  to  a  new  prosecution;  and  he  cannot  be  de- 
prived of  this  bar  by  a  nolle  prosequi  entered  by  the  prosecuting 
officer  against  his  will,  or  by  a  discharge  of  the  jury  and  continu- 
ance of  the  cause.2 

If,  however,  the  court  had  no  jurisdiction  of  the  cause,3  or  if 
the  indictment  was  so  far  defective  that  no  valid  judgment  could 
be  rendered  upon  it,4  or  if  by  any  overruling  necessity  the  jury 
are  discharged  without  a  verdict,5  which  might  happen  from  the 

165,  4  L.  R.  A.  543,  and  1  L.  R.  A.  451. 
Indefinite  suspension  of  sentence  and  dis- 
charge without  recognizance  after  plea 
of  guilty  amounts  to  a  complete  loss  of 
power  over  prisoner,  and  he  cannot  sub- 
sequently be  taken  and  sentenced.  Peo- 
ple v.  Allen,  155  111.  61,  39  N.  E.  568,  41 
L.  R.  A.  473;  but  the  court  may  after 
sentence  suspend  in  whole  or  in  part  the 
execution  thereof,  and  may  at  any  time 
thereafter  within  the  term  in  which  such 
sentence  was  rendered  revoke  the  suspen- 
sion of  execution.  Weber  v.  State,  58  Ohio 
St.  616,  61  N.  E.  116,  41  L.  R.  A  472.  See 
also  People  v.  Monroe  Co.  Ct.,  141  N.  Y. 
288,  36  N.  E.  386,  23  L.  R.  A.  856.  Stat- 
ute giving  complainant  in  criminal  case 
for  illegal  fishing  a  right  of  appeal  in  case 
of  acquittal  is  void.  People  v.  Miner,  144 
111.  308,  33  N.  E.  40,  19  L.  R.  A.  342,  and 
note.] 

1  McFadden  v.  Commonwealth,  23  Pa. 
St.  12;  Lee  v.  State,  26  Ark.  260,  7  Am. 
Rep.  611;    O'Brian  v.  Commonwealth,  9 
Bush,  333,  15  Am.  Rep.  715.     The  jury 
must  be  of  competent  men.     If,  after  the 
jury  is  sworn  but  before  any  evidence  is 
taken,  an  incompetent  juror  is  set  aside, 
there  has  been  no  jeopardy.     People  v. 
Barker,  60   Mich.   277,   27   N.   W.   539; 
State  v.  Pritchard,  16  Nev.  101.     Com- 
pare Adams  v.  State,  99  Ind.  244;  Whit- 
more  v.  State,  43  Ark.  271. 

2  People   v.   Barrett,   2    Caines,   304 ; 
Commonwealth  v.  Tuck,  20  Pick.   305; 
Mounts  v.  State,  14  Ohio,  295;  State  v. 
Connor,  5  Cold.  311 ;  State  v.  Callcndine, 
8  Iowa,  288;  Baker  v.  State,  12  Ohio  St. 
214;  Grogan  v.  State,  44  Ala.  9;  State  v. 
Alman,  64  N.  C.  364 ;  Nolan  v.  State,  55 
Ga.  521 ;  Pizano  v.  State,  20  Tex.  App. 
139.     It  is  otherwise  in  Vermont.     State 
v.  Champeau,  53  Vt.  313,  36  Am.  Rep. 
754.    A  judge  cannot  order  discharge  in 


order  to  try  again  upon  another  com- 
plaint. Com.  v.  Hart,  149  Mass.  7,  20 
N.  E.  310.  QProof  that  a  juror  is  sick 
must  be  given  in  open  court  in  order  to 
justify  discharge  of  jury  and  retention  of 
prisoner.  Telephone  message  is  insuffi-' 
cient.  State  v.  Nelson,  19  R.  I.  467,  34 
Atl.  990,  33  L.  R.  A.  559,  61  Am.  St.  780. 
See  also  Upchurch  v.  State,  36  Tex.  Cr. 
624, 38  S.  W.  206, 44  L.  R.  A.  694.  Where 
one  in  his  defence  to  a  prosecution  for  an 
assault  with  intent  to  murder  offers  to 
prove  a  former  conviction  of  a  battery 
for  the  same  attack,  held  a  good  defence. 
People  v.  McDonald,  —  Cal.  — ,  69  Pac. 
1006.  But  see  Reg.  v.  Morris,  10  Cox 
C.  C.  480,  where  a  prosecution  for  an 
assault,  afterward  resulting  in  death,  is 
held  to  be  no  bar  of  a  prosecution  for  the 
felony.] 

8  Commonwealth  v.  Goddard,  13  Mass. 
455;  People  r.  Tyler,  7  Mich.  161 ;  Mon- 
tross  v.  State,  61  Miss.  429;  State  v.  Shelly, 
98  N.  C.  673, 4  S.  E.  530 ;  Brown  r.  State, 
79  Ga.  324,  4  S.  E.  861.  Acquittal  by 
court-martial  is  no  bar  to  a  prosecution 
in  the  criminal  courts.  State  v.  Rankin, 
4  Cold.  146;  United  States  v.  Cashiel,  1 
Hughes,  552. 

4  Gerard  v.  People,  4  111.  363;  Pritch- 
ett  v.  State,  2  Sneed,  285;  People  i\  Cook, 
10  Mich.  164;  Mount  v.  Commonwealth, 
2  Duv.  93;  People  v.  McXealy,  17  Cal. 
333;  Kohlheimer  v.  State,  39  Miss.  548; 
State  v.  Kason,  20  La.  Ann.  48;  Black 
v.  State,  36  Ga.  447 ;  Commonwealth  v. 
Bakeman,  105  Mass.  53;  State  v.  Ward, 
48  Ark.  36,  2  S.  W.  191;  People  v.  Clark, 
67  Cal.  99,  7  Pac.  178;  Garvey's  Case,  7 
Col.  384,  4  Pac.  758. 

6  United  States  v.  Perez,  9  Wheat. 
State  v.  Ephraim,  2  Dev.  &  Bat. 
Commonwealth  v.  Fells,  9  Leigh, 


579 
166 


620;  People  v.  Goodwin,  18  Johns.  205; 


CH.  X.] 


CONSTITUTIONAL  PROTECTIONS,  ETC. 


469 


sickness  or  death  of  the  judge  holding  the  court,1  or  of  a  juror,2 
or  the  inability  of  the  jury  to  agree  upon  a  verdict  after  reason- 
able time  for  deliberation  and  effort ; 3  or  if  the  term  of  the  court 
as  fixed  by  law  comes  to  an  end  before  the  trial  is  finished  ;4  or 
the  jury  are  discharged  with  the  consent  of  the  defendant  ex- 
pressed or  implied  ;5  or  if,  after  verdict  against  the  accused,  it  has 
been  set  aside  on  his  motion  (a)  for  a  new  trial,  or  on  writ  of  error,6 


Commonwealth  v.  Bowden,  9  Mass.  194; 
Hoffman  v.  State,  20  'Md.  425 ;  Price  v. 
State,  36  Miss.  533.  In  State  v.  Wise- 
man, 68  N.  C.  203,  the  officer  in  charge  of 
the  jury  was  found  to  have  been  convers- 
ing with  them  in  a  way  calculated  to  in- 
fluence them  unfavorably  towards  the 
evidence  of  the  prosecution,  and  it  was 
held  that  this  was  such  a  case  of  neces- 
sity as  authorized  the  judge  to  permit  a 
juror  to  be  withdrawn,  and  that  it  did  not 
operate  as  an  acquittal.  See  also  State  v. 
Washington,  89  N.  C.  635.  If  a  nolle 
prosaqui  to  an  indictment  is  entered  after 
the  jury  is  sworn,  because  it  is  found  that 
the  person  alleged  to  have  been  murdered 
is  misnamed,  this  is  no  bar  to  a  new  in- 
dictment which  shall  give  the  name  cor- 
rectly. Taylor  v.  State,  35  Tex.  97. 

1  Nugent  v.  State,  4  Stew.  &  Port.  72. 

2  Hector  v.  State,  2  Mo.  166  ;  State  v. 
Curtis,  5  Humph.  601 ;  Mahala  v.  State, 
10  Yerg.  532 ;  Commonwealth  v.  Fells,  9 
Leigh,  613;  Doles  v.  State,  97  Ind.  555; 
State  v.  Emery,  59  Vt.  84,  7  Atl.  129. 
£Or  from  the  fact  just  then  brought  to 
ihe  judge's  notice  that  one  of  the  jurors 
had  sat  upon  the  grand  jury  that  returned 
the    indictment.     Thompson    v.    United 
States,  155  U.  S.  271,  15  Sup.  Ct.  Rep. 
73.       Or     was     otherwise     incompetent. 
Simmons  v.  United  States,  142  U.  S.  148, 
12  Sup.  Ct.  Rep.  171.] 

8  People  v.  Goodwin,  18  Johns.  187; 
Commonwealth  v.  Olds,  5  Lit.  140;  Dob- 
bins v.  State,  14  Ohio  St.  493;  Miller  v. 
State,  8  Ind.  325;  State  v.  Walker,  26 
Ind.  346 ;  Commonwealth  v.  Fells,  9 
Leigh,  613;  Winsor  v.  The  Queen,  L.  R. 
1  Q.  B.  289;  State  v.  Prince,  63  N.  C. 
529;  Moseley  v.  State,  33  Tex.  671 ;  Les- 
ter v.  State,  33  Ga.  329;  Ex  parte.  Mc- 
Laughlin,  41  Cal.  211,  10  Am.  Rep.  272  ; 
People  v.  Harding,  53  Mich.  481,  18 
N.  W.  555,  19  N.  W.  155;  Conklin  v. 


State,  25  Neb.  784,  41  N.  W.  788;  Powell 
v.  State,  17  Tex.  App.  345;  State  v.  Sut- 
fin,  2*2  W.  Va.  771.  £Upon  discharging 
jury  without  a  verdict,  see  notes  to  21  L. 
ed.  U.  S.  872,  and  6  L.  ed.  U.  S.  165. 
That  jury  may  be  discharged  when  un- 
able to  agree,  and  prisoner  may  then  be 
retried,  see  State  v.  Hager,  61  Kan.  504, 
59  Pac.  1080,  48  L.  R.  A.  254  ;  Re  Allison, 
13  Col.  525,  22  Pac.  820,  10  L.  R.  A.  790, 

16  Am.  St.  224.     See  also  United  States 
v.  Perez,  9  Wheaton,  579.     The  opposite 
conclusion   is   reached   by  the    Supreme 
Court  of  Pennsylvania  in  Com.  v.  Fitz- 
patrick,  121  Pa.  St.  109,  15  Atl.  466,  6 
Am.  St.  757;    Dreyer  v.  Illinois,  —  U.  S. 
— ,  23  Sup.  Ct.  Rep.  28.] 

4  State  v.  Brooks,  3  Humph.  70 ;  State 
r.  Battle,  7  Ala.  259;  Mahala  v.  State,  10 
Yerg.  632;  State  v.  Spier,  1  Dev.  491; 
Wright  r.  State,  5  Ind.  290.  See  Whitten 
v.  State,  61  Miss.  717. 

6  State  v.  Slack,  6  Ala.  676 ;  Elijah  v. 
State,  1  Humph.  103 ;  Commonwealth  v. 
Stowell,  9  Met.  572 ;  People  v.  Curtis,  76 
Cal.  67,  17  Pac.  941  ;  People  v.  White,  68 
Mich.  648,  37  N.  W.  34;  State  ;.-.  Parker, 
66  Iowa,  586,  24  N.  W.  225.  As  to  the 
effect  of  jury's  separation  by  defendant's 
consent,  see  State  v.  Ward,  48  Ark.  36, 
2  S.  W.  191;  Hilands  v.  Com.,  Ill  Pa. 
St.  1,  2  Atl.  70. 

6  Kendall  v.  State,  65  Ala.  492 ;  State 
v.  Blaisdell,  59  N.  H.  328;  Gannon  v. 
People,  127  111.  507,  21  N.  E.  525;  State 
r.  Brecht,  41  Minn.  50,  42  N.  W.  602; 
People  v.  Hardisson,  61  Cal.  378.  See 
Com.  v.  Downing,  150  Mass.  197,  22 
N.  E.  912.  And  it  seems,  if  the  verdict 
is  so  defective  that  no  judgment  can  be 
rendered  upon  it,  it  may  be  set  aside 
even  against  the  defendant's  objection, 
and  a  new  trial  had.  State  v.  Redman, 

17  Iowa,  329. 


(a)  See  Murphy  v.  Massachusetts,  177  U.  S.  155,  20  Sup.  Ct.  Rep.  639,  aff.  174 
Mass.  369,  54  N.  E.  860. 


470 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


or  the  judgment  thereon  been  arrested,1  —  in  any  of  these  cases 
the  accused  may  again  he  put  upon  trial  upon  the  same  facts 
before  charged  against  him,  and  the  proceedings  had  will  consti- 
tute no  protection.  But  where  the  legal  bar  has  once  attached,  (a) 
the  government  cannot  avoid  it  by  varying  the  form  of  the  charge 
in  a  new  accusation :  if  the  first  indictment  or  information  were 
such  that  the  accused  might  have  been  convicted  under  it  on 
proof  of  the  facts  by  which  the  second  is  sought  to  be  sustained, 
then  the  jeopardy  which  attached  on  the  first  must  constitute  a 
protection  against  a  trial  on  the  second.2  And  if  a  prisoner  is 
acquitted  on  some  of  the  counts  in  an  indictment,  and  convicted 
on  others,  and  a  new  trial  is  obtained  on  his  motion,  he  can  be 
put  upon  trial  a  second  time  on  those  counts  only  on  which  he 
was  before  convicted,  and  is  forever  discharged  from  the  others.3 


1  Casborus  v.  People,  13  Johns.  351 ; 
State  v.  Clark,  69  Iowa,  196,  28  N.  W.  537. 
But  where  the  indictment  was  good,  and 
the  judgment  was  erroneously  arrested, 
the  verdict  was  held  to  be  a  bar.     State 
v.  Norvell,  2  Yerg.  24.      See  People  v. 
Webb,  28  Cal.  467.     So  if  the  error  was 
in  the  judgment  and  not  in  the  prior  pro- 
ceedings, if  the  judgment  is  reversed,  the 
prisoner  must  be  discharged.     See  post, 
p.  473.     But  it  is  competent  for  the  legis- 
lature to  provide  that  on  reversing  the 
erroneous   judgment   in    such    case,   the 
court,  if  the  proper  proceedings  are  regu- 
lar, shall  remand  the  case  for  the  proper 
sentence.     McKee  v.  People,  32  N.  Y.  239. 
QUpon  correction  of  sentence  and  re-sen- 
tence, see  note  to  36  L.  ed.  U.  S.  969.] 
It  is  also  competent,  by  statute,  in  the 
absence  of  express  constitutional  prohibi- 
tion, to  allow  an  appeal  or  writ  of  error  to 
the  prosecution,  in  criminal  cases.     See 
cases,  p.  462,  note  2. 

2  State  v.  Cooper,  13  N.  J.  360 ;  Com- 
monwealth v.  Roby,  12  Pick.  504 ;   Peo- 
ple v.  McGowan,  17  Wend.  386  ;    Price  v. 
State,  19  Ohio,  423 ;   Leslie  v.  State,  18 
Ohio  St.  395 ;    State  v.  Benham,  7  Conn. 
414.     See  Mitchell  v.  State;  42  Ohio  St. 
383 ;  Williams  v.  Com.,  78  Ky.  93 ;   Sims 
v.  State,  63  Miss.  33,  5  So.  525.     £Where 
judge   is   authorized   to   discharge  jury 
when  a  juror  becomes    sick,   such   dis- 
charge   must  be   in   open   court   and  in 
presence  of  prisoner ;  else  he  will  be  al- 


lowed to  plead  former  jeopardy.  Up- 
church  v.  State,  36  Tex.  Cr.  624,  38  S.  W. 
206,  44  L.  R.  A.  694;  State  v.  Nelson,  19 
R.  I.  467,  34  Atl.  990, 33  L.  R.  A.  559 ;  and 
upon  former  jeopardy  by  reason  of  dis- 
charge of  jury  in  prisoner's  absence,  see 
note  to  this  case  in  L.  R.  A.  Where  in- 
junction may  issue  to  prevent  a  pro- 
hibited act,  punishment  for  contempt  in 
disobey  ing  the  injunction  will  not  prevent 
a  prosecution  for  the  crime.  State  r. 
Roby,  142  Ind.  168,  41  N.  E.  145,  33 
L.  R.  A.  213,  51  Am.  St.  174.  The  fact 
that  acquittal  was  secured  by  bribery  of 
prosecuting  attorney  does  not  invalidate 
plea  of  former  jeopardy.  Shideler  v. 
State,  129  Ind.  523,  28  N.  E.  537,  29  N.  E. 
36,  16  L.  R.  A.  225,  28  Am.  St.  206.] 

3  Campbell  v.  State,  9  Yerg.  333 ;  State 
v.  Kettle,  2  Tyler,  475  ;  Morris  v.  State, 
8  S.  &  M.  762;  Esmon  v.  State,  1  Swan, 
14  ;  Guenther  v.  People,  24  N.  Y.  100  ; 
State  r.  Kattleman,  35  Mo.  105 ;  State  v. 
Ross,  29  Mo.  39  ;  State  v.  Martin,  30  Wis. 
216,  11  Am.  Rep.  567;  United  States  v. 
Davenport,  Deady,  264,  1  Green,  Cr. 
R.  429;  Stuart  v.  Commonwealth,  28 
Gratt.  950 ;  Johnson  v.  State,  29  Ark.  31  ; 
Barnett  v.  People,  54  111.  331 ;  contra,  State 
v.  Behimer,  20  Ohio  St.  572.  A  nolle  pro- 
sequi  on  one  count  of  an  indictment  after 
a  jury  is  called  and  sworn,  is  a  bar  to  a 
new  indictment  for  the  offence  charged 
therein.  Baker  v.  State,  12  Ohio  St.  214; 
Murphy  v.  State,  25  Neb.  807,  41  N.  W. 


(a)  FJAs  to  when  jeopardy  attaches,  see  notes  to  4  L.  R.  A.  543,  and  1  L.  R.  A. 
451 ;  also  to  £l  L.  ed.  U.  S.  872,  and  to  6  L.  ed.  U.  S.  165.] 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


471 


Excessive  Fines  and  Cruel  and   Unusual  Punishments. 

It  is  also  a  constitutional  requirement  that  excessive  bail  shall 
not  be  required,  nor  cruel  and  unusual  punishments  inflicted. 

Within  such  bounds  as  may  be  prescribed  by  law,  the  question 
what  fine  shall  be  imposed  is  one  addressed  to  the  discretion  of 
the  court.  But  it  is  a  discretion  to  be  judicially  exercised  ;  and 
there  may  be  cases  in  which  a  punishment,  though  not  beyond 
any  limit  fixed  by  statute,  is  nevertheless  so  clearly  excessive  as 
to  be  erroneous  in  law.1  A  fine  should  have  some  reference 
to  the  party's  ability  to  pay  it.  By  Magna  Charta  a  freeman  was 
not  to  be  amerced  for  a  small  fault,  but  according  to  the  degree 
of  the  fault,  and  for  a  great  crime  in  proportion  to  the  heinous- 
ness  of  it,  saving  to  him  his  contenement ;  and  after  the  same  man- 
ner a  merchant,  saving  to  him  his  merchandise.  And  a  villein 
was  to  be  amerced  after  the  same  manner,  saving  to  him  his  wain- 
age.  The  merciful  spirit  of  these  provisions  addresses  itself  to 
the  criminal  courts  of  the  American  States  through  the  provisions 
of  their  constitutions. 


792.  See  Com.  v.  Dunster,  145  Mass. 
101,  13  N.  E.  350.  [On  the  subject  of 
double  jeopardy,  see  50  Cent.  L.  Jour. 
143.] 

1  The  subject  of  cruel  and  unusual 
punishments  was  somewhat  considered 
in  Barker  r.  People,  3  Cow.  686,  where 
the  opinion  was  expressed  by  Chancellor 
Sanford  that  a  forfeiture  of  fundamental 
right  —  e.  g.  the  right  to  jury  trial  — 
could  not  be  imposed  as  a  punishment, 
but  that  a  forfeiture  of  the  right  to  hold 
office  might  be.  But  such  a  forfeiture 
could  not  be  imposed  without  giving  a 
right  to  trial  in  the  usual  mode.  Com- 
monwealth r.  Jones,  10  Bush,  725.  In 
Done  v.  People,  5  Park.  364,  the  cruel 
punishments  of  colonial  times,  such  as 
burning  alive  and  breaking  on  the  wheel, 
were  enumerated  by  W.  W.  Campbell,  J., 
who  was  of  opinion  that  they  must  be 
regarded  as  "cruel"  if  not  "unusual," 
and  therefore  as  being  now  forbidden. 
£And  where  the  criminal  is  convicted  of 
many  offences,  he  cannot  complain  if  the 
punishments  therefor  are  cumulated, 
provided  the  punishment  for  a  single  of- 
fence is  not  excessive,  although  the  aggre- 
gate punishments  may  amount  to  im- 
prisonment for  a  term  much  greater  than 
his  natural  life.  O'Neil  v.  Vermont,  144 
U.  S.  323,  12  Sup.  Ct.  Rep.  693 ;  but  see 


the  vigorous  dissenting  opinion  of  Mr. 
Justice  Field  in  this  case,  and  also  the 
dissenting  opinion  of  Harlan  and  Brewer, 
JJ.  And  see  also  State  v.  Whitaker,  48 
La.  Ann.  527,  19  So.  457,  35  L.  R.  A. 
561,  and  note  thereto  in  L.  R.  A.,  in 
which  cases  upon  "  cruel  and  unusual 
punishment"  are  collected.  In  Wliita- 
ker's  case  it  was  held,  that  a  total  im- 
prisonment for  2160  days  or  fine  of  $720 
for  72  violations  imposed  within  one 
hour  ami  forty  minutes,  though  upon 
separate  complaints,  was  within  the  pro- 
hibition of  the  constitution.  Also  Ex 
parte  Keeler,  45  S.  C.  537,  23  S.  E.  865, 
31  L.  R.  A.  678,  55  Am.  St.  785.  See  also 
People  ex  rel.  Tweed  v.  Liscomb,  60  N.  Y. 
559,  19  Am.  Rep.  211,  upon  cumulative 
punishment,  holding  that  punishment  for 
several  offences  charged  in  separate 
counts  of  same  indictment  is  unlawful  : 
that  punishment  for  one  offence  exhausts 
the  power  of  the  court  under  that  indict- 
ment. Life  imprisonment  for  construc- 
tive rape  is  not  invalid,  even  though  the 
legal  age  of  consent  is  as  high  as  sixteen 
years,  and  the  female  lacked  only  a  few 
months  of  that  age,  and  actually  con- 
sented, and  the  male  was  a  mere  youth. 
Com.  v.  Murphy,  165  Mass.  66,  42  N.  E. 
504,  30  L.  R.  A.  734,  52  Am.  St.  496.} 


472  CONSTITUTIONAL   LIMITATIONS.  [OH.  X. 

It  has  been  decided  by  the  Supreme  Court  of  Connecticut  that 
it  was  not  competent  in  the  punishment  of  a  common-law  offence 
to  inflict  fine  and  imprisonment  without  limitation.  The  prece- 
dent, it  was  said,  cited  by  counsel  contending  for  the  opposite 
doctrine,  of  the  punishment  for  a  libel  upon  Lord  Chancellor 
Bacon,  was  deprived  of  all  force  of  authority  by  the  circum- 
stances attending  it ;  the  extravagance  of  the  punishment  being 
clearly  referable  to  the  temper  of  the  times.  *'  The  common  law 
can  never  require  a  fine  to  the  extent  of  the  offender's  goods  and 
chattels,  or  sentence  of  imprisonment  for  life.  The  punishment 
is  both  uncertain  and  unnecessary.  It  is  no  more  difficult  to 
limit  the  imprisonment  of  an  atrocious  offender  to  an  adequate 
number  of  years  than  to  prescribe  a  limited  punishment  for  minor 
offences.  And  when  there  exists  no  firmly  established  practice, 
and  public  necessity  or  convenience  does  not  imperiously  demand 
the  principle  contended  for,  it  cannot  be  justified  by  the  common 
law,  as  it  wants  the  main  ingredients  on  which  that  law  is 
founded.  Indefinite  punishments  are  fraught  with  danger,  and 
ought  not  to  be  admitted  unless  the  written  law  should  authorize 
them." ! 

It  is  certainly  difficult  to  determine  precisely  what  is  meant  by 
cruel  and  unusual  punishments.  Probably  any  punishment  de- 
clared by  statute  for  an  offence  which  was  punishable  in  the  same 
way  at  the  common  law  could  not  be  regarded  as  cruel  or  unusual 
in  the  constitutional  sense.  And  probably  any  new  statutory 
offence  may  be  punished  to  the  extent  and  in  the  mode  per- 
mitted by  the  common  law  for  offences  of  similar  nature.  But 
those  degrading  punishments  which  in  any  State  had  become  obso- 
lete before  its  existing  constitution  was  adopted,  we  think  may 
well  be  held  forbidden  by  it  as  cruel  and  unusual.  We  may  well 
doubt  the  right  to  establish  the  whipping-  post  and  the  pillory  in 
States  where  they  were  never  recognized  as  instruments  of  pun- 

1  Per  Hosmer,  Ch.  J.,  in  State  v.  Dan-  with  power  to  prison   managers   to  re- 

forth,  3  Conn.  112-116.    Peters,  J.,  in  the  lease  upon  parol  and  good  hehavior  after 

same  case,  pp.  122-124,  collects  a  number  satisfactory    conduct    during    minimum 

of  cases  in  which  perpetual  imprisonment  period.     Miller  v.  State,  149  Ind.  607,  49 

was  awarded  at  the  common   law,  but,  N.   E.  894,  40  L.  K.  A.  109 ;    People  v. 

as  his  associates  believed,  unwarrantably.  Bd.   of   Managers,  &c.,  148  111.   413,  36 

Compare  Blydenburg  v.  Miles,  39  Conn.  N.  E.  76,  23  L.  R.  A.  139 ;  contra,  People 

484.     [^Fixing  by  statute  the   minimum  v.  Curnmings,  88  Mich.  249,  50  N.  W.  310, 

fine  to  be  collected  for  a  certain  offence,  14  L.  R.  A.  285,  and  note.    A  statute  pro- 

but  not  the  maximum,  is  not  the  irnposi-  viding  for  a  more  severe  punishment  for 

tion  of  an  excessive  fine.     Southern  Ex-  a  second  conviction  is  not  for  that  reason 

press  Co.  v.  Com.,  92  Va.  59,  22  S.  E.  invalid.    Moore  v.  Missouri,   159  U-  S. 

809,  41  L.  R.  A.  436.    Prisoner  upon  con-  673,  16  Sup.  Ct.  Rep.  179,  aff.  121  Mo. 

viction  may,  where   statute   authorizes,  514,  26  S.  W.  345.] 
be   sentenced  for  the   maximum  period 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


473 


ishment,  or  in  States  whose  constitutions,  revised  since  public 
opinion  had  banished  them,  have  forbidden  cruel  and  unusual 
punishment.  In  such  States  the  public  sentiment  must  be  re- 
garded as  having  condemned  them  as  "  cruel,"  and  any  punish- 
ment which  if  ever  employed  at  all,  has  become  altogether 
obsolete,  must  certainly  be  looked  upon  as  "unusual."1 

A  defendant,  however,  in  any  case  is  entitled  to  have  the  pre- 
cise punishment  meted  out  to  him  which  the  law  provides,  and 
no  other.  A  different  punishment  cannot  be  substituted  on  the 
ground  of  its  being  less  in  severity.  Sentence  to  transportation 
for  a  capital  offence  would  be  void ;  and  as  the  error  in  such  a 
case  would  be  in  the  judgment  itself,  the  prisoner  would  be  en- 
titled to  his  discharge,  and  could  not  be  tried  again.2  If,  how- 
ever, the  legal  punishment  consists  of  two  distinct  and  severable 


1  In  New  Mexico  it  lias  been  decided 
that  flogging  may  be  made  the  punish- 
ment for  horse-stealing  :  Garcia  v.  Terri- 
tory, 1  New  Mex  415  ;  so  for  wife-beating. 
Foote  v.  State,  59  Md.  264.  For  the  non- 
payment of  fine  for  unlicensed  liquor 
selling,  street  labor  may  be  imposed. 
Ex  parte  Bedell,  20  Mo.  App.  125.  See 
further  as  to  unusual  punishments,  Ex 
pnrte  Swann,  96  Mo.  44,  9  S.  W.  10  ;  Peo- 
ple v.  Haug,  68  Mich.  549,  37  N.  W.  21. 

The- power  in  prison  keepers  to  inflict 
corporal  punishment  for  the  misconduct 
of  convicts  cannot  be  delegated  to  con- 
tractors for  convict  labor  or  their  man- 
agers. Cornell  v.  State,  6  Lea,  624.  The 
keeper  of  a  workhouse  may  not  be  author- 
ized to  inflict  such  punishment  at  his  dis- 
cretion. Smith  v.  State,  8  Lea,  744.  A 
jailer  may  not  chain  up  a  prisoner  for 
several  hours  by  the  neck  so  he  cannot 
lie  or  sit.  In  re  Birdsong,  39  Fed.  Rep. 
599.  [^Punishment  of  death  may  be  in- 
flicted by  electric  shock.  Re  Kernmler, 
136  U.  S.  436,  10  Sup.  Ct.  Rep.  930,  aff. 
People  v.  Durston,  55  Hun,  64,  119  N.  Y. 
569,  24  N.  E.  6,  16  Am.  St.  859;  Mc- 
Elvaine  v.  Brush,  142  U.  S.  155,  12  Sup. 
Ct.  Rep.  166,  aff.  121  N.  Y.  250,  24  N.  E. 
465,  125  N.  Y.  596,  26  N.  E.  929 ;  Re 
Storti,  178  Mass.  549,  60  N.  E.  210,  62 
L.  R.  A.  620.  Permitting  the  warden  to 
fix  the  particular  day  of  execution  does 
not  render  statute  void  upon  the  theory 
that  such  permission  tends  to  aggravate 
the  punishment.  Id.  A  sentence  fixing 
a  maximum  and  minimum  term  of  im- 
prisonment, the  prison  board  to  determine 
when  the  prisoner  shall  be  discharged 


within  such  limits,  is  not  within  the  con- 
stitutional prohibition.  Miller  v.  State, 
149  Ind.  607,  49  N.  E.  894,  40  L.  R.  A. 
109.  An  act  of  Congress  providing  for 
the  arrest,  trial,  and  punishment  of  one 
as  a  "  suspicious  person  "  is  invalid  as 
providing  a  punishment  without  an  of- 
fence, which  is  cruel  and  unusual.  Stout- 
enburgh  r.  Frazier,  16  D.  C.  App.  229,  48 
L.  R.  A.  220.  An  act  providing  the  death 
penalty  for  assault  upon  a  railway  train 
with  intent  to  commit  robbery  or  other 
felony,  does  not  prescribe  a  cruel  or  un- 
usual punishment.  Terr,  of  New  Mexico 
v.  Ketchum,  10  N.  M.  718,  65  Pac.  169,  55 
L.  R.  A.  90.  A  statute  providing  that 
any  tramp  who  shall  threaten  to  do  in- 
jury to  the  person  or  property  of  any 
person  shall  be  imprisoned  in  the  State 
penitentiary,  is  not  one  providing  for 
cruel  or  unusual  punishments.  State 
v.  Hogan,  63  Ohio  St.  202,  58  N.  E.  672, 
81  Am.  St.  626-3 

2  Bourne  v.  The  King,  7  Ad.  &  El.  58; 
Lowenberg  v.  People,  27  N.  Y.  336  ;  Har- 
tung  v.  People,  26  N.  Y.  167 ;  Elliott  v. 
People,  13  Mich.  365 ;  Ex  parte  Page,  49 
Mo.  291 ;  Christian  v.  Commonwealth,  6 
Met.  530;  Ex  parte  Lange,  18  Wall.  163; 
McDonald  v.  State,  45  Md.  90.  See  also 
Whitebread  v.  The  Queen,  7  Q.  B.  682; 
Rex  v.  Fletcher,  Russ.  &  Ry.  68.  It  is 
competent,  however,  to  provide  by  stat- 
ute that  on  setting  aside  an  erroneous 
sentence  the  court  shall  proceed  to  im- 
pose the  sentence  which  the  law  required. 
Wilson  v.  People,  24  Mich.  410;  McDon- 
ald v.  State,  45  Md.  90. 


474  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

things, —  as  fine  and  imprisonment,  —  the  imposition  of  either  is 
legal,  and  the  defendant  cannot  be  heard  to  complain  that  the 
other  was  not  imposed  also.1 

The  Right  to   Counsel,  (a) 

Perhaps  the  privilege  most  important  to  the  person  accused  of 
crime,  connected  witli  his  trial,  is  that  to  be  defended  by  counsel. 
From  very  early  days  a  class  of  men  who  have  made  the  laws  of 
their  country  their  special  study,  and  who  have  been  accepted  for 
the  confidence  of  the  court  in  their  learning  and  integrity,  have 
been  set  apart  as  officers  of  the  court,  whose  special  duty  it 
should  be  to  render  aid  to  the  parties  and  the  court2  in  the  appli- 
cation of  the  law  to  legal  controversies.  These  persons,  before 
entering  upon  tbeir  employment,  were  to  take  an  oath  of  fidelity 
to  the  courts  whose  officers  they  were,  and  to  their  clients ; 3  and 

1  See  Kane  v.  People,  8  Wend.  203.  55  Am.  St.  785,  and  People  ex  rel.  Tweed 

When  one  has  been  convicted  and  sen-  v.  Liscomb,  60  N.  Y.  559,  19  Am.  Rep. 

tenced  to  confinement,  it  is  not  cotnpe-  21 1];  so  increased  punishment  for  second 

tent,  after  the  period  of  his  sentence  has  offence  may  be  imposed.     Kelly  v.  Peo- 

expired,  to  detain  him  longer  in  punish-  pie,  115  111.  583,  4  N.  E.  644  ;  Chenowith 

ment  for  misbehavior  in  prison;   and  a  v.  Com.,  11  Ky.  L.  561,  12  S.  W.  585. 

statute    to   that  effect   is   unwarranted.  2  In  Commonwealth  v.  Knapp,  9  Pick. 

Gross  v.  Rice,  71  Me.  241.     The  whole  498,  the  court  denied  the  application  of 

measure  of  punishment  must  be  imposed  the  defendant  that  Mr.  Rantoul  should 

at  once.    The  judgment  cannot  be  split  be    assigned    as    his    counsel,    because, 

up.     People  v.  Felker,  61  Mich.  110,  114,  though  admitted  to  the  Common  Pleas, 

27  N.  W.  869,  28  N.  W.  83.    Cumulative  he  was  not  yet  an  attorney  of  the  Su- 

punishment  may  be  imposed  :  Lillard  v.  preme    Court,    and    that    court,    conse- 

State,  17  Tex.  App.  114;  State  v.  O'Neil,  quently,  had  not  the  usual  control  over 

58  Vt.  140,  2  Atl.  686,  [^sustained  in  144  him ;  and,  besides,  counsel  was  to  give 

U.  S.  323, 12  Sup.  Ct.  Rep.  693,  but  with  aid  to  the  court  as  well  as  to  the  prisoner, 

very  vigorous  dissenting  opinions   from  and  therefore  it  was  proper  that  a  per- 

field,  Harlan,  and  Brewer,  JJ.     But  see  son  of  more  legal  experience  should  be 

State  v.  Whitaker,  48  La.  Ann.  627,  19  assigned. 

So.  457,  35  L.  R.  A.  561 ;  Exparte  Keeler,  8  "  Every  counter  is  chargeable  by  the 

45  S.  C.  537,  23  S.  E.  865,  31  L.  R.  A.  678,  oath  that  he  shall  do  no  wrong  nor  falsity, 

(a)  [JThe  right  to  compulsory  process  by  which  to  secure  witnesses  in  his  favor 
is  also  an  important  right  of  the  accused.  Where  the  constitution  secures  this  right, 
the  witnesses  thus  compelled  to  appear  do  not  thereby  become  entitled  to  claim  their 
fees  of  the  county.  Henderson,  Petitioner,  in  State  v.  Evans,  51  S.  C.  331,  29  S.  E.  5, 
40  L.  R.  A.  426  ;  Whittle  /-•.  Saluda  Co.,  69  S.  C.  554,  38  S.  E.  168.  Where  important 
witnesses  for  the  accused  are  absent  from  the  court  without  his  fault,  a  continuance 
must  be  granted  until  they  can  be  brought  in.  Ryder  v.  State,  100  Ga.  528,  28  S.  E. 
246,  38  L.  R.  A.  721,  62  Am.  St.  334.  But  after  a  reasonable  time  and  opportunity 
have  been  allowed  for  this  purpose,  the  prosecution  may  be  allowed  to  proceed  upon 
the  admission  of  the  prosecutor  that  the  witnesses  for  the  accused  would,  if  present, 
testify  as  accused  alleges  they  would.  It  is  not  necessary  to  admit  that  such  testi- 
mony is  true.  Atkins  v.  Commonwealth.  98  Ky.  539,  33  S.  W.  948,  32  L.  R.  A.  108; 
Hoyt  v.  People,  140  111.  588.  30  N  E.  315,  16  L  R.  A.  239,  and  note ;  State  v.  Gibbs, 
10  Mont.  213,  25  Pac.  289,  10  L.  R.  A.  749,  and  note. 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,  ETC. 


475 


it  was  their  special  duty  to  see  that  no  wrong  was  done  their 
clients  by  means  of  false  or  prejudiced  witnesses,  or  through  the 
perversion  or  misapplication  of  the  law  by  the  court.  Strangely 
enough,  however,  the  aid  of  this  profession  was  denied  in  the 
very  cases  in  which  it  was  needed  most,  and  it  has  cost  a  long 
struggle,  continuing  even  into  the  present  century,  to  rid  the 
English  law  of  one  of  its  most  horrible  features.  In  civil 
causes  and  on  the  trial  of  charges  of  misdemeanor,  the  parties 
were  entitled  to  the  aid  of  counsel  in  eliciting  the  facts,  and  in 
presenting  both  the  facts  and  the  law  to  the  court  and  jury  ; 
but  when  the  government  charged  a  person  with  treason  or  fel- 
ony, he  was  denied  this  privilege.1  Only  such  legal  questions 


contrary  to  his  knowledge,  but  shall  plead 
for  his  client  the  best  he  can,  according 
to  his  understanding."  Mirror  of  Jus- 
tices, c.  2,  §  5.  The  oath  in  Pennsylvania, 
on  the  admission  of  an  attorney  to  the  bar, 
"  to  behave  himself  in  the  office  of  an  attor- 
ney, according  to  the  best  of  his  learning 
and  ability,  and  with  all  good  fidelity,  as 
well  to  the  court  as  to  the  client;  that 
he  will  use  no  falsehood,  nor  delay  any 
man's  cause,  for  lucre  or  malice,"  is  said, 
by  Mr.  Sharswood,  to  present  a  compre- 
hensive summary  of  his  duties  as  a  prac- 
titioner. Sharswood's  Legal  Ethics,  p.  3. 
The  advocate's  oath,  in  Geneva,  was  as 
follows  :  "  I  solemnly  swear,  before  Al- 
mighty God,  to  be  faithful  to  the  Repub- 
lic, and  to  the  canton  of  Geneva;  never 
to  depart  from  the  respect  due  to  the 
tribunals  and  authorities;  never  to  coun- 
sel or  maintain  a  cause  which  does  not 
appear  to  be  just  or  equitable,  unless  it  be 
the  defence  of  an  accused  person  ;  never 
to  employ,  knowingly,  for  the  purpose  of 
maintaining  the  causes  confided  to  me, 
any  means  contrary  to  truth,  and  never  to 
seek  to  mislead  the  judges  by  any  artifice 
or  false  statement  of  facts  or  law ;  to 
abstain  from  all  offensive  personality,  and 
to  advance  no  fact  contrary  to  the  honor 
and  reputation  of  the  parties,  if  it  be  not 
indispensable  to  the  cause  with  which  I 
may  be  charged  ;  not  to  encourage  either 
the  commencement  or  continuance  of  a 
suit  from  any  motives  of  passion  or  inter- 
est ;  nor  to  reject,  for  any  consideration 
personal  to  myself,  the  cause  of  the  weak, 
the  stranger,  or  the  oppressed."  In  "  The 
Lawyer's  Oath,  its  Obligations,  and  some 
of  the  Duties  springing  out  of  them,"  by 
D.  Bethune  Duffield,  Esq.,  a  masterly 


analysis  is  given  of  this  oath ;  and  he 
well  says  of  it:  "Here  you  have  the 
creed  of  an  upright  and  honorable  lawyer. 
The  clear,  terse,  and  lofty  language  in 
which  it  is  expressed  needs  no  argument 
to  elucidate  its  principles,  no  eloquence  to 
enforce  its  obligations.  It  has  in  it  the 
sacred  savor  of  divine  inspiration,  and 
sounds  almost  like  a  restored  reading  from 
Sinai's  original,  but  broken  tablets." 

1  When  an  ignorant  person,  unaccus- 
tomed to  public  assemblies,  and  perhaps 
feeble  in  body  or  in  intellect,  was. .put 
upon  trial  on  a  charge  which,  whether 
true  or  false,  might  speedily  consign  him 
to  an  ignominious  death,  with  able  coun- 
sel arrayed  against  him,  and  all  the  ma- 
chinery of  the  law  ready  to  be  employed 
in  bringing  forward  the  evidence  of  cir- 
cumstances indicating  guilt,  it  is  painful 
to  contemplate  the  barbarity  which  could 
deny  him  professional  aid.  Especially 
when  in  most  cases  he  would  be  impris- 
oned immediately  on  being  apprehended, 
and  would  thereby  be  prevented  from 
making  even  the  feeble  preparations 
which  might  otherwise  have  been  within 
his  power.  A  "  trial "  under  such  circum- 
stances would  be  only  a  judicial  murder 
in  very  many  cases.  The  spirit  in  which 
the  old  law  was  administered  may  be 
judged  of  from  the  case  of  Sir  William 
Parkins,  tried  for  high  treason  before  Lord 
Holt  and  his  associates  in  1695,  after  the 
statute  7  Wm.  III.  c.  3,  allowing  coun- 
sel to  prisoners  indicated  for  treason,  had 
been  passed,  but  one  day  before  it  was  to 
take  effect.  He  prayed  to  be  allowed 
counsel,  and  quoted  the  preamble  to  the 
statute  that  such  allowance  was  just  and 
reasonable.  His  prayer  was  denied ;  Lord 


476 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


as  he  could  suggest  was  counsel  allowed  to  argue  for  him ;  and 
this  was  but  a  poor  privilege  to  one  who  was  himself  unlearned 
in  the  law,  and  who,  as  he  could  not  fail  to  perceive  the  mon- 
strous injustice  of  the  whole  proceeding,  would  be  quite  likely 
to  accept  any  perversion  of  the  law  that  might  occur  in  the  course 
of  it  as  regular  and  proper,  because  quite  in  the  spirit  that 
denied  him  a  defence.  Only  after  the  Revolution  of  1688  was 
a  full  defence  allowed  on  trials  for  treason,1  and  not  until  1836 


Holt  declaring  that  he  must  administer 
the  law  as  he  found  it,  and  could  not  an- 
ticipate the  operation  of  an  act  of  Parlia- 
ment, even  by  a  single  day.  The  accused 
was  convicted  and  executed.  See  Lieber's 
Hermeneutics,  c.  4,  §  15;  Sedgwick  on 
Stat.  and  Const.  Law,  81.  In  proceedings 
by  the  Inquisition  against  suspected  her- 
etics the  aid  of  counsel  was  expressly 
prohibited.  Lea's  Superstition  and  Force, 
377. 

1  See  an  account  of  the  final  passage 
of  this  bill  in  Macaulay's  "  England," 
Vol.  IV.  c.  21.  It  is  surprising  that  the 
effort  to  extend  the  same  right  to  all  per- 
sons accused  of  felony  was  so  strenuously 
resisted  afterwards,  and  that,  too,  not- 
withstanding the  best  lawyers  in  the 
realm  admitted  its  importance  and  jus- 
tice. "  I  have  myself,"  said  Mr.  Scarlett, 
"  often  seen  persons  I  thought  innocent 
convicted,  and  the  guilty  escape,  for  want 
of  some  acute  and  intelligent  counsel  to 
show  the  bearings  of  the  different  circum- 
stances on  the  conduct  and  situation  of 
the  prisoner."  House  of  Commons  De- 
bates, April  25, 1826.  "  It  has  lately  been 
my  lot,"  said  Mr.  Denman,  on  the  same 
occasion,  "  to  try  two  prisoners  who  were 
deaf  and  dumb,  and  who  could  only  be 
made  to  understand  what  was  passing 
by  the  signs  of  their  friends.  The  cases 
were  clear  and  simple ;  but  if  they  had 
been  circumstantial  cases,  in  what  a  situ- 
ation would  the  judge  and  jury  be  placed, 
when  the  prisoner  could  have  no  counsel 
to  plead  for  him."  The  cases  looked  clear 
and  simple  to  Mr.  Denman ;  but  how 
could  he  know  they  would  not  have  looked 
otherwise,  had  the  coloring  of  the  prose- 
cution been  relieved  by  a  counter-pres- 
entation for  the  defence?  See  Sydney 
Smith's  article  on  Counsel  for  Prisoners, 
45  Edinb.  Rev.  p.  74 ;  Works,  Vol.  II. 
p.  353.  The  plausible  objection  to  extend- 
ing the  right  was,  that  the  judge  would 


be  counsel  for  the  prisoner,  —  a  pure  fal- 
lacy at  the  best,  and,  with  some  judges, 
a  frightful  mockery.  Baron  Garroio,  in  a 
charge  to  a  grand  jury,  said  :  "It  has  been 
truly  said  that,  in  criminal  cases,  judges 
were  counsel  for  the  prisoners.  So,  un- 
doubtedly, they  were,  as  far  as  they  could 
be,  to  prevent  undue  prejudice,  to  guard 
against  improper  influence  being  excited 
against  prisoners ;  but  it  was  impossible 
for  them  to  go  further  than  this,  for  they 
could  not  suggest  the  course  of  defence 
prisoners  ought  to  pursue ;  for  judges 
only  saw  the  deposition  so  short  a  time 
before  the  accused  appeared  at  the  bar  of 
their  country,  that  it  was  quite  impossible 
for  them  to  act  fully  in  that  capacity." 

If  one  would  see  how  easily,  and  yet 
in  what  a  shocking  manner,  a  judge  might 
pervert  the  law  and  the  evidence,  and  act 
the  part  of  both  prosecutor  and  king's 
counsel,  while  assuming  to  be  counsel  for 
the  prisoner,  he  need  not  go  further  back 
than  the  early  trials  in  our  own  country, 
and  he  is  referred  for  a  specimen  to  the 
trials  of  Robert  Tucker  and  others  for 
piracy,  before  Chief  Justice  Trott  at 
Charleston,  S.  C.,  in  1718,  as  reported  in 
6  State  Trials  (Ernlyn),  150  et  seg.  Es- 
pecially may  he  there  see  how  the  state- 
ment of  prisoners  in  one  case,  to  which 
no  credit  was  given  for  their  exculpation, 
was  used  as  hearsay  evidence  to  condemn 
a  prisoner  in  another  case.  All  these 
abuses  would  have  been  checked,  perhaps 
altogether  prevented,  had  the  prisoners 
had  able  and  fearless  counsel.  But  with- 
out counsel  for  the  defence,  and  under 
such  a  judge,  the  witnesses  were  not  free 
to  testify,  the  prisoners  could  not  safely 
make  even  the  most  honest  explanation, 
and  the  jury,  when  they  retired,  could 
only  feel  that  returning  a  verdict  in  ac- 
cordance with  the  opinion  of  the  judge 
was  merely  matter  of  form.  Sydney 
Smith's  lecture  on  "  The  judge  that  smites 


CH.  X.] 


CONSTITUTIONAL   PEOTECTIONS,   ETC. 


477 


was  the  same  privilege  extended  to  persons  accused  of  other 
felonies.1 

With  us  it  is  a  universal  principle  of  constitutional  law,  that  the 
prisoner  shall  be  allowed  a  defence  by  counsel.  And  generally  it 
will  be  found  that  the  humanity  of  the  law  has  provided  that,  if 
the  prisoner  is  unable  to  employ  counsel,  the  court  may  designate 
some  one  to  defend  him  who  shall  be  paid  by  the  government ; 
but  when  no  such  provision  is  made,  it  is  a  duty  which  counsel  so 
designated  owes  to  his  profession,  to  the  court  engaged  in  the 
trial,  and  to  the  cause  of  humanity  and  justice,  not  to  withhold 
his  assistance  nor  spare  his  best  exertions,  in  the  defence  of  one 
who  has  the  double  misfortune  to  be  stricken  by  poverty  and  ac- 
cused of  crime.  No  one  is  at  liberty  to  decline  such  an  appoint- 
ment,2 and  few,  it  is  to  be  hoped,  would  be  disposed  to  do  so. 

In  guaranteeing  to  parties  accused  of  crime  the  right  to  the  aid 
of  counsel,  the  Constitution  secures  it  with  all  its  accustomed 
incidents.  Among  these  is  that  shield  of  protection  which  is 
thrown  around  the  confidence  the  relation  of  counsel  and  client 
requires,  and  which  does  not  permit  the  disclosure  by  the  former, 
even  in  the  courts  of  justice,  of  communications  which  may  have 


contrary  to  the  law  "  is  worthy  of  being 
carefully  pondered  in  this  connection. 
"  If  ever  a  nation  was  happy,  if  ever  a 
nation  was  visibly  blessed  by  God,  if  ever 
a  nation  was  honored  abroad,  and  left  at 
home  under  a  government  (which  we  can 
now  conscientiously  call  a  liberal  govern- 
ment) to  the  full  career  of  talent,  industry, 
and  vigor,  we  are  at  this  moment  that 
people,  and  this  is  our  happy  lot.  First, 
the  Gospel  has  done  it,  and  then  justice 
lias  done  it ;  and  he  who  thinks  it  his 
duty  that  this  happy  condition  of  exist- 
ence may  remain,  must  guard  the  piety 
of  these  times,  and  he  must  watch  over 
the  spirit  of  justice  which  exists  in  these 
times.  First,  lie  must  take  care  that  the 
altars  of  God  are  not  polluted,  that  the 
Christian  faith  is  retained  in  purity  and 
in  perfection  ;  and  then,  turning  to  human 
affairs,  let  him  strive  for  spotless,  incor- 
ruptible justice  ;  praising,  honoring,  and 
loving  the  just  judge,  and  abhorring  as 
the  worst  enemy  of  mankind  him  who  is 
placed  there  to  '  judge  after  the  law,  and 
who  smites  contrary  to  the  law.'" 

1  By  statute  6  &  7  Wm.  IV.  c.   114; 
4  Cooley's  Bl.  Com.  355 ;  May's  Const. 
Hist.  c.  18. 

2  Vice  v.  Hamilton  County,  19  111.  18  ; 


Wayne  Co.  v.  Waller,  90  Pa.  St.  99, 
85  Am.  Rep.  636;  House  v.  White,  5 
Bax.  690.  It  has  been  held  that,  in  the 
absence  of  express  statutory  provisions, 
counties  are  not  obliged  to  compensate 
counsel  assigned  by  the  court  to  defend 
poor  prisoners.  Bacon  v.  Wayne  County, 
1  Mich.  461;  Wayne  Co.  v.  Waller,  90 
Pa.  St.  99,  35  Am.  Rep.  636.  But  there 
are  several  cases  to  the  contrary.  Webb 
v.  Baird,  6  Ind.  13;  Hall  v.  Washington 
County,  2  Greene  (Iowa),  473;  Carpen- 
ter v.  Dane  County,  9  Wis.  277.  But  we 
think  a  court  has  a  right  to  require  the 
service,  whether  compensation  is  to  be 
made  or  not ;  and  that  counsel  who 
should  decline  to  perform  it,  for  no  other 
reason  than  that  the  law  does  not  provide 
pecuniary  compensation,  is  unworthy  to 
hold  his  responsible  office  in  the  adminis- 
tration of  justice.  Said  Chief  Justice 
Hale  in  one  case  :  "  Although  Serjeants 
have  a  monopoly  of  practice  in  the  Com- 
mon Pleas,  they  have  a  right  to  practice, 
and  do  practice,  at  this  bar ;  and  if  we 
were  to  assign  one  of  them  as  counsel, 
and  he  was  to  refuse  to  act,  we  should 
make  bold  to  commit  him  to  prison." 
Life  of  Chief  Justice  Hale,  in  Campbell's 
Lives  of  the  Chief  Justices,  Vol.  II. 


478 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


.  TS" 

been  made  to  him  by  the  latter,  with  a  view  to  pending  or  antici- 
pated litigation.  This  is  the  client's  privilege ;  the  counsel  can- 
not waive  it ;  and  the  court  would  not  permit  the  disclosure  even 
if  the  client  were  not  present  to  take  the  objection.1 

Having  once  engaged  in  a  cause,  the  counsel  is  not  afterwards 
at  liberty  to  withdraw  from  it  without  the  consent  of  his  client 
and  of  the  court ;  and  even  though  he  may  be  impressed  with  a 
belief  in  his  client's  guilt,  it  will  nevertheless  be  his  duty  to  see 
that  a  conviction  is  not  secured  contrary  to  the  law.2  The  worst 


1  The  history  and  reason  of  the  rule 
which  exempts  counsel  from  disclosing 
professional  communications  are  well 
stated  in  Whiting  v.  Barney,  30  N.  Y. 
330.  And  see  1  Phil.  Ev.,  by  Cowen, 
Hill,  and  Edwards,  130  et  seq.;  Earle  v. 
Grant,  46  Vt.  113;  Machette  v.  Wanless, 

2  Col.   169.      The   privilege   would   not 
cover  communications  made,  not  with  a 
view   to  professional   assistance,  but  in 
order  to  induce  the  attorney  to  aid  in  a 
criminal  act.     People  v.  Blakely,  1  Park. 
Cr.  R.  176;  Bank  of  Utica  v.  Mersereau, 

3  Barb.  Ch.  398.     And  see  the  analogous 
case  of  Hewitt  v.  Prince,  21  Wend.  79. 
Nor  communications  before  a  crime  with 
a  view  to  being  guided  as  to  it.     Orman 
v.  State,  22  Tex.  App.  604,  3  S.  W.  468 ; 
People  v.  Van  AUtine,  57  Mich.  69,  23 
N.   W.  594.     But  it  is  not  confined   to 
cases  where  litigation  is  begun  or  con- 
templated :  Root  v.  Wright,  84  N.  Y.  72; 
or  to  cases  where  a  fee  is  received :  An- 
drews v.  Simms,  33  Ark.  771;  Bacon  v. 
Fisher,  80  N.  Y.  394,  36  Am.  Rep.  627 ; 
[Bruley  r.  Garvin,  105  Wis.  625,  81  N.  W. 
1038,  48  L.  R.  A.  839 ;]  and  is  not  waived 
by  the  party  becoming  a  witness  for  him- 
self.    Dettenhofer  v.  State,  34  Ohio  St. 
91,  32  Am.  Rep.  362;    Button  v.  State, 
16  Tex.  App.  490;  but  see  Jones  v.  State, 
65   Miss.    179,   3  So.  379.     Communica- 
tions to  a  State's  attorney  with  a  view  to 
a  prosecution  are  privileged.     Vogel   v. 
Gruaz,  110  U.  S.  311,  4  Sup.  Ct.  Rep.  12. 
Communications  extraneous  or  imperti- 
nent to  the  subject-matter  of  the  profes- 
sional consultation  are    not   privileged. 
Dixon  v.  Parmelee,  2  Vt.  185.     See  Bran- 
don v.  Cowing,  7  Rich.  459.     Or  commu- 
nications publicly  made  in  the  presence 
of  others.     Hartford  F.  Ins.  Co.  v.  Rey- 
nolds,  36    Mich.   502.      See   Perkins  v. 
Grey,  55  Miss.  153;   Moffatt  v.  Hardin, 
22  S.  C.  9;  [Kramer  v.  Kister,  187  Pa. 


227,  40  Atl.  1008, 44  L.  R.  A.  432.]  Or  to 
the  communications  made  to  or  by  the 
attorney  when  acting  for  both  parties. 
Hanlon  v.  Doherty,  109  Ind.  37,  9  N.  E. 
782;  Cady  v.  Walker,  62  Mich.  157,  28 
N.  W.  805;  Goodwin,  &c.  Co.'s  Appeal, 
117  Pa.  St.  514,  12  Atl.  736.  Or  to  an 
attorney  if  he  acts  as  a  mere  scrivener. 
Smith  v.  Long,  106  111.  485;  Todd  v.  Mun- 
son,  53  Conn.  679,  4  Atl.  99.  Or  facts 
within  the  personal  knowledge  of  counsel, 
such  as  the  dating  of  a  bond.  Rundle  v. 
Foster,  3  Tenn.  Ch.  658.  The  privilege 
extends  to  communications  by  other 
means  than  words :  State  v.  Dawson,  90 
Mo.  149,  1  S.  W.  827 ;  and  to  communi- 
cations to  a  legal  adviser,  who  is  not  a 
licensed  attorney.  Benedict  v.  State,  44 
Ohio  St.  679,  11  N.  E.  125;  Ladd  v.  Rice, 
57  N.  H.  374.  fJBut  see  1  Greenleaf  on 
Evidence,  ed.  16,  §  239,  and  cases  cited. 
See  also  People  v.  Barker,  60  Mich.  277, 
27  N.  W.  539, 1  Am.  St.  501.  It  is  waived 
by  asking  the  attorney  who  drew  a  will 
to  be  a  witness  to  it.  Matter  of  Coleman, 
111  N.  Y.  220,  19  N.  E.  71.] 

It  has  been  intimated  in  New  York 
that  the  statute  making  parties  wit- 
nesses has  done  away  with  the  rule  which 
protects  professional  communications. 
Mitchell's  Case,  12  Abb.  Pr.  R.  249; 
note  to  1  Phil.  Ev.,  by  Cowen,  Hill,  and 
Edwards,  159  (marg. ).  Supposing  this  to 
be  so  in  civil  cases,  the  protection  would 
still  be  the  same  in  the  case  of  persons 
charged  with  crime,  for  such  persons  can- 
not be  compelled  to  give  evidence  against 
themselves,  so  that  the  reason  for  pro- 
tecting professional  confidence  is  the 
same  as  formerly. 

2  If  one  would  consider  this  duty  and 
the  limitations  upon  it  fully,  he  should 
read  the  criticisms  upon  the  conduct  of 
Mr.  Charles  Phillips  on  the  trial  of  Cour- 
voisier  for  the  murder  of  Lord  William 


CH.  X.] 


CONSTITUTIONAL  PROTECTIONS,  ETC. 


479 


criminal  is  entitled  to  be  judged  by  the  laws ;  and  if  his  con- 
viction is  secured  by  means  of  a  perversion  of  the  law,  the  injury 
to  the  cause  of  public  justice  will  be  more  serious  and  lasting  in 
its  results  than  his  being  allowed  to  escape  altogether.1 

But  how  persistent  counsel  may  be  in  pressing  for  the  acquittal 
of  his  client,  and  to  what  extent  he  may  be  justified  in  throwing 
his  own  personal  character  as  a  weight  in  the  scale  of  justice,  are 
questions  of  ethics  rather  than  of  law.  No  counsel  is  justifiable 
who  defends  even  a  just  cause  with  the  weapons  of  fraud  and 
falsehood,  and  no  man  on  the  other  hand  can  excuse  himself  for 
accepting  the  confidence  of  the  accused,  and  then  betraying  it  by 
a  feeble  and  heartless  defence.  And  in  criminal  cases  we  think 
the  court  may  sometimes  have  a  duty  to  perform  in  seeing  that 


Russell.  See  Sharswood,  Legal  Ethics, 
46;  Littell,  Living  Age,  Vol.  XXIV. 
pp.  179,  230;  Vol.  XXV.  pp.  289,  306; 
West.  Rev.  Vol.  XXXV.  p.  1. 

1  There  may  be  cases  in  which  it  will 
become  the  duty  of  counsel  to  interpose 
between  the  court  and  the  accused,  and 
fearlessly  to  brave  all  consequences  per- 
sonal to  himself,  where  it  appears  to  him 
that  in  no  other  mode  can  the  law  be  vin- 
dicated and  justice  done  to  his  client; 
but  these  cases  are  so  rare,  that  doubtless 
they  will  stand  out  in  judicial  history  as 
notable  exceptions  to  the  ready  obedience 
which  the  bar  should  yield  to  the  author- 
ity of  the  court.  The  famous  scene  be- 
tween Mr.  Justice  Bu/ler  and  Mr.  Erskine, 
on  the  trial  of  the  Dean  of  St.  Asaph  for 
libel,  —  5  Campbell's  Lives  of  the  Chan- 
cellors, c.  158 ;  Erskine's  Speeches,  by 
Jas.  L.  High,  Vol.  I.  p.  242,  —  will  readily 
occur  to  the  reader  as  one  of  the  excep- 
tional cases.  Lord  Campbell  says  of  Er- 
skine's conduct :  "  This  noble  stand  for 
the  independence  of  the  bar  would  alone 
have  entitled  Erskine  to  the  statue  which 
the  profession  affectionately  erected  to 
his  memory  in  Lincoln's  Inn  Hall.  We 
are  to  admire  the  decency  and  propriety 
of  his  demeanor  during  the  struggle,  no 
less  than  its  spirit,  and  the  felicitous  pre- 
cision with  which  he  meted  out  the  re- 
quisite and  justifiable  portion  of  defiance. 
His  example  has  had  a  salutary  effect  in 
illustrating  and  establishing  the  relative 
duties  of  judge  and  advocate  in  Eng- 
land." And  elsewhere,  in  speaking  of  Mr. 
Fox's  Libel  Act,  he  makes  the  following 
somewhat  extravagant  remark :  "  I  have 


said,  and  I  still  think,  that  this  great  con- 
stitutional triumph  is  mainly  to  be  as- 
cribed to  Lord  Camden,  who  had  been 
fighting  in  the  cause  for  half  a  century, 
and  uttered  his  last  words  in  the  House 
of  Lords  in  its  support;  but  had  he  not 
received  the  invaluable  assistance  of 
Erskine,  as  counsel  for  the  Dean  of  St. 
Asaph,  the  Star  Chamber  might  have  been 
re-established  in  this  country."  And  Lord 
Brougham  says  of  Erskine :  "  He  was  an 
undaunted  man ;  he  was  an  undaunted 
advocate.  To  no  court  did  he  ever 
truckle,  neither  to  the  court  of  the  King, 
neither  to  the  court  of  the  King's  Judges. 
Their  smiles  and  their  frowns  he  disre- 
garded alike  in  the  fearless  discharge  of 
his  duty.  He  upheld  the  liberty  of  the 
peers  against  the  one ;  he  defended  the 
rights  of  the  people  against  both  com- 
bined to  destroy  them.  If  there  be  yet 
amongst  us  the  power  of  freely  discuss- 
ing the  acts  of  our  rulers ;  if  there  be  yet 
the  privilege  of  meeting  for  the  promo- 
tion of  needful  reforms ;  if  he  who  de- 
sires wholesome  changes  in  our  Constitu- 
tion be  still  recognized  as  a  patriot,  and 
not  doomed  to  die  the  death  of  a  traitor, 
—  let  us  acknowledge  with  gratitude  that 
to  this  great  man,  under  Heaven,  we  owe 
this  felicity  of  the  times."  Sketches  of 
Statesmen  of  the  Time  of  George  III.  A 
similar  instance  of  the  independence  of 
counsel  is  narrated  of  that  eminent  advo- 
cate, Mr.  Samuel  Dexter,  in  the  reminis- 
censes  of  his  life  by  "Sigma,"  published 
at  Boston,  1857,  p.  61.  See  Stor  on 
Const.  (4th  ed.)  §  1064,  note. 


480  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

the  prisoner  suffers  nothing  from  inattention  or  haste  on  the  part 
of  his  counsel,  or  impatience  on  the  part  of  the  prosecuting  officer 
or  of  the  court  itself.  Time  may  be  precious  to  the  court ;  but  it 
is  infinitely  more  so  to  him  whose  life  or  whose  liberty  may  de- 
pend upon  the  careful  and  patient  consideration  of  the  evidence ; 
when  the  counsel  for  the  defence  is  endeavoring  to  sift  the  truth 
from  the  falsehood,  and  to  subject  the  whole  to  logical  analysis, 
so  as  to  show  that  how  suspicious  soever  the  facts  may  be,  they 
are  nevertheless  consistent  with  innocence.  Often  indeed  it  must 
happen  that  the  impression  of  the  prisoner's  guilt,  which  the 
judge  and  the  jury  unavoidably  receive  when  the  case  is  opened  to 
them  by  the  prosecuting  officer,  will,  insensibly  to  themselves, 
color  all  the  evidence  in  the  case,  so  that  only  a  sense  of  duty 
will  induce  a  due  attention  to  the  summing  up  for  the  prisoner, 
which  after  all  may  prove  unexpectedly  convincing.  Doubtless 
the  privilege  of  counsel  is  sometimes  abused  in  these  cases ;  we 
cannot  think  an  advocate  of  high  standing  and  character  has  a 
right  to  endeavor  to  rob  the  jury  of  their  opinion  by  asseverating 
his  own  belief  in  the  innocence  of  his  client ;  and  cases  may 
arise  in  which  the  court  will  feel  compelled  to  impose  some  reason- 
able restraints  upon  the  address  to  the  jury; 1  but  it  is  better  in 
these  cases  to  err  on  the  side  of  liberality ;  and  restrictions 
which  do  not  leave  to  counsel,  who  are  apparently  acting  in  good 
faith,  such  reasonable  time  and  opportunity  as  they  may  deem 
necessary  for  presenting  their  client's  case  fully,  may  possibly  in 
some  cases  be  so  far  erroneous  in  law  as  to  warrant  setting  aside 
a  verdict  of  guilty.2 

Whether  counsel  are  to  address  the  jury  on  questions  of  law  in 
criminal  cases,  generally,  is  a  point  which  is  still  in  dispute.  If 
the  jury  in  the  particular  case,  by  the  constitution  or  statutes  of 
the  State,  are  judges  of  the  law,  it  would  seem  that  counsel  should 
be  allowed  to  address  them  fully  upon  it,8  though  the  contrary 
seems  to  have  been  held  in  Maryland  : 4  while  in  Massachusetts 
where  it  is  expected  that  the  jury  will  receive  the  law  from  the 

1  Tims  it  has  been  held,  that,  even  *  Franklin  v.  State,  12  Md  236.   What 
though  the  jury  are  the  judges  of  the  law  was  held  there  was,  that  counsel  should 
in  criminal  cases,  the  court  may  refuse  not  argue  the  constitutionality  of  a  stat- 
to  allow  counsel  to  read  law-books  to  the  ute  to  the  jury;  and  that  the   Constitu- 
jury.     Murphy  v.  State,  6  Ind.  490.    And  tion,  in  making  the  jury  judges  of  the 
see  Lynch  v.  State,  9  Ind.  541;  Phoenix  law,  did  not  empower  them  to  decide  a 
Ins.  Co.  v.  Allen,  11  Mich.  501.  statute  invalid.     This  ruling  corresponds 

2  In  People  v.  Keenan,  13  Gal.  581,  a  to  that  of  Judge  Chase  in  United  States 
verdict  in  a  capital  case  was  set  aside  on  v.  Callendar,  Whart.   State  Trials,  688, 
this  ground.  710.     But  see  remarks  of  Perkins,  J.,  in 

8  Lynch  v.  State,  9  Ind.  541 ;  Murphy     Lynch  v.  State,  9  Ind.  542. 
v.  State,  6  Ind.  490. 


CII.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


481 


court,  it  is  nevertheless  held  that  counsel  has  a  right  to  address 
them  upon  the  law.1  It  is  unquestionably  more  decorous  and 
more  respectful  to  the  bench  that  argument  upon  the  law  should 
always  be  addressed  to  the  court ;  and  such,  we  believe,  is  the 
general  practice.  The  jury  hear  the  argument,  and  they  have  a 
right  to  give  it  such  weight  as  it  seems  to  them  properly  to  be 
entitled  to. 

For  misconduct  in  their  practice,  the  members  of  the  legal 
profession  may  be  summarily  dealt  with  by  the  courts,  who  will 
not  fail,  in  all  proper  cases,  to  use  their  power  to  protect  clients 
or  the  public,  as  well  as  to  preserve  the  profession  from  the  con- 
tamination and  disgrace  of  a  vicious  associate.2  A  man  of  bad 
reputation  may  be  expelled  for  that  alone ;  3  and  counsel  who  has 


1  Commonwealth  v.  Porter,   10  Met. 
263 ;  Commonwealth  v.  Austin,  7  Gray,  61. 

2  "  As  a  class,  attorneys  are  supposed 
to  be,  and  in  fact  have  always  been,  the 
vindicators  of  individual  rights,  and  the 
fearless  assertors  of  the  principles  of  civil 
liberty,  existing,  where  alone  they  can  ex- 
ist, in  a  government,  not  of  parties  nor  of 
men,  but  of  laws.     On  the  other  hand,  to 
declare  them  irresponsible  to  any  power 
but  public  opinion  and  their  consciences, 
would  be  incompatible  with  free  govern- 
ment.    Individuals  of  the  class  may,  and 
sometimes  do,  forfeit  their  professional 
franchise  by  abusing  it ;  and  a  power  to 
exact  the  forfeiture  must  be  lodged  some- 
where.    Such  a  power  is  indispensable  to 
protect  the  court,  the  administration  of 
justice,   and  themselves.     Abuses   must 
necessarily  creep  in ;  and,  having  a  deep 
stake  in  the  character  of  their  profes- 
sion, they  are  vitally  concerned  in  pre- 
venting   it    from    being   sullied    by   the 
misconduct  of  unworthy  members  of  it. 
No  class  of  the  community  is  more  depend- 
ent on  its  reputation  for  honor  and  integ- 
rity.    It  is  indispensable  to  the  purposes 
of  its  creation  to  assign  it  a    high  and 
honorable  standing;  but  to  put  it  above 
the  judiciary,  whose  official  tenure  is  good 
behavior  and  whose  members  are  remov- 
able from  office  by  the  legislature,  would 
render  it  intractable ;  and  it  is  therefore 
necessary  to  assign  it  but  an  equal  share 
of  independence.     In  the  absence  of  spe- 
cific provision  to  the  contrary,  the  power 
of  removal  is,  from  its  nature,  commen- 
surate with  the  power  of  appointment, 
and  it  is  consequently  the  business  of  the 


31 


judges  to  deal  with  delinquent  members 
of  the  bar,  and  withdraw  their  faculties 
when  they  are  incorrigible."  Gibson,  Ch. 
J.,  In  re  Austin  et  al.,  5  Rawle,  191,  203, 
28  Am.  Dec.  657.  See  State  v.  Kirke,  12 
Fla.  278 ;  Rice's  Case,  18  B.  Monr.  472 ; 
Walker  ».  State,  4  W.  Va.  749. 

An  attorney  may  be  disbarred  for  a 
personal  attack  upon  the  judge  for  his 
conduct  as  such ;  but  the  attorney  is  en- 
titled to  notice,  and  an  opportunity  to  be 
heard  in  defence.  Beene  v.  State,  22 
Ark.  149.  See  In  re  Wallace,  L.  R.  1  P. 
C.  283 ;  Ex  parts  Bradley,  7  Wall.  364 ; 
Withers  v.  State,  35  Ala.  252 ;  Matter  of 
Moore  et  al.,  63  N.  C.  397;  Ex  parte 
Biggs,  64  N.  C  202 ;  Bradley  v.  Fisher,  13 
Wall.  335 ;  Dickens's  Case,  67  Pa.  St.  169. 

8  For  example,  one  whose  reputation 
for  truth  and  veracity  is  such  that  his 
neighbors  would  not  believe  him  when 
under  oath.  Matter  of  Mills,  1  Mich. 
393.  See  In  re  Percy,  36  N.  Y.  651 ;  Peo- 
ple »'.  Ford,  54  III.  520.  An  attorney 
convicted  and  punished  for  perjury,  and 
disbarred,  was  refused  restoration,  not- 
withstanding his  subsequent  behavior  had 
been  unexceptionable.  Ex  parte  Garbett, 
18  C.  B.  403.  See  Matter  of  McCarthy, 
42  Mich.  71,  51  N.  W.  963;  Ex  parte 
Walls,  64  Ind.  461.  An  attorney  dis- 
barred for  collusion  to  procure  false  testi- 
mony. Matter  of  Gale,  75  N.  Y.  526. 
See  "Matter  of  Eldridge,  82  N.  Y.  161,  37 
Am.  Rep.  658.  For  inducing  a  commis- 
sioner to  admit  to  bail  without  right  a 
convicted  prisoner.  State  v.  Burr,  19 
Neb.  693,  28  N.  W.  261.  For  antedating 
jurat  and  acknowledgment.  Matter  of 


482 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X. 


once  taken  part  in  litigation,  and  been  the  adviser  or  become 
entrusted  with  the  secrets  of  one  party,  will  not  afterwards  be 
suffered  to  engage  for  an  opposing  party,  notwithstanding  the 
original  employment  has  ceased,  and  there  is  no  imputation  upon 
his  motives.1  And,  on  the  other  hand,  the  court  will  not  allow 
counsel  to  be  made  the  instrument  of  injustice,  nor  permit  the 
client  to  exact  of  him  services  which  are  inconsistent  with  the 
obligation  he  owes  to  the  court  and  to  public  justice,  —  a  higher 
and  more  sacred  obligation  than  any  which  can  rest  upon  him  to 
gratify  a  client's  whims,  or  to  assist  in  his  revenge.2 


Arctander,  26  Minn.  25, 1  N.  W.  43.  For 
embezzlement  of  client's  papers,  though 
lie  has  settled  with  client.  In  re  Davies, 
93  Pa.  St.  116.  For  want  of  fidelity  to 
client.  Matter  of  Wool,  36  Mich.  299; 
Strout  r.  Proctor,  71  Me.  288 ;  Slemmer 
v.  Wright,  54  Iowa,  164,  6  N.  W.  181  ; 
People  v.  Murphy,  119  111.  159,  6  N.  E. 
488.  If  he  commits  a  crime  in  his  pro- 
fessional capacity  he  may  be  disbarred, 
though  he  has  not  been  convicted  of  the 
crime.  State  v.  Winton,  11  Greg.  456, 
6  Pac.  337.  Even  if  it  is  not  committed 
as  an  attorney.  The  rule  is  not  inflexi- 
ble that  he  must  be  convicted  before  dis- 
barment. Ex  parte  Wall,  107  U.  S.  265, 
2  Sup.  Ct.  Rep.  569;  Delano's  Case,  58 
N.  H.  5.  See  Ex  parte  Steinman,  95  Pa. 
St.  220.  One  may  be  disbarred  for  pub- 
lishing a  libel  on  the  court  unless  some 
constitutional  or  statutory  provision  for- 
bids. State  v.  McClaugherty,  33  W.  Va. 
250,  10  S.  E.  407. 

1  In  Gaulden  v.  State,  11  Ga.  47,  the 
late  solicitor-general  was  not  suffered  to 
assist  in  the  defence  of  a  criminal  case, 
because  he  had,  in  the  course  of  his  offi- 
cial   duty,    instituted    the     prosecution, 
though  he  was  no  longer  connected  with 
it.     And  see  Wilson  ».  State,  16  Ind.  392. 
A  late  city  attorney  for  accepting  a  re- 
tainer not  to  appear  for  the  city  in  cer- 
tain cases  against  it,  appealed  by  him 
while  such  attorney,  was  suspended  for 
six  months  from  practice.    In  re  Cowdery, 
69  Cal.  32,  10  Pac.  47. 

2  Upon  this   subject  the  remarks   of 
Chief  Justice   Gibson   in    Rush  v.  Cava- 
naugh,   2   Pa.   St.   189,    are    worthy    of 
being  repeated  in  this  connection.     The 
prosecutor  in  a  criminal  case  had  refused 
to  pay  the  charges  of  the  counsel  em- 
ployed by  him  to  prosecute  in  the  place 
of  the  attorney -general,  because  the  coun- 


sel, after  a  part  of  the  evidence  had  been 
put  in,  had  consented  that  the  charge 
might  be  withdrawn.  In  considering 
whether  this  was  sufficient  reason  for  the 
refusal,  the  learned  judge  said:  "The 
material  question  is,  did  the  plaintiff  vio- 
late his  professional  duty  to  his  client  in 
consenting  to  withdraw  his  charge,  .  .  . 
instead  of  lending  himself  to  the  prose- 
cution of  one  whom  he  then  and  has  since 
believed  to  be  an  innocent  man  1 

"  It  is  a  popular  but  gross  mistake  to 
suppose  that  a  lawyer  owes  no  fidelity  to 
any  one  except  his  client,  and  that  the 
latter  is  the  keeper  of  his  professional 
conscience.  He  is  expressly  bound  by 
his  official  oath  to  behave  himself  in  his 
office  of  attorney  with  all  due  fidelity  to 
the  court  as  well  as  to  the  client ;  and  he 
violates  it  when  he  consciously  presses 
for  an  unjust  judgment;  much  more  so 
when  he  presses  for  the  conviction  of  an 
innocent  man.  But  the  prosecution  was 
depending  before  an  alderman,  to  whom, 
it  may  be  said,  the  plaintiff  was  bound  to 
no  such  fidelity.  Still  he  was  bound  by 
those  obligations  which,  without  oaths, 
rest  upon  all  men.  The  high  and  honor- 
able office  of  a  counsel  would  be  degraded 
to  that  of  a  mercenary,  were  he  compel- 
lable  to  do  the  bidding  of  his  client  against 
the  dictates  of  his  conscience.  The  ori- 
gin of  the  name  proves  the  client  to  be 
subordinate  to  his  counsel  as  his  patron. 
Besides,  had  the  plaintiff  succeeded  in 
having  Crean  held  to  answer,  it  would 
have  been  his  duty  to  abandon  the  prose- 
cution at  the  return  of  the  recognizance. 
As  the  office  of  attorney-general  is  a  pub- 
lic trust  which  involves,  in  the  discharge 
of  it,  the  exercise  of  an  almost  boundless 
discretion  by  an  officer  who  stands  as  im- 
partial as  a  judge,  it  might  be  doubted 
whether  counsel  retained  by  a  private 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


483 


The   Writ  of  Habeas   Corpus. 

It  still  remains  to  mention  one  of  the  principal  safeguards  to 
personal  liberty,  and  the  means  by  which  illegal  restraints  upon 
it  are  most  speedily  and  effectually  remedied.  To  understand 
this  guaranty,  and  the  instances  in  which  the  citizen  is  entitled 
to  appeal  to  the  law  for  its  enforcement,  we  must  first  have  a 
correct  idea  of  what  is  understood  by  personal  liberty  in  the  law, 
and  inquire  what  restraints,  if  any,  must  exist  to  its  enjoyment. 

Sir  William  Blackstone  says,  personal  liberty  consists  in  the 
power  of  locomotion,  of  changing  situation,  or  moving  one's  per- 
son to  whatsoever  place  one's  own  inclination  may  direct,  without 
imprisonment  or  restraint,  unless  by  due  course  of  law.1  It  ap- 
pears, therefore,  that  this  power  of  locomotion  is  not  entirely 
unrestricted,  but  that  by  due  course  of  law  certain  qualifications 
and  limitations  may  be  imposed  upon  it  without  infringing  upon 
constitutional  liberty.  Indeed,  in  organized  society,  liberty  is  the 
creature  of  law,  and  every  man  will  possess  it  in  proportion  as 
the  laws,  while  imposing  no  unnecessary  restraints,  surround  him 
and  every  other  citizen  with  protections  against  the  lawless  acts 
of  others.2 


prosecutor  can  be  allowed  to  perform  any 
part  of  his  duty ;  certainly  not  unless 
in  subservience  to  his  will  and  instruc- 
tions. With  that  restriction,  usage  has 
sanctioned  the  practice  of  employing  pro- 
fessional assistants,  to  whom  the  attorney- 
general  or  his  regular  substitute  may,  if 
he  please,  confide  the  direction  of  the 
particular  prosecution ;  and  it  has  been 
beneficial  to  do  so  where  the  prosecuting 
officer  has  been  overmatched  or  over- 
borne by  numbers.  In  that  predicament 
the  ends  of  justice  may  require  him  to 
accept  assistance.  But  the  professional 
assistant,  like  the  regular  deputy,  exer- 
cises not  his  own  discretion,  but  that  of 
the  attorney-general,  whose  locum  tenens 
at  sufferance  he  is  ;  and  he  consequently 
does  so  under  the  obligation  of  the  offi- 
cial oath."  And  see  Meister  v.  People, 
31  Mich.  99.  pn  furtherance  of  the  full 
discharge  of  the  duties  which  an  attorney 
owes  to  his  client  and  to  the  court,  he  is 
granted  certain  privileges.  One  is  to  be 
exempt  from  the  service  of  process  while 
attending  upon  the  court  and  in  going  to 
and  returning  from  the  same.  Hoffman 
r.  Judge  of  Circuit  Court,  113  Mich.  109, 
71  N.  W.  480;  38  L.  R.  A.  663;  67  Am. 
St.  458.  Similar  exemption  in  regard  to 


service  of  summons  and  other  civil  pro- 
cess extends  to  parties  and  witnesses. 
Mulhearn  v.  Press  Publishing  Co.,  53 
N.  J.  L.  153,  21  Atl.  186,  11  L.  R.  A.  101.] 

1  1  Bl.  Com.  134.     Montesquieu  says  : 
"  In    governments,  that   is,  in    societies 
directed  by  laws,  liberty  can  consist  only 
in  the  power  of  doing  what  we  ought  to 
will,  and  in  not  being  constrained  to  do 
what  we  ought  not  to  will.     We   must 
have  continually  present  to   our  minds 
the  difference  between  independence  and 
liberty.     Liberty  is  a  right  of  doing  what- 
ever the  laws  permit,  and   if  a  citizen 
could  do  what  they  forbid,  he  would  no 
longer  be  possessed  of  liberty,  because  all 
his  fellow-citizens  would  enjoy  the  same 
power."     Spirit  of  the   Laws,  Book  11, 
c.  3. 

2  "  Liberty,"  says   Mr.   Webster,  "  is 
the  creature  of  law,  essentially  different 
from  that  authorized  licentiousness  that 
trespasses  on  right.     It  is  a  legal  and  a 
refined  idea,  the  offspring  of  high  civil- 
ization, which   the   savage  never  under- 
stood, and  never  can  understand.    Lib- 
erty exists  in   proportion  to  wholesome 
restraint;  the  more  restraint  on  others  to 
keep  off  from   us,  the  more  liberty  we 
have.    It  is  an  error  to  suppose  that  lib' 


484  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

In  examining  the  qualifications  and  restrictions  which  the  law 
imposes  upon  personal  liberty,  we  shall  find  them  classed,  accord- 
ing to  their  purpose,  as,  first,  those  of  a  public,  and,  second,  those 
of  a  private  nature. 

The  first  class  are  those  which  spring  from  the  relative  duties 
and  obligations  of  the  citizen  to  society  and  to  his  fellow-citizens. 
These  may  be  arranged  into  sub-classes  as  follows :  (1)  Those 
imposed  to  prevent  the  commission  of  crime  which  is  threatened ; 
(2)  those  in  punishment  of  crime  committed;  (3)  those  in  pun- 
ishment of  contempts  of  court  or  legislative  bodies,  or  to  render 
their  jurisdiction  effectual ;  (4)  those  necessary  to  enforce  the 
duty  citizens  owe  in  defence  of  the  State ; 1  (5)  those  which  may 
become  important  to  protect  the  community  against  the  acts  of 
those  who,  by  reason  of  mental  infirmity,  are  incapable  of  self- 
control.  All  these  limitations  are  well  recognized  and  generally 
understood,  but  a  particular  discussion  of  them  does  not  belong 
to  our  subject.  The  second  class  are  those  which  spring  from 
the  helpless  or  dependent  condition  of  individuals  in  the  various 
relations  of  life. 

1.  The  husband,  at  the  common  law,  is  recognized  as  having 
legal  custody  of  and  power  of  control  over  the  wife,  with  the 
right  to  direct  as  to  her  labor,  and  to  insist  upon  its  performance. 
The  precise  nature  of  the  restraints  which  may  be  imposed  by  the 
husband  upon  the  wife's  actions,  it  is  not  easy,  from  the  nature  of 
the  case,  to  point  out  and  define ;  but  at  most  they  can  only  be  such 
gentle  restraints  upon  her  liberty  as  improper  conduct  on  her 
part  may  appear  to  render  necessary ; 2  and  the  general  tendency 
of  public  sentiment,  as  well  as  of  the  modern  decisions,  has  been 
in  the  direction  of  doing  away  with  the  arbitrary  power  which 
the  husband  was  formerly  supposed  to  possess,  and  of  placing 

erty  consists  in  a  paucity  of  laws.    If  one  2  2  Kent,  181.     See  Cochran's  Case,  8 

wants  few  laws  let  him   go  to  Turkey.  Dowl.  P.  C.  630.     The  husband,  however, 

The   Turk  enjoys   that    blessing.     The  is  under  no  obligation  to  support  his  wife 

working  of  our  complex  system,  full  of  except  at  his  own  home ;  and  it  is  only 

checks  and  restraints  on  legislative,  ex-  when  he  wrongfully  sends  her  away,  or 

ecutive,  and  judicial  power,  is  favorable  so  conducts   himself  as  to  justify  her  in 

to  liberty  and  justice.    Those  checks  and  leaving  him,  that  he  is  bound  to  support 

restraints    are   so   many   safeguards   set  her  elsewhere.    Rumney  r.  Keyes,  7  N.  H. 

around   individual   rights   and    interests.  670 ;  Allen  v.  Aldrich,  29  N.  H.  63 ;  Shaw 

That  man  is  free  who  is  protected  from  v.  Thompson,  16  Pick.  198 ;  Clement  v. 

injury."     Works,  Vol.  II.  p.  393.  Mattison,  3  Rich.  93.     In  such  a  case  his 

1  In  Judson  v.  Reardon,  16  Minn.  431,  liability  to  supply  her  with   necessaries 

a  statute  authorizing  the  members  of  a  cannot  be  restricted  by  giving  notice  to 

municipal  council  to  arrest  and  imprison  particular  persons  not  to  trust  her.     Bol- 

without  warrant  persons  refusing  to  obey  ton  v.  Prentice,  2  Strange,  1214;  Harris 

the  orders  of  fire  wardens  at  a  fire  was  v.  Morris,  4  Esp  41;  Watkins  v.  De  Ar- 

held  unwarranted  and  void.  mond,  89  Ind.  563. 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,  ETC.  485 

the  two  sexes  in  the  marriage  relation  upon  a  footing  nearer 
equality.  It  is  believed  that  the  right  of  the  husband  to  chas- 
tise the  wife,  under  any  circumstances,  would  not  be  recognized 
in  this  country ;  and  such  right  of  control  as  the  law  gives  him 
would  in  any  case  be  forfeited  by  such  conduct  towards  the  wife 
as  was  not  warranted  by  the  relation,  and  which  should  render  it 
improper  for  her  to  live  and  cohabit  with  him,  or  by  such  conduct 
as,  under  the  laws  of  the  State,  would  entitle  her  to  a  divorce.1 
And  he  surrenders  his  right  of  control  also,  when  he  consents  to 
her  living  apart  under  articles  of  separation.2 

2.  The  father  of  an  infant,  being  obliged  by  law  to  support  his 
child,  has  a  corresponding  right  to  control  his  actions,  and  to 
employ   his   services   during   the  continuance  of   legal    infancy. 
The  child  may  be  emancipated  from  this  control  before   com- 
ing  of  age,  either  by  the  express   assent  of  the  father,  or  by 
being  turned  away   from  his   father's   house,  and   left  to   care 
for  himself ; 3  though  in   neither   case  would   the  father  be   re- 
leased from  an  obligation  which  the  law  imposes  upon  him  to 
prevent   the   child   becoming   a   public   charge,   and    which  the 
State  may  enforce  whenever  necessary.     The  mother,  during  the 
father's  life,  has  a  power  of  control  subordinate  to  his  ;  but  on  his 
death,4  or  conviction  and  sentence  to  imprisonment  for  felony,5 
she  succeeds  to  the  relative   rights  which  the  father   possessed 
before,  (a) 

3.  The  guardian  has  a  power  of  control  over  his  ward,  corre- 
sponding in  the  main  to  that  which  the  father  has  over  his  child, 
though  in  some  respects  more  restricted,  while  in  others  it  is 
broader.    The  appointment  of  guardian,  when  made  by  the  courts, 

1  Hutcheson   v.  Peck,  5  Johns.   196;          *  Dedham   v.   Natick,   16   Mass.  135; 
Love  v.  Moynahan,  16  III.  277.  Com'rs  Harford  Co.  v.  Hamilton,  60  Md. 

2  Saunders  v.  Rodway,  16  Jar.  1005,     340. 

13  Eng.  L.  &  Eq.  463.  &  Bailey's  Case,   6   Dowl.  P.  C.  311. 

8  Whiting  v.  Earle,  3  Pick.  201 ;   15  If,   however,   there  be   a   guardian    ap- 

Am.   Dec.   207  ;    McCoy   v.   Huffman,  8  pointed  for  the  child  by  the  proper  court, 

Cow.  841;  State  v.  Barrett,  45  N.  H.  15;  his  right  to  the  custody  of  the  child  is 

Wolcott  v.  Rickey,  22  Iowa,  171;  Fair-  superior  to  that  of  the  parent.    Mac-ready 

hurst  v.  Lewis,  23  Ark.  435;  Hardwick  v.  v.  Wolcott,  33  Conn.  321. 
Pawlet,  36  Vt.  320. 

(a)  £Upon  the  principle  that  an  ounce  of  prevention  is  worth  a  pound  of  cure,  the 
State  is  asserting  more  and  more  control  over  children  allowed  by  their  parents  to 
grow  up  in  evil  associations,  and  for  the  prevention  of  crime  to  which  such  courses  so 
strongly  tend  recent  statutes  authorize  the  summary  arrest  and  detention,  in  reform 
schools  and  like  institutions,  of  youth  of  incorrigibly  vicious  habits.  Such  detention 
is  not  looked  upon  as  imprisonment  and  punishment  to  the  validity  of  which  a  jury 
trial  is  necessary.  State  v.  Brown,  50  Minn.  353,  52  N.  W.  935,  36  Am.  St.  651,  16 
L.  R.  A.  691,  and  note  on  commitment  of  minors  to  reformatories  without  conviction 
of  crime.  To  the  same  effect,  see  Lee  v.  McClelland,  157  Ind.  84,  60  N.  E.  692.] 


486  CONSTITUTIONAL  LIMITATIONS.  [CH.  X. 

is  of  local  force  only,  being  confined  to  the  State  in  which  it  is 
made,  and  the  guardian  would  have  no  authority  to  change  the 
domicile  of  the  ward  to  another  State  or  country.  But  the  ap- 
pointment commonly  has  reference  to  the  possession  of  property 
by  the  ward,  and  over  this  property  the  guardian  is  given  a  power 
of  control  which  is  not  possessed  by  the  father,  as  such,  over  the 
property  owned  by  his  child.1 

4.  The  relation  of  master  and  apprentice  is  founded  on  a  con- 
tract between  the  two,  generally  with  the  consent  of  the  parent 
or   party  standing   in  loco  parent-is  to  the  latter,    by  which  the 
master  is  to  teach  the  apprentice  some  specified  trade  or  means 
of  living,  and  the  apprentice,  either  wholly  or  in  part  in  considera- 
tion of  the  instruction,  is  to  perform  services  for  the  master  while 
receiving  it.     This  relation  is  also  statutory  and   local,  and  the 
power   to   control   the  apprentice  is    assimilated  to    that  of  the 
parent  by  the  statute  law.2 

5.  The  power  of   the    master   to   impose  restraints  upon  the 
action  of  the  servant  he  employs  is  of  so  limited  a  nature  that 
practically   it   may  be   said   to   rest  upon  continuous  voluntary 
assent.     If  the  servant  misconducts  himself,  or  refuses  to  submit 
to  proper   control,  the  master  may  discharge    him,  but   cannot 
resort  to  confinement  or  personal  chastisement. 

6.  The  relation  of  teacher  and  scholar  places  the  former  more 
nearly  in  the  place  of  the  parent  than  either  of  the  two  preceding 
relations  places  the  master.     While  the  pupil  is  under  his  care, 
he  has  a  right  to  enforce   obedience  to  his  commands  lawfully 
given  in  his  capacity  of  teacher,  even  to  the  extent  of  bodily 
chastisement    or  confinement.     And   in   deciding   questions   of 
discipline  he  acts  judicially,  and  is  not  to  be  made  liable,  either 
civilly  or  criminally,  unless  he  has  acted  with  express  malice,  or 
been  guilty  of  such  excess  in  punishment  that  malice  may  fairly 
be  implied.     All  presumptions  favor  the  correctness  and  justice 
of  his  action.3 

7.  Where  parties  bail  another,  in  legal  proceedings,  they  are 
regarded  in  law  as  his  jailers,  selected  by  himself,  and  with  the 

1  Cooley's   Bl.   Com.   462,   and   cases          8  State  v.  Pendergrass,  2  Dev.  &  Bat. 
cited.  365;   Cooper  v.  McJunkin,  4  Ind.  290; 

2  The  relation  is  one  founded  on  per-  Commonwealth  v.  Randall,  4  Gray,  38; 
sonal  trust  and  confidence,  and  the  master  Anderson  v.  State,  3  Head,  455;  Lander 
cannot  assign  the  articles  of  apprentice-  v.  Seaver,  32  Vt.  114;  Morrow  v.  Wood, 
ship  except  by  consent  of  the  apprentice  35  Wis.  59;  Patterson  v.  Nutter,  78  Me. 
and  of  his  proper  guardian.     Haley  v.  509,  7  Atl.  273;  Sheehan  v.  Sturges,  53 
Taylor,  3  Dana,  222 ;  Nickerson  v.  How-  Conn.  481,  2  Atl.  841 ;  Vanvactor  v.  State, 
ard,  19  Johns.  113;  Tucker  v.  Magee,  18  113  Ind.  276,  15  N.  E.  341. 

Ala.  99. 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  487 

right  to  his  legal  custody  for  the  purpose  of  seizing  and  delivering 
him  up  to  the  officers  of  the  law  at  any  time  before  the  liability 
of  the  bail  has  become  fixed  by  a  forfeiture  being  judicially  de- 
clared on  his  failure  to  comply  with  the  condition  of  the  bond.1 
This  is  a  right  which  the  bail  may  exercise  in  person  or  by  agent, 
and  without  resort  to  judicial  process.2 

8.  The  control  of  the  creditor  over  the  person  of  his  debtor, 
through  the  process  which  the  law  gives  for  the  enforcement  of 
his  demand,  is  now  very  nearly  abolished,  thanks  to  the  humane 
provisions  which  have  been  made  of  late  by  statute  or  by  constitu- 
tion. In  cases  of  torts  and  where  debts  were  fraudulently  con- 
tracted, or  where  there  is  an  attempt  at  a  fraudulent  disposition 
of  property  with  intent  to  delay  the  creditor,  or  to  deprive  him 
of  payment,  the  body  of  the  debtor  is  allowed  to  be  seized  and 
confined ;  but  the  reader  must  be  referred  to  the  constitution  and 
statutes  of  his  State  for  specific  information  on  this  subject,  (a) 

These,  then,  are  the  legal  restraints  upon  personal  liberty.  For 
any  other  restraint,  or  for  any  abuse  of  the  legal  rights  which 
have  been  specified,  the  party  restrained  is  entitled  to  immediate 
process  from  the  courts,  and  to  speedy  relief. 

The  right  to  personal  liberty  did  not  depend  in  England  on  any 
statute,  but  it  was  the  birthright  of  every  freeman.  As  slavery 
ceased  it  became  universal,  and  the  judges  were  bound  to  protect 
it  by  proper  writ  when  infringed.  But  in  those  times  when  the 
power  of  Parliament  was  undefined  and  in  dispute,  and  the  judges 
held  their  offices  only  during  the  king's  pleasure,  it  was  almost 
a  matter  of  course  that  rights  should  be  violated,  and  that  legal 
redress  should  be  impracticable,  however  clear  those  rights  might 
be.  But  in  many  cases  it  was  not  very  clear  what  the  legal 

i  Harp  v.  Osgood,  2  Hill,  216;  Com-  4  Conn.   166,  10  Am.  Dec.  110;  Nicolls 

monwealth    v.    Brickett,    8    Pick.    138;  v.  Ingersoll,  7  Johns.  145.     After  the  re- 

Worthen  v.  Prescott,  60  Vt.  68,  Jl  Atl.  cognizance   is  defaulted,  surrender  does 

690.     The  principal  may  be  followed,  if  not  discharge  the  bail.     State  v.  McGuire, 

necessary,  out  of  the  jurisdiction  of  the  16  R.  I.  519,  17  Atl.  918.     Nor  will  sur- 

court  in  which  the  bail  was  taken,  and  render  discharge  surety  on  bond  for  the 

arrested  wherever  found.     Parker  v.  Bid-  support   of    a   deserted   wife.     Miller  v. 

well,  3  Conn.  84.    Even  though  it  be  out  Com.,  127  Pa.  St.  1'22,  17  Atl.  864. 

of  the  State.    Harp  v.  Osgood,  supra.   And  2  Parker  v.  Bidwell,  3  Conn.  8t;  Nic- 

doors,  if   necessary,  may  be   broken   in  oils  v.  Ingersoll,  7  Johns.  145 ;  Worthen 

order  to  make  the  arrest.     Read  v.  Case,  v.  Prescott,  60  Vt.  68,  11  Atl.  690. 

(a)  [^Obligation  arising  under  order  of  court  to  pay  money  for  support  of  a 
husband,  is  not  a  debt.  Livingston  ?;.  Los  Angeles  Sup.  Ct.,  117  Cal.  633,  49  Pac. 
836,  38  L.  R.  A.  175.  And  a  defendant  may  be  imprisoned  for  refusing  to  pay 
alimony  as  ordered.  Barclay  v.  Barclay,  184  111.  375,  56  N.  E.  636,  51  L.  R.  A.  351 ; 
State  v.  Cook,  66  Ohio,  566,  64  N.  E.  567.  Person  removing  baggage  from  hotel  or 
lodging-house  when  such  baggage  is  subject  to  lien  for  unpaid  bills  may  be  punished 
by  imprisonment.  State  v.  Engle,  156  lud.  339,  58  N.  E.  698.] 


488  CONSTITUTIONAL  LIMITATIONS.  [CH.  X. 

rights  of  parties  were.  The  courts  which  proceeded  according  to 
the  course  of  the  common  law,  as  well  as  the  courts  of  chancery, 
had  limits  to  their  authority  which  could  be  understood,  and  a 
definite  course  of  proceeding  was  marked  out  for  them  by  statute 
or  by  custom  ;  and  if  they  exceeded  their  jurisdiction  and  invaded 
the  just  liberty  of  the  subject,  the  illegality  of  the  process  would 
generally  appear  in  the  proceedings.  But  there  were  two  tribu- 
nals unknown  to  the  common  law,  but  exercising  a  most  fearful 
authority,  against  whose  abuses  it  was  not  easy  for  the  most  up- 
right and  conscientious  judge  in  all  cases  to  afford  relief.  Theso 
were,  1.  The  Court  of  Star  Chamber,  which  became  fully  recog- 
nized and  established  in  the  time  of  Henry  VII.,  though  originat- 
ing long  before.  Its  jurisdiction  extended  to  all  sorts  of  offences, 
contempts  of  authority  and  disorders,  the  punishment  of  which 
was  not  supposed  to  be  adequately  provided  for  by  the  common 
law ;  such  as  slanders  of  persons  in  authority,  the  propagation  of 
seditious  news,  refusal  to  lend  money  to  the  king,  disregard  of 
executive  proclamations,  &c.  It  imposed  fines  without  limit,  and 
inflicted  any  punishment  in  the  discretion  of  its  judges  short  of 
death.  Even  jurors  were  punished  in  this  court  for  verdicts  in 
State  trials  not  satisfactory  to  the  authorities.  Although  the 
king's  chancellor  and  judges  were  entitled  to  seats  in  this  court, 
the  actual  exercise  of  its  powers  appears  to  have  fallen  into  the 
hands  of  the  king's  privy  council,  which  sat  as  a  species  of  inqui- 
sition, and  exercised  almost  any  authority  it  saw  fit  to  assume.1 
The  court  was  abolished  by  the  Long  Parliament  in  1641.  2.  The 
Court  of  High  Commission,  established  .in  the  time  of  Elizabeth, 
and  which  exercised  a  power  in  ecclesiastical  matters  correspond- 
ing to  that  which  the  Star  Chamber  assumed  in  other  cases,  and 
in  an  equally  absolute  and  arbitrary  manner.  This  court  was 
also  abolished  in  1641,  but  was  afterwards  revived  for  a  short 
time  in  the  reign  of  James  II. 

It  is  evident  that  while  these  tribunals  existed  there  could  be 
no  effectual  security  to  liberty.  A  brief  reference  to  the  remark- 
able struggle  which  took  place  during  the  reign  of  Charles  I.  will 
perhaps  the  better  enable  us  to  understand  the  importance  of' 
those  common-law  protections  to  personal  liberty  to  which  we 
shall  have  occasion  to  refer,  and  also  of  those  statutory  securities 
which  have  since  been  added. 


1  See  Hallam,  Constitutional  History,  set  forth  in  Brodie's  Constitutional  His- 

c   1  and  8;  Todd,  Parliamentary  Govern-  tory  of  the  "British  Empire,  to  which  the 

ment  in  England,  Vol.  II.  c.  1.     The  rise  reader  is    referred  for    more    particular 

and  extension  of  authority  of  this  court,  information, 
and  its  arbitrary  character,  are  very  fully 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  489 

When  the  king  attempted  to  rule  without  the  Parliament,  and 
in  1625  dissolved  that  body,  and  resorted  to  forced  loans,  the 
grant  of  monopolies,  and  the  levy  of  ship  moneys,  as  the  means 
of  replenishing  a  treasury  that  could  only  lawfully  be  supplied  by 
taxes  granted  by  the  commons,  the  privy  council  was  his  conven- 
ient means  of  enforcing  compliance  with  his  will.  Those  who 
refused  to  contribute  to  the  loans  demanded  were  committed  to 
prison.  When  they  petitioned  the  Court  of  the  King's  Bench  for 
their  discharge,  the  warden  of  the  Fleet  made  return  to  the  writ 
of  habeas  corpus  that  they  were  detained  by  warrant  of  the  privy 
council,  informing  him  of  no  particular  cause  of  imprisonment, 
but  that  they  were  committed  by  the  special  command  of  his 
majesty.  Such  a  return  presented  for  the  decision  of  the  court 
the  question,  "  Is  such  a  warrant,  which  does  not  specify  the 
cause  of  detention,  valid  by  the  laws  of  England  ? "  The  court 
held  that  it  was,  justifying  their  decision  upon  supposed  prece- 
dents, although,  as  Mr.  Hallam  says,  "it  was  evidently  the  con- 
sequence of  this  decision  that  every  statute  from  the  time  of 
Magna  Charta,  designed  to  protect  the  personal  liberties  of 
Englishmen,  became  a  dead  letter,  since  the  insertion  of  four 
words  in  a  warrant  (per  speciale  mandatum  regis~),  which  might 
become  matter  of  form,  would  control  their  remedial  efficacy. 
And  this  wound  was  the  more  deadly  in  that  the  notorious  cause 
of  these  gentlemen's  imprisonment  was  their  withstanding  an 
illegal  exaction  of  money.  Everything  that  distinguished  our 
constitutional  laws,  all  that  rendered  the  name  of  England  valu- 
able, was  at  stake  in  this  issue."  1  This  decision,  among  other 
violent  acts,  led  to  the  Petition  of  Right,  one  of  the  principal 
charters  of  English  liberty,  but  which  was  not  assented  to  by  the 
king  until  the  judges  had  intimated  that  if  he  saw  fit  to  violate  it 
by  arbitrary  commitments,  they  would  take  care  that  it  should 
not  be  enforced  by  their  aid  against  his  will.  And  four  years 
later,  when  the  king  committed  members  of  Parliament  for  words 
spoken  in  debate  offensive  to  the  royal  prerogative,  the  judges 
evaded  the  performance  of  their  duty  on  habeas  corpus,  and  the 
members  were  only  discharged  when  the  king  gave  his  consent 
to  that  course.2 

The  Habeas  Corpus  Act  was  passed  in  1679,  mainly  to  prevent 
such  abuses  and  other  evasions  of  duty  by  judges  and  ministerial 
officers,  and  to  compel  prompt  action  in  any  case  in  which  illegal 
imprisonment  was  alleged.  That  act  gave  no  new  right  to  the 


1  Hallam,  Const.  Hist.  c.  7.     See  also         2  Hallam,  Const.  Hist.  c.  8;  Brodie, 
BroJie,  Const.  Hist.  Vol.  II.  c.  1.  Const.  Hist,  Vol.  I.  c.  8. 


490  CONSTITUTIONAL    LIMITATIONS.  [CH.  X. 

subject,  but  it  furnished  the  means  of  enforcing  those  which  ex- 
isted before.1  The  preamble  recited  that  "  whereas  great  delays 
have  been  used  by  sheriffs,  jailers,  and  other  officers  to  whose 
custody  any  of  the  king's  subjects  have  been  committed  for 
criminal  or  supposed  criminal  matters,  in  making  returns  of  writs 
of  habeas  corpus,  to  them  directed,  by  standing  out  on  alias  or 
pluries  habeas  corpus,  and  sometimes  more,  and  by  other  shifts  to 
avoid  their  yielding  obedience  to  such  writs,  contrary  to  their 
duty  and  the  known  laws  of  the  land,  whereby  many  of  the  king's 
subjects  have  been  and  hereafter  may  be  long  detained  in  prison 
in  such  cases,  where  by  law  they  are  bailable,  to  their  great  charge 
and  vexation.  For  the  prevention  whereof,  and  the  more  speedy 
relief  of  all  persons  imprisoned  for  any  such  criminal  or  supposed 
criminal  matters,"  the  act  proceeded  to  make  elaborate  and  care- 
ful provisions  for  the  future.  The  important  provisions  of  the 
act  may  be  summed  up  as  follows :  That  the  writ  of  habeas  corpus 
might  be  issued  by  any  court  of  record  or  judge  thereof,  either  in 
term-time  or  vacation,  on  the  application  of  any  person  confined, 
or  of  any  person  for  him;  the  application  to  be  in  writing  and  on 
oath,  and  with  a  copy  of  the  warrant  of  commitment  attached,  if 
procurable ;  the  writ  to  be  returnable  either  in  court  or  at  cham- 
bers ;  the  person  detaining  the  applicant  to  make  return  to  the 
writ  by  bringing  up  the  prisoner  with  the  cause  of  his  detention, 
and  the  court  or  judge  to  discharge  him  unless  the  imprisonment 
appeared  to  be  legal,  and  in  that  case  to  take  bail  if  the  case  was 
bailable ;  and  performance  of  all  these  duties  was  made  compul- 
sory, under  heavy  penalties.  Thus  the  duty  which  the  judge  or 
other  officer  might  evade  with  impunity  before,  he  must  now  per- 
form or  suffer  punishment.  The  act  also  provided  for  punishing 
severely  a  second  commitment  for  the  same  cause,  after  a  party 
had  once  been  discharged  on  habeas  corpus,  and  also  made  the 
sending  of  inhabitants  of  England,  Wales,  and  Berwick-upon- 
Tweed  abroad  for  imprisonment  illegal,  and  subject  to  penalty. 
Important  as  this  act  was,2  it  was  less  broad  in  its  scope  than  the 
remedy  had  been  before,  being  confined  to  cases  of  imprisonment 
for  criminal  or  supposed  criminal  matters;3  but  the  attempt  in 
Parliament  nearly  a  century  later  to  extend  its  provisions  to  other 

1  Hallam,  Const.  Hist.  c.  13;  Beech-  Corpus,  gives   a   complete  copy  of  the 
ing's  Case,   4   B.   &   C.   136 ;   Matter  of  act.     See  also  appendix  to  Lieber,  Civil 
Jackson,  15  Mich.  436.     £For  a  valuable  Liberty    and    Self-Government ;    Broom, 
article   on    the   History  of  the    Writ   of  Const.  Law,  218. 

Habeas  Corpus,  see  18  Law  Quar.  Rev.         3  See  Mayor  of  London's  Case,  3  Wils. 

64.]  198 ;    Wilson's   Case,    7   Queen's    Bench 

2  Mr.  Hurd,   in   the  appendix  to  his  Rep.  984. 
excellent  treatise  on  the  Writ  of  Habeas 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  491 

cases  was  defeated  by  the  opposition  of  Lord  Mansfield,  on  the 
express  ground  that  it  was  unnecessary,  inasmuch  as  the  common- 
law  remedy  was  sufficient ; 1  as  perhaps  it  might  have  been,  had 
officers  been  always  disposed  to  perform  their  duty.  Another 
attempt  in  1816  was  successful.2 

The  Habeas  Corpus  Act  was  not  made,  in  express  terms,  to 
extend  to  the  American  colonies,  but  it  was  in  some  expressly, 
and  in  others  by  silent  acquiescence,  adopted  and  acted  upon,  and 
all  the  subsequent  legislation  in  the  American  States  has  been 
based  upon  it,  and  has  consisted  in  little  more  than  a  re-enact- 
ment of  its  essential  provisions. 

What   Courts  issue  the   Writ. 

The  protection  of  personal  liberty  is  for  the  most  part  confided 
to  the  State  authorities,  and  to  the  State  courts  the  party  must 
apply  for  relief  on  habeas  corpus  when  illegally  restrained.  There 
are  only  a  few  cases  in  which  the  federal  courts  can  interfere ; 
and  those  are  cases  in  which  either  the  illegal  imprisonment  is 
under  pretence  of  national  authority,  or  in  which  this  process  be- 
comes important  or  convenient  in  order  to  enforce  or  vindicate 
some  right,  or  authority  under  the  Constitution  or  laws  of  the 
United  States. 

The  Judiciary  Act  of  1789  provided  that  each  of  the  several 
federal  courts  should  have  power  to  issue  writs  of  scire  facias, 
habeas  corpus,  and  all  other  writs  not  specially  provided  for  by 
statute,  which  might  be  necessary  for  the  exercise  of  their  re- 
spective jurisdictions,  and  agreeable  to  the  principles  and  usages 
of  law ;  and  that  either  of  the  justices  of  the  Supreme  Court,  as 
well  as  the  district  judges,  should  have  power  to  grant  writs  of 
habeas  corpus  for  the  purposes  of  an  inquiry  into  the  cause  of 
commitment ;  provided  that  in  no  case  should  such  writs  extend 
to  prisoners  in  jail,  unless  where  they  were  in  custody  under  or 
by  color  of  the  authority  of  the  United  States,  or  were  committed 
to  trial  before  some  court  of  the  same,  or  were  necessary  to  be 
brought  into  court  to  testify.3  Under  this  statute  no  court  of  the 
United  States  or  judge  thereof  could  issue  a  habeas  corpus  to 
bring  up  a  prisoner  in  custody  under  a  sentence  or  execution  of  a 
State  court,  for  any  other  purpose  than  to  be  used  as  a  witness. 
And  this  was  so  whether  the  imprisonment  was  under  civil  or 
criminal  process.4 

1  Life  of  Mansfield  by  Lord  Campbell,          2  By  Stat.  56  Geo.  III.  c.  100.     See 
2  Lives  of  Chief  Justices,  c.  35;  15  Han-     Broom,  Const.  Law,  224. 
sard's  Debates,  397  et  seq.  3  1  Statutes  at  Large,  81. 

*  Ex  parte  Dorr,  3  How.  103. 


492  CONSTITUTIONAL   LIMITATIONS.  [CH.  X. 

During  what  were  known  as  the  nullification  troubles  in  South 
Carolina,  the  defect  of  federal  jurisdiction  in  respect  to  this  writ 
became  apparent,  and  another  act  was  passed,  having  for  its  ob- 
ject, among  other  things,  the  protection  of  persons  who  might  be 
prosecuted  under  assumed  State  authority  for  acts  done  under  the 
laws  of  the  United  States.  This  act  provided  that  either  of  the 
justices  of  the  Supreme  Court,  or  a  judge  of  any  District  Court  of 
the  United  States,  in  addition  to  the  authority  already  conferred 
by  law,  should  have  power  to  grant  writs  of  habeas  corpus  in  all 
cases  of  a  prisoner  or  prisoners  in  jail  or  confinement,  where  he 
or  they  shall  be  committed  or  confined  on  or  by  any  authority  of 
law,  for  any  act  done  or  omitted  to  be  done,  in  pursuance  of  a  law 
of  the  United  States,  or  any  order,  process,  or  decree  of  any  judge 
or  court  thereof.1 

In  1842  further  legislation  seemed  to  have  become  a  necessity, 
in  order  to  give  to  the  federal  courts  authority  upon  this  writ 
over  cases  in  which  questions  of  international  law  were  involved, 
and  which,  consequently,  could  properly  be  disposed  of  only  by 
the  jurisdiction  to  which  international  concerns  were  by  the  Con- 
stitution committed.  The  immediate  occasion  for  this  legislation 
was  the  arrest  of  a  subject  of  Great  Britain  by  the  authorities  of 
the  State  of  New  York,  for  an  act  which  his  government  avowed 
and  took  the  responsibility  of,  and  which  was  the  subject  of  diplo- 
matic correspondence  between  the  two  nations.  An  act  of  Con- 
gress was  consequently  passed,  which  provides  that  either  of  the 
justices  of  the  Supreme  Court,  or  any  judge  of  any  District  Court 
of  the  United  States  in  which  a  prisoner  is  confined,  in  addition 
to  the  authority  previously  conferred  by  law,  shall  have  power 
to  grant  writs  of  habeas  corpus  in  all  cases  of  any  prisoner  or 
prisoners  in  jail  or  confinement,  where  he,  she,  or  they,  being 
subjects  or  citizens  of  a  foreign  State,  and  domiciled  therein, 

1  4  Stat.  at  Large,  634.  See  Ex  parte  thority  of  the  United  States,  and  in  ex- 
Robinson,  6  McLean,  355,  1  Bond,  39.  ecution  of  its  laws.  The  federal  district 
Robinson  was  United  States  marshal,  judge  entered  upon  an  examination  of  the 
and  was  imprisoned  under  a  warrant  facts  on  habeas  corpus,  and  ordered  the 
issued  by  a  State  court  for  executing  relator  discharged.  A  similar  ruling  has 
process  under  the  Fugitive  Slave  Law,  been  made  where  a  marshal  was  charged 
and  was  discharged  by  a  justice  of  the  in  a  State  court  with  murder  committed 
Supreme  Court  of  the  United  States  un-  while  protecting  a  Justice  of  the  Supreme 
der  this  act.  See  also  United  States  v.  Court  from  an  attack.  In  re  Neagle,  39 
Jailer  of  Fayette  Co.,  2  Abb.  U.  S.  265.  Fed..Rep.  833,  aff.  135  U.  S.  1,  10  Sup.  Ct. 
The  relator  in  that  case  was  in  custody  Kep.  658.  See  also  Ex  parte  Virginia, 
of  the  jailer  under  a  regular  commitment  100  U.  S.  339;  Ex  parte  Siebold,  100 
charging  him  under  the  laws  of  Kentucky  U.  S.  371 ;  Ex  parte  Clark,  100  U.  S. 
with  murder.  He  averred  and  offered  to  399 ;  Ex  parte  Bridges,  2  Woods,  428 ; 
show  that  the  act  with  which  he  was  Ex  parte  McKean,  3  Hughes,  23 ;  Ex 
charged  was  done  by  him  under  the  au-  parte  Jenkins,  2  Wall.  Jr.  521. 


CH.  X.]  CONSTITUTIONAL   PROTECTIONS,   ETC.  493 

shall  be  committed,  or  confined,  or  in  custody,  under,  or  by 
any  authority,  or  law,  or  process  founded  thereon,  of  the  United 
States  or  of  any  one  of  them,  for  or  on  account  of  any  act  done 
or  omitted  under  any  alleged  right,  title,  authority,  privilege, 
protection,  or  exemption,  set  up  or  claimed  under  the  commis- 
sion, or  order,  or  sanction  of  any  foreign  State  or  sovereignty, 
the  validity  or  effect  whereof  depends  upon  the  law  of  nations,  or 
under  color  thereof.1 

In  1867  a  further  act  was  passed,  which  provided  that  the 
several  courts  of  the  United  States,  and  the  several  justices  and 
judges  of  such  courts,  within  their  respective  jurisdictions,  in 
addition  to  the  authority  already  conferred  by  law,  shall  have 
power  to  grant  writs  of  habeas  corpus  in  all  cases  where  any  per- 
son may  be  restrained  of  his  or  her  liberty  in  violation  of  the 
Constitution,  or  of  any  treaty  or  law  of  the  United  States.2 

These  are  the  cases  in  which  the  national  courts  and  judges 
have  jurisdiction  of  this  writ:  in  other  cases  the  party  must  seek 
his  remedy  in  the  proper  State  tribunal.3  And  although  the 
State  courts  formerly  claimed  and  exercised  the  right  to  inquire 
into  the  lawfulness  of  restraint  under  the  national  authority,4  it 
is  now  settled  by  the  decision  of  the  Supreme  Court  of  the  United 
States,  that  the  question  of  the  legality  of  the  detention  in  such 
cases  is  one  for  the  determination,  exclusively,  of  the  federal  ju- 
diciary, so  that,  although  a  State  court  or  judge  may  issue  this 
process  in  any  case  where  illegal  restraint  upon  liberty  is  alleged, 
yet  when  it  is  served  upon  any  officer  or  person  who  detains  an- 
other in  custody  under  the  national  authority,  it  is  his  duty,  by 
proper  return,  to  make  known  to  the  State  court  or  judge  the 
authority  by  which  he  holds  such  person,  but  not  further  to  obey 

1  5  Stat.   at  Large,  539.     McLeod's  Sup.  Ct.  Rep.  734,  742.    [TTpon  jurisdic- 
Case,  which  was  the  immediate  occasion  tion   of  U.    S.   courts  to  issue  writs  of 
of  the  passage  of  this  act,  will  be  found  habeas  corpus,   see  Tinsley   v.  Anderson, 
reported   in  25  Wend.   482,  and  1  Hill,  171  U.  S.  101,  18  Sup.  Ct.  Rep.  805,  and 
377,  37  Am.  Dec.  328.     It  was  reviewed  notes  to  43  L.  ed.  U.  S.  91,  4  L.  R.  A. 
by  Judge  Talmadge  in   26  Wend.  663,  236,  27  L.  ed.  U.  S.  288,  and  1  L.  ed.  U.  S. 
and  a  reply  to  the  review  appears  in  3  490.     Upon  suspension  of  writ  of  habeas 
Hill,  635.  corpus,  see  note  to  12  L.  ed.  U.  S.  681.] 

2  R.  S.  U.  S.  §  751  et  seq.     See  In  re         3  Ex  parte  Dorr,  3  How.  103 ;  Barry 
Brosnahan,  18  Fed.  Rep.  62;  In  re  Ah  v.   Mercein,   6   How.    103;  De  Krafft   v. 
Jow,  29  Fed.  Rep.  181 ;  Jn  re  Chow  Goo  Barney,  2  Black,  704.    See  United  States 
Pooi,  25  Fed.  Rep.  77.    While  in  advance  v.  French,  1    Gall.   1  ;  Ex  parte   Barry, 
of  trial  in  a  State  court  for  an  offence  2  How.   65.     QFor  valuable   note  upon 
against  a  State  law  which  is  void  under  habeas  corpus,  collecting  many  cases,  see 
the  federal  Constitution,  a  federal  court  43  L.  ed.  U.  S.  92.] 

may  discharge  a  defendant,  yet  ordinarily  4  Seethe  cases  collected  in  Hurd  on 
when  bail  is  granted  it  will  not  do  so.  Habeas  Corpus,  B.  2,  c.  1,  §  6,  and  in 
Ex  parte  Royall,  117  U.  S.  241,  254,  6  Abb.  Nat.  Dig.  609,  note. 


494 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


the  process  ;  and  that  as  the  State  judiciary  have  no  authority 
within  the  limits  of  the  sovereignty  assigned  by  the  Constitution 
to  the  United  States,  the  State  court  or  judge  can  proceed  no 
further  with  the  case.1 

The  State  constitutions  recognize  the  writ  of  habeas  corpus  as 
an  existing  remedy  in  the  cases  to  which  it  is  properly  applicable, 
and  designate  the  courts  or  officers  which  may  issue  it ;  but  they 
do  not  point  out  the  cases  in  which  it  may  be  employed.  Upon 
this  subject  the  common  law  and  the  statutes  must  be  our  guide ; 
and  although  the  statutes  will  be  found  to  make  specific  provi- 
sion for  particular  cases,  it  is  believed  that  in  no  instance  which 
has  fallen  under  our  observation  has  there  been  any  intention  to 
restrict  the  remedy,  and  make  it  less  broad  and  effectual  than  it 
was  at  the  common  law.2 


1  Ableman  v.  Booth,  21  How.  506. 
See  Norris  v.  Newton,  5  McLean,  92 ; 
United  States  v.  Rector,  5  McLean,  174; 
Spangler's  Case,  11  Mich.  298;  In  re 
Hopson,  40  Barb.  34 ;  Ex  parte  Hill,  5  Nev. 
154;  Ex  parte  Bur,  49  Cal.  159.  Not- 
withstanding the  decision  of  Ableman  v. 
Booth,  the  State  courts  have  frequently 
since  assumed  to  pass  definitely  upon 
cases  of  alleged  illegal  restraint  under 
federal  authority,  and  this,  too,  by  the 
acquiescence  of  the  federal  officers.  As 
the  remedy  in  the  State  courts  is  gener- 
ally more  expeditious  and  easy  than  can 
be  afforded  in  the  national  tribunals,  it  is 
possible  that  the  federal  authorities  may 
still  continue  to  acquiesce  in  such  action 
of  the  State  courts,  in  cases  where  there 
can  be  no  reason  to  fear  that  they  will 
take  different  views  of  the  questions  in- 
volved from  those  likely  to  be  held  by 
the  federal  courts.  Nevertheless,  while 
the  case  of  Ableman  v.  Booth  stands  un- 
reversed,  the  law  must  be  held  to  be  as 
there  declared.  It  has  been  approved  in 
Tarble's  Case,  13  Wall.  397,  Chief  Justice 
Chase  dissenting. 

An  agent  of  a  State  to  receive  from 
another  State  a  person  under  extradition 
proceedings  is  not  an  officer  of  the  United 
States,  nor  is  his  detention  of  the  prisoner 
so  far  under  national  authority  that  a 
State  court  may  not  compel  him  to  bring 
in  the  prisoner  for  an  inquiry  into  the 
legality  of  his  detention ;  that  is,  whether 
the  warrant  and  the  delivery  to  the  agent 
were  in  conformity  to  the  federal  stat- 
utes. In  summing  up  the  discussion 


Harlan,  J.,  says  :  "  Subject,  then,  to  the 
exclusive  and  paramount  authority  of  the 
national  government,  by  its  own  judicial 
tribunals,  to  determine  whether  persons 
held  in  custody  by  authority  of  the  courts 
of  the  United  States,  or  by  the  commis- 
sioners of  such  courts,  or  by  officers  in 
the  general  government,  acting  under  its 
laws,  are  so  held  in  conformity  with  law, 
the  States  have  the  right,  by  their  own 
courts,  or  by  the  judges  thereof,  to  in- 
quire into  the  grounds  upon  which  any 
person,  within  their  respective  territorial 
limits,  is  restrained  of  his  liberty,  and  to 
discharge  him,  if  it  be  ascertained  that 
such  restraint  is  illegal ;  and  this,  not- 
withstanding such  illegality  may  arise 
from  a  violation  of  the  Constitution  or 
the  laws  of  the  United  States."  Robb  v. 
Connolly,  111  U.  S.  624,  4  Sup.  Ct.  Rep. 
544. 

2  See  Matter  of  Jackson,  15  Mich.  417, 
where  this  whole  subject  is  fully  consid- 
ered. The  application  for  the  writ  is  not 
necessarily  made  by  the  party  in  person, 
but  may  be  made  by  any  other  person  on 
his  behalf,  if  a  sufficient  reason  is  stated 
for  its  not  being  made  by  him  personally. 
The  Hottentot  Venus  Case,  13  East,  195; 
Child's  Case,  29  Eng.  L.  &  Eq.  259.  A 
wife  may  have  the  writ  to  release  her 
husband  from  unlawful  imprisonment, 
and  may  herself  be  heard  on  the  applica- 
tion. Cobbett's  Case,  15  Q.  B.  181,  note  ; 
Cobbett  v.  Hudson,  10  Eng.  L.  &  Eq.  318  ; 
s.  c.  16  Q.  B.  988.  Lord  Campbell  in  this 
case  cites  the  case  of  the  wife  of  John 
Bunyan,  who  was  heard  on  his  behalf 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


495 


We  have  elsewhere  referred  to  certain  rules  regarding  the  va- 
lidity of  judicial  proceedings.1  In  the  great  anxiety  on  the  part 
of  our  legislatures  to  make  the  most  ample  provision  for  speedy 
relief  from  unlawful  confinement,  authority  to  issue  the  writ  of 
habeas  corpus  has  been  conferred  upon  inferior  judicial  offi- 
cers, who  make  use  of  it  sometimes  as  if  it  were  a  writ  of  error, 
under  which  they  might  correct  the  errors  and  irregularities 
of  other  judges  and  courts,  whatever  their  relative  jurisdiction 
and  dignity.  Any  such  employment  of  the  writ  is  an  abuse.2 
Where  a  party  who  is  in  confinement  under  judicial  process  is 
brought  up  on  habeas  corpus,  the  court  or  judge  before  whom  he 
is  returned  will  inquire  :  1.  Whether  the  court  or  officer  issuing 
the  process  under  which  he  is  detained  had  jurisdiction  of  the 
case,  and  has  acted  within  that  jurisdiction  in  issuing  such  pro- 
cess.3 If  so,  mere  irregularities  or  errors  of  judgment  in  the 


when  in  prison.     £See  note  to  43  L.  ed. 
U.  S.  92.] 

1  See  post,  p.  675  et  seq. 

2  Exparte  Clay,  98  Mo.  678,  11  S.  W. 
998;  State  v.  Hayden,  35  Minn.  283,  28 
N.  W.  659;   Willis   v.   Bayles,   105  Ind. 
363,  5  N.  E.  8;  State  v.  Orton,  67  Iowa, 
654,  25  N.  W.  775;  People  v.  Liscomb, 
60  N.  Y.  559,  574;  Petition  of  Crandall, 
34  Wis.  177;   Ex  parte  Van  Hagan,  25 
Ohio  St.  42(3 ;  Ex  parte  Shaw,  7  Ohio  St. 
81 ;   Ex  parte   Parks,  93   U.    S.    18,    23 ; 
Perry  v.   State,  41  Tex.  488 ;   Matter  of 
Underwood,   30    Mich.   602;    Matter  of 
Eaton,   27    Mich.   1;    In  re   Burger,  39 
Mich.  203;   Ex  parte  Simmons,  62  Ala. 
416;  Re  Stupp,  12  Blatch.  601;  Exparte 
Winslow,  9  Nev.  71 ;  Ex  parte  Hartman, 
44  Cal.  32;  In  re  Falvey,  7   Wis.  630; 
Petition  of  Semler,  41   Wis.  517  ;   In  re 
Stokes,  5  Sup.  Ct.  (N.  Y.)  71;  Prohibi- 
tory Amendment  Cases,  24  Kan.  700 ;  Ex 
parte   Thompson,   93   111.   89;    Ex  parte 
Fernandez,  10  C.  B.  N.  s.  2,  37.     This  is 
so,  even  though   there  be   no  appellate 
tribunal  in  which  the  judgment  may  be 
reviewed  in  the  ordinary  way.     Ex  par/e 
Plante,  6  Lower   Can.   Rep.    106.     The 
writ  cannot  be  used  to  prevent  the  com- 
mission upon  a  trial  of  anticipated  errors. 
Ex  parte  Crouch,  112  U.  S.  178,  5  Sup. 
Ct.  Rep.  96.     It  is  worthy  of  serious  con- 
sideration whether,  in  those  States  where 
the  whole  judicial  power  is  by  the  con- 
stitution vested  in  certain  specified  courts, 
it  is  competent  by  law  to  give  to  judicial 
officers  not  holding  such  courts  authority 


to  review,  even  indirectly,  the  decisions 
of  the  courts,  and  to  discharge  persons 
committed  under  their  judgments.  Such 
officers  could  exercise  only  a  special 
statutory  authority.  Yet  its  exercise  in 
such  cases  is  not  only  judicial,  but  it  is 
in  the  nature  of  appellate  judicial  power. 
The  jurisdiction  of  the  Supreme  Court  of 
the  United  States  to  issue  the  writ  in  cases 
of  confinement  under  the  order  of  the 
District  Courts,  was  sustained  in  Exparte 
Bollman  &  Swartwout,  4  Cranch,  75,  and 
Matter  of  Metzger,  6  How.  176,  on  the 
ground  that  it  was  appellate.  It  is 
original  only  where  a  State  is  a  party,  or 
an  ambassador,  minister,  or  consul.  Ex 
parte  Hung  Hang,  108  U.  S.  652,  2  Sup. 
Ct.  Rep.  863.  See  also  Ex  parte  Kearney, 
7  Wheat.  38 ;  Ex  parte  Watkins,  7  Pet. 
608  ;  Exparte  Milburn,  9  Pet.  701 ;  Matter 
of  Kaine,  14  How.  103;  Matter  of  Eaton, 
27  Mich.  1 ;  Matter  of  Buddington,  29 
Mich.  472. 

8  The  validity  of  the  appointment  or 
election  of  an  officer  de  facto  cannot  be 
inquired  into  on  habeas  corpus.  Exparte 
Strahl,  16  Iowa,  369  ;  Russell  v.  Whiting, 
1  Wins.  (N.  C.)  463.  Otherwise  if  a  mere 
usurper  issues  process  for  the  imprison- 
ment of  a  citizen.  Ex  parte  Strahl,  supra. 

If  the  record  shows  that  relator  stands 
convicted  of  that  which  is  no  crime,  he 
is  of  course  entitled  to  his  discharge. 
Ex  parte  Kearney,  65  Cal.  212.  So  if 
punished  for  contempt  in  disobeying  a 
void  order  of  court.  In  re  Ayers,  123 
U.  S.  443,  8  Sup.  Ct.  Rep.  104;  Ex  parte 


496 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  X. 


exercise  of  that  jurisdiction  must  be  disregarded  on  this  writ,  and 
must  be  corrected  either  by  the  court  issuing  the  process,  or  on 
regular  appellate  proceedings.1  2.  If  the  process  is  not  void  for 
want  of  jurisdiction,  the  further  inquiry  will  be  made,  whether,  by 
law,  the  case  is  bailable,  and  if  so,  bail  will  be  taken  if  the  party 
offers  it ;  otherwise  he  will  be  remanded  to  the  proper  custody.2 

This  writ  is  also  sometimes  employed  to  enable  a  party  to  en- 
force a  right  of  control  which  by  law  he  may  have,  springing 
from  some  one  of  the  domestic  relations ;  especially  to  enable  a 
parent  to  obtain  the  custody  and  control  of  his  child,  where  it  is 
detained  from  him  by  some  other  person.  The  courts,  however, 
do  not  generally  go  farther  in  these  cases  than  to  determine  what 
is  for  the  best  interest  of  the  child ;  and  they  do  not  feel  com- 


Fisk,  113  U.  S.  713,  5  Sup.  Ct.  Rep.  724. 
So  if  he  is  held  under  a  sentence  which 
contravenes  an  express  constitutional 
immunity,  as  when  sentenced  a  second 
time  for  the  same  offence.  Nielsen,  Pe- 
titioner, 1.31  U.  S.  176,  9  Sup.  Ct.  Rep. 
672.  See,  also,  Ex  parte  Royall,  117 
U.  S.  241,  254,  6  Sup.  Ct.  Rep.  734,  742 , 
In  re  Dill,  32  Kan.  648,  5  Pac.  39  ;  Brown 
v.  Duff  us,  66  Iowa,  193,  23  N.  W.  396; 
Ex  parte  Rollins,  80  Va.  314;  Ex  parte 
Rosenblatt,  19  Nev.  439,  14  Pac.  298. 
The  question  of  jurisdiction  of  a  court  of 
limited  jurisdiction  is  open  upon  this 
writ.  People  v.  The  Warden,  &c.,  100 
N.  Y.  20,  2  N.  E.  870. 

1  People  v.  Cassels,  5  Hill,  164 ;  Bush- 
nell's  Case,  9  Ohio  St.  183;  Ex  parte 
Watkins,  7  Pet.  568 ;  Matter  of  Metzger, 
6  How.  176;  Ex  parte  Yarbrough,  110 
U.  S.  651, 4  Sup.  Ct.  Rep.  152 ;  Ex  parte 
Harding,  120  U.  S.  782,  7  Sup.  Ct.  Rep. 
780;  Petition  of  Smith,  2  Nev.  338;  Ex 
parte  Gibson,  31  Cal.  619 ;  Hammond  v. 
People,  32  III.  472,  per  Breese,  3.  In 
State  v.  Shattuck,  45  N.  H.  211,  Bellows, 
J.,  states  the  rule  very  correctly  as  fol- 
lows :  "  If  the  court  had  jurisdiction  of 
the  matter  embraced  in  these  causes,  this 
court  will  not,  on  habeas  corpus,  revise  the 
judgment.  State  v.  Towle,  42  N.  H.  541  ; 
Ross's  Case,  2  Pick.  166;  and  Riley's 
Case,  2  Pick.  171  ;  Adams  v.  Vose,  1  Gray, 
61.  If  in  such  case  the  proceedings  are 
irregular  or  erroneous,  the  judgment  is 
voidable  and  not  void,  and  stands  good 
until  revised  or  annulled  in  a  proper  pro- 
ceeding instituted  for  that  purpose  ;  but 
when  it  appears  that  the  magistrate  had 
no  jurisdiction,  the  proceedings  are  void, 


and  the  respondent  may  be  discharged  on 
habeas  corpus.  ,  State  v.  Towle,  before 
cited  ;  Ex  parte  Kellogg,  6  Vt.  509.  See 
also  State  v.  Richmond,  6  N.  H.  '232; 
Burnham  v.  Stevens,  33  N.  H.  247  ;  Hurst 
v.  Smith,  1  Gray,  49."  If  the  court  has 
jurisdiction  of  an  offence,  its  judgment  as 
to  what  acts  are  necessary  to  constitute 
it  cannot  be  reviewed.  In  re  Coy,  127 
U.  S.  731,  8  Sup.  Ct.  Rep.  1263. 

2  It  is  not  a  matter  of  course  that  the 
party  is  to  be  discharged  even  where  the 
authority  under  which  he  is  held  is  ad- 
judged illegal.  For  it  may  appear  that 
he  should  be  lawfully  confined  in  differ- 
ent custody;  in  which  case  the  proper 
order  may  be  made  for  the  transfer. 
Matter  of  Mason,  8  Mich.  70 ;  Matter  of 
Ring,  28  Cal.  247 ;  Ex  parte  Gibson,  31 
Cal.  619.  See  People  v.  Kelly,  97  N.  Y. 
212.  And  where  he  is  detained  for  trial 
on  an  imperfect  charge  of  crime,  the 
court,  if  possessing  power  to  commit  de 
novo,  instead  of  discharging  him,  should 
proceed  to  inquire  whether  there  is  prob- 
able cause  for  holding  him  for  trial,  and 
if  so,  should  order  accordingly.  Hurd  on 
Habeas  Corpus,  416.  A  discharge  on 
habeas  corpus  is,  apart  from  statute,  con- 
clusive upon  the  State.  People  v.  Fair- 
man,  69  Mich.  568,  26  N.  W.  669;  State 
v.  Miller,  97  N.  C.  451 ;  Gagnet  v.  Reese, 
20  Fla.  438.  A  refusal  to  discharge  is  not 
conclusive.  Application  may  be  made  to 
another  judge.  In  re  Snell,  31  Minn.  110, 
16  N.  W.  692.  But  a  statute  making 
such  refusal  conclusive,  unless  reversed 
on  appeal,  is  valid.  Ex  parte  Hamilton, 
65  Miss.  98,  3  So.  68.  See  Ex  parte 
Cuddy,  40  Fed.  Rep.  62. 


CH.  X.]  CONSTITUTIONAL   PKOTECTIONS,   ETC.  497 

pellcd  to  remand  him  to  any  custody  where  it  appears  not  to  be 
for  the  child's  interest.  The  theory  of  the  writ  is,  that  it  relieves 
from  improper  restraint ;  and  if  the  child  is  of  an  age  to  render  it 
proper  to  consult  his  feelings  and  wishes,  this  may  be  done  in  any 
case ; J  and  it  is  especially  proper  in  many  cases  where  the  par- 
ents are  living  in  separation  and  both  desire  his  custody.  The 
right  of  the  father,  in  these  cases,  is  generally  recognized  as  best ; 
but  this  must  depend  very  much  upon  circumstances,  and  the 
tender  age  of  the  child  may  often  be  a  controlling  consideration 
against  his  claim.  The  courts  have  large  discretionary  power  in 
these  cases,  and  the  tendency  of  modern  decisions  has  been  to 
extend,  rather  than  restrict  it.2 

There  is  no  common-law  right  to  a  trial  by  jury  of  the  ques- 
tions of  fact  arising  on  habeas  corpus  ;  but  the  issues  both  of  fact 
and  of  law  are  tried  by  the  court  or  judge  before  whom  the  pro- 
ceeding is  had  ;3  though  without  doubt  a  jury  trial  might  be  pro- 
vided for  by  statute,  and  perhaps  even  ordered  by  the  court  in 
some  cases.4 

Right  of  Discussion  and  Petition. 

The  right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances  is  one  which  "  would 
seem  unnecessary  to  be  expressly  provided  for  in  a  republican 
government,  since  it  results  from  the  very  nature  and  structure 
of  its  institutions.  It  is  impossible  that  it  could  be  practically 
denied  until  the  spirit  of  liberty  had  wholly  disappeared,  and  the 
people  had  become  so  servile  and  debased  as  to  be  unfit  to  exer- 
cise any  of  the  privileges  of  freemen."5  But  it  has  not  been 

1  Commonwealth   v.   Aves,    18    Pick.  Com.  v.  Hart,  14  Phila.  352;   Ex  parte 
193;    Shaw   v.  Nachwes,  43   Iowa,  653;  Murphy,  75  Ala.  409 ;  Sturtevant  v.  State, 
Garner  v.  Gordan,  41  Ind.  92;  People  v.  15  Neb.  459;  Bonnett  v.  Bonnett,  61  Iowa, 
Weissenbach,  GO  N.  Y.  385.  199,  16  N.  W.  91 ;  Jones  v.  Darnall,  103 

2  Barry's  Case  may  almost  be  said  to  Ind.  569,  2  N.  E.  229.     Where  the  court 
exhaust  all  the  law  on  this  subject.     We  is  satisfied  that  the  interest  of  the  child 
refer   to   the   various    judicial    decisions  would  be  subserved  by  refusing  the  cus- 
made  in  it,  so  far  as  they  are  reported  in  tody  to  either  of  the  parents,  it  may  be 
the    regular    reports.     8   Paige,   47 ;    25  confided  to  a  third  party.     Chetwynd  v. 
Wend.  64;  People  z>.  Mercein,  3  Hill,  399;  Chetwynd,  L.    R.   1   P.  &  D.  39;  In  re. 
2    How.  65;    Barry  v.  Mercein,  5   How.  Goodenough,  19  Wis.  274.     See  Matter  of 
105.     See  also  the  recent  case  of  Adams  Heather  Children,  50   Mich.  261,  where 
t7.  Adams,  1   Duv.  167.     For  the  former  the  guardian  of  their  estate   was  refused 
rule,  see  The  King  v.  De  Mannevill°,  5  the  custody  of  their  persons. 

East,   221 ;    Ex  parte   Skinner,    9  J.   B.          8  See   Hurd  on   Habeas  Corpus,  297- 

Moore,  278.     The  rules  of  equity  prevail  302,   and  cases  cited ;  Baker  v.  Gordon, 

at  present  in  England  on  the  question  of  23  Ind.  209. 

custody.     In   re   Brown,  L.  R.  13  Q.  B.          4  See   Matter   of    Hakewell,    22   Eng 

P.  614.      Cases  illustrating  the  doctrine  L.  &  Eq.  395;  s.  c.  12  C.  B.  232. 
that  the  good  of  the  child  will  control:          5  Story  on  the  Constitution,  §  1894. 

32 


498  CONSTITUTIONAL   LIMITATIONS.  [oil.  X. 

thought  unimportant  to  protect  this  right  by  statutory  enactments 
in  England  ;  and  indeed  it  will  be  remembered  that  one  of  the 
most  notable  attempts  to  crush  the  liberties  of  the  kingdom  made 
the  right  of  petition  the  point  of  attack,  and  selected  for  its  con- 
templated victims  the  chief  officers  in  the  Episcopal  hierarchy. 
The  trial  and  acquittal  of  the  seven  bishops  in  the  reign  of 
James  II.  constituted  one  of  the  decisive  battles  in  English  con- 
stitutional history ; 1  and  the  right  which  was  then  vindicated  is 
"  a  sacred  right  which  in  difficult  times  shows  itself  in  its  full 
magnitude,  frequently  serves  as  a  safety-valve  if  judiciously 
treated  by  the  recipients,  and  may  give  to  the  representatives  or 
other  bodies  the  most  valuable  information.  It  may  right  many 
a  wrong,  and  the  deprivation  of  it  would  at  once  be  felt  by  every 
freeman  as  a  degradation.  The  right  of  petitioning  is  indeed  a 
necessary  consequence  of  the  right  of  free  speech  and  delibera- 
tion,—  a  simple,  primitive,  and  natural  right.  As  a  privilege  it 
is  not  even  denied  the  creature  in  addressing  the  Deity."  2  Hap- 
pily the  occasions  for  discussing  and  defending  it  have  not  been 
numerous  in  this  country,  and  have  been  confined  to  ail  exciting 
subject  now  disposed  of.3 

Right  to  bear  Arms. 

Among  the  other  safeguards  to  liberty  should  be  mentioned 
the  right  of  the  people  to  keep  and  bear  arms.4  A  standing  army 
is  peculiarly  obnoxious  in  any  free  government,  and  the  jealousy 
of  such  an  army  has  at  times  been  so  strongly  manifested  in 
England  as  to  lead  to  the  belief  that  even  though  recruited  from 
among  themselves,  it  was  more  dreaded  by  the  people  as  an  in- 
strument of  oppression  than  a  tyrannical  monarch  or  any  foreign 
power.  So  impatient  did  the  English  people  become  of  the  very 

1  See   this  case  in  12  Howell's  State  Abridgement  of  Debates,  5-28,  266-290, 
Trials,  183:  3  Mod.  212.     Also  in  Broom,  557-562.     Also   Benton's    Thirty   Years' 
Const.  Law,  408.     See  also  the  valuable  View,  Vol.  I.  c.  135,  Vol.  II.  c.  82,  33,  36, 
note  appended  by  Mr.  Broom,  p.  403,  in  37.     Also  the  current  political  histories 
which  the  historical  events   bearing  on  and   biographies.     The  right  to  petition 
the   right   of  petition    are  noted.     Also,  Congress  is  one  of  the  attributes  of  na- 
Mav,  Const.  Hist.  c.  7  ;  1  Bl  Com.  143.  tional   citizenship,  and  as  such  is  under 

2  Lieber,  Civil  Liberty  and  Self-Gov-  the  protection  of  the  national  authority, 
eminent,  c.  12.  United    States  v.  Cruikshank,  92   U.    S. 

3  For  the  discussions  on  the  right  of  542,  552,  per  Waite,  Ch.  J.     No  such  pro- 
petition    in    Congress,    particularly    with  ceeding  as  a  petition  of  right  to  a  court 
reference     to    slavery,    see    1     Benton's  to   determine   the  constitutionality  of   a 
Abridgement  of  Debates,  3'.»7 ;  2  Benton's  statute  is  now  recognized.     In  re  Miller, 
Abridgement  of  Debates.  57-60,  182-188,  5  Mackey,  507. 

209, 436-444 ;  12  Benton's  Abridgement  of          *  1  Bl.  Com.  143. 
Debates,  660-679,  705-743;  13  Benton's 


CH.  X.] 


CONSTITUTIONAL   PROTECTIONS,   ETC. 


499 


army  that  liberated  them  from  the  tyranny  of  James  II.  that  they 
demanded  its  reduction  even  before  the  liberation  became  com- 
plete ;  and  to  this  day  the  British  Parliament  render  a  standing 
army  practically  impossible  by  only  passing  a  mutiny  act  from 
session  to  session.  The  alternative  to  a  standing  army  is  "  a 
well-regulated  militia ; "  but  this  cannot  exist  unless  the  people 
are  trained  to  bearing  arms.  The  federal  and  State  constitutions 
therefore  provide  that  the  right  of  the  people  to  bear  arms  shall 
not  be  infringed ;  but  how  far  it  may  be  in  the  power  of  the  legis- 
lature to  regulate  the  right  we  shall  not  undertake  to  say.1  Hap- 
pily there  neither  has,  been,  nor,  we  may  hope,  is  likely  to  be, 
much  occasion  for  an  examination  of  that  question  by  the 
courts.2 


1  See  Wilson  v.  State,  33  Ark.  557. 

2  In  Bliss  i\  Commonwealth,  2  Lit.  90. 
the  statute  to  "prevent  persons  wearing 
concealed   arms "    was   held    unconstitu- 
tional, as  infringing  on  the  right  of  the 
people  to  bear  arms  in  defence  of  them- 
selves and  of  the  State.     But  see  Nunn 
».  State,  1  Kelly,  243;  State  v.  Mitchell, 
3  Blackf.  229;  Aynette  v.  State,  2  Humph. 
154  ;  State  v.  Buzzard,  4  Ark.  18  ;  Carroll 
v.  State,  28  Ark.  99,  18  Am.  Rep.  538 ; 
State  v.  Jumel,  13  La.  Ann.  399  ;  1  Green, 
Cr.  Rep.  481 ;  Owen  v.  State,  31  Ala.  387; 
Cockrum  v.  State,  24  Tex.  394;  Andrews 
v.  State,  3  Heisk.  165, 8  Am.  Rep.  8;  State 
v.  Wilburn,  7  Bax.  51;   State  v.  Reid,  1 
Ala.  612;   State  v.  Shelby,  90  Mo.  302, 
2  S.  W.  468.    A  statute  prohibiting  the 
open  wearing  of  arms  upon  the  person 
was  held  unconstitutional  in  Stockdale  v. 
State,   32   Ga.   225,   and  one   forbidding 
carrying,  either  publicly  or  privately,  a 
dirk,  sword-cane,  Spanish  stiletto,  belt  or 


pocket  pistol  or  revolver,  was  sustained, 
except  as  to  the  last-mentioned  weapon  ; 
and  as  to  that  it  was  held  that,  if  the 
weapon  was  suitable  for  the  equipment 
of  a  soldier  the  right  of  carrying  it  could 
not  be  taken  away.  As  bearing  also  upon 
the  right  of  self-defence,  see  Ely  v.  Thomp- 
son, 3  A.  K.  Marsh.  73,  where  it  was  held 
that  the  statute  subjecting  free  persons  of 
color  to  corporal  punishment  for  "lifting 
their  hands  in  opposition "  to  a  white 
person  was  unconstitutional.  And  see,  in 
general,  Bishop  on  Stat.  Crimes,  c.  36, 
and  cases  cited.  [^Unauthorized  bodies  of 
men  may  be  prohibited  the  right  to  drill 
or  parade  with  arms,  and  to  associate  as 
a  military  organization.  Com.  v.  Murphy, 
166  Mass.  171,  44  N.  E.  138,  32  L.  R.  A. 
606.  A  regulation  forbidding  the  carrying 
of  weapons  generally  is  invalid,  though 
such  regulation  as  to  concealed  weapons  is 
valid.  Re  Brickey,  —  Idaho,  — ,  70  Pac. 
609.3 


500 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


CHAPTER   XL 

OF   THE   PROTECTION   TO    PROPERTY   BY   "  THE   LAW   OF   THE  LAND." 

THE  protection  of  the  subject  in  the  free  enjoyment  of  his  life, 
his  liberty,  and  his  property,  except  as  they  might  be  declared  by 
the  judgment  of  his  peers  or  the  law  of  the  land  to  be  forfeited, 
was  guaranteed  by  the  twenty-ninth  chapter  of  Magna  Charta, 
"  which  alone,"  says  Sir  William  Blackstone,  "  would  have  mer- 
ited the  title  that  it  bears  of  the  G-reat  Charter." l  The  people  of 
the  American  States,  holding  the  sovereignty  in  their  own  hands, 
have  no  occasion  to  exact  pledges  from  any  one  for  a  due  observ- 
ance of  individual  rights  ;  but  the  aggressive  tendency  of  power 
is  such,  that  they  have  deemed  it  of  no  small  importance,  that, 
in  framing  the  instruments  under  which  their  governments  are  to 
be  administered  by  their  agents,  they  should  repeat  and  re-enact 
this  guaranty,  and  thereby  adopt  it  as  a  principle  of  constitu- 
tional protection.  In  some  form  of  words,  it  is  to  be  found  in 
each  of  the  State  constitutions  ; 2  and  though  verbal  differences 


1  4  Bl.  Com.  424.  The  chapter,  as  it 
stood  in  the  original  charter  of  John, 
was:  "  Ne  corpus  liberi  hominis  capiatur 
nee  imprisonetur  nee  disseisietur  nee  ut- 
lagetur  nee  exuletur,  nee  aliquo  inodo 
destruatur,  nee  rex  eat  vel  mittat  super 
eum  vi,  nisi  per  judieium  parium  suorum, 
vel  per  legem  terrae."  No  freeman  shall 
be  taken  or  imprisoned  or  disseised  or 
outlawed  or  banished,  or  any  ways  de- 
stroyed, nor  will  the  king  pass  upon  him, 
or  commit  him  to  prison,  unless  by  the 
judgment  of  his  peers,  or  the  law  of  the 
land.  In  the  charter  of  Henry  III.  it  was 
varied  slightly,  as  follows:  "Nullus  liber 
homo  capiatur  vel  imprisonetur,  aut  dis- 
seisietur  de  libero  tenemento  suo  vel  lib- 
ertatibus  vel  liheris  consuetudinibus  suis, 
aut  utlagetur  aut  exuletur,  aut  aliquo 
modo  destruatur,  nee  super  eum  ibimus, 
nee  super  eum  mittemus,  nisi  per  legale 
judieium  parium  suorum,  vel  per  legem 
teme."  See  Blackstone's  Charters.  The 
Petition  of  Right  —  1  Car.  I.  c.  1  — 
prayed,  among  other  things,  "  that  no 
man  be  compelled  to  make  or  yield  any 


gift,  loan,  benevolence,  tax.  or  such  like 
charge,  without  common  consent,  by  act 
of  Parliament ;  that  none  be  called  upon 
to  make  answer  for  refusal  so  to  do ;  that 
freemen  be  imprisoned  or  detained  only 
by  the  law  of  the  land,  or  by  due  process 
of  law,  and  not  by  the  king's  special 
command,  without  any  charge."  The 
Bill  of  Rights  — 1  Wm.  and  Mary,  §2, 
c.  2  —  was  confined  to  an  enumeration 
and  condemnation  of  the  illegal  acts  of 
the  preceding  reign ;  but  the  Great 
Charter  of  Henry  III.  was  then,  and  is 
still,  in  force. 

2  The  following  are  the  constitutional 
provisions  in  the  several  States  :  — 

Alabama:  "That,  in  all  criminal  pros- 
ecutions, the  accused  .  .  .  shall  not  be 
compelled  to  give  evidence  against  him- 
self, or  be  deprived  of  his  life,  liberty,  or 
property,  but  by  due  course  of  law."  Art. 
1,  §  7.  —  Arkansas:  "  That  no  person  shall 
...  be  deprived  of  his  life,  liberty,  or 
property,  without  due  process  of  law." 
Art.  1,  §  9. —  California:  Similar  to  that 
of  Alabama.  Art.  1,  §  8. —  Connecticut: 


CH.  XL] 


PROTECTION   BY  "THE   LAW   OF   THE    LAND." 


501 


appear  in  the  several  provisions,  no  change  in   language,  it  is 
thought,  has   in  any  case   been  made  with  a  view  to  essential 


Same  as  Alabama.  Art.  1,  §  9.  — Dela- 
ware: Like  that  of  Alabama,  substituting 
for  "course  of  law,"  "the  judgment  of 
his  peers,  or  the  law  of  the  land."  Art.  1, 
§  7. — Florida:  Similar  to  that  of  Ala- 
bama. Art.  1,  §  9. —  Georgia:  "No  per- 
son shall  be  deprived  of  life,  liberty,  or 
property,  except  by  due  process  of  law." 
Art.  1,  §3. —  Illinois :  "  No  person  shall 
be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law."  Art.  1,  §  2. 

—  Colorado:  The  same.     Art.  1,  §25. — 
Iowa:   The   same.     Art.   1,    §  9. —  Ken- 
tucky :  "  Nor  can  he  be  deprived  of  his 
life,  liberty,  or  property,  unless   by  the 
judgment  of  his  peers,  or  the  law  of  the 
land."     Art.  13,  §  12.  —  Maine :  "  Nor  be 
deprived  of  his  life,  liberty,  property,  or 
privileges,  but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land."    Art.  1, 
§  6.  —  Mart/land :   "  That  no  man  ought 
to  be  taken  or  imprisoned,  or  disseised  of 
his  freehold,   liberties,  or  privileges,  or 
outlawed,  or  exiled,  or  in  any  manner 
destroyed,  or  deprived  of  his  life,  liberty, 
or  property,  but  by  the  judgment  of  his 
peers,  or  by  the  law  of  the  land."     Dec- 
laration of  Rights,  §  23.  —  Massachusetts: 
"  No  subject  shall  be  arrested,  imprisoned, 
despoiled,  or  deprived  of  his  property, 
immunities,  or  privileges,  put  out  of  the 
protection  of  the  law,  exiled,  or  deprived 
of  his  life,  liberty,  or  estate,  but  by  the 
judgment  of  his  peers,  or  the  law  of  the 
land."   Declaration  of  Rights,  Art.  12.  — 
Michigan:  "No  person  shall  ...  be  de- 
prived of  life,  liberty,  or  property,  without 
due  process  of  law."   Art.  6,  §  82.  —  Min- 
nesota :  Like  that  of  Michigan.  Art.  1,  §  7. 

—  Mississippi:  The  same.     Art.  1,  §  2. — 
Missouri:  Same  as  Delaware.  Art.  1,  §  18. 

—  Nevada:  "Nor  be  deprived  of  life,  lib- 
erty, or  property,  without  due  process  of 
law."     Art.  .1,   §  8.  —  New  Hampshire: 
Same  as  Massachusetts      Bill  of  Rights, 
Art.  15.  —  New  York:  Same  as  Nevada. 
Art.  1,  §6.  —  North  Carolina:  "  That  no 
person  ought  to  be  taken,  imprisoned,  or 
disseised  of  his  freehold,  liberties,  or  privi- 
leges, or  outlawed,  or  exiled,  or  in  any 
manner  destroyed,  or  deprived  of  his  life, 
liberty,  or  property,  but  by  the  law  of  the 
land."     Declaration   of  Rights,   §  17. — 
Pennsylvania:  Like   Delaware.     Art.   1, 


§  9.  —  Rhode  Island :  Like  Delaware.  Art. 
1,  §  10.  —  South  Carolina:  Like  that  of 
Massachusetts,  substituting  "  person  "  for 
"subject."  Art.  1,  §  14.  —  Tennessee: 
"  That  no  man  shall  be  taken  or  impris- 
oned, or  disseised  of  his  freehold,  liber- 
ties, or  privileges,  or  outlawed,  or  exiled, 
or  in  any  manner  destroyed,  or  deprived 
of  his  life,  liberty,  or  property,  but  by 
the  judgment  of  his  peers,  or  the  law  of 
the  land."  Art.  1,  §  8.  — Texas:  "No 
citizen  of  this  State  shall  be  deprived  of 
life,  liberty,  property,  or  privileges,  out- 
lawed, exiled,  or  in  any  manner  disfran- 
chised, except  by  due  course  of  the  law 
of  the  land."  Art.  1,  §  16.—  West  Vir- 
ginia: "  No  person,  in  time  of  peace,  shall 
be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law."  Art.  2,  §  6. 
Under  each  of  the  remaining  constitu- 
tions, equivalent  protection  to  that  which 
these  provisions  give  is  believed  to  be 
afforded  by  fundamental  principles  recog- 
nized and  enforced  by  the  courts.  QA 
corporation  is  within  the  term  "  person  " 
and  "  man  "  as  used  in  the  various  consti- 
tutional provisions  as  to  "  Law  of  the 
Land"  and  "Due  Process."  Knoxville 
&  Ohio  Ry.  Co.  v.  Harris,  99  Tenn.  684, 
43  S.  W.  115,  53  L.  R.  A.  921 ;  Johnson  v. 
Goodyear  Mining  Co.,  127  Cal.  4,  59 
Pac.  304,  47  L.  R.  A.  338.  A  corporation 
is  not,  however,  a  "  citizen  "  within  the 
meaning  of  that  term  as  used  in  section  2 
of  article  4,  of  the  federal  constitution, 
nor  within  the  meaning  of  that  term  as 
used  in  section  1  of  article  14,  of  the 
amendments  referring  to  privileges  and 
immunities  of  citizens  of  the  several 
States,  and  of  the  United  States  respect- 
ively. Hawley  v.  Hurd,  72  Vt.  122,  47 
Atl.  401,  82  Am.  St.  922;  Orient  Ins.  Co. 
v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct.  Rep. 
281.  "Property"  within  the  meaning  of 
the  term  as  used  in  the  federal  constitu- 
tion involves  the  right  to  acquire  and  dis- 
pose of  the  subject  of  the  right.  Harbison 
v.  Knoxville  Iron  Co.,  103  Tenn.  421,  53 
S.  W.  955,  76  Am.  St.  682.  "  Liberty  " 
in  the  constitutional  sense  involves  the 
right  to  use  one's  faculties  in  all  lawful 
ways,  to  live  and  work  where  he  chooses, 
to  pursue  any  lawful  calling,  vocation, 
trade,  or  profession,  and  to  enjoy  the 


502  CmSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

change  in  legal  effect ;  and  the  differences  in  phraseology  will 
not,  therefore,  be  of  importance  in  our  discussion.  Indeed,  the 
language  employed  is  generally  nearly  identical,  except  that  the 
phrase  "  due  process  [or  course]  of  law "  is  sometimes  used, 
sometimes  "  the  law  of  the  land,"  and  in  some  cases  both  ;  but 
the  meaning  is  the  same  in  every  case.1  And,  by  the  fourteenth 
amendment,  the  guaranty  is  now  incorporated  in  the  Constitution 
of  the  United  States.2 

If  now  we  shall  ascertain  the  sense  in  which  the  phrases  "  due 
process  of  law  "  and  "  the  law  of  the  land  "  are  employed  in  the 
several  constitutional  provisions  which  we  have  referred  to,  when 
the  protection  of  rights  in  property  is  had  in  view,  we  shall  be 
able,  perhaps,  to  indicate  the  rule,  by  which  the  proper  conclusion 
may  be  reached  in  those  cases  in  which  legislative  action  is 
objected  to,  as  m>t  being  "  the  law  of  the  land  ;"  or  judicial  or 
ministerial  action  is  contested  as  not  being  "  due  process  of  law," 
within  the  meaning  of  these  terms  as  the  Constitution  employs' 
them. 

If  we  examine  such  definitions  of  these  terms  as  are  met  with 
in  the  reported  cases,  we  shall  find  them  so  various  that  some 
difficulty  must  arise  in  fixing  upon  one  which  shall  be  accurate, 
complete  in  itself,  and  at  the  same  time  appropriate  in  all  the 
cases.  The  diversity  of  definition  is  certainly  not  surprising, 
when  we  consider  the  diversity  of  cases  for  the  purposes  of  which 
it  has  been  attempted,  and  reflect  that  a  definition  that  is  suffi- 
cient for  one  case  and  applicable  to  its  facts  may  be  altogether 
insufficient  or  entirely  inapplicable  in  another. 

Perhaps  no  definition  is  more  often  quoted  than  that  given  by 
Mr.  Webster  in  the  Dartmouth  College  Case :  "  By  the  law  of  the 
land  is  most  clearly  intended  the  general  law ;  a  law  which  hears 
before  it  condemns ;  which  proceeds  upon  inquiry,  and  renders 
judgment  only  after  trial.  The  meaning  is  that  every  citizen 
shall  hold  his  life,  liberty,  property,  and  immunities,  under  the 
protection  of  the  general  rules  which  govern  society.  Everything 
which  may  pass  under  the  form  of  an  enactment  is  not  therefore 
to  be  considered  the  law  of  the  land."  3 

fruits    thereof.     Harbison    v.    Knoxville  18  How.  272,  276,  per  Curtis,  J. ;  Parsons 

Iron  Co.,  supra.^  v.  Russell,  11  Mich.  113, 129,  per  Manning, 

1  2  Inst.   50;  Bouv.  Law   Die.  "Due  J. ;    Ervine's   Appeal,   16  Pa.   St.   256; 

process  of  Law,"  "Law  of  the  Land;"  Banning  v.  Taylor,  24  Pa.  St.  289,  292; 

State  v.  Simons,  2  Speers,  767  ;  Vanzant  State  v.  Staten,  6  Cold.  244;   Huber  v. 

v.  Waddell,  2  Yerg.  260;  Wally's   Heirs  Reily,  53  Pa.  St.  112. 
v.  Kennedy,  2  Yerg.  654,  24  Am.  Dec.          2  See  ante,  p.  15. 
511;    Greene    v.  Briggs,    1    Curt.    311;          'Dartmouth  College  v.  Woodward,  4 

Murray's  Lessee  v.  Hoboken  Land  Co.,  Wheat.  519 ;  Works  of  Webster,  Vol.  V. 


CH.  XL]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND.' 


503 


The  definition  here  given  is  apt  and  suitable  as  applied  to 
judicial  proceedings,  which  cannot  be  valid  unless  they  "  proceed 
upon  inquiry  "  and  "  render  judgment  only  after  trial."  It  is 
entirely  correct,  also,  in  assuming  that  a  legislative  enactment  is 
not  necessarily  the  law  of  the  land.  "  The  words  '  by  the  law  of 
the  land,'  as  used  in  the  Constitution,  do  not  mean  a  statute 
passed  for  the  purpose  of  working  the  wrong.  That  construction 
would  render  the  restriction  absolutely  nugatory,  and  turn  this 
part  of  the  Constitution  into  mere  nonsense.  The  people  would 
be  made  to  say  to  the  two  houses :  '  You  shall  be  vested  with  the 
legislative  power  of  the  State,  but  no  one  shall  be  disfranchised 
or  deprived  of  any  of  the  rights  or  privileges  of  a  citizen,  unless 
you  pass  a  statute  for  that  purpose.  In  other  words,  you  shall 
not  do  the  wrong  unless  you  choose  to  do  it.' "  1  When  the  law 


p.  487.  And  he  proceeds  :  "  If  this  were 
so,  acts  of  attainder,  bills  of  pains  and 
penalties,  acts  of  confiscation,  acts  revers- 
ing judgments,  and  acts  directly  trans- 
ferring one  man's  estate  to  another, 
legislative  judgments,  decrees  and  forfeit- 
ures in  all  possible  forms,  would  be  the 
law  of  the  land.  Such  a  strange  construc- 
tion would  render  constitutional  provi- 
sions of  the  highest  importance  com- 
pletely inoperative  and  void.  It  would 
tend  directly  to  establish  the  union  of  nil 
powers  in  the  legislature.  There  would 
be  no  general  permanent  law  for  courts 
to  administer  or  men  to  live  under.  The 
administration  of  justice  would  be  an 
empty  form,  an  idle  ceremony.  Judges 
would  sit  to  execute  legislative  judgments 
and  decrees,  not  to  declare  the  law  or 
administer  the  justice  of  the  country." 
1  Per  Branson,  J.,  in  Taylor  v.  Porter, 
4  Hill,  140,  145.  See  also  Jones  v.  Perry, 
10  Yerg.  59,  30  Am.  Dec.  430  ;  Ervine's 
Appeal,  16  Pa.  St.  256 ;  Arrowsmith  v. 
Burlingim,  4  McLean,  489;  Lane  v.  Dor- 
man,  4  111.  238 ;  Reed  v.  Wright,  2  Greene 
(Iowa),  15  ;  Woodcock  v.  Bennett,  1  Cow. 
711 ;  Kinney  v.  Beverley,  2  II.  &  M.  636  ; 
Commonwealth  v.  Byrne,  20  Gratt.  165; 
Rowan  v.  State,  30  Wis.  129, 11  Am.  Rep. 
659.  "  Those  terms,  '  law  of  the  land,'  do 
not  mean  merely  an  act  of  the  General 
Assembly.  If  they  did,  every  restriction 
upon  the  legislative  authority  would  be  at 
once  abrogated.  For  what  more  can  the 
citizen  suffer  than  to  be  taken,  imprisoned, 
disseised  of  his  freehold,  liberties,  and 
privileges ;  be  outlawed,  exiled,  and  de- 


stroyed, and  be  deprived  of  his  property, 
his  liberty,  and  his  life,  without  crime  ? 
Yet  all  this  he  may  suffer  if  an  act  of  the 
assembly  simply  denouncing  those  penal- 
ties upon  particular  persons,  or  a  particu- 
lar class  of  persons,  be  in  itself  a  law  of 
the  land  within  the  sense  of  the  Consti- 
tution ;  for  what  is  in  that  sense  the  law 
of  the  land  must  be  duly  observed  by  all, 
and  upheld  and  enforced  by  the  courts. 
In  reference  to  the  infliction  of  punish- 
ment and  divesting  the  rights  of  property, 
it  has  been  repeatedly  held  in  this  State, 
and  it  is  believed  in  every  other  of  the 
Union,  that  there  are  limitations  upon  the 
legislative  power,  notwithstanding  these 
words  ;  and  that  the  clause  itself  means 
that  such  legislative  acts  as  profess  in 
themselves  directly  to  punish  persons,  or 
to  deprive  the  citizen  of  his  property, 
without  trial  before  the  judicial  tribunals, 
and  a  decision  upon  the  matter  of  right, 
as  determined  by  the  laws  under  which 
it  vested,  according  to  the  course,  mode, 
and  usages  of  the  common  law,  as  derived 
from  our  forefathers,  are  not  effectually 
'  laws  of  the  land '  for  those  purposes." 
Hoke  v.  Henderson,  4  Dev.  15,  25  Am. 
Dec.  677.  In  Bank  of  Michigan  v.  Wil- 
liams, 5  Wend.  478,  486,  Mr.  Justice 
Sutherland  says,  vested  rights  "are  pro- 
tected under  general  principles  of  para- 
mount, and,  in  this  country,  of  universal 
authority."  -Mr.  Broom  says  :  "  It  is  in- 
deed an  essential  principle  of  the  law  of 
England,  '  that  the  subject  hath  an  un- 
doubted property  in  his  goods  and  pos- 
sessions ;  otherwise  there  shall  remain  no 


504  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

of  the  land  is  spoken  of,  "  undoubtedly  a  pre-existing  rule  of  con- 
duct" is  intended,  "not  an  ex  post  facto  rescript  or  decree  made 
for  the  occasion.  The  design  "  is  "  to  exclude  arbitrary  power 
from  every  branch  of  the  government ;  and  there  would  be  no 
exclusion  if  such  rescripts  or  decrees  were  to  take  effect  in  the 
form  of  a  statute."  l  There  are  nevertheless  many  cases  in  which 
the  title  to  property  may  pass  from  one  person  to  another,  with- 
out the  intervention  of  judicial  proceedings,  properly  so  called; 
and  in  preceding  pages  it  has  been  shown  that  special  legislative 
acts  designed  to  accomplish  the  like  end,  are  allowable  in  some 
cases.  The  necessity  for  "  general  rules,"  therefore,  is  not  such 
as  to  preclude  the  legislature  from  establishing  special  rules  for 
particular  cases,  provided  the  particular  cases  range  themselves 
under  some  general  rule  of  legislative  power ;  nor  is  there  any 
requirement  of  judicial  action  which  demands  that,  in  every  case, 
the  parties  interested  shall  have  a  hearing  in  court.2 

On  the  other  hand,  we  shall  find  that  general  rules  may  some- 
times be  as  obnoxious  as  special,  if  they  operate  to  deprive  indi- 
vidual citizens  of  vested  rights.  While  every  man  has  a  right  to 
require  that  his  own  controversies  shall  be  judged  by  the  same 
rules  which  are  applied  in  the  controversies  of  his  neighbors,  the 
whole  community  is  also  entitled,  at  all  times,  to  demand  the 
protection  of  the  ancient  principles  which  shield  private  rights 
against  arbitrary  interference,  even  though  such  interference  may 
be  under  a  rule  impartial  in  its  operation.  It  is  not  the  partial 
nature  of  the  rule,  so  much  as  its  arbitrary  and  unusual  char- 
acter, that  condemns  it  as  unknown  to  the  law  of  the  land.  Mr. 
Justice  Edwards  has  said  in  one  case  :  "  Due  process  of  law  un- 
doubtedly means,  in  the  due  course  of  legal  proceedings,  accord- 
more  industry,  no  more  justice,  no  more  378,  432,  per  Sehhn,  J.  In  Janes  v.  Rey- 
valor;  for  who  will  labor  1  who  will  haz-  nolds,  2  Tex.  250,  Chief  Justice  Hemphlll 
ard  his  person  in  the  day  of  battle  for  says :  "  The  terms  '  law  of  the  land '  .  .  . 
that  which  is  not  his  own?  The  Bank-  are  now,  in  their  most  usual  acceptation, 
er's  Case,  by  Tumor,  10.  And  therefore  regarded  as  general  public  laws,  binding 
our  customary  law  is  not  more  solicitous  upon  all  the  members  of  the  community, 
about  anything  than  '  to  preserve  the  under  all  circumstances,  and  not  partial 
property  of  the  subject  from  the  inunda-  or  private  laws,  affecting  the  rights  of 
tion  of  the  prerogative.'  Ibid."  Broom's  private  individuals  or  classes  of  individ- 
Const.  Law,  228.  uals."  And  see  Vanzant  v.  Waddell,  2 

1  Gibson,  Ch.  J.,  in  Norman  v.  Heist,  5    Yerg.  260,  per  Peck,  J. ;  Hard  v.  Nearing, 
W.  &  S.  171,  173.     There   is   no  power    44   Barb.   472.     Nevertheless    there    are 
which  can  authorize  the  dispossession  by    many  cases,  as  we    have    shown,    ante, 
force  of  an  owner   whose   property   has    pp.  140,  152,  in  which  private  laws  may 
been  sold  for  taxes,  without  giving  him    be  passed  in  entire  accord  with  the  general 
opportunity  for  trial.     Calhoun  v.  Flet-    public  rules  which  govern  the  State  ;  and 
cher,  63  Ala.  674.  we  shall  refer  to  more  cases  further  on. 

2  See  Wynehamer  v.  People,  13  N.  Y. 


GIL  XI.]  PROTECTION   BY   "  THE   LAW    OF   THE   LAND."  505 

ing  to  those  rules  and  forms  which  have  been  established  for  the 
protection  of  private  rights." 1  And  we  have  met  in  no  judicial 
decision  a  statement  that  embodies  more  tersely  and  accurately' 
the  correct  view  of  the  principle  we  are  considering,  than  the 
following,  from  an  opinion  by  Mr.  Justice  Johnson  of  the  Supreme 
Court  of  the  United  States :  "  As  to  the  words  from.  Magna 
Charta  incorporated  in  the  Constitution  of  Maryland,  after  vol- 
umes spoken  and  written  with  a  view  to  their  exposition,  the 
good  sense  of  mankind  has  at  length  settled  down  to  this, — 
that  they  were  intended  to  secure  the  individual  from  the 
arbitrary  exercise  of  the  powers  of  government,  unrestrained 
by  the  established  principles  of  private  rights  and  distributive 
justice."2 

The  principles,  then,  upon  which  the  process  is  based  are  to 
determine  whether  it  is  "  due  process  "  or  not,  and  not  any  con- 
siderations of  mere  form.  Administrative  and  remedial  process 
may  be  changed  from  time  to  time,  but  only  with  due  regard  to 
the  landmarks  established  for  the  protection  of  the  citizen.3 
When  the  government  through  its  established  agencies  interferes 
with  the  title  to  one's  property,  or  with  his  independent  enjoy- 
ment of  it,  and  its  action  is  called  in  question  as  not  in  accord- 
ance with  the  law  of  the  land,  we  are  to  test  its  validity  by  those 
principles  of  civil  liberty  and  constitutional  protection  which  have 

1  Westervelt  v.  Gregg,  12  N.  Y.  202,  our  guide  Zylstra's  Case,   1   Bay,   382 ; 
209.    See,  also,  State  v.  Staten,6Cold.  233;  White  v.  Kendrick,  1  Brev.  469  ;  State  v. 
McMillen  v.  Anderson,  95  U.  S.  37  ;  Pear-  Coleman  &  Maxcy,  1  McMull.  502,  there 
son  v.  Yewdall,  95  U.  S.  294;  Pennoyer  can  be  no  hesitation  in  saying  that  these 
v.  Neff,  95  U.  S.  714;  Davidson  v.  New  words  mean   the   common   law  and  the 
Orleans,  96  U.  S.  97 ;  and  cases  in  notes  statute  law  existing  in  this  State  at  the 
pp.  IS,  19,  ante,  in  which  the  true  meaning  adoption  of  our  constitution.     Altogether 
of  due  process  of  law  is  considered.    Also  they  constitute  a  body  of  law  prescribing 
San  Mateo  County  v.  Southern  Pacific  11.  the  course  of  justice  to  which  a  free  man 
R.  Co.,  13  Fed.  Hep.  722.     QSee  Maxwell  is  to  be  considered  amenable  for  all  time 
v.  Dow,  176  U.  S.  581,  20  Sup.  Ct.  Rep.  to  come."    Per  O'Neill,  J.,  in   State  v. 
448,494;  Bolln  v.  Nebraska,  176  U.  S.  83,  Simons,  2  Speers,  761,  767.      See,  also, 
20  Sup.  Ct.  Rep.  287  ;  Brown  v.  New  Jer-  State  v.  Doherty,  60  Me.  609.     It  must 
eey,  175  U.  S.  172,20  Sup.  Ct.  Rep.  77;  not  be  understood  from   this,   however, 
Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  that  it  would  not  be  competent  to  change 
Ct.  Rep.  383;  Hodgson  v,  Vermont,  168  either  the  common  law  or  the  statute  law, 
U.  S.  262,  18  Sup.  Ct.  Rep.  80 ;  McNulty  so  long  as  the  principles  therein  embod- 
v.  California,  149  U.  S.  615,  13  Sup.  Ct.  ied,  and  which  protected  private  rights, 
Rep.  959  ;  Hallinger  v.  Davis,  146  U.  S.  were  not  departed  from. 

314,  13  Sup.  Ct.  Rep.  105 ;  also  extensive          3  Hurtado  v.  California,  110  U.  S.  516, 

citations  of  cases  in  notes  upon  "what  4  Sup.  Ct.  Rep.  Ill,  292;  QMaxwell  r. 

constitutes  due  process  of  law,"  appended  Dow,  176  U.  S.  581,  20  Sup.  Ct.  Hep.  448, 

to  42  L.  ed.  U.  S.  865,  and  24  L.  ed.  U.  S.  494,  and  cases  therein  cited.     States  have 

436.]  full  power  to  regulate  the  amendment 

2  Bank  of  Columbia  j>.  Okely,  4  Wheat,  of    pleadings   in   their  courts.     Carr  v. 
235,  244.     "  What  is  meant  by  '  the  law  Nichols,  157  U.  S.  370,  15  Sup.  Ct.  Rep. 
of  the  land '  ?     In  this  State,  taking  aa  640.] 


506 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


become  established  in  our  system  of  laws,  and  nbt  generally  by 
rules  that  pertain  to  forms  of  procedure  merely.  In  judicial  pro- 
ceedings the  law  of  the  land  requires  a  hearing  before  condemna- 
tion, and  judgment  before  dispossession  ;"  l  but  when  property  is 
appropriated  by  the  government  to  public  uses,  or  the  legislature 
interferes  to  give  direction  to  its  title  through  remedial  statutes, 
different  considerations  from  those  which  regard  the  controversies 
between  man  and  man  must  prevail,  different  proceedings  are 
required,  and  we  have  only  to  see  whether  the  interference  can 
be  justified  by  the  established  rules  applicable  to  the  special  case. 
Due  process  of  law  in  each  particular  case  means,  such  an  exer- 
tion of  the  powers  of  government  as  the  settled  maxims  of  law 
permit  and  sanction,  and  under  such  safeguards  for  the  protection 
of  individual  rights  as  those  maxims  prescribe  for  the  class  of 
cases  to  which  the  one  in  question  belongs.2 


1  Vanzant  v.  Waddell,  2  Yerg.   260 ; 
Lenz  v.  Cliarlton,  23  Wis.  478 ;  Pennoyer 
v.  Neff,  95  U.  S.  714. 

2  See  Wynehamer  v.  People,  13  N".  Y. 
378,  432,  per  Selden,  J. ;  Kalloch  v.  Su- 
perior Court,  56  Cal.  229 ;  Baltimore  v. 
Scharf,  54  Md.  499.     In  State  v.  Allen,  2 
McCord,   56,   the    court,  in  speaking  of 
process  for  the  collection  of  taxes,  say  : 
"  We  think  that  any  legal  process  which 
was  originally  founded  in  necessity,  has 
been  consecrated  by  time,  and  approved 
and  acquiesced  in  by  universal  consent, 
must  be  considered  an  exception  to  the 
right  of  trial  by  jury,  and  is  embraced  in 
the  alternative  '  law  of  the  land.' "    To 
the  same  effect  are  In  re  Hackett,  53  Vt. 
354 ;  Weimer  v.  Bunbury,  30  Mich.  201. 
And  see  Hard  v.  Nearing,  44  Barb.  472  ; 
New  Orleans  v.  Cannon,  10  La.  Ann.  764; 
McCarrol  v.  Weeks,  5  Hayw.  246  ;  Sears 
v.  Cottrell,  5  Mich.  250  ;  Gibson  v.  Mason, 
5  Nev.  283.    The  fourteenth  amendment 
has  not  enlarged  the  meaning  of  the  words 
"  due  process   of  law."     Whatever  was 
such  in  a  State  before  that  amendment,  is 
so  still.     Hence,  a  statute  is  good  which 
allows  execution  on  judgments  against  a 
town  to  be  levied  on  the  goods  of  individ- 
ual inhabitants.   Eames  v.  Savage,  77  Me. 
212.     Taking  property  under  the  taxing 
power  is  due  process  of  law.     Davidson 
v.  New  Orleans,  96  U.  S.  97;  Kelly  v. 
Pittsburgh,  104  U.  S.  78 ;  High  v.  Shoe- 
maker, 22  Cal.  863.      QWeyerhauser  v. 
Minnesota,  176  U.  S.   550,  20  Sup.    Ct. 
Eep.  485.    Upon  sufficiency  of    oppor- 


tunity for  hearing  upon  assessment,  see 
Pittsburgh  C-  C.  &  St.  L.  R.  Co.  v.  Board 
of  Public  Works,  172  U.  S.  32,  19  Sup. 
Ct.  Rep.  90.3  See,  also,  Cruikshanks  v. 
Charleston,  1  McCord,  360;  State  v.  May- 
hew,  2  Gill,  487;  Harper  v.  Commission- 
ers, 23  Ga.  566  ;  Myers  o.  Park,  8  Heisk. 
550.  So  is  the  seizure  and  sale  under 
proceedings  prescribed  by  law,  of  stray 
beasts.  Knoxville  v.  King,  7  Lea,  441 ; 
Hamlin  r.  Mack,  33  Mich.  103;  Stewart 
v.  Hunter,  16  Oreg.  62, 16'Pac.  876.  That 
the  owner  should  have  notice  of  the  sale, 
see  Varden  v.  Mount,  78  Ky.  86.  £A  col- 
lateral-inheritance tax-law  which  makes 
no  provision  for  notice  to  heirs,  legatees, 
and  devisees,  and  affords  no  opportunity 
for  them  to  be  heard  in  the  matter  of 
appraisal,  is  void.  Ferry  v.  Campbell,  110 
Iowa,  290,  81  N.  W.  604,  50  L.  R.  A.  92.] 
An  act  allowing  an  agent  of  a  humane 
society  to  condemn  and  kill  an  animal 
and  fix  its  value  conclusively  without 
notice  is  not  due  process  of  law.  King 
v.  Hayes,  80  Me.  206,  13  Atl.  882.  But 
a  health  officer  may  be  empowered  to  kill 
a  diseased  beast,  if  the  owner  may  after- 
wards contest  the  existence  of  conditions 
which  made  the  beast  a  nuisance,  and 
obtain  redress,  if  such  conditions  are  not 
shown  to  have  existed.  Newark  &  S.  O. 
Co.  v.  Hunt,  50  N.  J.  L.  308,  12  Atl. 
697.  fJWhere  such  officer  seizes  and 
kills  healthy  animals,  the  owner  does  not 
thereby  acquire  any  claim  against  the 
State.  Houston  v.  State,  98  Wis.  481, 
74  N.  W.  Ill,  42  L.  R.  A.  39J  It  is 


CH.  XI.]  PROTECTION   BY   "  THE   LAW  OF  THE   LAND."  507 

Private  rights  may  be  interfered  with  by  either  the  legislative, 
executive,  or  judicial  department  of  the  government.  The  execu- 
tive department  in  every  instance  must  show  authority  of  law  for 
its  action,  and  occasion  does  not  often  arise  for  an  examination 
of  the  limits  which  circumscribe  its  powers.  The  legislative 
department  may  in  some  cases  constitutionally  authorize  interfer- 
ence, and  in  others  may  interpose  by  direct  action.  Elsewhere 
we  shall  consider  the  police  power  of  the  State,  and  endeavor  to 
show  how  completely  all  the  property,  as  well  as  all  the  people 
within  the  State,  are  subject  to  control  under  it,  within  certain 
limits,  and  for  the  purposes  for  which  that  power  is  exercised. 
The  right  of  eminent  domain  and  the  right  of  taxation  will  also 
be  discussed  separately,  and  it  will  appear  that  under  each  the 
law  of  the  land  sanctions  divesting  individuals  of  their  property 
against  their  will,  and  by  somewhat  summary  proceedings.  In 
every  government  there  is  inherent  authority  to  appropriate  the 
property  of  the  citizen  for  the  necessities  of  the  State,  and  con- 
stitutional provisions  do  not  confer  the  power,  though  they  gener- 
ally surround  it  with  safeguards  to  prevent  abuse.  The  restraints 
are,  that  when  specific  property  is  taken,  a  pecuniary  compensa- 
tion, agreed  upon  or  determined  by  judicial  inquiry,  must  be  paid  ; 
and  in  other  cases  property  can  only  be  taken  for  the  support  of 
the  government,  and  each  citizen  can  only  be  required  to  contrib- 
ute his  proportion  to  that  end.  But  there  is  no  rule  or  principle 
known  to  our  system  under  which  private  property  can  be  taken 
from  one  person  and  transferred  to  another,  for  the  private  use 
and  benefit  of  such  other  person,  whether  by  general  law  or  by 
special  enactment.1  The  purpose  must  be  public,  and  must  have 

no  violation  of  this  principle  to  exclude  with  reference  to  the  transfer  to  a  receiver 

from  the  State  debauched  women   who  of  the  assets  of  a  dissolved  corporation, 

are  being  imported    for  improper  pur-  It  is  not  competent  to  provide  that  the 

poses.    Matter  of  Ah  Fook,  49  Cal.  403.  claimant  or  purchaser  of  property,  for 

QUpon  what  constitutes  *'  due  process  of  the  seizure  or  sale  of  which  an  indem- 

law,"  see  valuable  notes  to  42  L.  ed.  U.  S.  nifying  bond  has  been  taken  and  returned 

865,  and  24  L.  ed.  U.  S.  436,  and  see  cases  by  the  officer,   shall   be   barred  of  any 

cited  in  note  1,  page  505,  ante.     Issuance  action  against  the  officer,  and  confined  to 

and  record   of    writ  of  error   in   court  his  action  on  the  bond  as  his  only  remedy, 

of  first  instance  may  be  made  sufficient  Foule  v.  Mann,  53  Iowa,  42,  3  N.  W.  814; 

notice  to  adverse  party  that  suit  is  to  be  Sunberg  v.  Babcock,  61   Iowa,  601,  16 

continued  in  the  higher  court.     State  v.  N.  W.  716.     See,  also,  Ehlers  v.  Stoeckle, 

Canfield,  40  Fla.  36, 23  So.  591,  42  L.  R.  A.  37  Mich.  261.     Contra,  Hein  v.  Davidson, 

72.    Expulsion  from  benevolent  society  96  N.  Y.  175.     Compare  Dodd  v.  Thomas, 

under  proper  by-laws  is,  though  it  deprives  69  Mo.  364.    A  lien  may  be  created  by 

of  property  rights.     Moore  v.  Natl.  Com.  statute  in  favor  of  a  laborer  for  a  con- 

of  K.  &  L.  of  S.,  —  Kan.  — ,  70  Pac.  352.]  tractor,   as   against   the  owner   of   logs, 

1  Lebanon  Sell.  Dist.  v.  Female  Sem.,  between  whom  and  the  laborer  there  is 

12  Atl.  857  (Pa.)  ;  People  v.  O'Brien,  111  no  privity  of  contract.     Reilly  v.  Steph- 

N.  Y.  1,  18  N.  E.  692.     The  latter  case  is  enson,  62  Mich.  509,  29  N.  W.  99.    But 


508 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


reference  to  the  needs  or  convenience  of  the  public,  and  no  reason 
of  general  public  policy  will  be  sufficient  to  validate  other  trans- 
fers when  they  concern  existing  vested  rights.1 

Nevertheless,  in  many  cases  and  many  ways  remedial  legisla- 
tion may  affect  the  control  and  disposition  of  property,  and  in 
some  cases  may  change  the  nature  of  rights,  give  remedies  where 
none  existed  before,  and  even  divest  legal  titles  in  favor  of  sub- 
stantial equities  where  the  legal  and  equitable  rights  do  not 
chance  to  concur  in  the  same  persons. 

The  chief  restriction  upon  this  class  of  legislation  is,  that 
vested  rights  must  not  be  disturbed  ;  but  in  its  application  as  a 
shield  of  protection,  the  term  "  vested  rights  "  is  not  used  in  any 
narrow  or  technical  sense,  or  as  importing  a  power  of  legal  con- 
trol merely,  but  rather  as  implying  a  vested  interest  which  it  is 
right  and  equitable  that  the  government  should  recognize  and 
protect,  and  of  which  the  individual  could  not  be  deprived  arbi- 
trarily without  injustice.  The  right  to  private  property  is  a 
sacred  right ;  not,  as  has  been  justly  said,  "  introduced  as  the  re- 
sult of  princes'  edicts,  concessions,  and  charters,  but  it  was  the 


such  laborer  may  not  enforce  a  lien  in 
spite  of  any  contract  between  the  con- 
ractor  and  owner,  or  of  payment  by  the 
latter.  John  Spry  Lumber  Co.  v.  Sault 
Sav.  Bank,  77  Mich.  199,  43  N.  W.  778. 
Nor  can  the  owner's  failure  to  enjoin  the 
labor  be  made  conclusive  evidence  of  his 
assent  to  it.  Meyer  v.  Berlandi,  39  Minn. 
448,  40  N.  W.  513.  A  mechanic's  lien 
may  be  made  applicable  to  buildings  in 
process  of  erection.  Colpetzer  v.  Trinity 
Church,  24  Neb.  113,  37  N.  W.  931.  ^The 
one  in  possession  of  property  may  be 
taxed  therefor,  even  though  the  property 
belongs  to  another.  Such  taxation  is  not 
a  taking  of  the  property  of  one  person 
for  the  benefit  of  another,  for  the  tax- 
payer has  a  lien  upon  the  property  for 
the  tax  he  has  paid.  Minneapolis  &  N. 
El.  Co.  ».  Traill  Co.,  9  N.  D.  213,  82 
N.  W.  727,  60  L.  R.  A.  266.  One  electric 
light  company  cannot  be  authorized  to 
use  poles  of  another  unless  provision  is 
made  for  compensation  and  for  regulation 
of  joint  use.  Citizens'  El.  Light  &  P.  Co. 
v.  Sands,  95  Mich.  561,  66  N.  W.452,  20 
L.  R.  A.  411.  Statutes  inaugurating  the 
so-called  "  Torrens  System  "  for  registra- 
tion of  land  titles  have  been  before  the 
courts  and  attacked  for  violation  of  the 
rule  of  "due  process,"  but  have  been 
usually  upheld.  Tyler  v.  Registration 


Court  Judges,  175  Mass.  71,  65  N.  E.  812, 
61  L.  R.  A.  433;  People  ex  rel.  Deneen  v. 
Simon,  176  111.  165,  52  N.  E.  910,  68  Am. 
St.  175,  44  L.  R.  A.  801 ;  State  ex  rel. 
Douglas  v.  School  District,  85  Minn.  230, 
88  N.  W.  751,  57  L.  R.  A.  297.  The  val- 
idity of  such  act  was  denied  in  State  ex 
rel.  Monnett  v.  Guilbert,  56  Ohio  St.  575, 
47  N.  E.  551,  38  L.  R.  A.  619,  60  Am.  St. 
756.  And  see  the  Massachusetts  case  in 
the  Supreme  Court  of  the  United  States, 
179  U.  S.  405,  21  Sup.  Ct.  Rep.  206.] 

1  Taylor  v.  Porter,  4  Hill,  140 ;  Osborn 
v.  Hart,  24  Wis.  89,  91,  1  Am.  Rep.  161. 
In  Matter  of  Albany  Street,  11  Wend. 
149,  25  Am.  Dec.  618,  it  is  intimated  that 
the  clause  in  the  Constitution  of  New 
York,  witholding  private  property  from 
public  use  except  upon  compensation 
made,  of  itself  implies  that  it  is  not  to 
be  taken  in  invitum  for  individual  use. 
And  see  Matter  of  John  &  Cherry  Streets, 
19  Wend.  659.  A  different  opinion  seems 
to  have  been  held  by  the  Supreme  Court 
of  Pennsylvania,  when  they  decided  in 
Harvey  v.  Thomas,  10  Watts,  63,  that 
the  legislature  might  authorize  the  lay- 
ing out  of  private  ways  over  the  lands  of 
unwilling  parties,  to  connect  the  coal- 
beds  with  the  works  of  public  improve- 
ment, the  constitution  not  in  terms  pro- 
hibiting it.  See  note  to  p.  765,  post. 


CH.  XL] 


PROTECTION   BY   "THE   LAW  OF   THE   LAND.' 


509 


old  fundamental  law,  springing  from  the  original  frame  and  con- 
stitution of  the  realm."  1 

But  as  it  is  a  right  which  rests  upon  equities,  it  has  its  reason- 
able limits  and  restrictions  ;  it  must  have  some  regard  to  the  gen- 
eral welfare  and  public  policy  ;  it  cannot  be  a  right  which  is  to 
be  examined,  settled,  and  defended  on  a  distinct  and  separate 
consideration  of  the  individual  case,  but  rather  on  broad  and  gen- 
eral grounds,  which  embrace  the  welfare  of  the  whole  community, 
and  which  seek  the  equal  and  impartial  protection  of  the  interests 
of  all.2 

And  it  may  be  well  at  this  point  to  examine  in  the  light  of  the 
reported  cases  the  question,  What  is  a  vested  right  in  the  consti- 
tutional sense  ?  and  when  we  have  solved  that  question,  we  may 
be  the  better  able  to  judge  under  what  circumstances  one  may 
be  justified  in  resisting  a  change  in  the  general  laws  of  the  State 
affecting  his  interests,  and  how  far  special  legislation  may  control 
his  rights  without  coming  under  legal  condemnation.  In  organ- 
ized society  every  man  holds  all  he  possesses,  and  looks  forward 
to  all  he  hopes  for,  through  the  aid  and  under  the  protection  of 
the  laws ; 3  but  as  changes  of  circumstances  and  of  public  opinion, 


1  Arg.  Nightingale  v.  Bridges,  Show. 
138.     See  also  case  of   Alton  Woods,  1 
Rep  45  a  ;  Alcock  v.  Cooke,  5  Bing.  340 ; 
Bowman  v.  Middleton,  1  Bay,  252  ;   Ken- 
nebeti  Purchase  v.   Laboree,  2  Me.  275, 
11  Am.  Dec.  79;  ante,  p.  68,  and  note, 
p.  244,  and  note.     Any  one  may  acquire 
and  hold  any  species  of  property,  and  the 
acquisition  cannot  be  taxed  as  a  privilege. 
But  the  use  may  he  regulated  to  prevent 
injury  to  others.     Stevens  v.  State,  2  Ark. 
291,  35  Am.  Dec.  72. 

2  The  evidences  of  a  man's  rights  — 
the  deeds,  bills  of  sale,  promissory  notes, 
and  the  like  —  are  protected  equally  with 
his  lands  and  chattels,  or  rights  and  fran- 
chises of  any  kind ;  and   the   certificate 
of  registration  and  right  to  vote  may  be 
properly  included  in  the  category.     State 
r.  Staten,  6  Cold.  233.     See  Davies  v.  Mc- 
Keeby,  5  Nev.  369. 

8  The  interest  acquired  in  the  practice 
of  learned  professions,  that  is,  "  the  right 
to  continue  their  prosecution,"  is  property 
which  cannot  be  arbitrarily  taken  away. 
Field,  J.,  in  Dent  r.  West  Virginia,  129 
U.  S.  114,  9  Sup.  Ot.  Rep.  213.  The 
office  of  an  attorney  is  property,  and  he 
cannot  be  deprived  of  it  except  for  pro- 
fessional misconduct  or  proved  unfituess. 


The  public  discussion  of  the  official  con- 
duct of  a  judge  is  not  professional  mis- 
conduct, unless  it  is  designed  to  acquire 
an  influence  over  the  conduct  of  the  judge 
in  the  exercise  of  his  judicial  functions 
by  the  instrumentality  of  popular  preju- 
dice. Ex  parte  Steinman,  95  Pa.  St.  220. 
But  see  State  v.  McClaugherty,  33  W.  Va. 
250,  10  S.  E.  407.  [Right  of  property 
involves  right  to  dispose  of  same,  and 
statute  prescribing  who  shall  and  who 
shall  not  sell  the  common  proprietary 
medicines  and  restricting  such  sale  to 
registered  pharmacists  is  taking  property 
without  due  process.  Noel  v.  State,  187 
111.  587,  58  N.  E.  616,  79  Am.  St.  238,  52 
L.  R.  A.  287.  Property  in  the  constitu- 
tional sense  is  said,  in  Harbison  v.  Knox- 
ville  Iron  Co.,  103  Tenn.  421,  53  S.  W. 
955,  76  Am.  St.  682,  to  include  every- 
thing having  an  exchangeable  value  and 
as  well  tlie  right  to  acquire  and  dispose 
of  the  thing  which  is  the  subject  of 
property  rights.  The  office  of  Governor 
of  a  State  is  not  "property."  Taylor  v. 
Beckhani,  178  U.  S.  548,  20  Sup.  Ct.  Rep. 
890,  1009.  It  is  held  in  Hoover  v.  Mc- 
Chesney,  81  Fed.  Rep.  472,  that  the  right 
to  use  the  mails  is  "  property  "  in  the  sense 
that  one  cannot  be  deprived  of  it  without 


510 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


as  well  as  other  reasons  affecting  the  public  policy,  are  all  the 
while  calling  for  changes  in  the  laws,  and  as  these  changes  must 
influence  more  or  less  the  value  and  stability  of  private  posses- 
sions, and  strengthen  or  destroy  well-founded  hopes,  and  as  the 
power  to  make  very  many  of  them  could  not  be  disputed  without 
denying  the  right  of  the  political  community  to  prosper  and  ad- 
vance, it  is  obvious  that  many  rights,  privileges,  and  exemptions 
which  usually  pertain  to  ownership  under  a  particular  state  of 
the  law,  and  many  reasonable  expectations,  cannot  be  regarded  as 
vested  rights  in  any  legal  sense.1  In  many  cases  the  courts,  in 
the  exercise  of  their  ordinary  jurisdiction,  cause  the  property 
vested  in  one  person  to  be  transferred  to  another,  either  through 
the  exercise  of  a  statutory  power,  or  by  the  direct  force  of  their 
judgments  or  decrees,  or  by  means  of  compulsory  conveyances. 
If  in  these  cases  the  courts  have  jurisdiction,  they  proceed  in  ac- 
cordance with  "  the  law  of  the  land  ; "  and  the  right  of  one  man 
is  divested  by  way  of  enforcing  a  higher  and  better  right  in  an- 
other. Of  these  cases  we  do  not  propose  to  speak  :  constitutional 
questions  cannot  well  arise  concerning  them,  unless  they  are  at- 
tended by  circumstances  of  irregularity  which  are  supposed  to 

Tyroler  v.  Warden,  etc.,  157  N.  Y.  116, 
51  N.  E.  1006,  43  L.  R.  A.  264,  68  Am. 
St.  763.] 

1  "  A  person  has  no  property,  no  vest- 
ed interest,  in  any  rule  of  the  common 
law  .  .  .  Rights  of  property  which  have 
been  created  by  the  common  law,  cannot 
be  taken  away  without  due  process;  but 
the  law  itself,  as  a  rule  of  conduct,  may 
be  changed  at  the  will,  or  even  at  the 
whim  of  the  legislature,  unless  prevented 
by  constitutional  limitations."  Waite, 
Ch.  J.,  in  Munn  v.  Illinois,  94  U.  S.  113, 
134.  See  Railroad  Co.  v.  Richmond, 
96  U.  S.  521 ;  Transportation  Co.  v.  Chi- 
cago, 99  U.  S.  635 ;  Newton  v.  Commis- 
sioners, 100  U.  S.  648;  post,  548,  note. 
The  State  may  take  away  rights  in  a 
public  fishery  by  appropriating  the  water 
to  some  other  use.  Howes  v.  Crush,  131 
Mass.  207.  QBut  not  the  previously  ac- 
quired right  of  a  co-tenant  to  enter  and 
extract  ores  without  accounting  therefor. 
Butte  &  B.  Consol.  Min.  Co.  v.  Mont. 
Ore  P.  Co.,  25  Mont.  41,  63  Pac.  825. 
The  rights  of  a  stockholder  as  the  owner 
of  stock  cannot  be  taken  through  the  re- 
tirement of  stock  by  conversion  into 
bonds.  Berger  i;.  United  States  Steel 
Corporation,  63  N.  J.  Eq.  809,  53  Atl.  68, 
rev.  63  N.  J.  Eq.  506,  53  Atl.  14] 


a  chance  to  be  heard  and  defend.  The 
so-called  "  right  to  privacy "  has,  in  sev- 
eral cases,  been  asserted  and  protection 
asked  for  it  through  the  judicial  depart- 
ment of  the  government,  but  in  the  cases 
which  have  arisen  the  courts  have  de- 
clined to  recognize  such  a  property  or  per- 
sonal right.  Atkinson  v.  Doherty  &  Co., 
121  Mich.  372,  80  N.  W.  285,  46  L.  R.  A. 
219,  80  Am.  St.  507,  and  cases  cited  in 
the  opinion  ;  Roberson  v.  Rochester,  etc. 
Co.,  171  N.  Y.  538,  64  N.  E.  442,  Articles 
in  4  Harv.  Law  Rev.  193 ;  22  Canada  Law 
Times,  281,  by  E.  L.  Adams,  counsel  in 
Roberson  case,  supra;  175  No.  Am.  Re- 
view, 361 ;  2  Columbia  Law  Review,  437  ; 
Corliss  v.  E.  W.  Walker  Co.,  57  Fed.  Rep. 
434,  31  L.  R.  A.  283,  64  Fed.  Rep.  280; 
Schuyler  v.  Curtis,  147  N.  Y.  434,  42  N.  E. 
22,  31  L.  R.  A.  286,49  Am.  St.  671.  See 
also  articles  in  10  Am.  Lawyer,  293,  and  55 
Cent.  Law  Journal,  123.  The  ticket  bro- 
kerage legislation  has  been  frequently  be- 
fore the  courts  on  constitutional  grounds 
and  as  against  the  constitutional  objec- 
tion has  been  usually  upheld.  Fry  v. 
State,  63  Ind.  552,  30  Am.  Rep.  238;  Ex 
parte  Lorenzen,  128  Cal.  431,  61  Pac.  68, 
60  L.  R.  A.  55;  Burdick  v.  People,  149 
111.  600,  36  N.  E.  948,  24  L.  R.  A.  152, 
41  Am.  St.  329.  Contra,  People  ex  rel. 


CH.  XI.]  PROTECTION  BY  "THE   LAW   OF  THE   LAND."  511 

take  them  out  of  the  general  rule.  All  vested  rights  are  held 
subject  to  the  laws  for  the  enforcement  of  public  duties  and  pri- 
vate contracts,  and  for  the  punishment  of  wrongs ;  and  if  they  be- 
come divested  through  the  operation  of  those  laws,  it  is  only 
by  way  of  enforcing  the  obligations  of  justice  and  good  order. 
What  we- desire  to  reach  in  this  connection  is  the  true  meaning 
of  the  term  "vested  rights"  when  employed  for  the  purpose  of 
indicating  the  interests  of  which  one  cannot  be  deprived  by  the 
mere  force  of  legislative  enactment,  or  by  any  other  than  the  rec- 
ognized modes  of  transferring  title  against  the  consent  of  the 
owner,  to  which  we  have  alluded. 

Interests  in  Expectancy, 

First,  it  would  seem  that  a  right  cannot  be  considered  a  vested 
right,  unless  it  is  something  more  than  such  a  mere  expectation 
as  may  be  based  upon  an  anticipated  continuance  of  the  present 
general  laws :  it  must  have  become  a  title,  legal  or  equitable,  to 
the  present  or  future  enjoyment  of  property,  or  to  the  present  or 
future  enforcement  of  a  demand,  or  a  legal  exemption  from  a 
demand  made  by  another.1  Acts  of  the  legislature,  as  has  been 
well  said  by  Mr.  Justice  Woodbury,  cannot  be  regarded  as  opposed 
to  fundamental  axioms  of  legislation,  "  unless  they  impair  rights 
which  are  vested ;  because  most  civil  rights  are  derived  from 
public  laws  ;  and  if,  before  the  rights  become  vested  in  particular 
individuals,  the  convenience  of  the  State  procures  amendments  or 
repeals  of  those  laws,  those  individuals  have  no  cause  of  com- 
plaint. The  power  that  authorizes  or  proposes  to  give,  may 
always  revoke,  before  an  interest  is  perfected  in  the  donee." 2 
And  Chancellor  Kent,  in  speaking  of  retrospective  statutes,  says 
that  while  such  a  statute,  "  affecting  and  changing  vested  rights, 
is  very  generally  considered  in  this  country  as  founded  on  uncon- 
stitutional principles,  and  consequently  inoperative  and  void," 
yet  that  "  this  doctrine  is  not  understood  to  apply  to  remedial 
statutes,  which  may  be  of  a  retrospective  nature,  provided  they 
do  not  impair  contracts,  or  disturb  absolute  vested  rights,  and 
only  go  to  confirm  rights  already  existing,  and  in  furtherance  of 
the  remedy  by  curing  defects  and  adding  to  the  means  of  enfor- 
cing existing  obligations.  Such  statutes  have-  been  held  valid 
when  clearly  just  and  reasonable,  and  conducive  to  the  general 

1  \Veidenger  v.  Spruance,  101  111.  278.  is  vested.     Moore  v.  Irby,  69  Ark.  102, 

See   Wanser  v.  Atkinson,  43  N.  J.  571.  61  S.  W.  371.J 

£The  right  of  a  minor  to  redeem,  when  2  Merrill  v.  Slierburne,  1  N.  H.  199,  213, 

he  comes  of  age,  lands  forfeited  during  8  Am.  Dec.  52.     See  Rich  v.  Flanders,  39 

his  minority  through  failure  to  pay  taxes  N.  H.  30i.    And  cases,  ante,  p.  402,  note  2. 


512  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

welfare,  even  though  they  might  operate  in  a  degree  upon  exist- 
ing rights."  l 

And  it  is  because  a  mere  expectation  of  property  in  the  future 
is  not  considered  a  vested  right,  that  the  rules  of  descent  (a)  are 
held  subject  to  change  in  their  application  to  all  estates  not  already 
passed  to  the  heir  by  the  death  of  the  owner.  No  one  is  heir  to 
the  living ;  and  the  heir  presumptive  has  no  other  reason  to  rely 
upon  succeeding  to  the  property  than  the  promise  held  out  by  the 
statute  of  descents.  But  this  promise  is  no  more  than  a  declar- 
ation of  the  legislature  as  to  its  present  view  of  public  policy  as 
regards  the  proper  order  of  succession,  —  a  view  which  may  at 
any  time  change,  and  then  the  promise  may  properly  be  with- 
drawn, and  a  new  course  of  descent  be  declared.  The  expecta- 
tion is  not  property  ;  it  cannot  be  sold  or  mortgaged ;  it  is  not 
subject  to  debts  ;  and  it  is  not  in  any  manner  taken  notice  of  by 
the  law  until  the  moment  of  the  ancestor's  death,  when  the  stat- 
ute of  descents  comes  in,  and  for  reasons  of  general  public  policy 
transfers  the  estate  to  persons  occupying  particular  relations  to 
the  deceased  in  preference  to  all  others.  It  is  not  until  that 
moment  that  there  is  any  vested  right  in  the  person  who  becomes 
heir,  to  be  protected  by  the  Constitution.  An  anticipated  inter- 
est in  property  cannot  be  said  to  be  vested  in  any  person  so  long 
as  the  owner  of  the  interest  in  possession  has  full  power,  by 
virtue  of  his  ownership,  to  cut  off  the  expectant  right  by  grant  or 
devise.2 

If  this  be  so,  the  nature  of  estates  must,  to  a  certain  extent,  be 
subject  to  legislative  control  and  modification.3  In  this  country 
estates  tail  have  been  very  generally  changed  into  estates  in  fee 
simple,  by  statutes  the  validity  of  which  is  not  disputed.4  Such 

1  1  Kent,  Com.  445.      See  Briggs  v.  But  after  property  has  once  vested  un- 
Hubbard,  19  Vt.  86;  Bridgeport  v.  Hou-  der  the   laws  of  descent,   it  cannot  be 
satonic  R.  R.  Co.,  15  Conn.  475;  Baugher  divested  by  any  change  in  those   laws. 
v.  Nelson,  9  Gill,  299;  Gilman  v.  Cutts,  Norman  v.  Heist,  5  W.  &  S.  171.     And 
23  N.  H.  376,  382;   Foule  v.   Mann,  53  the  right  to  change  the  law  of  descents  in 
Iowa,  42,  3  N.  W.  184.  the  case  of  the  estate  of  a  person  named 

2  In  re  Lawrence,  1  Redfield,  Sur.  Rep.  without  his  cor  sent  being  had,  was  denied 
310.     [[See  also  Bass  v.  Roanoke  Xav.  &  in   Beall  v.  Beall,  8  Ga.  210.     See  post, 
W.  P.  Co.,  Ill  N.  C.  439,  16  S.  E   402,  pp  612,  540,  541,  and  notes. 

19  L.  R.  A.  247,  and   note  on   power  to  *  Smith  on  Stat.  and  Const.  Construe- 

defeat  contingent  interests ;    McNeer  v.  tion,  412. 

McNeer,  142  111.  388,  32  N.  E.  681,  19  *  De  Mill  v.  Lockwood,  3  Blatch.  66. 
L.  R.  A.  256,  and  note  on  power  to  The  legislature  may  by  special  act  con- 
change  or  destroy  dower,  curtesy,  &c]  firm  a  conveyance  in  fee  simple  by  a 

a  {[These  rules  do  not  control  succession  to  land  among  the  members  of  Indian 
tribes.  Such  succession,  so  long  as  the  tribal  organization  is  still  recognized  by  the 
Federal  government,  is  according  to  the  laws,  usages  and  customs  of  the  tribe. 
Jones  v.  Meehan,  175  U.  S.  1,  20  Sup.  Ct.  Kep.  I/] 


CH.  XI.]  PROTECTION    BY   "THE   LAW   OF   THE   LAND."  513 

statutes  operate  to  increase  and  render  more  valuable  the  interest 
which  the  tenant  in  tail  possesses,  and  are  not  therefore  open  to 
objection  by  him.1  But  no  other  person  in  these  cases  has  any 
vested  right,  either  in  possession  or  expectancy,  to  be  affected  by 
such  change ;  and  the  expectation  of  the  heir  presumptive  must 
be  subject  to  the  same  control  as  in  other  cases.2 

The  cases  of  rights  in  property  to  result  from  the  marriage 
relation  must  be  referred  to  the  same  principle.  -At  the  common 
law  the  husband  immediately  on  the  marriage  succeeded  to  cer- 
tain rights  in  the  real  and  personal  estate  which  the  wife  then 
possessed.  These  rights  became  vested  rights  at  once,  and  any 
subsequent  alteration  in  the  law  could  not  take  them  away.3  But 
other  interests  were  merely  in  expectancy.  He  could  have  a 
right  as  tenant  by  the  courtesy  initiate  in  the  wife's  estates  of 
inheritance  the  moment  a  child  was  born  of  the  marriage,  who 
might  by  possibility  become  heir  to  such  estates.  This  right 
would  be  property,  subject  to  conveyance  and  to  be  taken  for 
debts ;  and  must  therefore  be  regarded  as  a  vested  right,  no  more 
subject  to  legislative  interference  than  other  expectant  interests 
which  have  ceased  to  be  mere  contingencies  and  become  fixed. 
But  while  this  interest  remains  in  expectancy  merely,  —  that  is 
to  say,  until  it  becomes  initiate,  —  the  legislature  must  have  full 
right  to  modify  or  even  to  abolish  it.4  And  the  same  rule  will 

tenant  in  tail.  Comstock  v.  Gay,  51  which,  however,  does  not  reach  the  gen- 
Conn.  45.  eral  principle  above  stated  —  in  2  Bishop, 

1  On  the  same  ground  it  has  been  held  Law  of  Married  Women,  §  46,  and  note, 
in  Massachusetts  that  statutes  converting  Rights   under  an   ante-nuptial  contract, 
existing   estates    in  joint   tenancy   into  which  become  vested  by  the  marriage, 
estates  in  common  were  unobjectionable,  cannot  be  impaired  by  subsequent  legis- 
They  did  not  impair  vested  rights,  but  lation.     Desnoyer  v.  Jordan,   27  Minn, 
rendered    the    tenure    more    beneficial.  295,  7  N.  W.  140.     [JWhere  at  the  time 
Holbrook  v.  Finney,  4  Mass.  565,  3  Am.  community  property  is  acquired,  power  to 
Dec.  243 ;  Miller  v.  Miller,  16  Mass.  59 ;  dispose  of  it  rests  entirely  in  the  husband, 
Annable  v.  Patch,  3  Pick.  860 ;  Burghardt  subsequent  legislation  requiring  the  as- 
v.  Turner,  12  Pick.  533.    Moreover,  such  sent  of  the  wife  to  its  disposition  is  invalid 
statutes  do  no  more  than  either  tenant  with  regard  to  such  property.     Spreckels 
at  the  common  law  has  a  right  to  do,  v.  Spreckels,  116  Cal.  339,  48  Pac.  228,  36 
by  conveying  his  interest  to  a  stranger.  L    R.  A.  497,  58  Am.  St.  170.     An  act 
See  Bombaugh  v.  Bombaugh,  11  S.  &  R.  taking   away   a  statutory  right   of  the 
192;  Wildes  v.  Vanvoorhis,  15  Gray,  139.  husband  in  the  wife's  land  which  existed 

2  See  1  Wash.  Real  Pr.   81-84,  and  at  the  time  of  the  marriage,  is  void  as  to 
notes.     The  exception  to  this  statement,  such  right.     Rose  v.  Rose,  104  Ky.  48, 
if  any,  must  be  the  case  of  tenant  in  tail  46  S.  W.  524,  84  Am.  St.  430.] 

after  possibility  of  issue  extinct;  where  *  Hathon  v.  Lyon,  2  Mich.  93;  Tong 

the  estate  of  the  tenant  has  ceased  to  be  v.  Marvin,  15   Mich.   60.     And   see   the 

an  inheritance,  and  a  reversionary  right  cases  cited  in  the  next  note.     The  right 

has  become  vested.  of  a  tenant  by  the  courtesy  initiate  is 

8  Westervelt  v.  Gregg,  12  N.  Y.  202.  vested,  and  it  cannot  be  taken  away  to 

See  Mr.  Bishop's  criticism  of  this  case  —  the   injury  of  the   husband's    creditors. 

83 


514 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


apply  to  the  case  of  dower ;  though  the  difference  in  the  requi- 
sites of  the  two  estates  are  such  that  the  inchoate  right  to  dower 
does  not  become  property,  or  anything  more  than  a  mere  expec- 
tancy at  any  time  before  it  is  consummated  by  the  husband's 
death.1  In  neither  of  these  cases  does  the  marriage  alone  give  a 


Wyatt  v.  Smith,  25  W.  Va.  813.  See 
Hersliizer  v.  Florence,  39  Ohio  St.  516. 
But  see  to  the  contrary,  Breeding  v. 
Davis,  77  Va.  639;  Alexander  v.  Alex- 
ander, 85  Va.  353,  7  S.  E.  835. 

1  When  dower  is  duly  assigned  it  be- 
comes a  right  not  to  be  divested  by  sub- 
sequent legislation.  Talbot  v.  Talbot,  14 
R.  I.  57.  The  law  in  force  at  the  death 
of  the  husband  is  the  measure  of  the 
right  of  the  widow  to  dower.  Noel  v. 
Ewing,  9  Ind.  37;  May  v.  Fletcher,  40 
Ind.  575;  Lucas  v.  Sawyer,  17  Iowa,  517; 
Sturdevant  v.  Norris,  30  Iowa,  65;  Meli- 
zet's  Appeal,  17  Pa.  St.  449;  Barbour  v. 
Barbour,  46  Me.  9;  Magee  ?>.  Young,  40 
Miss.  164 ;  Bates  v.  McDowell,  58  Miss. 
815;  Walker  v.  Deaver,  5  Mo.  App.  139; 
Guerin  r.  Moore,  25  Minn.  462;  Morrison 
v.  Kice,  35  Minn.  436,  29  N.  W.  168; 
Ware  v.  Owens,  42  Ala.  212;  Pratt  v. 
Tefft,  14  Mich.  191;  Bennett  v.  Harms, 
51  Wis.  251, 8  N.  W.  222.  But  if  we  apply 
this  rule  universally,  we  shall  run  into 
some  absurdities,  and  most  certainly  in 
some  cases  encounter  difficulties  which 
will  prove  insurmountable.  Suppose  the 
land  has  been  sold  by  the  husband  with- 
out relinquishment  of  dower,  and  the 
dower  right  is  afterwards  by  statute  en- 
larged, will  the  wife  obtain  the  enlarged 
dower  at  the  expense  of  the  purchaser? 
Or  suppose  it  is  diminished ;  will  the  pur- 
chaser thereby  acquire  an  enlarged  estate 
which  he  never  bought  or  paid  for? 
These  are  important  questions,  and  the 
authorities  furnish  very  uncertain  and 
unsatisfactory  answers  to  them.  In  Illi- 
nois it  is  held  that  though  the  estate  is 
contingent,  the  right  to  dower,  when  mar- 
riage and  seisin  unite,  is  vested  and  abso- 
lute, and  is  as  completely  beyond  legisla- 
tive control  as  is  the  principal  estate. 
Russell  v.  Rumsey,  35  111.  362 ;  Steele  v. 
Gellatly,  41  111.  39.  See  Lawrence  ». 
Miller,  2  N.  Y.  245.  But  it  is  also  held 
that  after  marriage  a  new  right  corre- 
sponding to  dower  may  be  conferred  upon 
the  husband,  and  that  his  homestead  right 
depends  on  the  law  in  force  at  the  wife's 


death.  Henson  v.  Moore,  104  111.  403.  In 
North  Carolina  before  1867,  the  wife  had 
dower  only  in  the  lands  of  which  the  hus- 
band died  seised ;  the  statute  then  restored 
the  common-law  right  to  dower  held  to  be 
inapplicable  to  lands  which  the  husband 
had  previously  acquired.  Sutton  v.  As- 
ken,  66  N.  C.  172,  8  Am.  Rep.  500; 
Hunting  v.  Johnson,  66  N.  C.  189;  Jen- 
kins v.  Jenkins,  82  N.  C.  202;  O'Kelly  v. 
Williams,  84  N.  C.  281.  In  Iowa  it  is 
held  that  when  the  law  of  dower  is 
changed  after  the  husband  lias  conveyed 
lands  subject  to  the  inchoate  right,  the 
dower  is  to  be  measured  by  the  law  in 
force  when  the  conveyance  was  made. 
Davis  v.  O'Ferrall,  4  Greene  (Iowa),  168; 
Young  v.  Wolcott,  1  Iowa,  174 ;  O'Fer- 
rall v.  Simplot,  4  Iowa,  381 ;  Moore  v. 
Kent,  37  Iowa,  20;  Craven  v.  Winter,  38 
Iowa,  471.  In  Indiana,  on  the  other  hand, 
a  atatute  enlarging  the  right  of  dower  to 
one-third  of  the  land  in  fee  simple  was  so 
applied  as  to  deprive  the  widow,  in  cases 
where  the  husband  had  previously  con- 
veyed, of  both  the  statutory  dower  and 
the  dower  at  the  common  law,  thereby 
enlarging  the  estate  of  the  purchaser. 
Strong  v.  Clem,  12  Ind.  37 ;  Logan  v. 
Walton,  12  Iiid.  839;  Bowen  v.  Preston, 
48  Ind.  367;  Taylor  v.  Sample,  51  Ind. 
423.  See  May  v.  Fletcher,  40  Ind.  675. 
A  provision  that  upon  a  judicial  sale  of 
the  husband's  property  the  inchoate 
dower  right  shall  vest  does  not  apply  to 
a  mechanic's  lien  resting  on  the  whole 
property  before  the  act  passed.  Buser 
v.  Shepard,  107  Ind.  417,  8  N.  E.  280.  In 
Missouri  it  is  held  that  the  widow  takes 
dower  according  to  the  law  in  force  at  the 
husband's  death,  except  as  against  those 
who  had  previously  acquired  specific 
rights  in  the  estate,  and  as  to  them  her 
right  must  depend  on  the  law  in  force  at 
the  time  their  rights  originated.  Kennedy 
v.  Insurance  Co.,  11  Mo.  204.  In  Williams 
v.  Courtney,  77  Mo.  587,  it  is  held  that, 
marriage  and  seisin  concurring,  dower 
cannot  be  barred  by  a  guardian's  sale  of 
the  husband's  property.  In  Massachusetts 


CH.  XI.] 


PROTECTION  BY  "THE  LAW  OF  THE  LAND. 


515 


vested  right.  It  gives  only  a  capacity  to  acquire  a  right.  The 
same  remark  may  be  made  regarding  the  husband's  expectant 
interest  in  the  after-acquired  personalty  of  the  wife ;  it  is  subject 
to  any  changes  in  the  law  made  before  his  right  becomes  vested 
by  the  acquisition.1 

Change  of  Remedies. 

Again :  the  right  to  a  particular  remedy  is  not  a  vested  right. 
This  is  the  general  rule  ;  and  the  exceptions  are  of  those  peculiar 
cases  in  which  the  remedy  is  part  of  the  right  itself.2  As  a  gen- 
eral rule,  every  State  has  complete  control  over  the  remedies 
which  it  offers  to  suitors  in  its  courts.3  It  may  abolish  one  class 
of  courts  and  create  another.  It  may  give  a  new  and  additional 
remedy  for  a  right  or  equity  already  in  existence.4  And  it  may 


doubt  is  expressed  of  the  right  of  the 
legislature  to  cut  off  the  inchoate  right  of 
dower.  Dunn  v.  Sargent,  101  Mass.  336, 
340.  But  in  Hamilton  v.  Hirsch,  2  Wash. 
Terr.  223,  5  Pac.  215,  such  power  is 
affirmed. 

1  Westervelt  t;.  Gregg,  12  N.  Y.  202 ; 
Norris  v.  Beyea,  13  N.  Y.  273 ;  Kelly  v. 
McCarthy,  3  Bradf.  7.     And  see  Plumb 
v.  Sawyer,  21  Conn.  351;  Clark  v.  Mc- 
Creary,  12  S.  &  M.  247  ;  Jackson  v.  Lyon, 
9  Cow.  664;  ante,  pp.  406-415.    On  the 
point  whether  the   husband  can   be   re- 
garded as  having  an  interest  in  the  wife's 
choses  in  action,  before  he  has  reduced 
them  to  possession,  see  Bishop,  Law  of 
Married  Women,  Vol.  II.  §§  45,  46.     If 
the  wife  has  a  right  to  personal  property 
subject  to  a  contingency,  the  husband's 
contingent   interest    therein    cannot    be 
taken  away  by   subsequent    legislation. 
Dunn  v.  Sargent,   101  Mass.  336.     It  is 
competent  to  provide    by   statute    that 
married  women  shall  hold  their  property 
free  from  claims  of    husbands,   and    to 
make  the  law   apply  to    those    already 
married.     Rugh  v.  Ottenheimer,  6  Oreg. 
231,  25  Am.  Rep.  513.     See  Pritchard  v. 
Citizens'  Bank,  8  La.  130,  23  Am.  Dec. 
132.     But  vested  rights  belonging  to  the 
husband  jure  uxoris   cannot  thus  be  di- 
vested.    Hershizer  v.  Florence,  39  Ohio 
St.  516 ;  Koehler  v.  Miller,  21  111.  App. 
557. 

2  See  ante,  p.  410,  and  cases  cited.    It 
has  been  held  in   some  cases   that  the 
giving  of  a  lien  by  statute  does  not  con- 
fer a  vested  right,  and  it  may  be  taken 


away  by  a  repeal  of  the  statute.     See 
ante,  407,  note  1. 

8  Rosier  v.  Hale,  10  Iowa,  470 ;  Smith 
v.  Bryan,  34  111.  364;  Lord  v.  Chad- 
bourne,  42  Me.  429;  Rockwell  v.  Hub- 
bell's  Adm'rs,  2  Doug.  (Mich.)  197; 
Cusic  v.  Douglas,  3  Kan.  123;  Holloway 
r.  Sherman,  12  Iowa,  282 ;  MoCorrnick 
v.  Rusch,  15  Iowa,  127 ;  Me  Arthur  v. 
Goddin,  12  Bush,  274;  Grundy  v.  Com- 
monwealth, 12  Bush,  350 ;  Briscoe  v. 
Anketell,  28  Miss.  361. 

4  Hope  v.  Johnson,  2  Yerg.  125 ;  Fos- 
ter v.  Essex  Bank,  16  Mass.  245,  9  Am. 
Dec.  168  ;  Paschall  v.  Whitsett,  11  Ala. 
472 ;  Commonwealth  v.  Commissioners, 
&c.,  6  Pick.  501;  Whipple  v.  Farrar,  3 
Mich.  436 ;  United  States  v.  Samperyac, 
1  Hemp.  118;  Sutherland  v.  De  Leon,  1 
Tex.  250;  Anonymous,  2  Stew.  228; 
See  also  Lewis  v.  McElvain,  16  Ohio, 
347 ;  Trustees,  &c.  v.  McCaughey,  2  Ohio 
St.  152;  Hepburn  v.  Curts,  7  Watts,  300;. 
Schenley  v.  Commonwealth,  36  Pa.  St. 
29 ;  Bacon  v.  Callender,  6  Mass.  303 ; 
Brackett  v.  Norcross,  1  Me.  92 ;  Ralston 
v.  Lothain,  18  Ind.  303;  White  School 
House  n.  Post,  31  Conn.  241 ;  Van  Rens- 
selaer  v.  Hayes,  19  N.  Y.  68  ;  Van  Rens- 
selaer  v.  Ball,  19  N.  Y.  100  ;  Sedgwiok  Co. 
v.  Bunker,  16  Kan.  498 ;  Danville  v.  Pace, 
25  Gratt.  1.  Thus  it  may  give  a  legal 
remedy  where  before  there  was  only  one 
in  equity.  Bartlett  v.  Lang,  2  Ala.  401. 
In  Bolton  v.  Johns,  5  Pa.  St.  145,  the  ex- 
treme ground  was  taken  that  the  legis- 
lature might  give  a  lien  on  property  for 
a  prior  debt,  where  no  contract  would  be 


516 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


abolish  old  remedies  and  substitute  new ;  or  even  without  substi- 
tuting any,  if  a  reasonable  remedy  still  remains.1  If  a  statute 
providing  a  remedy  is  repealed  while  proceedings  are  pending, 
such  proceedings  will  be  thereby  determined,  unless  the  legisla- 
ture shall  otherwise  provide;2  and  if  it  be  amended  instead  of 
repealed,  the  judgment  pronounced  in  such  proceedings  must  be 
according  to  the  law  as  it  then  stands.3  And  any  rule  or  regu- 


violated'  in  doing  so.  In  Towle  v.  East- 
ern Railroad,  18  N.  II.  546,  the  power  of 
the  legislature  to  give  retrospectively  a 
remedy  for  consequential  damages  caused 
by  the  taking  of  property  for  a  public  use 
was  denied.  On  the  ground  that  the  rem- 
edy only  is  affected,  a  judgment  against 
a  principal  on  an  existing  bond,  may  be 
made  conclusive  on  the  surety.  Pickett 
v.  Boyd,  11  Lea,  498.  So  a  resale  on 
mortgage  foreclosure,  if  the  purchase 
price  is  inadequate,  may  be  allowed  as  to 
an  existing  mortgage.  Chaffe  v.  Aaron, 
62  Miss.  29 ;  and  a  foreclosure  of  a  tax 
lien,  if  the  title  fails.  Schoenheit  v.  Nel- 
son, 16  Neb.  235,  20  N.  W.  205.  QA  lien 
for  the  whole  value  of  labor  or  material 
furnished  may  be  made  to  take  prece- 
dence of  any  mortgage  or  other  contract, 
lien,  or  conveyance  arising  subsequent  to 
the  beginning  of  the  labor  or  of  the  sup- 
ply of  the  material,  but  prior  to  the  com- 
pletion thereof,  upon  condition  that  notice 
of  such  lien  shall  be  filed  prior  to  filing 
of  mortgage,  &c.  Hightower  v.  Bailey  & 
Koerner,  22  Ky.  L.  88,  56  S.  W.  147,  49 
L.  R.  A.  255.] 

1  Stocking  v.  Hunt,  3  Denio,  274  ;  Van 
Rensselaer  v.  Read,  26  N.  Y.  558 ;  Lennon 
v.  New  York,  55  N.   Y.  361 ;  Parker  v. 
Shannohouse,  1  PhiL  (N.  C.)  209.     An 
existing  remedy  may  be  modified  and  the 
modified  remedy  made  applicable  to  ex- 
isting rights.    Phelps'  Appeal,  98  Pa.  St. 
646. 

2  Bank  of  Hamilton  v.  Dudley,  2  Pet. 
492 ;    Ludlow  v.  Johnson,  3    Ohio,   553, 
17   Am.   Dec.    609;    Yeaton    v.    United 
States,  5  Cranch,  281  ;  Schooner  Rachel 
v.  United  States,  6  Cranch,  329.     If  an 
act  is  repealed    without   any  saving  of 
rights,  no  judgment  can   afterwards   be 
taken  under  it.     State  v.  Passaic,  36  N.  J. 
382  ;  Menard  County  v.  Kincaid,  71  111. 
687 ;   Musgrove  v.  Vicksburg,  &c.  R.  R. 
Co.,  60  Miss.  677;  Abbott  v.  Common- 
wealth, 8  Watts,  617,  34  Am.  Dec.  492. 


But  it  is  well  said  in  Pennsylvania  that 
before  a  statute  should  be  construed  to 
take  away  the  remedy  for  a  prior  injury, 
it  should  clearly  appear  that  it  embraces 
the  very  case.  Chalker  v.  Ives,  55  Pa.  St. 
81.  And  see  Newsom  v.  Greenwood,  4 
Oreg.  119. 

8  See  cases  cited  in  last  note.  Also 
Commonwealth  v.  Duane,  1  Binney,  601, 
2  Am.  Dec.  497 ;  United  States  v.  Pass- 
more,  4  Dall.  372 ;  Patterson  v.  Philbrook, 
9  Mass.  151 ;  Commonwealth  v.  Marshall, 
11  Pick.  350;  Commonwealth  v.  Kimball, 
21  Pick.  373 ;  Hartung  v.  People,  22  N.  Y. 
95 ;  State  v.  Daley,  29  Conn.  272  ;  Rath- 
bun  v.  Wheeler,  29  lud.  601;  State 
y.  Norwood,  12  Md.  195 ;  Bristol  v.  Su- 
pervisors, &c.,  20  Mich.  95;  Summer 
r.  Miller,  64  N.  C.  688.  [Pending  the 
decision  upon  an  appeal,  the  constitution 
was  so  amended  that  whereas  under  the 
old  rule  the  appeal  had  been  upon  ques- 
tions of  law  alone,  it  was  under  the  new 
to  be  upon  questions  of  fact  also.  The 
case  was  thereupon  remanded,  in  order 
that  the  evidence  might  be  incorporated 
in  the  record  upon  a  new  trial,  and  the 
whole  brought  up  again  if  either  party 
were  dissatisfied.  Cassard  v.  Tracy,  52 
La.  Ann.  835,  27  So.  368,  49  L.  R.  A.  272. 
A  mechanic's  lien,  which  is  a  security 
given  by  statute  and  is  in  the  nature  of 
a  remedy,  rather  than  a  right  springing 
from  contract  or  the  rules  of  the  common 
law,  may  be  abolished  by  general  statute 
without  disturbing  vested  rights.  Wilson 
v.  Simon,  91  Md.  1,  46  Atl.  1022,  80  Am. 
St.  427.  But  a  statute  taking  away  the 
lien  of  a  judgment  having  effect  by  op- 
eration of  law  upon  the  recovery  of  the 
judgment,  is  void  as  to  judgments  on  con- 
tracts made  before  the  enactment  of  the 
statute.  Merchants'  Bank  v.  Ballou,  98 
Va.  112,  32  S.  E.  481,  81  Am.  St.  715,  44 
L.  R.  A.  306.  A  statute  exempting  the 
earnings  of  a  married  man  from  compul- 
sory process  for  the  collection  of  debt  is 


CH.  XL] 


PROTECTION  BY  "THE  LAW  OF  THE  LAND. 


517 


lation  in  regard  to  the  remedy  which  does  not,  under  pretence  of 
modifying  or  regulating  it,  take  away  or  impair  the  right  itself, 
cannot  be  regarded  as  beyond  the  proper  province  of  legislation.1 
But  a  vested  right  of  action  is  property  in  the  same  sense  in 
which  tangible  things  are  property,  and  is  equally  protected 
against  arbitrary  interference.2  Where  it  springs  from  contract, 
or  from  the  principles  of  the  common  law,  it  is  not  competent  for 
the  legislature  to  take  it  away.3  And  every  man  is  entitled  to  a 
certain  remedy  in  the  law  for  all  wrongs  against  his  person  or  his 


valid  as  going  to  the  remedy  only.  Kirk- 
man  v.  Bird,  22  Utah,  100,  61  Pac.  338, 
83  Ann.  St.  774.] 

1  See  ante,   pp.   406-416;   Lennon   v. 
New  York,  55  N.  Y.  361.     The  right  to  a 
particular  mode  of   procedure  is   not   a 
vested  right.     A  statute  allowing  attor- 
ney's  fees    may   affect   pending    causes. 
Drake  v.  Jordan,  73  Iowa,  707,  36  N.  W. 
653. 

2  It  is  not  incompetent,  however,  to 
compel  the  party  instituting  a  suit  to  pay 
taxes  on  the  legal  process  as  a  condition. 
Harrison  v.  Willis,  7  Heisk    35,  19  Am. 
Rep.  004.     £That  right  of  action  is  prop- 
erty and  cannot  be  made  worthless   by 
legislative  grant  of  property  of  one  cor- 
poration to  another,  see  Angle  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  151  U.  S.  1,  14  Sup. 
Ct.  Rep.  240-3 

3  Dash  v.  Van  Kleeck,  7  Johns.  477, 

5  Am.  Dec.  291 ;  Streubel  v.  Milwaukee 

6  M.   R.   R.   Co.,   12    Wis.  67;    Clark 
v.    Clark,    10    N.    H.    380;    Westervelt 
v.   Gregg,   12   N.    Y.   20'2;   Thornton    v. 
Turner,  11  Minn.  339;  Ward  v.  Barnard, 
1  Aik    121 ;   Keith  v.  Ware,  2    Vt.  174 ; 
Lyman  v.  Mower,  2  Vt.  517  ;  Kendall  v. 
Dodge,  3  Vt.  360 ;  State  ».  Auditor,  &c., 
33  Mo.  287;  Griffin   v.    Wilcox,   21  Ind. 
370 ;  Norris   v.  Doniphan,  4  Met.  (Ky.) 
385;  Terrill  v.  Rankin,  2  Bush,  453;  Wil- 
liar  v.  Baltimore,  &c.  Association,  45  Md. 
646 ;  Dunlap  v.  Toledo,  &c.  Ry.  Co.,  50 
Mich.  470, 15  N.  W.  555.     The  legislature 
cannot  interfere  witli  the  enforcement  of 
a  judgment  by  enactments  subsequent  to 
it.     Strafford   v.  Sharon,  61  Vt.  126,  17 
All.  793.     An  act  of  the  Dominion  Parlia- 
ment of  Canada,  assuming  to  authorize 
a  railroad  company  to  issue  bonds  in  sub- 
stitution for  others  previously  issued,  and 
at  a  lower  rate  of  interest,  and  declaring 
that   the   holders   should  be   deemed  to 
assent,  was  held  void,  because  opposed  to 


the  fundamental  principles  of  justice.  Geb- 
hard  v.  Railroad  Co.,  17  Blatch.  416.  An 
equitable  title  to  lands,  of  which  the  legal 
title  is  in  the  State,  is  under  the  same 
constitutional  protection  that  the  legal 
title  would  be.  Wright  v.  Hawkins,  28 
Tex.  452.  Where  an  individual  is  al- 
lowed to  recover  a  sum  as  a  penalty,  the 
right  may  be  taken  away  at  any  time  be- 
fore judgment.  Pierce  v.  Kimball,  9  Me. 
54,  23  Am.  Dec.  537 ;  Oriental  Bank  v. 
Freeze,  18  Me.  109 ;  Engle  v.  Schurtz,  1 
Mich.  150;  Confiscation  Cases,  7  Wall. 
454;  Washburn  v.  Franklin,  35  Barb. 
599;  Welch  v.  Wadsworth,  30  Conn.  149; 
O'Kelly  v.  Athens  Manuf.  Co.,  36  Ga.51  ; 
United  States  v.  Tynen,  11  Wall.  88; 
Chicago  &  Alton  R.  R.  Co.  i?.  Adler,  56 
III.  344;  Van  Inwagen  v.  Chicago,  61  III. 
31 ;  Lyon  v.  Morris,  15  Ga.  480 ;  post, 
p  547;  £but  not  after  judgment.  Dunham 
v.  Anders,  128  N.  C.  207,  38  S.  E.  832.] 
See  also  Curtis  v.  Leavitt,  17  Barb. 
309,  and  15  N.  Y.  9;  Coles  v.  Madison 
County,  Breese,  115,  12  Am.  Dec.  161 ; 
Parmelee  v.  Lawrence,  48  III.  331 ;  post, 
pp.  536,  537.  The  legislature  may  re- 
mit penalties  accruing  to  a  county.  State 
v.  Baltimore,  &c.  R.  R.  Co.,  12  Gill  &  J. 
399,  38  Am.  Dec.  317.  Whether  claims 
arising  in  tort  are  protected  against  State 
legislation  by  the  federal  Constitution, 
see  State  v.  New  Orleans,  32  La.  Ann. 
709;  Langford  v.  Fly,  7  Humph.  685; 
Parker  v.  Savage,  6  Lea,  406  ;  Griffin  v. 
Wilcox,  21  Ind.  370 ;  Johnson  v.  Jones, 
44  111.  142;  Drehman  v.  Stifel,  41  Mo. 
184;  8  Wall.  595.  See  cases  ante,  p.  411, 
note  3.  £The  rule  against  disturbing 
vested  rights  does  not  preclude  a  decla- 
ration of  a  rule  of  law  at  variance  with 
that  made  in  other  cases.  Mobile  Trans- 
portation Co.  v.  Mobile,  —  U.  S.  — ,  23 
Sup.  Ct.  Rep.  170.] 


518 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


property,  and  cannot  be  compelled  to  buy  justice,  or  to  submit  to 
conditions  not  imposed  upon  his  fellows  as  a  means  of  obtaining 
it.1  Nor  can  a  party  by  his  misconduct  so  forfeit  a*  right  that 
it  may  be  taken  from  him  without  judicial  proceedings  in  which 
the  forfeiture  shall  be  declared  in  due  form.  Forfeitures  of 
rights  and  property  cannot  be  adjudged  by  legislative  act,  and 
confiscations  without  a  judicial  hearing  after  due  notice  would  be 
void  as  not  being  due  process  of  law.2  Even  Congress,  it  has 
been  held,  has  no  power  to  protect  parties  assuming  to  act  under 
the  authority  of  the  general  government,  during  the  existence  of 
a  civil  war,  by  depriving  persons  illegally  arrested  by  them  of  all 
redress  in  the  courts.3  And  if  the  legislature  cannot  confiscate 


1  Thus,  a  person  cannot  be  precluded 
by  test    oaths    from    maintaining    suits. 
McFarland  v.  Butler,  8  Minn.  116;  ante, 
p.  410,note.     Before  attacking  a  tax  deed, 
payment  of  taxes  and  value  of  improve- 
ments  may  be   required.     Coats  v.  Hill, 
41  Ark.  149.     See  Coonradt  v.  Myers,  31 
Kan.  30,2  Pac.  858;  Lombard  v.  Antioch 
College,  60  Wis.  459,  19  N.  W.  367.     But 
free  recourse  to  the  courts  is  denied,  if  a 
deposit  of  double  the  amount  of  the  pur- 
chase-money and  all  taxes,  &c.,  is  required 
before  suit.     Lassiter  v.  Lee,  68  Ala.  287. 
See  post,  pp.  526,  527,  note. 

2  Griffin  v.  Mixon,  38  Miss.  424.     See 
next  note.     Also  Rison   v.  Far'r,  24  Ark. 
161  ;  Woodruff   v.  Scruggs,  27  Ark.  26 ; 
Hodgson  v.  Millward,  3  Grant's  Cas.  406  ; 
leek  v.  Anderson,  57   Cal.  251,  a  case  of 
forfeiting  nets  for  illegal  fishing ;  Boor- 
man  v.    Santa   Barbara,    65   Cal.   313,  4 
Pac.  31,  a  case  of  assessing  benefits  upon 
lands  for  improvements  without   notice. 
But  no  constitutional  principle  is  violated 
by  a  statute  which  allows  judgment  to  be 
entered  up  against  a  defendant  who  has 
been  served   with  process,  unless  within 
a  certain  number  of  days  he  files  an  affi- 
davit of  merits.     Hunt  v.  Lucas,  97  Mass. 
404.    Nor  by  an  ordinance  allowing  a  city, 
on  default  of  the  owner,  to  build  a  side- 
walk and  charge   the  property  with   the 
expense,  if  when    sued  on    the   tax  bill, 
he   has   his  day  in   court.     Kansas    City 
v.  Huling,  87  Mo.  203.    An  act  subjecting 
a  prisoner's  property  from  the  time  of  his 
arrest  to  a  lien  for  the  fine  and  costs,  is 
valid.     Silver  Bow  Co.  v.  Strombaugh,  9 
Mont.  81,  22  Pac.  453. 

8  Griffin   v.   Wilcox,  21  Ind.  370.    In 
this  case  the  act  of  Congress  of  March  3, 


1863,  which  provided  "  that  any  order  of 
the  President  or  under  his  authority, 
made  at  any  time  during  the  existence  of 
the  present  rebellion,  shall  be  a  defence 
in  all  courts,  to  any  action  or  prosecution, 
civil  or  criminal,  pending  or  to  be  com- 
menced, for  any  search,  seizure,  arrest,  or 
imprisonment,  made,  done,  or  committed, 
or  acts  omitted  to  be  done,  under  and  by 
virtue  of  such  order,  or  under  color  of  any 
law  of  Congress,"  was  held  to  be  uncon- 
stitutional. The  same  decision  was  made 
in  Johnson  v.  Jones,  44  111.  142.  It  was 
said  in  the  first  of  these  cases  that  "  this 
act  was  passed  to  deprive  the  citizens  of 
all  redress  for  illegal  arrests  and  imprison- 
ment ;  it  was  not  needed  as  a  protection 
for  making  such  as  are  legal,  because  the 
common  law  gives  ample  protection  for 
making  legal  arrests  and  imprisonments." 
And  it  may  be  added  that  those  acts 
which  are  justified  by  military  or  martial 
law  are  equally  legal  with  those  justified 
by  the  common  law.  So  in  Hubbard  v. 
Brainerd,  35  Conn.  563,  it  was  decided 
that  Congress  could  not  take  away  a 
vested  right  to  sue  for  and  recover  back 
an  illegal  tax  which  had  been  paid  under 
protest  to  a  collector  of  the  national  reve- 
nue. See  also  Bryan  v.  Walker,  64  N.  C. 
141.  Nor  can  the  right  to  have  a  void 
tax  sale  set  aside  be  made  conditional  on 
the  payment  of  the  illegal  tax.  Wilson 
v.  McKenna,  52  111.  43,  and  other  cases 
cited,  post,  p.  528,  note.  The  case  of  Nor- 
ris  v.  Doniphan,  4  Met.  (Ky.)  385,  may 
properly  be  cited  in  this  connection.  It 
was  there  held  that  the  act  of  Congress 
of  July  17,  1862,  "  to  suppress  insurrec- 
tion, to  punish  treason  and  rebellion,  to 
seize  and  confiscate  the  property  of 


CH.  XI.]      PROTECTION  BY  "  THE  LAW  OF  THE  LAND." 


519 


property  or  rights,  neither  can  it  authorize  individuals  to  assume 
at  their  option  powers  of  police,  which  they  may  exercise  in  the 
condemnation  and  sale  of  property  offending  against  their  regu- 
lations, or  for  the  satisfaction  of  their  charges  and  expenses  in 
its  management  and  control,  rendered  or  incurred  without  the 
consent  of  its  owners.1  And  a  statute  which  authorizes  a  party 


rebels,  and  for  other  purposes,"  in  so  far 
as  it  undertook  to  authorize  the  confisca- 
tion of  the  property  of  citizens  as  a  pun- 
ishment for  treason  and  oilier  crimes,  by 
proceedings  in  rem  in  nny  district  in  which 
the  property  might  be,  without  present- 
ment and  indictment  by  a  grand  jury, 
without  arrest  or  summons  of  the  owner, 
and  upon  such  evidence  of  his  guilt  only 
as  would  be  proof  of  any  fact  in  admi- 
ralty or  revenue  cases,  was  unconsti- 
tutional and  void,  and  therefore  that 
Congress  had  no  power  to  prohibit  the 
State  courts  from  giving  the  owners  of 
property  seized  the  relief  they  would  be 
entitled  to  under  the  State  laws.  A 
statute  which  makes  a  constitutional  right 
to  vote  depend  upon  an  impossible  con- 
dition is  void.  Davies  v.  McKeeby,  5 
Nev.  369.  See  further,  State  v.  Staten, 
6  Cold.  233 ;  Kison  v.  Farr,  24  Ark.  lb'1 ; 
Hodgson  v.  Millward,  3  Grant,  406. 
Where  no  express  power  of  removal  is 
conferred  on  the  executive,  he  cannot 
declare  an  office  forfeited  for  misbeha- 
vior; but  the  forfeiture  must  be  declared 
in  judicial  proceedings.  Page  v.  Hardin, 
8  B.  Monr.  648;  State  r.  Prichard,  36 
N.  J.  101.  The  legislature  cannot  declare 
the  forfeiture  of  an  official  salary  for  mis- 
conduct. Ex  parte  Tully,  4  Ark.  220, 
38  Am.  Dec.  33. 

1  The  log-driving  and  booming  cor- 
porations, which  were  authorized  to  be 
formed  under  a  general  law  in  Michigan, 
were  empowered,  whenever  logs  or  lum- 
ber were  put  into  navigable  streams  with- 
out adequate  force  and  means  provided 
for  preventing  obstructions, to  take  charge 
of  the  same,  and  cause  it  to  be  run,  driven, 
boomed,  &c.,  at  the  owner's  expense ;  and 
it  gave  them  a  lien  on  the  same  to  satisfy 
all  just  and  reasonable  charges,  with 
power  to  sell  the  property  for  those 
charges  and  for  the  expenses  of  sale,  on 
notice,  either  served  personally  on  the 
owner,  or  posted  as  therein  provided.  In 
Ames  v.  Port  Huron  Log-Driving  and 
Booming  Co.,  11  Mich.  139,  147,  it  was 


held  that  the  power  which  this  law  as- 
sumed to  confer  was  in  the  nature  of  a 
public  office ;  and  Campbell,  J.,  says  :  "  It 
is  difficult  to  perceive  by  what  process  a 
public  office  can  be  obtained  or  exercised 
without  either  election  or  appointment. 
The  powers  of  government  are  parcelled 
out  by  the  Constitution,  which  certainly 
contemplates  some  official  responsibility. 
Every  officer  not  expressly  exempted  is 
required  to  take  an  oath  of  office  as 
a  preliminary  to  discharging  his  duties. 
It  is  absurd  to  suppose  that  any  official 
power  can  exist  in  any  person  by  his  own 
assumption,  or  by  the  employment  ofsome 
other  private  person  ;  and  still  more  so  to 
recognize  in  such  an  assumption  a  power 
of  depriving  individuals  of  their  property. 
And  it  is  plain  that  the  exercise  of  such  a 
power  is  an  act  in  its  nature  public,  and 
not  private.  The  case,  however,  involves 
more  than  the  assumption  of  control. 
The  corporation,  or  rather  its  various 
agents,  must  of  necessity  determine  when 
the  case  arises  justifying  interference; 
and  having  assumed  possession  it  assesses 
its  own  charges ;  and  having  assessed 
them,  proceeds  to  sell  the  property  seized 
to  pay  them,  with  the  added  expense  of 
such  sale.  These  proceedings  are  all  ex 
parte,  and  are  all  proceedings  in  invitnm. 
Their  validity  must  therefore  be  deter- 
mined by  the  rules  applicable  to  such 
cases.  Except  in  those  cases  where  pro- 
ceedings to  collect  the  public  revenue 
may  stand  upon  a  peculiar  footing  of 
their  own,  it  is  an  inflexible  principle  of 
constitutional  right  that  no  person  can 
legally  be  divested  of  his  property  with- 
out remuneration,  or  against  his  will, 
unless  he  is  allowed  a  hearing  before  an 
impartial  tribunal,  where  he  may  contest 
the  claim  set  up  against  him,  and  be  al- 
lowed to  meet  it  on  the  law  and  the  facts. 
When  his  property  is  wanted  in  specie, 
for  public  purposes,  there  are  methods 
assured  to  him  whereby  its  value  can  be 
ascertained.  Where  a  debt  or  penalty  or 
forfeiture  may  be  set  up  against  him,  the 


520 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


to  seize  the  property  of  another,  without  process  or  warrant,  and 
to  sell  it  without  notification  to  the  owner,  for  the  punishment  of 
a  private  trespass,  and  in  order  to  enforce  a  penalty  against  the 
owner,  can  find  no  justification  in  the  Constitution.1 

Limitation  Laws. 

Notwithstanding  the  protection  which  the  law  gives  to  vested 
rights,  it  is  possible  for  a  party  to  debar  himself  of  the  right  to 
assert  the  same  in  the  courts,  by  his  own  negligence  or  laches. 
If  one  who  is  dispossessed  "  be  negligent  for  a  long  and  unreason- 
able time,  the  law  refuses  afterwards  to  lend  him  any  assistance 
to  recover  the  possession  merely,  both  to  punish  his  neglect  (nam 
leges  vigilantibus,  non  dormientibus  subveniunt),  and  also  because 
it  is  presumed  that  the  supposed  wrong-doer  has  in  such  a  length 
of  time  procured  a  legal  title,  otherwise  he  would  sooner  have 
been  sued."2  Statutes  of  limitation  are  passed  which  fix  upon  a 


determination  of  his  liability  becomes  a 
judicial  question  ;  and  all  judicial  func- 
tions are  required  by  the  Constitution  to 
be  exercised  by  courts  of  justice,  or  judi- 
cial officers  regularly  chosen.  He  can 
only  be  reached  through  the  forms  of  law 
upon  a  regular  hearing,  unless  he  has  by 
contract  referred  the  matter  to  another 
mode  of  determination." 

1  A  statute  of  New  York  authorized 
any  person  to  take  into  his  custody  and 
possession  any  animal  which  might  be 
trespassing  upon  his  lands,  and  give  no- 
tice of  the  seizure  to  a  justice  or  commis- 
sioner of  highways  of  the  town,  who 
should  proceed  to  sell  the  animal  after 
posting  notice.  From  the  proceeds  of  the 
sale,  the  officer  was  to  retain  his  fees,  pay 
the  person  taking  up  the  animal  fifty 
cents,  and  also  compensation  for  keeping 
it,  and  the  balance  to  the  owner,  if  lie 
should  claim  it  within  a  year.  In  Rock- 
well v.  Nearing,  35  N.  Y.  307,  308,  Porter, 
J.,  says  of  this  statute:  "The  legisla- 
ture has  no  authority  either  to  deprive 
the  citizen  of  his  property  for  other  than 
public  purposes,  or  to  authorize  its  seiz- 
ure without  process  or  warrant,  by  per- 
sons other  than  the  owner,  for  the  mere 
punishment  of  a  private  trespass.  So  far 
as  the  act  in  question  relates  to  animals 
trespassing  on  the  premises  of  the  captor, 
the  proceedings  it  authorizes  have  not 
even  the  mocking  semblance  of  due  pro- 
cess of  law.  The  seizure  may  be  pri- 


vately made ;  the  party  making  it  is 
permitted  to  conceal  the  property  on  his 
own  premises  ;  he  is  protected,  though 
the  trespass  was  due  to  his  own  conniv- 
ance or  neglect ;  he  is  permitted  to  take 
what  does  not  belong  to  him  without 
notice  to  owner,  though  that  owner  is 
near  and  known  ;  he  is  allowed  to  sell, 
through  the  intervention  of  an  officer,  and 
without  even  the  form  of  judicial  pro- 
ceedings, an  animal  in  which  he  has  no 
interest  by  way  either  of  title,  mortgage, 
pledge,  or  lien  ;  and  all  to  the  end  that 
he  may  receive  compensation  for  detain- 
ing it  without  the  consent  of  the  owner, 
and  a  fee  of  fifty  cents  for  his  services 
as  an  informer.  He  levies  without  pro- 
cess, condemns  without  proof,  and  sells 
without  execution."  And  he  distinguishes 
these  proceedings  from  those  in  distrain- 
ing cattle  damage  feasant,  which  are  al- 
ways remedial,  and  under  which  the  party 
is  authorized  to  detain  the  property  in 
pledge  for  the  payment  of  his  damages. 
See  also  opinion  by  Morgan,  J.,  in  the 
same  case,  pp.  314-317,  and  the  opinions 
of  the  several  judges  in  Wynehamer  v. 
People,  13  N.  Y.  395,  419,  434,  and  468. 
Compare  Campbell  v.  Evans,  45  N.  Y. 
356 ;  Cook  v.  Gregg,  46  N.  Y.  439 ;  Grover 
v.  Huckins,  26  Mich.  476 ;  Campau  v. 
Langley,  39  Mich.  451,  33  Am.  Rep. 
414. 

2  3  Bl.  Com.  188 ;  Broom,  Legal  Max- 
ims, 857. 


CH.  XL]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND." 


521 


reasonable  time  within  which  a  party  is  permitted  to  bring  suit 
for  the  recovery  of  his  rights,  and  which,  on  failure  to  do  so,  es- 
tablish a  legal  presumption  against  him  that  he  has  no  rights  in 
the  premises.  Such  a  statute  is  a  statute  of  repose.1  Every  gov- 
ernment is  under  obligation  to  its  citizens  to  afford  them  all  need- 
ful legal  remedies  ;2  but  it  is  not  bound  to  keep  its  courts  open 
indefinitely  for  one  who  neglects  or  refuses  to  apply  for  redress 
until  it  may  fairly  be  presumed  that  the  means  by  which  the 
other  party  might  disprove  his  claim  are  lost  in  the  lapse  of 
time.3 

When  the  period  prescribed  by  statute  has  once  run,  so  as  to 
cut  off  the  remedy  which  one  might  have  had  for  the  recovery  of 
property  in  the  possession  of  another,  the  title  to  the  property, 
irrespective  of  the  original  right,  is  regarded  in  the  law  as  vested 
in  the  possessor,  who  is  entitled  to  the  same  protection  in  respect 
to  it  which  the  owner  is  entitled  to  in  other  cases.  A  subsequent 
repeal  of  the  limitation  law  could  not  be  given  a  retroactive 
effect,  so  as  to  disturb  this  title.*  It  is  vested  as  completely  and 
perfectly,  and  is  as  safe  from  legislative  interference  as  it  would 
have  been  had  it  been  perfected  in  the  owner  by  grant,  or  by  any 
species  of  assurance.6 


1  Such  a   statute  was   formerly  con- 
strued with   strictness,  and  the  defence 
tinder  it  was  looked  upon  as  unconscion- 
able, and  not  favored ;   but  Mr.  Justice 
Story  has  well    said,  it    has   often   been 
matter  of  regret  in  modern  times  that  the 
decisions  had  not  proceeded  upon  princi- 
ples better  adopted   to  carry  into  effect 
the  real  objects  of  the  statute ;  that  in- 
stead of  being  viewed  in  an  unfavorable 
light  as  an  unjust  and  discreditable  de- 
fence, it  had  not  received  such  support  as 
would  have  made  it  what  it  was  intended 
to  be,  emphatically  a  statute  of  repose. 
It  is  a  wise  and  beneficial   law,  not  de- 
signed merely  to  raise  a  presumption  of 
payment  of  a  just  debt  from  lapse  of  time, 
but  to  afford  security  against  stale  de- 
mands after  the  true  state  of  the  trans- 
action may   have  been  forgotten,  or  be 
incapable  of  explanation  by  reason  of  the 
death  or  removal  of  witnesses.     Bell  v. 
Morrison,  1  Pet.  351,  360.     See  Leffing- 
well  v.  Warren,  2    Black,  599;    Toll   v. 
Wright,  37  Mich.  93. 

2  Call  v.  Hagger,  8  Mass.  423. 

8  Beal  v.  Nason,  14  Me.  344 ;  Bell  v. 
Morrison,  1  Pet.  351 ;  Stearns  v.  Gittings, 
23  111.  387;  State  v.  Jones,  21  Md.  432. 


See  Biddle  v.  Hooven,  120  Pa.  St.  221,  13 
All.  927. 

4  Brent  v.  Chapman,  5   Cranch,  358 ; 
Newby's  Adm'rs  v.  Blakey,  3  H.  &  M.  67  ; 
Parish  v.  Eager,  15  Wis.  532;  Bagg's  Ap- 
peal, 43  Pa.  St.  512 ;  Lefflugwell  v.  War- 
ren, 2  Black,  599;  Bicknell  v.  Comstock, 
113  U.  S.  149,  5  Sup.  Ct.  Rep.  399.     See 
cases  cited  in  next  note.     QA  statute  ex- 
tending the  time  for  filing  a  bill  of  excep- 
tions is  held  to  be  invalid  as  applied  to 
cases  in  which  judgment  was  rendered 
before  its   enactment.     Johnson  v.  Geh- 
baner,  —  Ind.  — ,  64  N.  E.  855  J 

5  Although   there   is   controversy   on 
this  point,  we  consider  the  text  fully  war- 
ranted by  the  following  cases  :   Holden  v. 
James,  11  Mass.  396;  Wright  v.  Oakley, 
6  Met.  400;  Lewis  v.  Webb,  3  Me.  326; 
Atkinson  v.  Dunlap,  50  Me.  Ill  ;  Davis 
v.  Minor,  2  Miss.  183,   28  Am.  Dec.  325; 
Hicks  v.  Steigleman,  49  Miss.  377  ;  Knox 
v.  Cleveland,  13  Wis.    245 ;    Sprecker  v. 
Wakeley,  11  Wis.  482;  Pleasants  v.  Rohrer, 
17  Wis.  577 ;  Moor  v.  Luce,  29  Pa.  St.  260  ; 
Morton    v.    Sharkey,    McCahon    (Kan.), 
113;   McKinney  v.    Springer,   8   Blackf. 
506;  Bradford  v.  Brooks,  2  Aik.  284,  16 
Am.  Dec.  715 ;  Stipp  v.  Brown,  2  Ind.  647  ; 


522 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


All  limitation  laws,  however,  must  proceed  on  the  theory  that 
the  party,  by  lapse  of  time  and  omissions  on  his  part,  has  forfeited 
his  right  to  assert  his  title  in  the  law.1  Where  they  relate  to 
property,  it  seems  not  to  be  essential  that  the  adverse  claimant 
should  be  in  actual  possession;2  but  one  who  is  himself  in  the 
legal  enjoyment  of  his  property  cannot  have  his  rights  therein 
forfeited  to  another,  for  failure  to  bring  suit  against  that  other 
within  a  time  specified  to  test  the  validity  of  a  claim  which  the 
latter  asserts,  but  takes  no  steps  to  enforce.  It  has  consequently 


Briggs  v.  Hubbard,  19  Vt.  86 ;  Wires  v. 
Farr,  25  Vt.  41 ;  Woart  v.  Winnick,  3  N. 
H.  473,  14  Am.  Dec.  384;  Roekport  v. 
Walden,  54  N.  H.  167,  20  Am.  Rep.  131 ; 
Thompson  v.  Caldwell,  3  Lit.  137  ;  Couch 
v.  McKee,  6  Ark.  495 ;  Reynolds  v.  Baker, 
6  Cold.  221 ;  Trim  v.  McPherson,  7  Cold. 
15;  Girdner  v.  Stephens,  1  Heisk.  280, 
2  Am.  Rep.  700;  Yancy  v.  Yancy,  5  Heisk. 
353,  13  Am.  Rep.  5 ;  Bradford  v.  Shine's 
Ex'rs,  13  Fla.  393,  7  Am.  Rep.  239;  Lock- 
hart  v.  Horn,  1  Woods,  628;  Horbach  v. 
Miller,  4  Neb.  31;  Pitman  v.  Bump,  5Oreg. 
17;  Thompson  v.  Read,  41  Iowa,  48  ;  Re- 
formed Church  v.  Schoolcraft,  65  N.  Y. 
134  ;  Union  Savings  Bank  v.  Taber,  13  R. 
I.  683 ;  McDuffee  v.  Sinnott,  119  111.  449, 
10  N.  E.  385.  CMcEldowney  v.  Wyatt, 
44  W.  Va.  711,  30  S.  E.  239,  45  L.  R.  A. 
609, and  note;  Bd.  of  Edu.  v.  Blodgett,  155 
111.  441,  40  N.  E.  1025,  31  L.  R.  A.  70,  46 
Am.  St.  348 ;  Lawrence  v.  Louisville,  96 
Ky.  595,  29  S.  W.  450,  27  L.  R.  A.  560, 
49  Am.  St.  309 ;  Ireland  v.  Mackintosh, 
22  Utah,  296,  61  Pac.  901.]  In  some 
cases  an  inclination  has  been  manifested 
to  distinguish  between  the  case  of  prop- 
erty adversely  possessed,  and  a  claim  not 
enforced  ;  and  while  it  is  conceded  that  the 
title  to  the  property  cannot  be  disturbed 
after  the  statute  has  run,  it  is  held  that 
the  claim,  under  new  legislation,  may  still 
be  enforced ;  the  statute  of  limitations 
pertaining  to  the  remedy  only,  and  not 
barring  the  right.  So  it  was  held  in 
Jones  v.  Jones,  18  Ala.  248,  where  the 
remedy  on  the  claim  in  dispute  had  been 
barred  by  the  statute  of  another  State 
where  the  debtor  then  resided.  [jSee 
post,  529,  note  («)•]  And  see  Bentinck  v. 
Franklin,  38  Tex.  458.  In  Campbell  v. 
Holt,  115  U.  S.  620,  6  Sup.  Ct.  Rep.  209, 
a  similar  ruling  was  made,  though  against 
vigorous  dissent.  It  was  held  that  one 
has  no  property  in  the  bar  of  the  statute 


as  a  defence  to  a  promise  to  pay  a  debt, 
and  that  such  bar  may  be  removed  by  a 
statute  in  such  case  after  it  has  become 
complete.  But  this  last-mentioned  doc- 
trine is  rejected  in  an  opinion  of  much 
force  by  Dixon,  Ch.  J.,  in  Brown  v.  Parker, 
28  Wis.  21,  28.  To  like  effect  is  Mc- 
Cracken  Co.  v.  Merc.  Trust  Co.,  84  Ky. 
344,  1  S.  W.  585.  And  see  Roekport 
v.  Walden,  54  N.  H.  167,  20  Am.  Rep.  131 ; 
McMerty  v.  Morrison,  62  Mo.  140;  Good- 
man v.  Munks,  8  Port.  (Ala.)  84  ;  Harri- 
son v.  Stacy,  6  Rob.  (La.)  15;  Baker  v. 
Stonebraker's  Adm'r,  36  Mo.  338  ;  Shelby 
v.  Guy,  11  Wheat.  361.  The  law  of  the 
forum  governs  as  to  limitations.  Barbour 
v.  Erwin,  14  Lea,  716 ;  Stirling  v.  Winter, 
80  Mo.  141.  See  Chevrier  v.  Robert,  6 
Mont.  319,  12  Pac.  702;  Thompson  v. 
Reed,  75  Me.  404.  But  the  statute  of 
limitations  may  be  suspended  for  a  period 
as  to  demands  not  already  barred.  Ward- 
law  v.  Buzzard,  15  Rich.  158 ;  Caperton  v. 
Martin,  4  W.  Va.  138,  6  Am.  Rep.  270; 
Bender  v.  Crawford,  33  Tex.  745,  7  Am. 
Rep.  270 ;  Pearsall  v.  Kenan,  79  N.  C.  472, 
28  Am.  Rep.  336.  A  class  of  cases  may 
be  excepted  from  the  operation  of  the 
statute,  though  barred  when  such  except- 
ing act  was  passed.  Sturm  v.  Fleming,  31 
W.  Va.  701,  8  S.  E.  263.  [And  see  a 
peculiar  case  in  Bates  v.  Cullum,  177  Pa. 
633,  35  All.  861,  34  L.  R.  A.  440,  55  Am. 
St.  753.]  The  legislature  may  compel  a 
county  to  pay  a  claim  barred  by'tlie  gen- 
eral statute.  Caldwell  Co.  v.  Harbert,  68 
Tex.  321,  4  S.  W.  607. 

1  Stearns  v.  Gittings,  23  111.  387,  per 
Walker,  J. ;    Sturges  r.  Crowninshield,  4 
Wheat.   122,   207,   per   Marshall,    Ch.   J. 
Pearce  v.  Patton,  7  B.  Monr.  162 ;  Griffin  v. 
Mt-Kenzie,  7  Ga.  163 ;  Colman  v.  Holmes, 
44  Ala.  124. 

2  Stearns  v  Gittings,  23  111.  387 ;  Hill 
v.  Kricke,  11  Wis.  442. 


CH.  XI.]  PROTECTION   BY  "  THE   LAW   OF   THE    LAND." 


523 


been  held  that  a  statute  which,  after  a  lapse  of  five  years,  makes  a 
recorded  deed  purporting  to  be  executed  under  a  statutory  power 
conclusive  evidence  of  a  good  title,  could  not  be  valid  as  a  lim- 
itation law  against  the  original  owner  in  possession  of  the  land. 
Limitation  laws  cannot  compel  a  resort  to  legal  proceedings  by 
one  who  is  already  in  the  complete  enjoyment  of  all  he  claims.1 

All  statutes  of  limitation,  also,  must  proceed  on  the  idea  that 
the  party  has  full  opportunity  afforded  him  to  try  his  right  in  the 
courts.  A  statute  could  not  bar  the  existing  right  of  claimants 
without  affording  this  opportunity :  if  it  should  attempt  to  do  so, 
it  would  be  not  a  statute  of  limitations,  but  an  unlawful  attempt 
to  extinguish  rights  arbitrarily,  whatever  might  be  the  purport  of 
its  provisions.  It  is  essential  that  such  statutes  allow  a  reason- 
able time  after  they  take  effect  for  the  commencement  of  suits 
upon  existing  causes  of  action  ; 2  though  what  shall  be  considered 


1  Groesbeck  v.  Seeley,  13  Mich.  329. 
In  Case  v.  Dean,  16  Mich.  12,  it  was  held 
that  this  statute  could  not  be  enforced  as 
a  limitation  law  in  favor  of  tiie  party  in 
possession,  inasmuch  as  it  did  not  pro- 
ceed on  the  idea  of  limiting  the  time  for 
bringing  suit,  but  by  a  conclusive  rule  of 
evidence  sought  to  pass  over  the  property 
to  the  claimant  under  the  statutory  sale 
in  all  cases,  irrespective  of  possession. 
See  also  Baker  v.  Kelly,  11  Minn.  480; 
Eldridge  v.  Kuehl,  27  Iowa,  160,  173; 
Monk  v.  Corbin,  58  Iowa,  503,  12  N.  W. 
671;  Farrar  v.  Clark,  85  Ind.  449;  Dingey 
v.  Paxton,  60  Miss.  1038.  The  case  of 
Leffingwell  v.  Warren,  2  Black,  599,  is 
contra.  That  case  follows  Wisconsin  de- 
cisions. In  the  leading  case  of  Hill  v. 
Kricke,  11  Wis.  442,  the  holder  of  the 
original  title  was  not  in  possession ;  and 
what  was  decided  was  that  it  was  not 
necessary  for  the  holder  of  the  tax  title 
to  be  in  possession  in  order  to  claim  the 
benefit  of  the  statute ;  ejectment  against 
a  claimant  being  permitted  by  law  when 
the  lands  were  unoccupied.  See  also 
Barrett  v.  Holmes,  102  U.  S.  651.  To 
stop  the  running  of  the  statute  it  is  not 
necessary  that  the  owner  should  be  in 
continuous  possession.  Smith  v.  Sherry, 
54  Wis.  114,  11  N.  W.  465.  This  circum- 
stance of  possession  or  want  of  posses- 
sion in  the  person  whose  right  is  to  be 
extinguished  seems  to  us  of  vital  import- 
ance. How  can  a  man  justly  be  held 
guilty  of  laches  in  not  asserting  claims 
to  property,  when  he  already  possesses 


and  enjoys  the  property  ?  The  old  maxim 
is,  "  That  which  was  originally  void  can- 
not by  mere  lapse  of  time  be  made 
valid ; "  and  if  a  void  claim  by  force  of 
an  act  of  limitation  can  ripen  into  a  con- 
clusive title  as  against  the  owner  in  pos- 
session, the  policy  underlying  that  species 
of  legislation  must  be  something  beyond 
what  has  been  generally  supposed. 

2  So  held  of  a  statute  which  took  ef- 
fect some  months  after  its  passage,  and 
which,  in  its  operation  upon  certain 
classes  of  cases,  would  have  extinguished 
adverse  claims  unless  asserted  by  suit 
before  the  act  took  effect.  Price  v.  Hop- 
kin,  13  Mich.  318.  See  also  Koshkonong 
v.  Burton,  104  U.  S.  668;  King  v.  Bel- 
cher, 30  S.  C.  381,  9  S.  E.  359 ;  People  v. 
Turner,  117  N.  Y.  227,  22  N.  E.  1022; 
Call  v.  Hagger,  8  Mass.  423;  Proprietors, 
&c.  v.  Laboree,  2  Me.  294 ;  Society,  &c. 
v.  Wheeler,  2  Gall.  141;  Blackford  v. 
Peltier,  1  Blackf .  36 ;  Thornton  v.  Turner, 
11  Minn.  336;  State  v.  Messenger,  27 
Minn.  119, 6  N.  W.  457  ;  Osborn  v.  Jaines, 
17  Wis.  573  ;  Morton  v.  Sharkey,  McCa- 
hon  (Kan.),  113;  Berry  v.  Ransdell,  4 
Met.  (Ky.)  292;  Ludwig  v.  Stewart,  32 
Mich.  27  ;  Hart  v.  Bostwick,  14  Fla.  162. 
In  the  case  last  cited  it  was  held  that  a 
statute  which  only  allowed  thirty  days 
in  which  to  bring  action  on  an  existing 
demand  was  unreasonable  and  void.  And 
see  what  is  said  in  Auld  v  Butcher,  2 
Kan.  135.  Compare  Davidson  v.  Law- 
rence, 49  Ga.  335;  Kimbro  i>.  Bank  of 
Fulton,  49  Ga.  419.  In  Terry  v.  Ander- 


524 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


a  reasonable  time  must  be  settled  by  the  judgment  of  the  legisla- 
ture, and  the  courts  will  not  inquire  into  the  wisdom  of  its  deci- 
sion in  establishing  the  period  of  legal  bar,  unless  the  time 
allowed  is  manifestly  so  insufficient  that  the  statute  becomes  a 
denial  of  justice.1 

Alterations  in  the  Rules  of  Evidence. 

It  must  also  be  evident  that  a  right  to  have  one's  controversies 
determined  by  existing  rules  of  evidence  is  not  a  vested  right.  These 
rules  pertain  to  the  remedies  which  the  State  provides  for  its  citi- 


son,  95  U.  S.  628,  a  statute  which  as 
to  the  demand  sued  upon  limited  the 
time  to  ten  and  a  half  months  was  held 
not  unreasonable.  In  Krone  v.  Krone, 
37  Mich.  308,  the  limitation  which  was 
supported  was  to  one  year  where  the 
general  law  gave  six.  In  Pereless  v. 
Watertown,  6  Biss.  79,  Judge  Hopkins, 
U.  S.  District  Judge,  decided  that  a  limi- 
tation of  one  year  for  bringing  suits  on  mu- 
nicipal securities  of  a  class  generally  sold 
abroad  was  unreasonable  and  void.  But 
a  statute  giving  a  new  remedy  against  a 
railroad  company  for  an  injury,  may 
limit  to  a  short  time,  e.  g.  six  months,  the 
time  for  bringing  suit.  O'Bannon  v.  Louis- 
ville, &c.  R.  R.  Co.,  8  Bush,  348.  So  the 
remedy  by  suit  against  stockholders  for 
corporate  debts,  it  is  held,  may  be  lim- 
ited to  one  year.  Adamson  v.  Davis,  47 
Mo.  268.  QSix  months  is  not  an  unrea- 
sonably short  time  to  which  to  limit  the 
assertion  of  all  then  existing  claims  to 
lands  hitherto  sold  for  non-payment  of 
taxes.  Turner  v.  New  York,  168  U.  S. 
90,  18  Sup.  Ct.  Rep.  38.  Nine  months 
is  not  an  unreasonably  short  time  to  al- 
low for  bringing  suit  upon  a  judgment 
rendered  nearly  twelve  years  before. 
Osborne  v.  Lindstrom,  9  N.  D.  1,  81 
N.  W.  72,  46  L.  R.  A.  715.  That  statute 
must  expressly  provide  a  reasonable  time 
to  be  open,  after  it  goes  into  effect,  and 
not  merely  after  it  is  enacted,  see  Gilbert 
v.  Ackerman,  159  N.  Y.  118,  53  N.-  E. 
753,  45  L.  R.  A.  118 ;  contra,  Osborne  w. 
Lindstrom,  above.]  It  is  always  com- 
petent to  extend  the  time  for  bringing 
suit  before  it  has  expired.  Keith  v.  Keith, 
26  Kan.  27.  fJLawton  v.  Waite,  103 
Wis.244,  79  N.  W.  321,  45  L.  R.  A.  616.] 
A  statute  fixing  a  time  for  taking  out  a 
sheriff's  deed  after  sale  applies  to  a  prior 


sale  if  a  reasonable  time  is  left.  Ryhiner 
v.  Frank,  105  111.  326. 

2  Stearns  v.  Gittings,  23  111.  389  ;  Call 
v.  Hagger,  8  Mass.  423;  Smith  v.  Mor- 
rison, 22  Pick.  430 ;  Price  v.  Hopkin,  13 
Mich.  318 ;  De  Moss  v.  Newton,  31  Ind. 
219.  [^Wheeler  v.  Jackson,  137  U.  S. 
245,  11  Sup.  Ct.  Rep.  76,  and  note  in  34 
L.  ed.  U.  S.  659.3  But  see  Berry  v. 
Ransdell,  4  Met.  (Ky.)  292. 

It  may  be  remarked  here,  that  statutes 
of  limitation  do  not  apply  to  the  State 
unless  they  so  provide  expressly.  Gibson 
v.  Choteau,  13  Wall.  92 ;  State  v.  Piland, 
81  Mo.  519 ;  State  v.  School  Dist.,  34  Kan. 
237,  8  Pac.  208.  [Nor  is  the  defence  of 
laches  or  stale  claim  good  as  against  a 
State  or  the  United  States.  United  States 
v.  Dalles  Military  Road  Co.,  140  U.  S. 
699,  11  Sup.  Ct.  Rep.  988.  But  a  cred- 
itor of  the  State  cannot  take  advantage 
of  the  State's  exemption  where  he  seeks 
to  subject  debts  due  the  State  to  the 
satisfaction  of  his  claim  by  means  of 
garnishment  proceedings.  Cressey  v. 
Meyer,  138  U.  S.  525,  11  Sup.  Ct.  Rep. 
387.]  And  State  limitation  laws  do  not 
apply  to  the  United  States.  United 
States  v.  Hoar,  2  Mas.  311;  People  v. 
Gilbert,  18  Johns.  227  ;  Rabb  v.  Super- 
visors, 62  Miss.  589 ;  United  States  v. 
Nashville,  &c.  Ry.  Co.,  118  U.  S.  120, 
6  Sup.  Ct.  Rep.  1006.  [Although  the 
United  States  may  take  advantage  of 
them.  Stanley  v.  Schwalhy,  147  U.  S. 
608,  13  Sup.  Ct.  Rep.  418.]  Nor  to  suits 
for  the  infringement  of  patents.  May  v. 
Logan  Co.,  30  Fed.  Rep.  250.  And  it 
lias  been  held  that  the  right  to  maintain 
a  public  nuisance  cannot  be  acquired 
under  the  statute.  State  v.  Franklin 
Falls  Co.,  49  N.  H.  240. 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LA.ND."        525 

zens ;  and  generally  in  legal  contemplation  they  neither  enter  into 
and  constitute  a  part  of  any  contract,  nor  can  be  regarded  as  being 
of  the  essence  of  any  right  which  a  party  may  seek  to  enforce. 
Like  other  rules  affecting  the  remedy,  they  must  therefore  at  all 
times  be  subject  to  modification  and  control  by  the  legislature;1 
and  the  changes  which  are  enacted  may  lawfully  be  made  appli- 
cable to  existing  causes  of  action,  even  in  those  States  in  which 
retrospective  laws  are  forbidden.  For  the  law  as  changed  would 
only  prescribe  rules  for  presenting  the  evidence  in  legal  contro- 
versies in  the  future  ;  and  it  could  not  therefore  be  called  retro- 
spective even  though  some  of  the  controversies  upon  which  it 
may  act  were  in  progress  before.  It  has  accordingly  been  held 
in  New  Hampshire  that  a  statute  which  removed  the  disqualifica- 
tion of  interest,  and  allowed  parties  in  suits  to  testify,  might  law- 
fully apply  to  existing  causes  of  action.2  So  may  a  statute  which 
modifies  the  common-law  rule  excluding  parol  evidence  to  vary 
the  terms  of  a  written  contract ; 3  and  a  statute  making  the  pro- 
test of  a  promissory  note  evidence  of  the  facts  therein  stated.4 
These  and  the  like  cases  will  sufficiently  illustrate  the  general 
rule,  that  the  whole  subject  is  under  the  control  of  the  legislature, 
which  prescribes  such  rules  for  the  trial  and  determination  as  well 
of  existing  as  of  future  rights  and  controversies  as  in  its  judgment 
will  most  completely  subserve  the  ends  of  justice.5 

A  strong  instance  in  illustration  of  legislative  control  over  evi- 
dence will  be  found  in  the  laws  of  some  of  the  States  in  regard  to 
conveyances  of  lands  upon  sales  to  satisfy  delinquent  taxes.  In- 
dependent of  special  statutory  rule  on  the  subject,  such  convey- 
ances would  not  be  evidence  of  title.  They  are  executed  under  a 
statutory  power ;  and  it  devolves  upon  the  claimant  under  them 
to  show  that  the  successive  steps  which  under  the  statute  lead  to 
such  conveyance  have  been  taken.  But  it  cannot  be  doubted  that 
this  rule  may  be  so  changed  as  to  make  a  tax-deed  prima  facie  evi- 

1  Kendall   v.  Kingston,  5  Mass.  524  ;  v.   Southwick,  49  N.  Y.  610.     And  see 
Ogden  v.  Saunders,  12  Wheat.  213,  349 ;  Cowan  v.  McCutchen,  43  Miss.  207  ;  Car- 
per Marshall,   Ch.    J. ;    Fales   v.   Wads-  others  v.  Hurly,  41  Miss.  71.     The  right 
worth,  23  Me.  653;  Karney  v.  Paisley,  to  testify   existing   when   a   contract  is 
13  Iowa,  89 ;  Commonwealth  v.  Williams,  made  may  be  taken  away.     Goodlett  v. 
6  Gray.  1 ;  Hickox  v.  Tallman,  38  Barb.  Kelly,  74  Ala.  213. 

608;  Webb  v.  Den,  17  How.  576;    Pratt          8  Gibbs  v.  Gale,  7  Md.  76. 
v.  Jones,  25  Vt.  303.     [[Pennsylvania  Co.          *  Fales  v.  Wadsworth,  23  Me.  553. 
v.  McCann,  64  Ohio  St.  10,  42  N.  E.  768,          6  Per  Marshall,   Ch.   J.,  in  Ogden   v. 

31  L.  R.  A.  651.]     See  ante,  p.  400,  and  Saunders,  12  Wheat.  213,  249;  Webb  v. 

note.  Den,  17  How.  676  ;  Delaplaine  v.  Cook,  7 

2  Rich  v.  Flanders,  39  N.  H.  304.     A  Wis.  44 ;  Kendall  v.  Kingston,  6  Mass, 
very  full  and  satisfactory  examination  of  624  ;  Towler  v,  Chatterton,  6  Bing.  268 ; 
the  whole  subject  will  be  found  in  this  Himmelman  v.  Carpentier,  47  Cal.  42. 
case.    To  the  same  effect  is  Southwick 


526  CONSTITUTIONAL  LIMITATIONS.  [CTI.  XI. 

dence  that  all  the  proceedings  have  been  regular,  and  that  the  pur- 
chaser has  acquired  under  them  a  complete  title.1  The  burden  of 
proof  is  thereby  changed  from  one  party  to  the  other;  the  legal 
presumption  which  the  statute  creates  in  favor  of  the  purchaser 
being  sufficient,  in  connection  with  the  deed,  to  establish  his  case, 
unless  it  is  overcome  by  countervailing  testimony.  Statutes  mak- 
ing defective  records  evidence  of  valid  conveyances  are  of  a  simi- 
lar nature  ;  and  these  usually,  perhaps  always,  have  reference  to 
records  before  made,  and  provide  for  making  them  competent  evi- 
dence where  before  they  were  merely  void.2  But  they  divest  no 
title,  and  are  not  even  retrospective  in  character.  They  merely 
establish  what  the  legislature  regards  as  a  reasonable  and  just 
rule  for  the  presentation  by  the  parties  of  their  rights  before  the 
courts  in  the  future. 

But  there  are  fixed  bounds  to  the  power  of  the  legislature  over 
this  subject  which  cannot  be  exceeded.  As  to  what  shall  be  evi- 
dence, and  which  party  shall  assume  the  burden  of  proof  in  civil 
cases,  (a)  its  authority  is  practically  unrestricted,  so  long  as  its 
regulations  are  impartial  and  uniform  ;  but  it  has  no  power  to  es- 
tablish rules  which,  under  pretence  of  regulating  the  presentation 
of  evidence,  go  so  far  as  altogether  to  preclude  a  party  from  exhibit- 
ing his  rights.  Except  in  those  cases  which  fall  within  the  famil- 
iar doctrine  of  estoppel  at  the  common  law,  or  other  cases  resting 
upon  the  like  reasons,  it  would  not,  we  apprehend,  be  in  the  power 
of  the  legislature  to  declare  that  a  particular  item  of  evidence 
should  preclude  a  party  from  establishing  his  rights  in  opposition 
to  it.  In  judicial  investigations  the  law  of  the  land  requires  an 
opportunity  for  a  trial ; 8  and  there  can  be  no  trial  if  only  one 
party  is  suffered  to  produce  his  proofs.  The  most  formal  convey- 
ance may  be  a  fraud  or  a  forgery  ;  public  officers  may  connive  with 
rogues  to  rob  the  citizen  of  his  property ;  witnesses  may  testify  or 
officers  certify  falsely,  and  records  may  be  collusively  manufac- 
tured for  dishonest  purposes ;  and  that  legislation  which  would 

1  Hand  v.  Ballou,  12  N.  Y.  541 ;  Forbes  rule  once  established  may  be  abolished, 

v.  Halsey,  26  N.Y.  63;  Delaplainer.  Cook,  even  as  to  existing  deeds.      Hickox   v. 

1  Wis.  44  ;  Allen  v.  Armstrong,  16  Iowa,  Tallman,  38  Barb.  608  ;  Strode  v.  Washer, 

608  ;  Adams  v.  Beale,  19  Iowa,  61 ;    Am-  17  Oraff.  50, 16  Pac.  920  ;  Gage  v.  Caraher, 

berg  v.  Rogers,  9  Mich.  332  ;  Lumsden  v.  125  111!  447,  17  N.  E.  777. 
Cross,  10  Wis.  282  ;    Lacey  v.  Davis,   4         2  See  .Webb  v.  Den,  17  How.  576. 
Mich.  140;  Wright  v.  Dunliam,  13  Mich.          8  Tift  v.  Griffin,  5  Ga.  185;  Lenz  v. 

414  ;  Abbott  v.  Lindenbower,  42  Mo.  162,  Charlton,  23  Wis.  478;  Conway  v.  Cable, 

46  Mo.  291.      QMarx  v.    Hanthorn,  148  37  111.  82 ;  ante,  p.  523,  note ;  post,  pp. 

U.  S.  172,  18  Sup.  Ct.  Rep.  608.]    The  579-685,  and  notes. 

(a)  £And  in  criminal  cases  the  doing  of  a  certain  act  may  be  made  prima:facie 
evidence  of  criminal  intent.  Meadowcroft  v.  People,  163  111.  66,  45  N.  E.  303,  35 
L.  R.  A.  176,  54  Am.  St.  447.] 


CH.  XI.]  PROTECTION   BY   "  THE    LAW   OF   THE   LAND." 


527 


preclude  the  fraud  or  wrong  being  shown,  and  deprive  the  party 
wronged  of  all  remedy,  has  no  justification  in  the  principles  of 
natural  justice  or  of  constitutional  law.  A  statute,  therefore, 
which  should  make  a  tax-deed  conclusive  evidence  of  a  complete 
title,  and  preclude  the  owner  of  the  original  title  from  showing  its 
invalidity,  would  he  void,  because  being  not  a  law  regulating  evi- 
dence, but  an  unconstitutional  confiscation  of  property.1  And  a 
statute  which  should  make  the  certificate  or  opinion  of  an  officer 
conclusive  evidence  of  the  illegality  of  an  existing  contract  would 
be  equally  nugatory  ; 2  though  perhaps  if  parties  should  enter  into 


1  Groesbeck  v.  Seeley,  13  Mich.  329 ; 
Case  v.  Dean,  16  Mich.  12;  White  ». 
Flynn,  23  Ind.  46  ;  Corbin  v.  Hill,  21  Iowa, 
70;  Abbott  v.  Lindenbower,  42  Mo.  162, 
46  Mo.  291 ;  Dingey  v.  Paxton,  60  Miss. 
1038.  ([Wilson  v.  Wood,  10  Okla.  279,  61 
Pac.  1045.]  And  see  the  well-reasoned 
case  of  McCready  v.  Sexton,  29  Iowa, 
356;  Little  Rock,  &c.  R.  R.  Co.  v.  Payne, 
33  Ark.  816,  34  Am.  Rep.  55.  Also  Wright 
».  Cradlebaugh,  3  Nev.  341.  As  to  how 
far  the  legislature  may  make  the  tax- 
deed  conclusive  evidence  that  mere  ir- 
regularities have  not  intervened  in  the 
proceedings,  see  Smith  v.  Cleveland,  17 
Wis.  556;  Allen  v.  Armstrong,  10  Iowa, 
608.  It  may  be  conclusive  as  to  matters 
not  essential  and  jurisdictional.  Matter 
of  Lake,  40  La.  Ann.  142,  3  So.  479; 
Ensign  v.  Barse,  107  N.  Y.  329,  14  N.  E. 
400,  15  N.  E.  401.  Undoubtedly  the  leg- 
islature may  dispense  with  mere  matters 
of  form  in  the  proceedings  as  well  after 
they  have  taken  place  as  before ;  but 
this  is  quite  a  different  thing  from  mak- 
ing tax-deeds  conclusive  on  points  mate- 
rial to  the  interest  of  the  property  owner. 
See  further,  Wantlan  v.  White,  19  Ind. 
470;  People  v.  Mitchell,  45  Barb.  212; 
McCready  v.  Sexton,  supra.  It  is  not 
competent  for  the  legislature  to  compel 
an  owner  of  land  to  redeem  it  from  a  void 
tax  sale  as  a  condition  on  which  he  shall 
be  allowed  to  assert  his  title  against  it. 
Conway  v.  Cable,  37  111.  82;  Hart  v.  Hen- 
derson, 17  Mich.  218  ;  Wilson  t>.  McKenna, 
62  111.  43 ;  Reed  v.  Tyler,  66  III.  288  ;  Dean 
t;.  Borchsenius,  30  Wis.  236.  But  it  seems 
that  if  the  tax  purchaser  has  paid  taxes 
and  made  improvements,  the  payment  for 
these  may  be  made  a  condition  precedent 
to  a  suit  in  ejectment  against  him.  Pope 
v.  Macon,  23  Ark.  644.  See  cases  ante. 


618,  note  1.  In  Wright  v.  Cradlebaugh, 
3  Nev.  341,  349,  Beatty,  C.  J.,  says: 
"  We  apprehend  that  it  is  beyond  the 
power  of  the  legislature  to  restrain  a 
defendant  in  any  suit  from  setting  up  a 
good  defence  to  an  action  against  him. 
The  legislature  could  not  directly  take 
the  property  of  A.  to  pay  the  taxes  of  B. 
Neither  can  it  indirectly  do  so  by  depriv- 
ing A.  of  the  right  of  setting  up  in  his 
answer  that  his  separate  property  has 
been  jointly  assessed  with  that  of  B.,  and 
asserting  his  right  to  pay  his  own  taxes 
without  being  encumbered  with  those  of 
B.  .  .  .  Due  process  of  law  not  only 
requires  that  a  party  shall  be  properly 
brought  into  court,  but  that  he  shall 
have  the  opportunity  when  in  court  to 
establish  any  fact  which,  according  to 
the  usages  of  the  common  law  or  the  pro- 
visions of  the  constitution,  would  be  a 
protection  to  him  or  his  property."  See 
Taylor  v.  Miles,  6  Kan.  498,  7  Am.  Rep. 
658.  ^Certificate  of  a  public  weigh-mas- 
ter  cannot  be  made  conclusive.  Vega 
Steamship  Co.  v.  Cons.  Elevator  Co.,  75 
Minn.  308,  77  N.  W.  973,  43  L.  R.  A. 
843.] 

2  Young  v.  Beardsley,  11  Paige,  93. 
See  also  Howard  Co.  v.  State,  120  Ind. 
282,  22  N.  E.  255.  But  a  provision  that 
six  months  after  the  passage  of  the  act 
certain  tax-deeds  made  on  past  sales 
should  be  conclusive  evidence,  has  been 
upheld.  People  r.  Turner,  117  N.  Y.  227, 
22  N.  E.  1022.  An  act  to  authorize  per- 
sons whose  sheep  are  killed  by  dogs,  to 
present  their  claim  to  the  selectmen  of 
the  town  for  allowance  and  payment  by 
the  town,  and  giving  the  town  after  pay- 
ment an  action  against  the  owner  of  the 
dog  for  the  amount  so  paid,  is  void,  aa 
taking  away  trial  by  jury,  and  as  author- 


528  CONSTITUTIONAL  LIMITATIONS.  [CH.  XI. 

a  contract  in  view  of  such  a  statute  then  existing,  its  provisions 
might  properly  be  regarded  as  assented  to  and  incorporated  in 
their  contract,  and  therefore  binding  upon  them.1 

Retrospective  Laws,  (a) 

Regarding  the  circumstances  under  which  a  man  may  be  said 
to  have  a  vested  right  to  a  defence  against  a  demand  made  by  an- 
other, it  is  somewhat  difficult  to  lay  down  a  comprehensive  rule 
which  the  authorities  will  justify.  It  is  certain  that  he  who  has 
satisfied  a  demand  cannot  have  it  revived  against  him,  and  he  who 
has  become  released  from  a  demand  by  the  operation  of  the  statute 
of  limitations  is  equally  protected.2  In  both  cases  the  demand  is 
gone,  and  to  restore  it  would  be  to  create  a  new  contract  for  the 
parties,  —  a  thing  quite  beyond  the  power  of  legislation.3  So  he 
who  was  never  bound,  either  legally  or  equitably,  cannot  have  a 
demand  created  against  him  by  mere  legislative  enactment.*  But 
there  are  many  cases  in  which,  by  existing  laws,  defences  based 
upon  mere  informalities  are  allowed  in  suits  upon  contracts,  or 
in  respect  to  legal  proceedings,  in  some  of  which  a  regard  to  sub- 
stantial justice  would  warrant  the  legislature  in  interfering  to 
take  away  the  defence  if  it  possesses  the  power  to  do  so. 

izing  the  selectmen  to  pass  upon  one's  accident  occurring  to  the  cars,  &c.,  irre- 

rights  without  giving  him  an  opportunity  spective  of  any  wrong  or  negligence  of 

to  be  heard.     East  Kingston  v.  Towle,  48  the  company  or  its  servants.     Ohio  &  M. 

N.  H.  67,  2  Am.  Rep.  174.  R.  R.  Co.  v.  Lackey,  78  111.  55.     Absolute 

1  See  post,  p.  581,  note.  liability,  irrespective  of  negligence,  can- 

2  Ante,  p.  621,  note,  and  cases  cited.  not  be  imposed  on  a  railroad  company  for 
8  Albertson  v.  Landon,  42  Conn.  209.  stock  killing.     Cateril  v.  Union  Pac.  Ry. 
<  In  Medford  v.  Learned,  16  Mass.  215,  Co.,  2  Idaho,  540,  21  Pac.  416,  Bielenberg 

it  was  held  that  where  a  pauper  had  re-  v.  Montana  N.  Ry.  Co.,  8  Mont.  271,  20 
ceived  support  from  the  parish,  to  which  Pac.  314.  In  Atchison,  &c.  R.  R.  Co.  v. 
by  law  he  was  entitled,  a  subsequent  Baty,  6  Neb.  37,  29  Am.  Rep  356,  it  is 
legislative  act  could  not  make  him  liable  held  incompetent  to  make  a  railroad  corn- 
by  suit  to  refund  the  cost  of  the  support,  pany  liable  to  double  the  value  of  stock 
This  case  was  approved  and  followed  in  accidentally  injured  or  destroyed  on  the 
People  v.  Supervisors  of  Columbia,  43  railroad  track.  But  the  contrary  was 
N.  Y.  130.  See  ante,  p.  618,  and  note;  held  in  Missouri  Pac.  Ry.  Co.  v.  Humes, 
Towle  v.  Eastern  R.  R.,  18  N.  H.  547.  A  115  U.  S.  512,  6  Sup.  Ct.  Rep.  110.  In 
right  of  action  may  not  be  given  against  such  cases  attorney's  fees  may  be  allowed. 
a  husband  to  a  creditor  of  the  wife  upon  Peoria,  D.  &  E.  Ry.  Co  v.  Duggan,  109 
her  contract.  Addoms  v.  Marx,  60  N.  J.  L.  111.  637.  But  see  Wilder  v.  Chicago  & 
253,  12  Atl.  909.  A  railroad  company  W.  M.  Ry.  Co.,  70  Mich.  382,  38  N.  W. 
cannot  be  made  responsible  for  the  cor-  289.  See  cases  on  above  points,  pout,  841, 
oner's  inquest  and  burial  of  persons  dying  note  1. 
on  the  cars,  or  killed  by  collision  or  other 

(a)  FJUpon  retroactive  laws,  vested  rights,  &c.,  see  note  to  41  L.  cd.  94.  An  inheri- 
tance-tax law,  void  for  lack  of  provision  for  notice,  may  be  corrected  in  this  regard, 
and  is  then  applicable  to  property  not  yet  distributed,  although  the  testator  died 
before  the  law  was  amended.  Ferry  v.  Campbell,  110  Iowa,  290,  81  N.  W.  604,  50 
L.  R.  A.  92.] 


CH.  XI.]  PROTECTION   BY   "THE   LAW   OF  THE   LAND."  529 

In  regard  to  these  cases,  we  think  investigation  of  the  authori- 
ties will  show  that  a  party  has  no  vested  right  in  a  defence  based 
upon  an  informality  not  affecting  his  substantial  equities,  (a)  And 
this  brings  us  to  a  particular  examination  of  a  class  of  statutes 
which  is  constantly  coming  under  the  consideration  of  the  courts, 
and  which  are  known  as  retrospective  laws,  by  reason  of  their 
reaching  back  to  and  giving  to  a  previous  transaction  some  differ- 
ent legal  effect  from  that  which  it  had  under  the  law  when  it  took 
place. 

There  are  numerous  cases  which  hold  that  retrospective  laws 
are  not  obnoxious  to  constitutional  objection,  while  in  others  they 
have  been  held  to  be  void.  The  different  decisions  have  been 
based  upon  diversities  in  the  facts  which  make  different  princi- 
ples applicable.  There  is  no  doubt  of  the  right  of  the  legislature 
to  pass  statutes  which  reach  back  to  and  change  or  modify  the 
effect  of  prior  transactions,  provided  retrospective  laws  are  not 
forbidden,  eo  nomine,  by  the  State  constitution,  and  provided 
further  that  no  other  objection  exists  to  them  than  their  ret- 
rospective character.1  Nevertheless,  legislation  of  this  charac- 
ter is  exceedingly  liable  to  abuse  ;  and  it  is  a  sound  rule  of 
construction  that  a  statute  should  have  a  prospective  operation 
only,  unless  its  terms  show  clearly  a  legislative  intention  that  it 
should  operate  retrospectively.2  And  some  of  the  States  have 

1  Thornton  v.  McGrath,  1  Duvall,  349 ;  32  Me.  333 ;  Atkinson  v.  Dunlop,  60  Me. 
Aldridge  v.  Railroad  Co.,  2  Stew.  &  Port.  Ill;  Rogers  v.  Greenbush,  58  Me.  395; 
199,  23  Am.  Dec.  307;  State  v.  Squires,  Guard  v.  Rowan,  3  111.  499;  Garrett  v. 
26  Iowa,  340;  Beach  v.  Walker,  6  Conn.  Doe,  2  111.  335;  Thompson  v.  Alexander, 
190;  Schenley  v.  Commonwealth,  36  Pa.  11  111.  54;  Conway  v.  Cable,  37  111.  82; 
St.  57;  Shonk  v.  Brown,  61  Pa.  St.  320;  In  re  Tuller,  79  111.  99;  Knight  v.  Begole, 
Lane  v.  Nelson,  79  Pa.  St.  407.     [Miller  66  111.   122;    McHaney   v.    Trustees    of 
v.  Hixson,  64  Ohio,  39,  59  N.  E.  749.]  Schools,  68  111.  140;  Hatcher  v.  Toledo, 

2  Dash  v.  Van  Kleeck,  7  Johns.  477 ;  &c.  R.  R.  Co.,  62  111.  477 ;  Harrison  v. 
6   Am.   Dec.   291;   Sayre   v.   Wisner,  8  Metz,  17  Mich.  377;  Thomas  v.  Collins, 
Wend.  661;  Watkins  v.  Haight,  18  Johns.  68  Mich.  64,  24  N.  W.  553;  Danville  v. 
138 ;  Bay  v.  Gage,  36  Barb.  447 ;  Norris  v.  Pace,  25  Gratt.  1 ;  Cumberland,  &c.  R.  R. 
Beyea,  13  N.  Y.  273 ;  Drake  v.  Gilmore,  Co.  v.  Washington  Co.  Court,  10  Bush, 
62  N.  Y.  389;  Quackenbush  v.  Danks,  1  664;  State  v.  Barbee,  3  Ind.  258;  State 
Denio,   128;   Hapgood  v.  Whitman,    13  v.   Atwood,   11    Wis.   422;    Bartruff    v. 
Mass.  464;  Medford  v.  Learned,  16  Mass.  Remey,  15  Iowa,  257  ;  Knoulton  v.  Reden- 
215;   Gerry  v.   Stoneham,  1  Allen,  319;  baugh,  40  Iowa,  114;    Allbyer  v.  State, 
Kelley  v.  Boston,  &c.  R.  R.  Co.,  135  Mass.  10  Ohio    St.  588;    Colony  v.  Dublin,   32 
448 ;  Perkins  v.  Perkins,  7  Conn.  558,  18  N.  H.  432 ;  Ex  parte  Graham,  13  Rich. 
Am.   Dec.    120;    Plumb  v.   Sawyer,    21  277;  Garrett  v.  Beaumont,  24  Miss.  377  { 
Conn.    351;    Hubbard    o.    Brainerd,    35  Clark   v.  Baltimore,   29   Md.    277;    Wil- 
Conn.  563;  Sturgis  v.  Hull,  48  Vt.  302;  liams  v.  Johnson,  30   Md.  500;   State  v. 
Brings  v.  Hubbard,  19  Vt.  86;  Hastings  The  Auditor,   41   Mo.  25;   State  v.  Fer- 
v.  Lane,  15  Me.  134 ;  Torrey  v.  Corliss,  guson,  62   Mo.   77 ;   Merwin   v.   Ballard, 

(«)  [Danforth  v.  Groton  Water  Co.,  178  Mass.  472,  59  N.  E.  1033,  85  Am.  St.  495. 
See  D unbar  v.  Boston,  &  P.  Ry.  Co.,  181  Mass.  383,  63  N.  E.  916  J 

34 


530 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


deemed  it  just  and  wise  to  forbid  such  laws  altogether  by  their 
constitutions.1 

A  retrospective  statute  curing  defects  in  legal  proceedings 
where  they  are  in  their  nature  irregularities  only,  and  do  not 
extend  to  matters  of  jurisdiction,  is  not  void  on  constitutional 
grounds,  unless  expressly  forbidden.  Of  this  class  are  the  stat- 
utes to  cure  irregularities  in  the  assessment  of  property  for 
taxation  and  the  levy  of  taxes  thereon;2  irregularities  in  the 


66  N.  C.  398 ;  Tyson  v.  School  Directors, 
51  Pa.  St.  9;  Haley  v.  Philadelphia,  68 
Pa.  St.  45,  8  Am.  Ren.  158;  Baldwin 
v.  Newark,  38  N.  J.  158 ;  Warshung  v. 
Hunt,  47  N.  J.  L.  256;  McGeehan  v. 
State  Treasurer,  37  La.  Ann.  156 ;  State 
v.  Pinckney,  22  S.  C.  484;  Richmond 
v.  Supervisors,  83  Va.  204,  2  S.  E.  26. 
This  doctrine  applies  to  amendments  of 
statutes.  Ely  v.  Holton,  15  N.  Y.  595.  If 
no  vested  right  is  disturbed,  a  retroactive 
effect  may  be  given  a  statute,  though  the 
language  does  not  render  it  necessary, 
provided  such  is  the  clear  intent.  People 
v.  Spicer,  99  N.  Y.  225,  1  N.  E.  680. 

1  See  the  provision  in  the  Constitution 
of  New  Hampshire,  considered  in  Woart 
t;.  Winniek",  3  N.  H.  473, 14  Am.  Dec.  384; 
Clark  v.  Clark,  10  N.  H.  380;  Willard  v. 
Harvey,  24  N.  H.  344;  Rich  v.  Flanders, 
39  N.  H.  304;  and  Simpson  v.  Savings 
Bank,  56  N.  H.  466;  and  that  in  the  Con- 
stitution of  Texas,  in  De  Cordova  v.  Gal- 
veston,  4  Tex.  470;  and  that  in  the  Con- 
stitution of  Missouri,  in  State  v.  Hernan, 
70  Mo.  441 ;  StaTe  v.  Greer,  78  Mo.  188. 
The  provision  covers  only  civil,  not 
criminal  cases.  State  v.  Johnson,  81  Mo. 
60.  A  statute,  passed  after  a  munici- 
pality has  levied  a  tax,  may  annul  it  be- 
fore it  becomes  due  and  put  the  right  to 
levy  it  in  another  body.  State  v.  St. 
Louis,  &c.  Ry.  Co.,  79  Mo.  420.  The 
Constitution  of  Ohio  provides  that  "  the 
General  Assembly  shall  have  no  power  to 
pass  retroactive  laws,  or  laws  impairing 
the  obligation  of  contracts;  provided, 
however,  that  the  General  Assembly 
may,  by  general  laws,  authorize  the 
courts  to  carry  into  effect  the  manifest 
intention  of  parties  and  officers,  by  cur- 
ing omissions,  defects,  and  errors  in  in- 
struments and  proceedings,  arising  out 
of  their  want  of  conformity  with  the 
laws  of  this  State,  and  upon  such  terms 
as  shall  be  just  and  equitable."  Under 


this  clause  it  was  held  competent  for 
the  General  Assembly  to  pass  an  act 
authorizing  the  courts  to  correct  mistakes 
in  deeds  of  married  women  previously 
executed,  whereby  they  were  rendered 
ineffectual.  Goshorn  v.  Purcell,  11  Ohio 
St.  641.  An  act  for  the  payment  of 
bounties  for  past  services  was  held  not 
retrospective,  in  State  v.  Richland,  20 
Ohio  St.  369.  QAn  act  "for  refunding 
taxes  erroneously  paid  "  is  bad  as  applied  to 
past  transactions.  Hamilton  Co.  Comm'rs 
v.  Rasche,  60  Ohio  St.  103,  33  N.  E.  408, 
19  L.  R.  A.  584-3  Under  a  provision  in 
the  Constitution  of  Tennessee  that  no 
retrospective  law  shall  be  passed,  it  has 
been  held  that  a  statute  passed  after  a 
death  cannot  allow  for  the  first  time  a 
recovery  for  the  loss  suffered  by  the 
children  of  deceased  from  the  death. 
Railroad  v.  Pounds,  11  Lea,  127.  But  a 
law  authorizing  a  bill  to  be  filed  by 
slaves,  by  their  next  friend,  to  emancipate 
them,  although  it  applied  to  cases  which 
arose  before  its  passage,  was  held  not  a 
retrospective  law  within  the  meaning  of 
this  clause.  Fisher's  Negroes  r.  Dobbs,  6 
Yerg.  119.  So  of  a  law  making  a  judg- 
ment against  the  principal  conclusive 
upon  the  surety.  Pickett  v.  Boyd,  11 
Lea,  498.  See  further,  Society  v.  Wheeler, 
2  Gall.  105 ;  Officer  v.  Young,  5  Yerg.  320, 
26  Am.  Dec.  268.  Under  like  provision 
in  the  Colorado  Constitution  a  statute  is 
void  which  allows  a  writ  of  error  on  a  ( 
judgment  in  respect  to  which  an  appeal 
was  barred.  Willoughby  v.  George,  6 
Col.  80.  Legislation  may  be  ordered  to 
take  immediate  effect  notwithstanding 
retrospective  laws  are  forbidden.  Thomas 
v.  Scott,  23  La.  Ann.  689. 

That  the  legislature  cannot  retrospec- 
tively construe  statutes  and  bind  parties 
thereby,  see  ante.,  p.  134  et  seq. 

2  Butler  v.  Toledo,  5  Ohio  St.  225; 
Strauch  v.  Shoemaker,  1  W.  &  S.  166; 


CH.  XI.]  PROTECTION   BY  "  THE   LAW  OF  THE   LAND." 


531 


organization  or  elections  of  corporations ; l  irregularities  in  the  , 
votes  or  other  action  by  municipal  corporations,  or  the  like,  where 
a  statutory  power  has  failed  of  due  and  regular  execution  through 
the  carelessness  of  officers,  or  other  cause;2  irregular  proceed- 
ings in  court,  <fcc.3 

The  rule  applicable  to  cases  of  this  description  is  substantially 
the  following :  If  the  thing  wanting  or  which  failed  to  be  done, 
and  which  constitutes  the  defect  in  the  proceedings,  is  something 
the  necessity  for  which  the  legislature  might  have  dispensed  with 
by  prior  statute,  then  it  is  not  beyond  the  power  of  the  legislature 
to  dispense  with  it  by  subsequent  statute.  And  if  the  irregularity 
consists  in  doing  some  act,  or  in  the  mode  or  manner  of  doing 
some  act,  which  the  legislature  might  have  made  immaterial  by 
prior  law,  it  is  equally  competent  to  make  the  same  immaterial 
by  a  subsequent  law.  (a) 


McCoy  v.  Michew,  7  W.  &  S.  386 ;  Mont- 
gomery v.  Meredith,  17  Pa.  St.  42;  Dun- 
den  v.  Snodgrass,  18  Pa.  St.  151 ;  Willis- 
ton  v.  Colkett,  9  Pa.  St.  38  ;  Boardman  v. 
Beckwith,  18  Iowa,  292;  The  Iowa  R.  R. 
Land  Co.  v.  Soper,  39  Iowa,  112;  Lennon 
v.  New  York,  55  N.  Y.  361;  Smith  v. 
Hard,  59  Vt.  13,  8  Atl.  317.  Officers 
may  be  authorized  to  extend  inquiries 
over  years  preceding;  no  new  liability 
is  imposed  upon  the  taxpayer.  Sturges 
v.  Carter,  114  U.  S.  511,  5  Sup.  Ct.  Rep. 
1014.  It  is  not  unconstitutional  to  pro- 
hibit the  vacating  of  assessments  for  ir- 
regularities. Astor  v.  New  York,  62  N.  Y. 
580.  The  limit  of  power  in  validating 
assessments  is  very  clearly  shown  by  Mc- 
Kinstry,  J.,  in  People  v.  Lynch,  51  Cal. 
15.  And  see  Walter  r.  Bacon,  8  Mass. 
468;  Locke  r.  Dane,  9  Mass.  360 ;  Patter- 
son v.  Philbrook,  9  Mass.  151 ;  Trustees 
v.  McCaughy,  2  Ohio  St.  152.  Compare 
Forster  v.  Forster,  129  Mass.  559.  Acts 
of  officers  void  for  jurisdictional  defects 
cannot  be  validated.  Houseman  v.  Kent 
Circ.  Judge,  58  Mich.  364,  25  N.  W.  36'J ; 
Bartlett  v.  Wilson,  59  Vt.  23,  8  Atl.  321. 
Nor  can  irregularities  be  cured  after  a 
suit  is  brought  to  recover  money  re- 
ceived by  a  township  on  a  sale  of  land 
for  an  illegal  tax.  Darnells  v.  Water- 
town,  61  Mich.  514,  28  N.  W.  673.  The 
right  to  provide  for  a  reassessment  of 
taxes  irregularly  levied  is  undoubted. 


See  Brevoort  v.  Detroit,  24  Mich.  322; 
State  v.  Newark,  34  N.  J.  236 ;  Mussel- 
man  v.  Logansport,  29  Ind.  533;  Street 
Railroad  Co.  v.  Morrow,  87  Tenn.  406, 
11  S.  W.  348;  Redwood  Co.  v.  Winona, 
&c.  Co.,  40  Minn.  512,  41  N.  W.  465.  But, 
of  course,  if  the  vice  is  in  the  nature  of  the 
tax  itself,  it  will  continue  and  be  fatal, 
however  often  the  process  of  assessment 
may  be  repeated.  See  post,  p.  545. 

1  Syracuse  Bank  v.  Davis,   16   Barb. 
188;  Mitchell  v.  Deeds,  49  111.  416;  Peo- 
ple v.  Plank  Road  Co.,  86  N.  Y.  1. 

2  See  Menges  v.  Wertman,  1  Pa.  St, 
218;   Yost's   Report,    17    Pa.    St.    524; 
Bennett  v.  Fisher,  26  Iowa,  497  ;  Allen 
v.  Archer,  49  Me.  346;   Commonwealth 
v.   Marshall,   09  Pa.   St.   328;    State   v. 
Union,  33  N.  J.  350 ;  State  v.  Guttenberg, 
38  N.  J.  419;  Mut.  Ben.  Life  Ins.  Co.  v. 
Elizabeth,  42  N.  J.  235;  Rogers  v.  Ste- 
phens, 86  N.  Y.  623 ;  Unity  v.  Burrage,  103 
U.  S.  447.     By  the  Constitution  of  Mis- 
souri, the  legislature  is  forbidden  to  legal- 
ize the  unauthorized  or  invalid  acts  of 
any  officer  or  agent  of  the  State,  or  of 
any  country  or  municipality.   Art.  4,  §  53. 

8  Lane  v.  Nelson,  79  Pa.  St.  407 ;  Til- 
ton  r.  Swift,  40  Iowa,  78 ;  Supervisors  v. 
Wisconsin  Cent.  R.  R.  Co.,  121  Mass.  460; 
Cookerly  v.  Duncan,  87  Ind.  332;  Muncie 
Nat.  Bank  v.  Miller,  91  Ind.  441 ;  Johnson, 
v.  Corn'rs  Wells  Co.,  107  Ind.  15,  8  N.  E. 
1.  See  cases  post,  546,  note  2. 


(a)  QBut  this  rule  must  be  applied  with  discretion;  e.g  ,  the  legislature  could  not 
provide,  after  a  sale  had  been  made  under  notice  not  sufficiently  long  to  satisfy  the 


532  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

A  few  of  the  decided  cases  will  illustrate  this  principle.  In 
Kearney  v.  Taylor l  a  sale  of  real  estate  belonging  to  infant 
tenants  in  common  had  been  made  by  order  of  court  in  a  parti- 
tion suit,  and  the  land  bid  off  by  a  company  of  persons,  who 
proposed  subdividing  and  selling  it  in  parcels.  The  sale  was 
confirmed  in  their  names,  but  by  mutual  arrangement  the  deed 
was  made  to  one  only,  for  convenience  in  selling  and  conveying. 
This  deed  failed  to  convey  the  title,  because  not  following  the 
sale.  The  legislature  afterwards  passed  an  act  providing  that,  on 
proof  being  made  to  the  satisfaction  of  the  court  or  jury  before 
which  such  deed  was  offered  in  evidence  that  the  land  was  sold 
fairly  and  without  fraud,  and  the  deed  executed  in  good  faith  and 
for  a  sufficient  consideration,  and  with  the  consent  of  the  persons 
reported  as  purchasers,  the  deed  should  have  the  same  effect  as 
though  it  had  been  made  to  the  purchasers.  That  this  act  was 
unobjectionable  in  principle  was  not  denied;  and  it  cannot  be 
doubted  that  a  prior  statute,  authorizing  the  deed  to  be  made  to 
one  for  the  benefit  of  all  and  with  their  assent,  would  have  been 
open  to  no  valid  objection.2 

In  certain  Connecticut  cases  it  was  insisted  that  sales  made  of 
real  estate  on  execution  were  void,  because  the  officer  had  in- 
cluded in  the  amount  due,  several  small  items  of  fees  not  allowed 
by  law.  It  appeared,  however,  that,  after  the  sales  were  made, 
the  legislature  had  passed  an  act  providing  that  no  levy  should  be 
deemed  void  by  reason  of  the  officer  having  included  greater  fees 
than  were  by  law  allowable,  but  that  all  such  levies,  not  in  other 
respects  defective,  should  be  valid  and  effectual  to  transmit  the 
title  of  the  real  estate  levied  upon.  The  liability  of  the  officer 

1  15  How.  494.   And  see  Boyce  v.  Sin-  sales   by  guardians   and   executors.     In 
clair,  3  Bush,  261 ;   Weed  v.   Donovan,  many  of  the  States  general  laws  will  be 
114  Mass.  181.  found  providing  that  sucli  sales  shall  not 

2  See  Davis  v.  State  Bank,  7  Ind.  316  ;  be  defeated  by  certain  specified  defects 
and  Lucas  v.  Tucker,  17  Ind.  41,  for  de-  and  irregularities. 

cisions   under  statutes   curing  irregular 

statute  then  in  existence,  that  the  shorter  notice  should  be  sufficient,  though  it  might 
originally  have  made  the  shorter  period  sufficient.  See  Finlayson  v.  Peterson,  5 
N.  D.  587,  67  N.  W.  953,  33  L.  R.  A.  532,  57  Am.  St.  584  ;  also  Lowe  v.  Harris,  112  N.  C. 
472,  17  S.  E.  539,  22  L.  R.  A.  379,  and  note.  Nor  can  the  legislature  supersede  the 
necessity  for  allowing  a  party  a  hearing  before  decreeing  a  sale  of  his  property. 
Roclie  v.  Waters,  72  Md.  264,  19  Atl.  535,  7  L.  R.  A.  533.  While  the  legislature 
may  validate  a  levy  of  taxes  void  for  some  irregularity,  as  insufficient  notice,  &c.,  it 
cannot  validate  n  sale  and  tax  deed  based  upon  such  void  levy.  Dever  v.  Cornwell, 
10  N.  D.  123,  86  N.  W.  227.  Where  an  election  was  void  for  lack  of  authority  to 
hold  it,  the  legislature  cannot  subsequently  empower  a  board  of  education  to  borrow 
money  with  the  assent  of  two-thirds  of  the  voters  voting  at  an  election,  and  declare 
the  preceding  election  sufficient,  although  that  precise  proposition  was  the  one  sub- 
mitted. Berkley  v.  Bd.  of  Education,  22  Ky.  638,  58  S.  W.  506.] 


CH.  XI.]  PROTECTION   BY   "THE   LAW   OF   THE  LAND."  533 

for  receiving  more  than  his  legal  fees  was  at  the  same  time  left 
unaffected.  In  the  leading  case  the  court  say :  "  The  law,  un- 
doubtedly, is  retrospective;  but  is  it  unjust?  All  the  charges  of 
the  officer  on  the  execution  in  question  are  perfectly  reasonable, 
and  for  necessary  services  in  the  performance  of  his  duty ;  of 
consequence  they  are  eminently  just,  and  so  is  the  act  confirming 
the  levies.  A  law,  although  it  be  retrospective,  if  conformable  to 
entire  justice,  this  court  has  repeatedly  decided  is  to  be  recog- 
nized and  enforced."1 

In  another  Connecticut  case  it  appeared  that  certain  marriages 
had  been  celebrated  by  persons  in  the  ministry  who  were  not 
empowered  by  the  State  law  to  perform  that  ceremony,  and  that 
the  marriages  were  therefore  invalid.  The  legislature  had  after- 
wards passed  an  act  declaring  all  such  marriages  valid,  and  the 
court  sustained  the  act.  It  was  assailed  as  an  exercise  of  the 
judicial  power;  but  this  it  clearly  was  not,  as  it  purported  to 
settle  no  controversies,  and  merely  sought  to  give  effect  to  the 
desire  of  the  parties,  which  they  had  ineffectually  attempted  to 
carry  out  by  means  of  the  ceremony  which  proved  insufficient. 
And  while  it  was  not  claimed  that  the  act  was  void  in  so  far  as 
it  made  effectual  the  legal  relation  of  matrimony  between  the 
parties,  it  was  nevertheless  insisted  that  rights  of  property  depend- 
ent upon  that  relation  could  not  be  affected  by  it,  inasmuch  as, 
in  order  to  give  such  rights,  it  must  operate  retrospectively.  The 
court  in  disposing  of  the  case  are  understood  to  express  the 
opinion  that,  if  the  legislature  possesses  the  power  to  validate  an 
imperfect  marriage,  still  more  clearly  does  it  have  power  to  affect 
incidental  rights.  "  The  man  and  the  woman  were  unmarried, 
notwithstanding  the  formal  ceremony  which  passed  between  them, 
and  free  in  point  of  law  to  live  in  celibacy,  or  contract  marriage 
with  any  other  persons  at  pleasure.  It  is  a  strong  exercise  of 
power  to  compel  two  persons  to  marry  without  their  consent,  and 
a  palpable  perversion  of  strict  legal  right.  At  the  same  time  the 
retrospective  law  thus  far  directly  operating  on  vested  rights  is 
admitted  to  be  unquestionably  valid,  because  it  is  manifestly 
just." 2 

i  Beach  v.  Walker,  6  Conn.  190,  197.  432;  Selsby  v.  Redlon,  19  Wis.  17;  Par- 
See  Booth  v.  Booth,  7  Conn.  350;  Mather  melee  v.  Lawrence,  48  111.  331.  £A  stat- 
v.  Chapman,  6  Conn.  64  ;  Norton  v.  Pet-  ute  giving  a  bona  fide  occupant  of  lands 
tibone,  7  Conn.  319 ;  Welch  v.  Wads-  the  right  to  allowance  for  the  value  of 
worth,  30  Conn.  149 ;  Smith  v.  Mer-  improvements  made  on  the  lands  is  valid 
chand's  Ex'rs,  7  S.  &  R.  260;  Underwood  as  to  improvements  made  before  the 
v.  Lilly,  10  S.  &  R.  97  ;  Bleakney  v.  Bank  enactment  of  the  statute.  So  held  in  Lay 
of  Greencastle,  17  S.  &  R.  64;  Menges  v.  v.  Sheppard,  112  Ga.  Ill,  37  S.  E.  132.] 
Wertman,  1  Pa.  St.  218  ;  Weister  v.  Hade,  2  Goshen  v.  Stonington,  4  Conn.  209, 
62  Pa.  St.  474;  Ahl  v.  Gleim,  62  Pa.  St.  221, 10  Am.  Dec.l21,perZTosmer,  J.  And 


534  CONSTITUTIONAL  LIMITATIONS.  [CH.  XL 

It  is  not  to  be  inferred  from  this  language  that  the  court  un- 
derstood the  legislature  to  possess  power  to  select  individual 
members  of  the  community,  and  force  them  into  a  relation  of 
marriage  with  each  other  against  their  will.  That  complete  con- 
trol which  the  legislature  is  supposed  to  possess  over  the  domestic 
relations  can  hardly  extend  so  far.  The  legislature  may  perhaps 
divorce  parties,  with  or  without  cause,  according  to  its  own  view 
of  justice  or  public  policy  ;  but  for  the  legislature  to  marry  parties 
against  their  consent,  we  conceive  to  be  decidedly  against  "  the 
law  of  the  land."  The  learned  court  must  be  understood  as 
speaking  here  with  exclusive  reference  to  the  case  at  bar,  in 
which  the  legislature,  by  the  retrospective  act,  were  merely  re- 
moving a  formal  defect  in  certain  marriages  which  the  parties 
had  assented  to,  and  which  they  had  attempted  to  form.  Such 
an  act,  unless  special  circumstances  conspired  to  make  it  other- 
wise, would  certainly  be  "  manifestly  just,"  and  therefore  might 
well  be  held  "  unquestionably  valid."  And  if  the  marriage  was 
rendered  valid,  the  legal  incidents  would  follow  of  course.  In  a 
Pennsylvania  case  the  validity  of  certain  grading  and  paving  as- 
sessments was  involved,  and  it  was  argued  that  they  were  invalid 
for  the  reason  that  the  city  ordinance  under  which  they  had  been 
made  was  inoperative,  because  not  recorded  as  required  by  law. 
But  the  legislature  had  passed  an  act  to  validate  this  ordinance, 
and  had  declared  therein  that  the  omission  to  record  the  ordi- 
nance should  not  affect  or  impair  the  lien  of  the  assessments 
against  the  lot  owners.  In  passing  upon  the  validity  of  this  act, 
the  court  express  the  following  views  :  "  Whenever  there  is  a 
right,  though  imperfect,  the  constitution  does  not  prohibit  the 
legislature  from  giving  a  remedy.  In  Hepburn  v.  Curts,1  it  was 
said,  '  The  legislature,  provided  it  does  not  violate  the  constitu- 
tional provisions,  may  pass  retrospective  laws,  such  as  in  their 
operation  may  affect  suits  pending,  and  give  to  a  party  a  remedy 
which  he  did  not  previously  possess,  or  modify  an  existing  remedy, 
or  remove  an  impediment  in  the  way  of  legal  proceedings.'  What 
more  has  been  done  in  this  case  ?  .  .  .  While  (the  ordinance) 
was  in  force,  contracts  to  do  the  work  were  made  in  pursuance  of 
it,  and  the  liability  of  the  city  was  incurred.  But  it  was  suffered 

see  State  v.  Adams,  65  N.  C.  537,  where  ture  may  legitimize  children,  see  Andrews 

it  was  held  that  the  act  validating  the  v.  Page,  3   Heisk.   653.     The  power  to 

previous  marriages  of  slaves  was  effectual,  validate  void  marriages  held  not  to  exist 

and  a  subsequent  marriage  in  disregard  in  the  legislature  where,  by  the  constitu- 

of  it  would  be  bigamy.     The  legislature  tion,  the  whole  subject  was  referred  to 

may  remove  after  a  marriage  a  disability  the  courts.     White  v.  White,  105  Mass, 

created  by  its  former  action.     Baity  v.  325. 
Cranfll,  91  N.  C.  293.    That  the  legisla-         l  1  Watts,  300. 


CH.  XI.]  PROTECTION   BY   "  THE   LAW   OF   THE   LAND."  535 

to  become  of  no  effect  by  the  failure  to  record  it.  Notwithstand- 
ing this,  the  grading  and  paving  were  done,  and  the  lots  of  the 
defendants  received  the  benefit  at  the  public  expense.  Now  can 
the  omission  to  record  the  ordinance  diminish  the  equitable  right 
of  the  public  to  reimbursement  ?  It  is  at  most  but  a  formal  de- 
fect in  the  remedy  provided,  —  an  oversight.  That  such  defects 
may  be  cured  by  retroactive  legislation  need  not  be  argued."  1 

On  the  same  principle  legislative  acts  validating  invalid  con- 
tracts have  been  sustained.  When  these  acts  go  no  farther  than 
to  bind  a  party  by  a  contract  which  he  has  attempted  to  enter 
into,  but  which  was  invalid  by  reason  of  some  personal  inability 
on  his  part  to  make  it,  or  through  neglect  of  some  legal  formality, 
or  in  consequence  of  some  ingredient  in  the  contract  forbidden  by 
law,  the  question  which  they  suggest  is  one  of*  policy,  and  not  of 
constitutional  power,  (a) 

By  statute  of  Ohio,  all  bonds,  notes,  bills,  or  contracts  nego- 
tiable or  payable  at  any  unauthorized  bank,  or  made  for  the  pur- 
pose of  being  discounted  at  any  such  bank,  were  declared  to  be 
void.  While  this  statute  was  in  force  a  note  was  made  for  the 
purpose  of  being  discounted  at  one  of  these  institutions,  and  was 
actually  discounted  by  it.  Afterwards  the  legislature  passed  an 
act,  reciting  that  many  persons  were  indebted  to  such  bank,  by 
bonds,  bills,  notes,  <fec.,  and  that  owing,  among  other  things,  to 
doubts  of  its  right  to  recover  its  debts,  it  was  unable  to  meet  its 
own  obligations,  and  had  ceased  business,  and  for  the  purpose  of 
winding  up  its  affairs  had  made  an  assignment  to  a  trustee ; 
therefore  the  said  act  authorized  the  said  trustee  to  bring  suits 
on  the  said  bonds,  bills,  notes,  &c.,  and  declared  it  should  not  be 
lawful  for  the  defendants  in  such  suits  "  to  plead,  set  up,  or  insist 
upon,  in  defence,  that  the  notes,  bonds,  bills,  or  other  written 
evidences  of  such  indebtedness  are  void  on  account  of  being  con- 
tracts against  or  in  violation  of  any  statute  law  of  this  State,  or 
on  account  of  their  being  contrary  to  public  policy."  This  law 
was  sustained  as  a  law  "that  contracts  may  be  enforced,"  and  as 
in  furtherance  of  equity  and  good  morals.2  The  original  invalid- 

1  Schenley  v.  Commonwealth,  36  Pa.  ratify  and  confirm  an  illegally  appointed 
St.  29,  67.  See  also  State  v.  Newark,  '2.1  corporate  body  that  it  has  to  create  a 
N.  J.  185  ;  Den  v.  Downam,  13  N.  J.  135;  new  one.  Mitchell  v.  Deeds,  49  III.  416. 
Peoples  Seymour,  16  Cal.  332;  Grim  v.  2  Lewis  v.  McElvain,  1G  Ohio.  347. 
Weissenburg  School  District,  67  Pa.  But  where  an  act  is  forbidden  by  statute 
St.  433 ;  State  v.  Union,  33  N.  J.  350.  under  penalty,  and  therefore  illegal,  the 
The  legislature  has  the  same  power  to  mere  repeal  of  the  statute  will  not  legal- 
fa)  gutter  v.  Franklin,  172  U.  S.  416,  19  Sup.  Ct.  Rep.  183.  See  also  Erskine  v. 
Nelson  Co.,  4  N.  D.  66,  68  N.  \V.  348,  27  L.  R.  A.  696,  and  note ;  Shields  v.  Cliftoa 
H.  Land  Co.,  94  Tenn.  123,  28  S.  W.  668,  26  L.  R\  A.  609,  45  Am.  St.  700Q 


536  CONSTITUTIONAL  LIMITATIONS.  [CH.  XI. 

ity  was  only  because  of  the  statute,  and  that  statute  was  founded 
upon  reasons  of  public  policy  which  had  either  ceased  to  be  of 
force,  or  which  the  legislature  regarded  as  overborne  by  counter- 
vailing reasons.  Under  these  circumstances  it  was  reasonable 
and  just  that  the  makers  of  such  paper  should  be  precluded  from 
relying  upon  such  invalidity.1 

By  a  statute  of  Connecticut,  where  loans  of  money  were  made, 
and  a  bonus  was  paid  by  the  borrower  over  and  beyond  the  inter- 
est and  bonus  permitted  by  law,  the  demand  was  subject  to  a  de- 
duction from  the  principal  of  all  the  interest  and  bonus  paid.  A 
construction  appears  to  have  been  put  upon  this  statute  by  busi- 
ness men  which  was  different  from  that  afterwards  given  by  the 
courts ;  and  a  large  number  of  contracts  of  loan  were  in  conse- 
quence subject  to  the  deduction.  The  legislature  then  passed  a 
"  healing  act,"  which  provided  that  such  loans  theretofore  made 
should  not  be  held,  by  reason  of  the  taking  of  such  bonus,  to  be 
usurious,  illegal,  or  in  any  respect  void ;  but  that,  if  otherwise 
legal,  they  were  thereby  confirmed,  and  declared  to  be  valid,  as 
to  principal,  interest,  and  bonus.  The  case  of  Goshen  v.  Storiing- 
ton2  was  regarded  as  sufficient  authority  in  support  of  this  act; 
and  the  principle  to  be  derived  from  that  case  was  stated  to  be 
"  that  where  a  statute  is  expressly  retroactive,  and  the  object  and 

ize  it.  Roby  v.  West,  4  N.  H.  285,  17  unauthorized  bankers  they  were  violators 
Am.  Dec.  423.  of  the  law,  and  objects  not  of  protection 
1  Trustees  v.  McCaughy,  2  Ohio  St.  but  of  punishment.  The  repealing  act 
152  ;  Johnson  v.  Bentley,  16  Ohio,  97.  was  a  statutory  pardon  of  the  crime  corn- 
See  also  Syracuse  Bank  v.  Davis,  16  mitted  by  the  receivers  of  this  illegal  me- 
Barb.  188.  By  statute,  notes  issued  by  dium.  Might  not  the  legislature  pardon 
unincorporated  banking  associations  were  the  crime,  without  consulting  those  who 
declared  void.  This  statute  was  after-  committed  it?  .  .  .  How  can  the  defend- 
wards  repealed,  and  action  was  brought  ants  say  there  was  no  contract,  when  the 
against  bankers  on  notes  previously  is-  plaintiff  produces  their  written  engage- 
eued.  Objection  being  taken  that  the  ment  for  the  performance  of  a  duty, 
legislature  could  not  validate  the  void  binding  in  conscience  if  not  in  law  ?  Al- 
contracts,  the  judge  says:  "I  will  con-  though  the  contract,  for  reasons  of  policy, 
aider  this  case  on  the  broad  ground  of  was  so  far  void  that  an  action  could  not 
the  contract  having  been  void  when  be  sustained  on  it,  yet  a  moral  obligation 
made,  and  of  no  new  contract  having  to  perform  it,  whenever  those  reasons 
arisen  since  the  repealing  act.  But  by  ceased,  remained ;  and  it  would  be  going 
rendering  the  contract  void  it  was  not  an-  very  far  to  say  that  the  legislature  may 
nihilated.  The  object  of  the  [original]  not  add  a  legal  sanction  to  that  obliga- 
act  was  not  to  vest  any  right  in  any  un-  tion,  on  account  of  some  fancied  consti- 
lawful  banking  association,  but  directly  tutional  restriction."  Hess  v.  Werts,  4 
the  reverse.  The  motive  was  not  to  S.  &  11.  356,  361.  See  also  Bleakney  v. 
create  a  privilege,  or  shield  them  from  Bank  of  Greencastle,  17  S.  &  R.  64; 
the  payment  of  their  just  debts,  but  to  Menges  v.  Wertman,  1  Pa.  St.  218;  Boyce 
restrain  them  from  violating  the  law  by  v.  Sinclair,  3  Bush,  264. 
destroying  the  credit  of  their  paper,  and  2  4  Conn.  209,  224,  10  Am.  Dec.  121. 
punishing  those  who  received  it.  How  See  ante,  pp.  532-534. 
then  can  the  defendants  complain  ?  As 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        537 

effect  of  it  is  to  correct  an  innocent  mistake,  remedy  a  mischief, 
execute  the  intention  of  the  parties,  and  promote  justice,  then, 
both  as  a  matter  of  right  and  of  public  policy  affecting  the  peace 
and  welfare  of  the  community,  the  law  should  be  sustained."  l 

After  the  courts  of  the  State  of  Pennsylvania  had  decided  that 
the  relation  of  landlord  and  tenant  could  not  exist  in  that  State 
under  a  Connecticut  title,  a  statute  was  passed  which  provided 
that  the  relation  of  landlord  and  tenant  "  shall  exist  and  be  held 
as  fully  and  effectually  between  Connecticut  settlers  and  Penn- 
sylvania claimants  as  between  other  citizens  of  this  Common- 
wealth, on  the  trial  of  any  case  now  pending  or  hereafter  to  be 
brought  within  this  Commonwealth,  any  law  or  usage  to  the  con- 
trary notwithstanding."  In  a  suit  which  was  pending  and  had 
been  once  tried  before  the  statute  was  passed,  the  statute  was 
sustained  by  the  Supreme  Court  of  that  State,  and  afterwards  by 
the  Supreme  Court  of  the  United  States,  into  which  last-men- 
tioned court  it  had  been  removed  on  the  allegation  that  it  vio- 
lated the  obligation  of  contracts.  As  its  purpose  and  effect  was 
to  remove  from  contracts  which  the  parties  had  made  a  legal  im- 
pediment to  their  enforcement,  there  would  seem  to  be  no  doubt, 
in  the  light  of  the  other  authorities  we  have  referred  to,  that  the 
conclusion  reached  was  the  only  just  and  proper  one.2 

In  the  State  of  Ohio,  certain  deeds  made  by  married  women 
were  ineffectual  for  the  purposes  of  record  and  evidence,  by 
reason  of  the  omission  on  the  part  of  the  officer  taking  the  ac- 
knowledgment to  state  in  his  certificate  that,  before  and  at  the 
time  of  the  grantor  making  the  acknowledgment,  he  made  the 
contents  known  to  her  by  reading  or  otherwise.  An  act  was 
afterwards  passed  which  provided  that  "  any  deed  heretofore  exe- 

1  Savings  Bank  v.  Allen,  28  Conn.  97,  but  it  discusses  the  point  but  little,  and 
102.  See  also  Savings  Bank  v.  Bates,  8  makes  no  reference  to  these  cases.  The 
Conn.  605;  Andrews  v.  Russell,  7  Blackf.  legislature  may  impose  interest  at  an 
474;  Grimes  v.  Doe,  8  Blackf.  371;  increased  rate  on  a  debt  past  due,  when 
Thompson  v.  Morgan,  6  Minn.  292;  Par-  the  act  takes  effect.  Cummings  r.  How- 
melee  v.  Lawrence,  48  111.  331.  In  Curtis  ard,  63  Gal.  603.  ^Building  and  loan 
v.  Leavitt,  17  Barb.  309,  and  15  N.  Y.  9,  associations  may  be  exempted  from  the 
and  in  Woodruff  v.  Scruggs,  27  Ark.  26,  operation  of  usury  laws.  Iowa  Savings 
11  Am.  Rep.  777,  a  statute  forbidding  &  L.  Assn.  v.  Heidt,  107  Iowa,  297,  77 
the  interposition  of  the  defence  of  usury  N.  W.  1050,  43  L.  R.  A.  689,  70  Am.  St. 
was  treated  as  a  statute  repealing  a  197.] 

penalty.     See  further,  Lewis  v.  Foster,          2  Satterlee  r.  Mathewson,  16  S.  &  R. 

1  N.  H.  61 ;  Wilson  v.  Hardesty,  1  Md.  169,  and  2  Pet.  380.     And  see  Watson  v. 

Ch.  66  ;  Welch  v.  Wadsworth,  30  Conn.  Mercer,  8  Pet.  88 ;  Gross  v.  U.S.  Mtge.  Co., 

149;   Wood    v.   Kennedy,    19   Ind.   68;  108  U.  S.  477,  2  Sup.  Ct.  Rep.  940;  Lessee 

Washburn   v.   Franklin,  85   Barb.   699;  of  Dulany  v.  Tilghman,  6  G.  &  J.  461; 

Parmelee  v.  Lawrence,  48  111.  331;  Dan-  Payne  v.  Treadwell,  16  Cal.  220;  Maxey 

ville  v.  Pace,  25  Gratt.  1.    The  case  of  v.  Wise,  26  Ind.  1. 
Gilliland  v.  Phillips,  1  S.  C.  152,  is  contra; 


538 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


cuted  pursuant  to  law,  by  husband  and  wife,  shall  be  received  in 
evidence  in  any  of  the  courts  of  this  State,  as  conveying  the  es- 
tate of  the  wife,  although  the  magistrate  taking  the  acknowledg- 
ment of  such  deed  shall  not  have  certified  that  he  read  or  made 
known  the  contents  of  such  deed  before  or  at  the  time  she  ac- 
knowledged the  execution  thereof."  This  statute,  though  with 
some  hesitation  at  first,  was  held  to  be  unobjectionable.  The 
deeds  with  the  defective  acknowledgments  were  regarded  by  the 
legislature  and  by  the  court  as  being  sufficient  for  the  purpose  of 
conveying  at  least  the  grantor's  equitable  estate ;  and  if  sufficient 
for  this  purpose,  no  vested  rights  would  be  disturbed,  or  wrong 
be  done,  by  making  them  receivable  in  evidence  as  conveyances.1 
Other  cases  go  much  farther  than  this,  and  hold  that,  although 
the  deed  was  originally  ineffectual  for  the  purpose  of  conveying 
the  title,  the  healing  statute  may  accomplish  the  intent  of  the 
parties  by  giving  it  effect.2  At  first  sight  these  cases  may  seem 


1  Chestnut  v.  Shane's  Lessee,  16  Ohio, 
699,  overruling  Connell  v.  Connell,  6 
Ohio,  358 ;  Good  c  Zercher,  12  Ohio,  364  ; 
Meddock  v.  Williams,  12  Ohio,  377 ;  and 
Silliman  v.  Cummins,  13  Ohio,  116.  Of 
the  dissenting  opinion  in  the  last  case, 
which  the  court  approve  in  16  Ohio,  609- 
610,  they  say :  "  That  opinion  stands 
upon  the  ground  that  the  act  operates 
only  upon  that  class  of  deeds  where 
enough  had  been  done  to  show  that  a 
court  of  chancery  ought,  in  eacli  case,  to 
render  a  decree  for  a  conveyance,  assum- 
ing that  the  certificate  was  not  such  as 
the  law  required.  And  where  the  title 
in  equity  was  such  that  a  court  of  chan- 
cery ought  to  interfere  and  decree  a  good 
legal  title,  it  was  within  the  power  of  the 
legislature  to  confirm  the  deed,  without 
subjecting  an  indefinite  number  to  the 
useless  expense  of  unnec  essary  litigation." 
See  also  Lessee  of  Dulany  v.  Tilghman, 
6  G.  &  J.  461;  Journeay  v.  Gibson,  56 
Pa.  St.  67 ;  Grove  v.  Todd,  41  Md.  633, 
20  Am.  Rep.  76  ;  Montgomery  v.  Hobson, 
Meigs,  437.  QMay  validate  a  defective 
acknowledgment.  Summer  v.  Mitchell, 

29  Fla.  179,  10  So.  662,  14  L.  R.  A.  815, 

30  Am.  St.  106.]     But  the  legislature,  it 
has  been  declared,  has  no  power  to  legal- 
ize and  make  valid  the  deed  of  an  insane 
person.     Routsong  v.  Wolf,  35  Mo.  174. 
In  Illinois  it  has  been  decided  that  a  deed 
of  release  of  dower  executed  by  a  married 
woman,  but  not  so  acknowledged  as  to  be 


effectual,  cannot  be  validated  by  retro- 
spective statute,  because  to  do  so  would 
be  to  take  from  the  woman  a  vested  right. 
Russell  v.  Rumsey,  35  111.  362. 

2  Lessee  of  Walton  ?>.  Bailey,  1  Binn. 
470 ;  Underwood  v.  Lilly,  10  S.  &  R.  97 ; 
Barnet  r.  Barnet,  15  S.  &  R.  72,  16  Am. 
Dec.  516  ;  Tate  v.  Stooltzfoos,  16  S.  &  R. 
35,  16  Am.  Dec.  546 ;  Watson  v.  Mercer, 
8  Pet.  88  ;  Carpenter  v.  Pennsylvania,  17 
How.  456;  Davis  v.  State  Bank,  7  In«l. 
816;  Estate  of  Sticknoth,  7  Nev.  227; 
Ferguson  v.  Williams,  68  Iowa,  717,  13 
N.  W..  49;  Johnson  v.  Taylor,  60  Tex. 
860 ;  Johnson  v.  Richardson,  44  Ark.  365 ; 
Goshorn  v.  Purcell,  11  Ohio  St.  641.  In 
the  last  case  the  court  say  :  "  The  act  of 
the  married  woman  may,  under  the  law, 
have  been  void  and  inoperative ;  but  in 
justice  and  equity  it  did  not  leave  her 
right  to  the  property  untouched.  She 
had  capacity  to  do  the  act  in  a  form  pre- 
scribed by  law  for  her  protection.  She 
intended  to  do  the  act  in  the  prescribed 
form.  She  attempted  to  do  it,  and  her 
attempt  was  received  and  acted  on  in 
good  faith.  A  mistake  subsequently  dis- 
covered invalidates  the  act;  justice  and 
equity  require  that  she  should  not  take 
advantage  of  that  mistake  ;  and  she  has 
therefore  no  just  right  to  the  property. 
She  has  no  right  to  complain  if  the  law 
which  prescribed  forms  for  her  protec- 
tion shall  interfere  to  prevent  her  reli- 
ance upon  them  to  resist  the  demands  of 


CH.  XI.]      PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        539 

to  go  beyond  the  mere  confirmation  of  a  contract,  and  to  be  at 
least  technically  objectionable,  as  depriving  a  party  of  property 
without  an  opportunity  for  trial,  inasmuch  as  they  proceed  upon 
the  assumption  that  the  title  still  remained  in  the  grantor,  and 
that  the  healing  act  was  required  for  the  purpose  of  divesting  him 
of  it,  and  passing  it  over  to  the  grantee.1  Apparently,  therefore, 
there  would  seem  to  be  some  force  to  the  objection  that  such  a 
statute  deprives  a  party  of  vested  rights.  But  the  objection  is 
more  specious  than  sound.  If  all  that  is  wanting  to  a  valid  con- 
tract or  conveyance  is  the  observance  of  some  legal  formality, 
the  party  may  have  a  legal  right  to  avoid  it ;  but  this  right  is 
coupled  with  no  equity,  even  though  the  case  be  such  that  no 
remedy  could  be  afforded  the  other  party  in  the  courts.  The 
right  which  the  healing  act  takes  away  in  such  a  case  is  the  right 
in  the  party  to  avoid  his  contract,  —  a  naked  legal  right  which  it 
is  usually  unjust  to  insist  upon,  and  which  no  constitutional  pro- 
vision was  ever  designed  to  protect.2  As  the  point  is  put  by 
Chief  Justice  Parker  of  Massachusetts,  a  party  cannot  have  a 
vested  right  to  do  wrong ; 3  or,  as  stated  by  the  Supreme  Court  of 
New  Jersey,  "  Laws  curing  defects  which  would  otherwise  oper- 
ate to  frustrate  what  must  be  presumed  to  be  the  desire  of  the 
party  affected,  cannot  be  considered  as  taking  away  vested  rights. 
Courts  do  not  regard  rights  as  vested  contrary  to  the  justice  and 
equity  of  the  case."4 

The  operation  of  these  cases,  however,  must  be  carefully  re- 
stricted to  the  parties  to  the  original  contract,  and  to  such  other 

justice."     Similar  language  is  employed         8  Foster  v.  Essex  Bank,  16  Mass.  245. 

in  the  Pennsylvania  cases.     See  further,  See  also  Lycoming  v.  Union,   15  Pa.  St. 

Dentzel   v.    Waldie,  30  Cal.  138 ;    Skel-  166,  170.     There  is  no  vested  right  in  the 

lenger  v.  Smith,  1  Wash.  Ter.  369.  statutory  defence   that  a  contract   was 

1  This  view  has  been  taken  in  some  made  on  Sunday.     Berry  v.  Clary,  77  Me. 
similar  cases.    See   Russell  v.  Rumsey,  482,  1  Atl.  360. 

35  111.  362 ;  Alabama,  &c.  Ins.  Co.  v.  Boy-         *  State  v.  Newark,  25  N.  J.  185,  197. 

kin,  38  Ala.  510;  Orton  v.   Noonan,  23  Compare  Blount  v.  Janesville,  31  Wis. 

Wis.  102;  Dale  v.  Medcalf,  9  Pa.  St.  108.  648 ;  Brown  v.  New  York,  63  N.  Y.  239; 

2  In  Gibson  v.  Hibbard,  13  Mich.  214,  Hughes   v.  Cannon,  2   Humph.  594.     A 
a  check,  void  at  the  time  it  was  given  for  law  merely  taking  away  an  unconscion- 
want  of  a  revenue  stamp,  was  held  valid  able  defence  is   valid.      Read  v.  Platts- 
after  being  stamped  as   permitted  by  a  worth,  107  U.  S.  568,  2  Sup.  Ct.  Rep.  108. 
subsequent  act  of  Congress.     A  similar  In  New  York,  &c.  R.  R.  Co.  v.  Van  Horn, 
ruling  was  made  in   Harris  v.  Rutledge,  67  N.  Y.  473,  the  right  of  the  legislature 
19  Iowa,  387.     The  case  of  State  r.  Nor-  to  validate  a  void  contract  was  denied  on 
wood,  12  Md.  195,  is  still  stronger.     The  the  ground  that  to  validate  it  would  be 
curative  statute  was  passed  after  judg-  to  take  the  property  of  the  contracting 
ment  had  been  rendered  against  the  right  party  without  due  process  of  law.     The 
claimed  under  the  defective  instrument,  cases  which  are  contra  are  not  examined 
and  it  was  held  that  it  must  be  applied  in  the  opinion,  or  even  referred  to. 

by  the  appellate  court.     See  post,  p.  544. 


540  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

persons  as  may  have  succeeded  to  their  rights  with  no  greater 
equities.  A  subsequent  bona  fide  purchaser  cannot  be  deprived 
of  the  property  which  he  has  acquired,  by  an  act  which  retro- 
spectively deprives  his  grantor  of  the  title  which  he  held  when 
the  purchase  was  made.  Conceding  that  the  invalid  deed  may 
be  made  good  as  between  the  parties,  yet  if,  while  it  remained 
invalid,  and  the  grantor  still  retained  the  legal  title  to  the  land, 
a  third  person  has  purchased  and  received  a  conveyance,  with  no 
notice  of  any  fact  which  should  preclude  his  acquiring  an  equi- 
table as  well  as  a  legal  title  thereby,  it  would  not  be  in  the  power 
of  the  legislature  to  so  confirm  the  original  deed  as  to  divest  him 
of  the  title  he  has  acquired.  The  position  of  the  case  is  alto- 
gether changed  by  this  purchase.  The  legal  title  is  no  longer 
separated  from  equities,  but  in  the  hands  of  the  second  purchaser 
is  united  with  an  equity  as  strong  as  that  which  exists  in  favor 
of  him  who  purchased  first.  Under  such  circumstances  even  the 
courts  of  equity  must  recognize  the  right  of  the  second  purchaser 
as  best,  and  as  entitled  to  the  usual  protection  which  the  law 
accords  to  vested  interests.1 

If,  however,  a  grantor  undertakes  to  convey  more  than  he  pos- 
sesses, or  contrary  to  the  conditions  or  qualifications  which,  for 
the  benefit  of  others,  are  imposed  upon  his  title,  or  in  fraud  of  the 
rights  of  others  whose  representative  or  agent  he  is,  so  that  the 
defect  in  his  conveyance  consists  not  in  any  want  of  due  formal- 
ity, nor  in  any  disability  imposed  by  law,  it  is  not  in  the  power 
of  the  legislature  to  validate  it  retrospectively  ;  and  we  may  add, 
also,  that  it  would  not  have  been  competent  to  authorize  it  in 
advance.  In  such  case  the  rights  of  others  intervene,  and  they 
are  entitled  to  protection  on  the  same  grounds,  though  for  still 
stronger  reasons,  which  exist  in  the  case  of  the  bona  fide  purchas- 
ers above  referred  to.2 

1  Brinton  t».  Seevers,  12  Iowa,  389;  thy  v.  Hoffman.  23  Pa.  St.  607;  Bolton 
Southard  v.  Central  R.  R.  Co.,  26  N.  J.  v.  Johns,  6  Pa.  St.  145;  State  v.  War- 
IB;  Thompson  v.  Morgan,  6  Minn.  292;  ren,  28  Md.  338.  The  cases  here  cited 
Meighen  v.  Strong,  6  Minn.  177 ;  Norman  must  not  be  understood  as  establishing 
v.  Heist,  6  W.  &  S.  171;  Greenough  v.  any  different  principle  from  that  laid 
Greenough,  11  Pa.  St.  489 ;  Les  Bois  v.  down  in  Goshen  v.  Stonington,  4  Conn. 
Bramell,  4  How.  449 ;  McCarthy  v.  Hoff-  209,  where  it  was  held  competent  to  vali- 
man,  23  Pa.  St.  507  ;  Sherwood  v.  Flem-  date  a  marriage,  notwithstanding  the 
ing,  25  Tex.  408 ;  Wright  v.  Hawkins,  28  rights  of  third  parties  would  be  inciden- 
Tex.  452.  See  Fogg  ?>.  Holcomb,  64  tally  affected.  Rights  of  third  parties  are 
Iowa,  621,  21  N.  W.  Ill ;  McGehee  v.  liable  to  be  incidentally  affected  more  or 
McKenzie,  43  Ark.  156.  The  legislature  less  in  any  case  in  which  a  defective  con- 
cannot  validate  an  invalid  trust  in  a  will,  tract  is  made  good  ;  but  this  is  no  more 
by  act  passed  after  the  death  of  the  tes-  than  might  happen  in  enforcing  a  contract 
tator,  and  after  title  vested  in  the  heirs,  or  decreeing  a  divorce.  See  post,  p.  548. 
Hilliard  v.  Miller,  10  Pa.  St.  326.  See  Also  Tallman  v.  Janesville,  17  Wis.  71. 
Snyder  v.  Bull,  17  Pa.  St.  64;  McCar-  2  In  Shonk  v.  Brown,  61  Pa.  St.  327, 


CH.  XI.]  PKOTECTION   BY    "  THE   LAW   OF   THE    LAND." 


£41 


We  have  already  referred  to  the  case  of  contracts  hy  municipal 
corporations  which,  when  made,  were  in  excess  of  their  authority, 
but  subsequently  have  been  confirmed  by  legislative  action.  If 
the  contract  is  one  which  the  legislature  might  originally  have 
authorized,  the  case  falls  within  the  principle  above  laid  down, 
and  the  right  of  the  legislature  to  confirm  ifc  must  be  recognized.1 


the  facts  were  that  a  married  woman  held 
property  under  a  devise,  with  an  express 
restraint  upon  her  power  to  alienate. 
She  nevertheless  gave  a  deed  of  the 
same,  and  a  legislative  act  was  after- 
wards obtained  to  validate  this  deed. 
Held  void.  Agnew,  J. :  "  Many  cases 
have  been  cited  to  prove  that  this  legis- 
lation is  merely  confirmatory  and  valid, 
beginning  with  Barnet  v.  Barnet,  15  S.  & 
II.  72,  and  ending  with  Journeay  v.  Gib- 
son, 56  Pa.  St.  57.  The  most  of  them  are 
cases  of  the  defective  acknowledgments 
of  deeds  of  married  women.  But  there 
is  a  marked  difference  between  them  and 
this.  In  all  of  them  there  was  a  power  to 
convey,  and  only  a  defect  in  the  mode  of 
its  exercise.  Here  there  is  an  absolute 
want  of  power  to  convey  in  any  mode. 
In  ordinary  cases  a  married  woman  has 
both  the  title  and  the  power  to  convey  or 
to  mortgage  her  estate,  but  is  restricted 
merely  in  the  manner  of  its  exercise. 
This  is  a  restriction  it  is  competent  for 
the  legislature  to  remove,  for  the  defect 
arises  merely  in  the  form  of  the  proceed- 
ing, and  not  in  any  want  of  authority. 
Those  to  whom  her  estate  descends,  be- 
cause of  the  omission  of  a  prescribed 
form,  are  really  not  injured  by  the  vali- 
dation. It  was  in  her  power  to  cut  them 
off,  and  in  truth  and  conscience  she  did 
so,  though  she  failed  at  law.  They  can- 
not complain,  therefore,  that  the  legisla- 
ture intervenes  to  do  justice.  But  the 
case  before  us  is  different.  [The  grantor] 
had  neither  the  right  nor  the  power  dur- 
ing coverture  to  cut  off  her  heirs.  She 
was  forbidden  by  the  law  of  the  gift, 
which  the  donor  impressed  upon  it  to  suit 
his  own  purposes.  Her  title  was  qualified 
to  this  extent.  Having  done  an  act  she 
had  no  right  to  do,  there  was  no  moral 
obligation  for  the  legislature  to  enforce. 
Her  heirs  have  a  right  to  say,  .  .  .  '  The 
legislature  cannot  take  our  estate  and 
vest  it  in  another  who  bought  it  with  no- 
tice on  the  face  of  his  title  that  our  mother 
could  not  convey  to  him.' "  "  The  true 


principle  on  which  retrospective  laws  are 
supported  was  stated  long  ago  by  Duncan, 
J.,  in  Underwood  v.  Lilly,  10  S.  &  K.  101 ; 
to  wit,  where  they  impair  no  contract,  or 
disturb  no  vested  right,  but  only  vary 
remedies,  cure  defects  in  proceedings 
otherwise  fair,  which  do  not  vary  exist- 
ing obligations  contrary  to  their  situation 
when  entered  into  and  when  prosecuted." 
In  White  Mountains  R.  R.  Co.  v.  White 
Mountains  R.  R.  Co.  of  N.  H.,  50  N.  H.  50, 
it  was  decided  that  the  legislature  had  no 
power,  as  against  non-assenting  parties, 
to  validate  a  fraudulent  sale  of  corporate 
property.  In  Alter's  Appeal,  67  Pa.  St. 
341,  5  Am.  Rep.  433,  the  Supreme  Court 
of  Pennsylvania  declared  it  incompe- 
tent for  the  legislature,  after  the  death 
of  a  party,  to  empower  the  courts  to  cor- 
rect a  mistake  in  his  will  which  rendered 
it  inoperative,  —  the  title  having  already 
passed  to  his  heirs.  But  where  it  was 
not  known  that  the  decedent  left  heirs, 
it  was  held  competent,  as  against  the 
State,  to  cure  defects  in  a  will  after  the 
death,  and  thus  prevent  an  escheat.  Es- 
tate of  Sticknoth,  7  Nev.  223. 

1  See  Shaw  v.  Norfolk  R.  R.  Corp.,  5 
Gray,  162,  in  which  it  was  held  that  the 
legislature  might  validate  an  unauthor- 
ized assignment  of  a  franchise.  Also  May 
v.  Holdridge,  23  Wis.  93,  and  cases  cited, 
in  which  statutes  authorizing  the  reassess- 
ment of  irregular  taxes  were  sustained. 
In  this  case,  Paine,  J.,  says  :  "  This  rule 
must  of  course  be  understood  with  its 
proper  restrictions.  The  work  for  which 
the  tax  is  sought  to  be  assessed  must  be 
of  such  a  character  that  the  legislature  is 
authorized  to  provide  for  it  by  taxation. 
The  method  adopted  must  be  one  liable 
to  no  constitutional  objection.  It  must 
be  such  as  the  legislature  might  origi- 
nally have  authorized  had  it  seen  fit. 
With  these  restrictions,  where  work  of 
this  character  has  been  done,  I  think  it 
competent  for  the  legislature  to  supply 
a  defect  of  authority  in  the  original 
proceedings,  to  adopt  and  ratify  the  im- 


542 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


This  principle  is  one  which  has  very  often  been  acted  upon  in  the 
case  of  municipal  subscriptions  to  works  of  internal  improvement, 
where  the  original  undertaking  was  without  authority  of  law,  and 
the  authority  given  was  conferred  by  statute  retrospectively.1 

It  has  not  usually  been  regarded  as  a  circumstance  of  impor- 
tance in  these  cases,  whether  the  enabling  act  was  before  or  after 
the  corporation  had  entered  into  the  contract  in  question ;  and  if 
the  legislature  possesses  that  complete  control  over  the  subject  of 
taxation  by  municipal  corporations  which  has  been  declared  in 
many  cases,  it  is  difficult  to  perceive  how  such  a  corporation  can 
successfully  contest  the  validity  of  a  special  statute,  which  only 
sanctions  a  contract  previously  made  by  the  corporation,  and 
which,  though  at  the  time  ultra  vires,  was  nevertheless  for  a  pub- 
lic and  local  object,  and  compels  its  performance  through  an  ex- 
ercise of  the  power  of  taxation.2 


provement,  and  provide  for  a  reassess- 
ment of  the  tax  to  pay  for  it."  And  see 
Brewster  v.  Syracuse,  19  N.  Y.  116 ;  Kun- 
kle  v.  Franklin,  13  Minn.  127 ;  Boyce  v. 
Sinclair,  3  Bush,  261 ;  Dean  v.  Borch- 
senius,  30  Wis.  236;  Stuart  v.  Warren,  37 
Conn.  225.  A  city  ordinance  may  be 
validated  retrospectively.  Truchelut  r. 
Charleston,  1  N.  &  McC.  227 ;  Morris  v. 
State,  62  Tex.  728.  Otherwise  where  the 
city  had  no  power  to  annex  territory  as 
it  tried  to  do.  Strosser  v.  Fort  Wayne, 
100  Ind.  443. 

1  See,  among  other  cases,    McMillan 
v.  Boyles,  6  Iowa,  304 ;  Gould  v.  Sterling, 
23  N.  Y.  456;  Thompson  v.  Lee  County, 
3  Wall.  327 ;  Bridgeport  v.    Housatonic 
R.  It.  Co.,  15  Conn.  475;  Board  of  Com- 
missioners v.  Bright,  18  Ind.  93;  Gibbons 
v.  Mobile,  &c.  R.  R.  Co.,  36  Ala.  410. 

2  In  Hasbrouck  v.  Milwaukee,  13  Wis. 
37,  it  appeared  that  the  city  of  Milwaukee 
had  been  authorized  to  contract  for  the 
construction  of  a  harbor,  at  an  expense 
not  to  exceed  $100,000.     A  contract  was 
entered  into  by  the  city  providing  for  a 
larger  expenditure ;  and  a  special  legisla- 
tive act  was  afterwards  obtained  to  ratify 
it.     The  court  held  that  the  subsequent 
legislative  ratification  was  not  sufficient, 
proprio  viyore,  and  without  evidence  that 
such  ratification  was  procured  with  the 
assent   of  the  city,  or  had  been   subse- 
quently acted  upon  or  confirmed  by  it,  to 
make  the  contract  obligatory  upon  the 
city.     The  court  say,  per  Dixon,  Cli.  J. : 
"  The  question  is,  can  the  legislature,  by 


recognizing  the  existence  of  a  previously 
void  contract,  and  authorizing  its  dis- 
charge by  the  city,  or  in  any  other  way, 
coerce  the  city  against  its  will  into  a  per- 
formance of  it,  or  does  the  law  require  the 
assent  of  the  city,  as  well  as  of  the  legis- 
lature, in  order  to  make  the  obligation 
binding  and  efficacious  ?  I  must  say 
that,  in  my  opinion,  the  latter  act,  as  well 
as  the  former,  is  necessary  for  that  pur- 
pose, and  that  without  it  the  obligation 
cannot  be  enforced.  A  contract  void  for 
want  of  capacity  in  one  or  both  of  the 
contracting  parties  to  enter  into  it  is  as 
no  contract ;  it  is  as  if  no  attempt  at  an 
agreement  had  ever  been  made.  And  to 
admit  that  tlie  legislature,  of  its  own 
choice,  and  against  the  wishes  of  either 
or  botli  of  the  contracting  parties,  can 
give  it  life  and  vigor,  is  to  admit  that  it 
is  within  the  scope  of  legislative  authority 
to  divest  settled  right  of  property,  and 
to  take  the  property  of  one  individual  or 
corporation  and  transfer  it  to  another." 
This  reasoning  is  of  course  to  be  under- 
stood in  the  light  of  the  particular  case 
before  the  court ;  that  is  to  say,  a  case  in 
which  the  contract  was  to  do  something 
not  within  the  ordinary  functions  of  local 
government.  See  the  case  explained  and 
defended  by  the  same  eminent  judge  in 
Mills  v.  Charlton,  29  Wis.  400.  Compare 
Fisk  v.  Kenosha,  26  Wis.  23,  33  ;  Knapp 
v.  Grant,  27  Wis.  147 ;  and  Single  v. 
Supervisors  of  Marathon,  38  Wis.  363,  in 
which  the  right  to  validate  a  contract 
which  might  originally  have  been  author- 


CH.  XL] 


PROTECTION   BY   "THE   LAW   OF   THE   LAND." 


543 


Nor  is  it  important  in  any  of  the  cases  to  which  we  have  re- 
ferred, that  the  legislative  act  which  cures  the  irregularity,  defect, 
or  want  of  original  authority,  was  passed  after  suit  brought,  in 
which  such  irregularity  or  defect  became  matter  of  importance. 
The  bringing  of  suit  vests  in  a  party  no  right  to  a  particular 
decision  ; J  and  his  case  must  be  determined  on  the  law  as  it 
stands,  not  when  the  suit  was  brought,  but  when  the  judgment 
is  rendered.2  It  has  been  held  that  a  statute  allowing  amend- 


ized  was  fully  affirmed.  And  see  Mar- 
shall v.  Silliman,  61  111.  218,  225,  opinion 
by  Chief  Justice  Lawrence,  in  which,  after 
referring  to  Harward  v.  St.  Glair,  &c. 
Drainage  Co.,  51  111.  130 ;  People  v.  Mayor 
of  Chicago,  51  111.  17  ;  Hessler  v.  Drainage 
Com'rs,  53  111.  105 ;  and  Lovingston  v. 
Wider,  53  111.  302,  it  is  said, .  "  These 
cases  show  it  to  be  the  settled  doctrine  of 
this  court,  that,  under  the  constitution  of 
1848,  the  legislature  could  not  compel  a 
municipal  corporation  to  incur  a  debt  for 
merely  local  purposes,  against  its  own 
wishes,  and  this  doctrine,  as  already  re- 
marked, has  received  the  sanction  of 
express  enactment  in  our  existing  consti- 
tution. That  was  the  effect  of  the  cura- 
tive act  under  consideration,  and  it  was 
therefore  void."  The  cases  of  Guilford  v. 
Supervisors  of  Chenango,  18  Barb.  615, 
and  13  N.  Y.  143 ;  Brewster  v.  Syracuse, 
19  N.  Y.  116;  and  Thomas  v.  Leland,  24 
Wend.  65,  especially,  go  much  further 
than  is  necessary  to  sustain  the  text.  See 
also  Bartholomew  v.  Harwinton,  33  Conn. 
408 ;  People  v.  Mitchell,  35  N.  Y.  551 ; 
Barbour  v.  Camden,  51  Me.  608  ;  Weister 
v.  Hade,  52  Pa.  St.  474 ;  State  v.  Sulli- 
van, 43  111.  412  ;  Johnson  v.  Campbell,  49 
111.  316.  In  Brewster  v.  Syracuse,  parties 
had  constructed  a  sewer  for  the  city  at 
a  stipulated  price  which  had  been  fully 
paid  to  them.  The  charter  of  the  city 
forbade  the  payment  of  extra  compen- 
sation to  contractors  in  any  case.  The 
legislature  afterwards  passed  an  act  em- 
powering the  Common  Council  of  Syra- 
cuse to  assess,  collect,  and  pay  over  the 
further  sum  of  $600  in  addition  to  the 
contract  price  ;  and  this  act  was  held  con- 
stitutional. In  Thomas  v.  Leland,  certain 
parties  had  given  bond  to  the  State,  con- 
ditioned to  pay  into  the  treasury  a  cer- 
tain sum  of  money  as  an  inducement  to 
the  State  to  connect  the  ChenaiiKO  Canal 
with  the  Erie  at  Utica,  instead  of  at 
Whitestown  as  originally  contemplated, 


—  the  sum  mentioned  being  the  increased 
expense  in  consequence  of  the  change. 
Afterwards  the  legislature,  deeming  the 
debt  thus  contracted  by  individuals  un- 
reasonably partial  and  onerous,  passed 
an  act,  tha  object  of  which  was  to  levy 
the  amount  on  the  owners  of  real  estate 
in  Utica.  This  act  seemed  to  the  court 
unobjectionable.  "  The  general  purpose 
of  raising  the  money  by  tax  was  to  con- 
struct a  canal,  a  public  highway,  which 
the  legislature  believed  would  be  a  benefit 
to  the  city  of  Utica  as  such ;  and  inde- 
pendently of  the  bond,  the  case  is  the 
ordinary  one  of  local  taxation  to  make  or 
improve  a  highway.  If  such  an  act  be 
otherwise  constitutional,  we  do  not  see 
how  the  circumstance  that  a  bond  had 
before  been  given  securing  the  same 
money  can  detract  from  its  validity. 
Should  an  individual  volunteer  to  secure 
a  sum  of  money,  in  itself  properly  levi- 
able, by  way  of  tax  on  a  town  or  county, 
there  would  be  nothing  in  the  nature  of 
such  an  arrangement  which  would  pre- 
clude the  legislature  from  resorting,  by 
way  of  tax,  to  those  who  are  primarily 
and  more  justly  liable.  Even  should  he 
pay  the  money,  what  is  there  in  the  con- 
stitution to  preclude  his  being  reimbursed 
by  a  tax  ?  "  Here,  it  will  be  perceived, 
the  corporation  was  compelled  to  assume 
an  obligation  which  it  had  not  even  at- 
tempted to  incur,  but  which  private  per- 
sons, for  considerations  which  seemed  to 
them  sufficient,  had  taken  upon  their  own 
shoulders.  We  have  expressed  doubts 
of  the  correctness  of  this  decision,  ante, 
p.  338,  note,  where  a  number  of  cases  are 
cited,  bearing  upon  the  point. 

1  Bacon    v.    Callender,  6   Mass.   303; 
Butler  v.  Palmer,  1  Hill,  324;   Cowgill  v. 
Long,  15  111.  202;  Miller  v.  Graham,  17 
Ohio  St.   1 ;  State  v.   Squires,  26   Iowa, 
340  ;  Patterson  v.  Philbrook,  9  Mass.  151. 

2  Watson  r.  Mercer,  8  Pet.  88 ;  Mather 
v.  Chapman,  6  Conn.  54 ;  People  v.  Su- 


544 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


ments  to  indictments  in  criminal  cases  might  constitutionally  be 
applied  to  pending  suits ; 1  and  even  in  those  States  in  which  re- 
trospective laws  are  forbidden,  a  cause  must  be  tried  under  the 
rules  of  evidence  existing  at  the  time  of  the  trial,  though  differ- 
ent from  those  in  force  when  the  suit  was  commenced.2  And  if 
a  case  is  appealed,  and  pending  the  appeal  the  law  is  changed, 
the  appellate  court  must  dispose  of  the  case  under  the  law  in 
force  when  its  decision  is  rendered.3 

But  the  healing  statute  must  in  all  cases  be  confined  to  validat- 
ing acts  which  the  legislature  might  previously  have  authorized. 
It  cannot  make  good  retrospectively  acts  or  contracts  which  it 

pervisors,  &c.,  20  Mich.  95 ;  Satterlee  v. 
Matthewson,  10  S.  &  R.  169,  and  2  Pet. 
380;  Excelsior  Mfg.  Co.  v.  Keyser,  62 
Miss.  155;  Phenix  Ins.  Co.  v.  Pollard,  63 
Miss.  641 ;  M'Lane  v.  Bonn,  70  Iowa,  752, 
30  N.  W.  478;  Johnson  v.  Richardson, 
44  Ark.  365.  See  cases,  p.  539,  note  1, 
ante.  A  statute  giving  a  wife  a  right  to 
recover  in  her  own  name  for  personal 
injury,  may  apply  to  a  pending  action. 
McLimans  v.  Lancaster,  63  Wis.  596,  23 
N.  W.  689,  following  Weldon  v.  Winslow, 
L.  R.  13  Q.  B.  D.  784.  But  an  act  which 
is  penal  as  to  a  plaintiff  cannot  apply  to 
a  pending  suit.  Powers  v.  Wright,  62 
Miss.  35.  After  an  appeal  hond  was  signed 
by  an  attorney,  the  court  held  such  bonds 
void,  and  then  the  legislature  attempted 
to  validate  all  existing  bonds  so  signed. 
This  was  held  bad  as  against  the  appellee 
in  the  case.  Andrews  v.  Beane,  15  R.  I. 
451,  8  Atl.  540.  See  Thweatt  v.  Bank, 
81  Ky.  1.  [^Judgment  correct  when  ren- 
dered on  account  of  invalidity  of  law 
under  which  action  was  brought,  may  be 
reversed  upon  appeal  when  in  the  interim 
the  statute  has  been  corrected  by  amend- 
ment providing  for  proper  notice  to  par- 
ties interested.  Ferry  v.  Campbell,  110 
Iowa,  290,  81  N.  W.  604,  50  L.  R.  A.  92.] 

1  State  v.  Manning,  14  Tex.  402. 

2  Rich  t-.  Flanders,' 39  N.  H.  304. 

8  State  v.  Norwood,  12  Md.  195.  Con- 
tra, Wright  t>.  Graham,  42  Ark.  140.  In 
Yeaton  v.  United  States,  5Cranch,  281,  a 
vessel  had  been  condemned  in  admiralty, 
and  pending  an  appeal  the  act  under 
which  the  condemnation  was  declared  was 
repealed.  The  court  held  that  the  cause 
must  be  considered  as  if  no  sentence  had 
been  pronounced  ;  and  if  no  sentence  had 
been  pronounced,  then,  after  the  expira- 
tion or  repeal  of  the  law,  no  penalty  could 


be  enforced  or  punishment  inflicted  for  a 
violation  of  the  law  committed  while  it 
was  in  force,  unless  some  special  provi- 
sion of  statute  was  made  lor  that  pur- 
pose. See  also  Schooner  Rachel  v.  United 
States,  6  Cranch,  329  ;  Commonwealth  v. 
Duaue,  1  Binney,  601 ;  United  States  v. 
Passmore,  4  Dall.  372 ;  Commonwealth 
v.  Marshall,  11  Pick.  350;  Commonwealth 
v  Kimball,  21  Pick.  373;  Hartung  v. 
People,  22  N.  Y.  95;  Union  Iron  Co. 
v.  Pierce,  4  Biss.  327  ;  Norris  v.  Crocker, 
13  How.  429;  Insurance  Co.  v.  Ritchie, 
5  Wall.  541  ;  Ex  parte  McCardle,  7  Wall. 
506;  United  States  v.  Tynen,  11  Wall. 
88;  Engle  v.  Shurts,  1  Mich.  150.  In  the 
McCardle  Case  the  appellate  jurisdiction 
of  the  United  States  Supreme  Court  in 
certain  cases  was  taken  away  while  a 
case  was  pending.  Per  Chase,  Ch.  J. : 
"  Jurisdiction  is  power  to  declare  the  law ; 
and  when  it  ceases  to  exist,  the  only  func- 
tion remaining  to  the  court  is  that  of  an- 
nouncing the  fact  and  dismissing  the 
cause.  And  this  is  not  less  clear  upon 
authority  than  upon  principle."  But 
where  a  State  has  jurisdiction  of  a  sub- 
ject, e.  g.  pilotage,  until  Congress  estab- 
lishes regulations,  and  penalties  are 
incurred  under  a  State  act,  and  after- 
wards Congress  legislates  on  the  subject, 
this  does  not  repeal,  but  only  suspends 
the  State  law  ;  and  a  penalty  previously 
incurred  may  still  be  collected.  Sturgis 
v.  Spofford,  45  N.  Y.  446.  And  see  Peo- 
ple v.  Hobson,  48  Mich.  27,  11  N.  W.  771. 
L~Refusal  to  pay  alimony  may  be  by 
statute  made  a  contempt  of  court,  pun- 
ishable by  imprisonment,  and  as  this 
affects  the  remedy  only  it  may  operate 
retrospectively.  Judd  v.  Judd,  125  Mich. 
228,  84  N.  W.  134.J 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        545 

had  and  could  have  no  power  to  permit  or  sanction  in  advance.1 
There  lies  before  us  at  this  time  a  volume  of  statutes  of  one  of 
the  States,  in  which  are  contained  acts  declaring  certain  tax-rolls 
valid  and  effectual,  notwithstanding  the  following  irregularities 
and  imperfections :  a  failure  in  the  supervisor  to  carry  out  sepa- 
rately, opposite  each  parcel  of  land  on  the  roll,  the  taxes  charged 
upon  such  parcel,  as  required  by  law  ;  a  failure  in  the  supervisor 
to  sign  the  certificate  attached  to  the  roll ;  a  failure  in  the  voters 
of  the  township  to  designate,  as  required  by  law,  in  a  certain  vote 
by  which  they  had  assumed  the  payment  of  bounty  moneys, 
whether  they  should  be  raised  by  tax  or  loan ;  corrections  made 
in  the  roll  by  the  supervisor  after  it  had  been  delivered  to  the  col- 
lector ;  the  including  by  the  supervisor  of  a  sum  to  be  raised  for 
township  purposes  without  the  previous  vote  of  the  township,  as 
required  by  law  ;  adding  to  the  roll  a  sum  to  be  raised  which 
could  not  lawfully  be  levied  by  taxation  without  legislative  au- 
thority ;  the  failure  of  the  supervisor  to  make  out  the  roll  within 
the  time  required  by  law  ;  and  the  accidental  omission  of  a  parcel 
of  land  which  should  have  been  embraced  by  the  roll.  In  each  of 
these  cases,  except  the  last,  the  act  required  by  law,  and  which 
failed  to  be  performed,  might  by  previous  legislation  have  been 
dispensed  with  ;  and  perhaps  in  the  last  case  there  might  be 
question  whether  the  roll  was  rendered  invalid  by  the  omission 
referred  to,  and,  if  it  was,  whether  the  subsequent  act  could  legal- 
ize it.2  But  if  township  officers  should  assume  to  do  acts  under 
the  power  of  taxation  which  could  not  lawfully  be  justified  as  an 
exercise  of  that  power,  no  subsequent  legislation  could  make 
them  good.  If,  for  instance,  a  part  of  the  property  in  a  taxing 
district  should  be  assessed  at  one  rate,  and  a  part  at  another,  for 
a  burden  resting  equally  upon  all,  there  would  be  no  such  appor- 
tionment as  is  essential  to  taxation,  and  the  roll  would  be  beyond 
the  reach  of  curative  legislation.3  And  if  persons  or  property 

1  Kimball  i\  Rosendale,  42  Wis.  407 ;  see  Allen  v.  Armstrong,  16  Iowa,  508 ; 
Maxwell   v.   Goetschius,    40  N.  J.   383,  Smith  v.  Cleveland,  17  Wis.  656,  and  Ab- 
29  Am.  Rep.  242.  bott  v.   Lindenbower,   42   Mo.   162.      In 

2  See  Weeks  v.  Milwaukee,  10  Wis.  Tallman  v.  Janesville,  17  Wis.  71,  thecon- 
242 ;  Dean  r.  Gleason,  16  Wis.  1 ;  post,  p.  stitutional  authority  of  the  legislature  to 
742,  note.  cause  an  irregular  tax  to  be  reassessed  in 

8  This  is  clearly  shown  by  McKinstry,  a  subsequent  year,  where  the  rights  of 

J.,  in  People  v.  Lynch,  51  Cal.  15.     And  bona  fide  purchasers  had  intervened,  was 

see  Billings  v.  Detten,  15  111.  218,  Con  way  disputed;   but  the   court   sustained    the 

v.  Cable,  37  111.  82,  and  Thames  Manufac-  authority  as  "a  salutary  and  highly  bene- 

turing  Co.  v.  Lathrop,  7  Conn.  550,  for  ficial  feature  of  our  systems  of  taxation," 

cases  where  curative  statutes  were  held  and   "not  to  be  abandoned  because  in 

not  effectual  to  reach  defects  in  tax  pro-  some    instances    it    produces   individual 

ceedings.   As  to  what  defects  may  or  may  hardships."   Certainly  bona  fide  purchas- 

not  be  cured  by  subsequent  legislation,  ers,  as  between  themselves  and  the  State, 

35 


546  CONSTITUTIONAL  LIMITATIONS.  [OH.  XL 

should  be  assessed  for  taxation  in  a  district  which  did  not  include 
them,  not  only  would  the  assessment  be  invalid,  but  a  healing 
statute  would  be  ineffectual  to  charge  them  with  the  burden.1 
In  such  a  case  there  would  be  a  fatal  want  of  jurisdiction  ;  and 
even  in  judicial  proceedings,  if  there  was  originally  a  failure  of 
jurisdiction,  no  subsequent  law  can  confer  it.2 

Statutory  Privileges  and  Exemptions. 

The  citizen  has  no  vested  right  in  statutory  privileges  and  ex- 
emptions. Among  these  may  be  mentioned,  —  exemptions  from 
the  performance  of  public  duties  upon  juries,  or  in  the  militia, 
and  the  like ;  exemptions  of  property  or  person  from  assessment 
for  the  purposes  of  taxation  ;  exemptions  of  property  from  being 
seized  on  attachment,  or  execution,  or  for  the  payment  of  taxes ; 
exemption  from  highway  labor,  and  the  like.  All  these  rest  upon 
reasons  of  public  policy,  and  the  laws  are  changed  as  the  varying 
circumstances  seem  to  require.  The  State  demands  the  perform- 
ance of  military  duty  by  those  persons  only  who  are  within  cer- 
tain specified  ages ;  but  if,  in  the  opinion  of  the  legislature,  the 
public  exigencies  should  demand  military  service  from  all  other 
persons  capable  of  bearing  arms,  the  privilege  of  exemption  might 
be  recalled,  without  violation  of  any  constitutional  principle. 

must  take  their  purchases  subject  to  all  111.  226,  where  a  statute  came  under  con- 
public  burdens  justly  resting  upon  them,  sideration  which  assumed  to  make  valid 
The  case  of  Conway  v.  Cable  is  instruc-  certain  proceedings  in  court  which  were 
live.  It  was  there  held,  among  other  void  for  want  of  jurisdiction  of  the  per- 
things,  —  and  very  justly,  as  we  think, —  sons  concerned.  A  void  appeal  bond 
that  the  legislature  could  not  make  good  cannot  be  validated  so  as  to  give  to  an 
a  tax  sale  effected  by  fraudulent  combi-  appellate  court  jurisdiction  which  has 
nation  between  the  officers  and  the  pur-  failed  by  reason  of  such  defective  bond, 
chasers.  The  general  rule  is  undoubted,  Andrews  v.  Beane,  15  R.  I.  451,  8  Atl. 
that  a  sale  for  illegal  taxes  cannot  be  val-  540.  See  also  Israel  v.  Arthur,  7  Col.  5, 
idated.  Silsbee  v.  Stockel,  44  Mich.  561,  1  Pac.  438 ;  Yeatman  v.  Day,  79  Ky.  186 ; 
7  N.  W.  160,  367 ;  Brady  v.  King,  53  Cal.  Roche  v.  Waters,  72  Md.  264,  19  Atl. 
44;  Harper  v.  Rowe,  53  Cal.  233.  In  535;  Denny  v.  Mattoon,  2  Allen,  881; 
Miller  v.  Graham,  17  Ohio  St.  1,  a  statute  Nelson  r.  Rountree,  23  Wis.  367 ;  Griffin's 
validating  certain  ditch  assessments  was  Ex'r  v.  Cunningham,  20  Gratt.  31, 109,  per 
sustained,  notwithstanding  the  defects  Joi/nes,  J. ;  Richards  v.  Rote,  68  Pa.  St. 
covered  by  it  were  not  mere  irregulari-  248 ;  State  v.  Doherty,  60  Me.  604 ;  Pryor 
ties  ;  but  that  statute  gave  the  parties  an  v.  Downey,  50  Cal.  388 ;  19  Am.  Rep.  656. 
opportunity  to  be  heard  as  to  these  If  land  is  assessed  for  taxation  in  a  town 
defects.  where  it  does  not  lie,  it  is  not  competent 

1  See  Wells  v.  Weston,  22  Mo.  384;  to  make  the  tax-deed  evidence  of  title. 
People  v.  Supervisors  of  Chenango,  11  Smith  v.  Sherry,  54  Wis.  114,  11  N.  W. 
N.  Y.  563;  Hughey's  Lessee  v.  Horrel,  2  465.    Compare  Walpole  v.  Elliott,  18  Ind. 
Ohio,  231 ;  Covington  v.  Southgate,  15  B.  258,  in  which  there  was  not  a  failure  of 
Monr.  491  ;  Morford  v.  Unger,  8  Iowa,  82;  jurisdiction,   but   an    irregular    exercise 
post,  pp.  718-721.  of  it. 

2  So  held  in  McDaniel  v.  Correll,  19 


CH.  XI.]  PROTECTION   BY   "  THE    LAW   OF   THE    LAND." 


547 


The  fact  that  a  party  had  passed  the  legal  age  under  an  existing 
law,  and  performed  the  service  demanded  by  it,  could  not  protect 
him  against  further  calls,  when  public  policy  or  public  necessity 
was  thought  to  require  them.1  In  like  manner,  exemptions  from 
taxation  are  always  subject  to  recall,  when  they  have  been 
granted  merely  as  a  privilege,  and  not  for  a  consideration  received 
by  the  public ;  as  in  the  case  of  exemption  of  buildings  for  relig- 
ious or  educational  purposes,  and  the  like.2  So,  also,  are  exemp- 
tions of  property  from  execution.3  So,  a  license  to  carry  on  a 
particular  trade  for  a  specified  period,  may  be  recalled  before  the 
period  has  elapsed.4  So,  as  before  stated,  a  penalty  given  by 
statute  may  be  taken  away  by  statute  at  any  time  before  judg- 
ment is  recovered.5  So,  an  offered  bounty  may  be  recalled,  except 
as  to  so  much  as  was  actually  earned  while  the  offer  was  a  con- 
tinuing one ;  and  the  fact  that  a  party  has  purchased  property  or 
incurred  expenses  in  preparation  for  earning  the  bounty  cannot 
preclude  the  recall.6  A  franchise  granted  by  the  State  with  a 
reservation  of  a  right  of  repeal  must  be  regarded  as  a  mere  priv- 
ilege while  it  is  suffered  to  continue,  but  the  legislature  may  take 
it  away  at  any  time,  and  the  grantees  must  rely  for  the  perpe- 
tuity and  integrity  of  the  franchises  granted  to  them  solely  upon 


1  Commonwealth  v.  Bird,  12  Mass.  443; 
Swindle  v.  Brooks,  84  Ga.  67 ;  Mayer,  Ex 
parte,  27  Tex.  715;  Bragg  v.  People,  78 
111.   828;   Moore  v.  Cass,  10  Kan.   288; 
Murphy  v.  People,  37  111.  447;  State  v. 
Miller,  2  Blackf.  35;  State  v.  Quimby,  51 
Me.  395;  State  v.  Wright,  53  Me.  328; 
State  v.  Forshner,  43  N.  H.  89 ;  Dunlap 
v.  State,  76  Ala.  460;  Ex  parte  Thomp- 
son, 20  Fla.  887.     And  see  Dale  v.  The 
Governor,  3  Stew.  387. 

2  See  ante,  pp.    395, 396,    and  notes. 
All  the  cases  concede  the   right   in   the 
legislature  to  recall  an  exemption  from 
taxation,  when  not  resting  upon  contract. 
The  subject  was  considered  in  People  v. 
Roper,  35  N.  Y.  629,  in  which  it  was  de- 
cided that  a  limited  immunity  from  taxa- 
tion, tendered  to  the  members  of  volun- 
tary military  companies,  might  be  recalled 
at  any  time.   It  was  held  not  to  be  a  con- 
tract, but  "  only   an  expression  of  the 
legislative  will  for  the  time  being,  in  a 
matter  of  mere   municipal   regulation." 
And  see  Christ  Church  v.  Philadelphia,  24 
How.  300;  Lord  v.  Litchfield,  36  Conn. 
116;  East  Saginaw  Salt  Mfg.  Co.  v.  East 
Saginaw,  19  Mich.  259;  s.  c.  in  error,  13 
Wall.  373.     [[Citizens'   Saving  Bank  v. 


Owensboro,  173  U    S.   §\3\U,<$up.  Ct. 
Rep.  530,  571.]  WVAfcS 

3  Bull  v.  Conroe,  13   '•v-'W* 

*  See  ante,  pp.  399-4 

5  Oriental  Bank  v.  Freeze,  18  Me.  109. 
The  statute  authorized  the  plaintiff,  su- 
ing for  a  breach  of  a  prison  bond,  to  re- 
cover the  amount  of  his  judgment  and 
costs.     This  was  regarded  by  the  court 
as  in  the  nature  of  a  penalty ;  and  it  was 
therefore  held  competent  for  the  legisla- 
ture, even  after  breach,  to  so  modify  the 
law  as  to  limit  the  plaintiff's  recovery  to 
his  actual   damages.     See   ante,  p.   516, 
note  2,  and  cases  cited. 

6  East    Saginaw    Salt    Mfg.    Co.    v. 
East  Saginaw,  19  Mich.  259,  2  Am.  Rep, 
82,  and  13  Wall.  373.    But  as  to  so  much 
of  the  bounty   as  was  actually  earned 
before  the  change  in  the  law,  the  party 
earning  it  has  a  vested  right  which  can- 
not be  taken  away.     People  v.  Auditor- 
General,  9  Mich.  327.     And  it  has  been 
held   competent  in  changing  a  country 
seat  to  provide  by  law  for  compensation, 
through  taxation,  to  the  residents  of  the 
old  site.     Wilkinson  i:  Cheatham,  43  Ga, 
258. 


548  CONSTITUTIONAL  LIMITATIONS.  [CH.  XL 

the  faith  of  the  sovereign  grantor.1  A  statutory  right  to  have 
cases  reviewed  on  appeal  may  be  taken  away,  by  a  repeal  of  the 
statute,  even  as  to  causes  which  had  been  previously  appealed.2 
A  mill-dam  act  which  confers  upon  the  person  erecting  a  dam  the 
right  to  maintain  it,  and  flow  the  lands  of  private  owners  on  pay- 
ing such  compensation  as  should  be  assessed  for  the  injury  done, 
may  be  repealed  even  as  to  dams  previously  erected.3  These 
illustrations  must  suffice  under  the  present  head. 

Consequential  Injuries. 

It  is  a  general  rule  that  no  one  has  a  vested  right  to  be  protected 
against  consequential  injuries  arising  from  a  proper  exercise  of 
rights  by  others.4  This  rule  is  peculiarly  applicable  to  injuries 
resulting  from  the  exercise  of  public  powers.  Under  the  police 
power  the  State  sometimes  destroys,  for  the  time  being,  and  per- 
haps permanently,  the  value  to  the  owner  of  his  property,  without 
affording  him  any  redress.  The  construction  of  a  new  way  or  the 
discontinuance  of  an  old  one  may  very  seriously  affect  the  value 
of  adjacent  property  ;  the  removal  of  a  county  or  State  capital 
will  often  reduce  very  largely  the  value  of  all  the  real  estate  of 
the  place  from  whence  it  was  removed ;  but  in  neither  case  can 
the  parties  whose  interests  would  be  injuriously  affected,  enjoin  the 
act  or  claim  compensation  from  the  public.5  The  general  laws 
of  the  State  may  be  so  changed  as  to  transfer,  from  one  town  to 
another,  the  obligation  to  support  certain  individuals,  who  may 
become  entitled  to  support  as  paupers,  and  the  constitution  will 
present  no  impediment.6  The  granting  of  a  charter  to  a  new 
corporation  may  sometimes  render  valueless  the  franchise  of  an 
existing  corporation  ;  but  unless  the  State  by  contract  has  pre- 
cluded itself  from  such  new  grant,  the  incidental  injury  can  con- 

1  Per  Smith,  J.,  in  Pratt  ».  Brown,  3  to  the  other  party  for  the  permanent 
Wis.  603,  611.     See  post,  pp.  837-840.  flowing  of  his   land  a  compensation  as- 

2  Ex   parte   McCardle,   7   Wall.   506.  sessed   under  the   statute,    it   might  be 
See   State  v.  Slevin,  16  Mo.  App.  541.  otherwise. 

And  that  the  right  to  an  appeal,  if  not          *  For  the  doctrine  damnum  absque  fn- 

expressly  given  by  constitution,  need  not  juria,   see  Broom's  Maxims,  185;  Sedg- 

be  provided  for.     Kundinger  v.  Saginaw,  wick   on   Damages,  30,  112;  Cooley  on 

69  Mich.  325,  26  N.  W.  634;  Minneapolis  Torts,  93. 

v.  Wilkin,  30  Minn.  140,  14  N.  W.  581;          5  See  ante,  p   299,  and  cases  cited  in 

La  Croix  v.  Co.  Com'rs,  50  Conn.   321.  note.     Also  Wilkinson  v.  Cheatham,  43 

Time  may  be  shortened  during  a  period  Ga.  258;  Fearing  t;.  Irwin,  55  N.  Y.  486; 

of  disability,  in  which  one  may  bring  an  Newton  v.  Commissioners,  100  U.  S.  548; 

appeal  after  such  disability  is  removed.  Howes  v.  Crush,  131  Mass.  207;  Heller  v. 

Rupert  v.  Martz,  116  Ind.  72, 18  N.  E.  381.  Atchison,  &c.  R.  R.  Co.,  28  Kan.  625. 

3  Pratt  v.  Brown,  3  Wis.  603.     But  if         6  Goshen  v.  Richmond,  4  Allen,  458; 
the  party  maintaining  the  dam  had  paid  Bridgewater  v.  Plymouth,  97  Mass.  382. 


CH.  XI.]  PROTECTION   BY   "THE   LAW   OF   THE    LAND."  549 

stitute  no  obstacle.1  But  indeed  it  seems  idle  to  specify  instances, 
inasmuch  as  all  changes  in  the  laws  of  the  State  are  liable  to  in- 
flict incidental  injury  upon  individuals,  and,  if  every  citizen  was 
entitled  to  remuneration  for  such  injury,  the  most  beneficial  and 
necessary  changes  in  the  law  might  be  found  impracticable  of 
accomplishment. 

We  have  now  endeavored  to  indicate  what  are  and  what  are  not 
to  be  regarded  as  vested  rights,  and  to  classify  the  cases  in  which 
individual  interests,  in  possession  or  expectancy,  are  protected 
against  being  divested  by  the  direct  interposition  of  legislative 
authority.  Some  other  cases  may  now  be  considered,  in  which 
legislation  has  endeavored  to  control  parties  as  to  the  manner  in 
which  they  should  make  use  of  their  property,  or  has  permitted 
claims  to  be  created  against  it  through  the  action  of  other  parties 
against  the  will  of  the  owners.  We  do  not  allude  now  to  the  con- 
trol which  the  State  may  possess  through  an  exercise  of  the  police 
power,  —  a  power  which  is  merely  one  of  regulation  with  a  view 
to  the  best  interests  and  the  most  complete  enjoyment  of  rights 
by  all,  —  but  to  that  which,  under  a  claim  of  State  policy,  and 
without  any  reference  to  wrongful  act  or  omission  by  the  owner, 
would  exercise  a  supervision  over  his  enjoyment  of  undoubted 
rights,  or  which,  in  some  cases,  would  compel  him  to  recognize 
and  satisfy  demands  upon  his  property  which  have  been  created 
without  his  assent. 

In  former  times  sumptuary  laws  were  sometimes  passed,  and 
they  were  even  deemed  essential  in  republics  to  restrain  the  lux- 
ury so  fatal  to  that  species  of  government.2  But  the  ideas  \vhicli 

1  The  State  of  Massachusetts  granted  resulting  injury  was  incidental  to  the  ex- 
to  a  corporation  the  right  to  construct  a  ercise  of  an  undoubted  right  by  the  State, 
toll-bridge  across  the  Charles  River,  under  and  as  all  the  vested  rights  of  the  first 
a  charter  which  was  to  continue  for  forty  corporation  still  remained,  though  re- 
years,  afterwards  extended  to  seventy,  at  duced  in  value  by  the  new  grant,  the 
the  end  of  which  period  the  bridge  was  case  was  one  of  damage  without  legal 
to  become  the  property  of  the  Common-  injury.  Charles  River  Bridge  v.  Warren 
wealth.  During  the  term  the  corpora-  Bridge,  7  Pick.  344,  and  11  Pet.  420. 
tion  was  to  pay  200/.  annually  to  Harvard  See  also  Turnpike  Co.  v.  State,  3  Wall. 
College.  Forty-two  years  after  the  bridge  210;  Piscataqua  Bridge  v.  New  Hamp- 
was  opened  for  passengers,  the  State  in-  shire  Bridge,  7  N.  H.  35;  Hollister  v. 
corporated  a  company  for  the  purpose  of  Union  Co  ,  9  Conn.  436,  25  Am.  Dec. 
erecting  another  bridge  over  the  same  86 ;  English  v.  New  Haven,  &c.  Co.,  32 
river,  a  short  distance  only  from  the  first,  Conn.  240;  Binghamton  Bridge  Case,  27 
and  which  would  accommodate  the  same  N.  Y.  87,  and  3  Wall.  51 ;  Lehigh  Valley 
passengers.  The  necessary  effect  would  Water  Co.'s  App  ,  102  Pa.  St.  515;  Rock- 
be  to  decrease  greatly  the  value  of  the  land  Water  Co.  v.  Camden  &  R.  W.  Co., 
first  franchise,  if  not  to  render  it  alto-  80  Me.  544,  15  Atl.  785;  Montjoy  v. 
gether  worthless.  But  the  first  charter  Pillow,  64  Miss.  705,  2  So.  108.  See 
was  not  exclusive  in  its  terms  ;  no  contract  cases  cited  ante,  p.  296,  note  1. 
was  violated  in  granting  the  second ;  the  2  Montesquieu's  Spirit  of  the  Laws, 


550  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

suggested  such  laws  are  now  exploded  utterly,  and  no  one  would 
seriously  attempt  to  justify  them  in  the  present  age.  The  right 
of  every  man  to  do  what  he  will  with  .his  own,  not  interfering 
with  the  reciprocal  right  of  others,  is  accepted  among  the  funda- 
mentals of  our  law.  The  instances  of  attempt  to  interfere  with  it 
have  not  been  numerous  since  the  early  coloni'al  days.  A  notable 
instance  of  an  attempt  to  substitute  the  legislative  judgment  for 
that  of  the  proprietor,  regarding  the  manner  in  which  lie  should 
use  and  employ  his  property,  may  be  mentioned.  In  the  State  of 
Kentucky  at  an  early  day  an  act  was  passed  to  compel  the  owners 
of  wild  lands  to  make  certain  improvements  upon  them  within  a 
specified  time,  and  it  declared  them  forfeited  to  the  State  in  case 
the  statute  was  not  complied  with.  It  would  be  difficult  to  frame, 
consistently  with  the  general  principles  of  free  government,  a 
plausible  argument  in  support  of  such  a  statute.  It  was  not  an 
exercise  of  the  right  of  eminent  domain,  for  that  appropriates 
property  to  some  specific  public  use  on  making  compensation.  It 
was  not  taxation,  for  that  is  simply  an  apportionment  of  the  bur- 
den of  supporting  the  government.  It  was  not  a  police  regulation, 
for  that  could  not  go  beyond  preventing  an  improper  use  of  the 
land  with  reference  to  the  due  exercise  of  rights  and  enjoyment  of 
legal  privileges  by  others.  It  was  purely  and  simply  a  law  to  for- 
feit a  man's  property,  if  he  failed  to  improve  it  according  to  a 
standard  which  the  legislature  had  prescribed.  To  such  a  power, 
if  possessed  by  the  government,  there  could  be  no  limit  but  the 
legislative  discretion ;  and  if  defensible  on  principle,  then  a  law 
which  should  authorize  the  officer  to  enter  a  man's  dwelling  and 
seize  and  confiscate  his  furniture  if  it  fell  below,  or  his  food  if  it 
exceeded  an  established  legal  standard,  would  be  equally  so.  But 
in  a  free  country  such  laws  when  mentioned  are  condemned 
instinctively.1 

But  cases  may  sometimes  present  themselves  in  which  improve- 
ments actually  made  by  one  man  upon  the  land  of  another,  even 
though  against  the  will  of  the  owner,  ought  on  grounds  of  strict 

B.   7.     Such    laws,  though    common   in  est    impertinence     and    presumption    in 

some  countries,  have  never  been  numer-  kings  and  ministers  to  pretend  to  watch 

ous  in  England.     See  references  to  the  over    the    economy   of    private    people, 

legislation  of  this  character,  4  Bl.  Com.  and  to  restrain  their  expense,  either  by 

170.     Some  of  these  statutes  prescribed  sumptuary   laws,  or  by   prohibiting   the 

the    number   of   courses   permissible   at  importation  of  foreign  luxuries."    Wealth 

dinner  or  other  meal,  while  others  were  of  Nations,  B.  2,  c.  3.     As  to  prohibitory 

directed  to  restraining   extravagance   in  Liquor  Laws,  see  post,  pp.  845-851. 
dress.      See  Hallam,  Mid.  Ages,  c.  9,  pt.          J  The   Kentucky   statute   referred   to 

II.;  and  as  to  Roman   sumptuary  laws,  was  declared  unconstitutional  in  Gaines 

Encyc.  Metrop.   Vol.  X.  p.  110.     Adam  r.  Buford,  1  Dana,  484.     See  also  Violett 

Smith  said  of  such  laws,  "  It  is  the  high-  v.  Violett,  2  Da.ua.,  325. 


CH.  XI.]  PROTECTION    BY   "THE   LAW   OF   THE   LAND."  551 

equity  to  constitute  a  charge  upon  the  land  improved.  If  they 
have  been  made  in  good  faith,  and  under  a  reasonable  expectation 
on  the  part  of  the  person  making  them,  that  he  was  to  reap  the 
benefit  of  them,  and  if  the  owner  has  stood  by  and  suffered  them 
to  be  made,  but  afterwards  has  recovered  the  land  and  appropri- 
ated the  improvements,  it  would  seem  that  there  must  exist 
against  him  at  least  a  strong  equitable  claim  for  reimbursement 
of  the  expenditures,  and  perhaps  no  sufficient  reason  why  pro- 
vision should  not  be  made  by  law  for  their  recovery. 

Accordingly  in  the  several  States  statutes  will  be  found  which 
undertake  to  provide  for  these  equitable  claims.  These  statutes 
are  commonly  known  as  betterment  laws  ;  and  as  an  illustration  of 
the  whole  class,  we  give  the  substance  of  that  adopted  in  Ver- 
mont. It  provided  that  after  recovery  in  ejectment,  where  he  or 
those  through  whom  he  claimed  had  purchased  or  taken  a  lease 
of  the  land,  supposing  at  the  time  that  the  title  purchased  was 
good,  or  the  lease  valid  to  convey  and  secure  the  title  and  interest 
therein  expressed,  the  defendant  should  be  entitled  to  recover  of 
the  plaintiff  the  full  value  of  the  improvements  made  by  him  or 
by  those  through  whom  he  claimed,  to  be  assessed  by  jury,  and  to 
be  enforced  against  the  land,  and  not  otherwise.  The  value  was 
ascertained  by  estimating  the  increased  value  of  the  land  in  con- 
sequence of  the  improvements ;  but  the  plaintiff  at  his  election 
might  have  the  value  of  the  land  without  the  improvements  as- 
sessed, and  the  defendant  should  purchase  the  same  at  that  price 
within  four  years,  or  lose  the  benefit  of  his  claim  for  improve- 
ments. But  the  benefit  of  the  law  was  not  given  to  one  who  had 
entered  on  land  by  virtue  of  a  contract  with  the  owner,  unless  it 
should  appear  that  the  owner  had  failed  to  fulfil  such  contract  on 
his  part.1 

This  statute,  and  similar  ones  which  preceded  it,  have  been 
adjudged  constitutional  by  the  Supreme  Court  of  Vermont,  and 
have  frequently  been  enforced.  In  an  early  case  the  court  ex- 
plained the  principle  of  these  statutes  as  follows  :  "  The  action 
for  betterments,  as  they  are  termed  in  the  statute,  is  given  on  the 
supposition  that  the  legal  title  is  found  to  be  in  the  plaintiff  in 
ejectment,  and  is  intended  to  secure  to  the  defendant  the  fruit  of 
his  labor,  and  to  the  plaintiff  all  that  he  is  justly  entitled  to, 
which  is  his  land  in  as  good  a  situation  as  it  would  have  been  if 
no  labor  had  been  bestowed  thereon.  The  statute  is  highly  equi- 
table in  all  its  provisions,  and  would  do  exact  justice  if  the  value 
either  of  the  improvements  or  of  the  land  was  always  correctly 
estimated.  The  principles  upon  which  it  is  founded  are  taken 

1  Revised  Statutes  of  Vermont  of  1839,  p.  216. 


552  CONSTITUTIONAL   LIMITATIONS.  [cH.  XI. 

from  the  civil  law,  where  ample  provision  was  made  for  reimburs- 
ing to  the  bona  fide  possessor  the  expense  of  his  improvements,  if 
lie  was  removed  from  his  possession  by  the  legal  owner.  It  gives 
to  the  possessor  not  the  expense  which  he  has  laid  out  on  the 
land,  but  the  amount  which  he  has  increased  the  value  of  the  land 
by  his  betterments  thereon ;  or,  in  other  words,  the  difference 
between  the  value  of  the  land  as  it  is  when  the  owner  recovers  it, 
and  the  value  if  no  improvement  had  been  made.  If  the  owner 
takes  the  laud  together  with  the  improvements,  at  the  advanced 
value  which  it  has  from  the  labor  of  the  possessor,  what  can  be 
more  just  than  that  he  should  pay  the  difference  ?  But  if  he  is 
unwilling  to  pay  this  difference,  by  giving  a  deed  as  the  statute 
provides,  he  receives  the  value  as  it  would  have  been  if  nothing 
had  been  done  thereon.  The  only  objection  which  can  be  made 
is,  that  it  is  sometimes  compelling  the  owner  to  sell  when  he  may 
have  been  content  with  the  property  in  its  natural  state.  But 
this,  when  weighed  against  the  loss  to  the  bona  fide  possessor,  and 
against  the  injustice  of  depriving  him  of  the  fruits  of  his  labor, 
and  giving  it  to  another,  who,  by  his  negligence  in  not  sooner 
enforcing  his  claim,  has  in  some  measure  contributed  to  the  mis- 
take under  which  he  has  labored,  is  not  entitled  to  very  great 
consideration."1 

The  last  circumstance  stated  in  this  opinion  —  the  negligence 
of  the  owner  in  asserting  his  claim  —  is  evidently  deemed  impor- 
tant in  some  States,  whose  statutes  only  allow  a  recovery  for 
improvements  by  one  who  has  been  in  possession  a  certain  num- 
ber of  years.  But  a  later  Vermont  case  dismisses  it  from  con- 
sideration as  not  being  a  necessary  ground  on  which  to  base  the 
right  of  recovery.  "  The  right  of  the  occupant  to  recover  the 
value  of  his  improvements,"  say  the  court,  "  does  not  depend 
upon  the  question  whether  the  real  owner  has  been  vigilant  or 
negligent  in  the  assertion  of  his  rights.  It  stands  upon  a  princi- 
ple of  natural  justice  and  equity ;  viz.,  that  the  occupant  in  good 
faith,  believing  himself  to  be  the  owner,  has  added  to  the  perma- 
nent value  of  the  laud  by  his  labor  and  his  money ;  is  in  equity 
entitled  to  such  added  value ;  and  that  it  would  be  unjust  that 
the  owner  of  the  land  should  be  enriched  by  acquiring  the  value 
of  such  improvements  without  compensation  to  him  who  made 
them.  This  principle  of  natural  justice  has  been  very  widely  — 
we  may  say  universally  —  recognized."2 

1  Brown  v.  Storm,  4  Vt.  37.    This  class  other  cases  referred  to  in  the  succeeding 

of  legislation  was  also  elaborately  exam-  note.     See  also  Bright  v.  Boyd,  1  Story, 

ined  and  defended  by  Trumbtdl,  J.,  in  Ross  478,  2  Story.  605. 
v.  Irving,  14  111.  171,  and  in  some  of  the         a  Whitney  v.  Richardson,  31  Vt.  300, 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND." 


553 


Betterment  laws,  then,  recognize  the  existence  of  an  equitable 
right,  and  give  a  remedy  for  its  enforcement  where  none  had  ex- 
isted before.  It  is  true  that  they  make  a  man  pay  for  improve- 
ments which  he  has  not  directed  to  be  made  ;  but  this  legislation 
presents  no  feature  of  officious  interference  by  the  government 
with  private  property.  The  improvements  have  been  made  by 
one  person  in  good  faith,  and  are  now  to  be  appropriated  by  an- 
other. The  parties  cannot  be  placed  in  statu  quo,  and  the  statute 
accomplishes  justice  as  nearly  as  the  circumstances  of  the  case 
will  admit,  when  it  compels  the  owner  of  the  land,  who,  if  he 
declines  to  sell,  must  necessarily  appropriate  the  betterments 
made  by  another,  to  pay  the  value  to  the  person  at  whose  expense 
they  have  been  made.  The  case  is  peculiar ;  but  a  statute  can- 
not be  void  as  an  unconstitutional  interference  with  private  prop- 
erty which  adjusts  the  equities  of  the  parties  as  nearly  as  possible 
according  to  natural  justice.1 


306.  For  other  cases  in  which  similar 
laws  have  been  held  constitutional,  see 
Armstrong  v.  Jackson,  1  Blackf.  374 ; 
Fowler  v.  Halbert,  4  Bibb,  54 ;  Withington 
».  Corey,  2  N".  H.  115;  Bacon  v.  Callen- 
der,  6  Mass.  303 ;  Pacquette  t>.  Pickness, 
19  Wis  219 ;  Childs  v.  Shower,  18  Iowa, 
261 ;  Scott  v.  Mather,  14  Tex.  235;  Saun- 
ders  v.  Wilson,  19  Tex.  194  ;  Brackett 
v.  Norcross,  1  Me.  89 ;  Hunt's  Lessee  v. 
McMalian,  5  Ohio,  132 ;  Longworth  v. 
Wortliington,  6  Ohio,  9;  Stump  v.  Horn- 
back,  94  Mo.  26,  6  S.  W.  356.  See 
further,  Jones  v.  Carter,  12  Mass.  314; 
Coney  v.  Owen,  6  Watts,  435;  Steele  c. 
Spruance,  22  Pa.  St.  256;  Lynch  «?. 
Brudie,  63  Pa.  St.  206 ;  Dothage  v.  Stuart, 
35  Mo.  251 ;  Fenwick  v.  Gill,  38  Mo.  510; 
Howard  v.  Zeyer,  18  La.  Ann.  407  ;  Pope 
v.  Macon,  23  Ark.  644  ;  Marlow  v.  Adams, 
24  Ark.  109  ;  Ormond  v.  Martin,  37  Ala. 
598  ;  Love  v.  Shartzer,  31  Cal.  487  ;  Gris- 
wold  v.  Bragg,  48  Conn.  577,  18  Blatch. 
202;  Guild  v.  Kidd,  48  Mich.  307,  12 
N.  W.  158.  [Lay  o.  Sheppard,  112  Ga. 
Ill,  37  S.  E.  132.]  For  a  contrary 
ruling,  see  Nelson  v.  Allen,  1  Yerg.  360, 
in  which,  however,  Judge  Catron  in  a 
note  says  the  question  was  really  not 
involved.  Mr.  Justice  Story  held  in  So- 
ciety, &c.  v.  Wheeler,  2  Gall.  105,  that 
such  a  law  could  not  constitutionally  be 
made  to  apply  to  improvements  made 
before  its  passage ;  but  this  decision  was 
made  under  the  New  Hampshire  Consti- 
tution, which  forbade  retrospective  laws. 


The  principles  of  equity  upon  which  such 
legislation  is  sustained  would  seem  not  to 
depend  upon  the  time  when  the  improve- 
ments were  made.  See  Davis's  Lessee 
v.  Powell,  13  Ohio,  308.  In  Childs  v. 
Shower,  18  Iowa,  261,  it  was  held  that 
the  legislature  could  not  constitutionally 
make  the  value  of  the  improvements  a 
personal  charge  against  the  owner  of  the 
land,  and  authorized  a  personal  judgment 
against  him.  The  same  ruling  was  had 
in  McCoy  v.  Grandy,  3  Ohio  St.  463. 
A  statute  had  been  passed  authorizing 
the  occupying  claimant  at  his  option, 
after  judgment  rendered  against  him  for 
the  recovery  of  the  land,  to  demand  pay- 
ment from  the  successful  claimant  of  the 
full  value  of  his  lasting  and  valuable  im- 
provements, or  to  pay  to  the  successful 
claimant  the  value  of  the  land  without 
the  improvements,  and  retain  it.  The 
court  say:  "The  occupying  claimant  act, 
in  securing  to  the  occupant  a  compensa- 
tion for  his  improvements  as  a  condition 
precedent  to  the  restitution  of  the  lands  to 
the  owner,  goes  to  the  utmost  stretch  of 
the  legislative  power  touching  this  sub- 
ject. And  the  statute  .  .  .  providing  for 
the  transfer  of  the  fee  in  the  land  to  the 
occupying  claimant,  without  the  consent 
of  the  owner,  is  a  palpable  invasion  of 
the  right  of  private  property,  and  clearly 
in  conflict  with  the  Constitution." 

1  In  Harris  v.  Inhabitants  of  Marble- 
head,  10  Gray,  40,  it  was  held  that  the 
betterment  law  did  not  apply  to  a  town 


554  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

Unequal  and  Partial  Legislation. 

In  the  course  of  our  discussion  of  this  subject,  it  has  been  seen 
that  some  statutes  are  void  though  general  in  their  scope,  while 
others  are  valid  though  establishing  rules  for  single  cases  only. 
An  enactment  may  therefore  be  the  law  of  the  land  without  being 
a  general  law.  And  this  being  so,  it  may  be  important  to  con- 
sider in  what  cases  constitutional  principles  will  require  a  statute 
to  be  general  in  its  operation,  and  in  what  cases,  on  the  other 
hand,  it  may  be  valid  without  being  general.  We  speak  now  in 
reference  to  general  constitutional  principles,  and  not  to  any 
peculiar  rules  which  may  have  become  established  by  special 
provisions  in  the  constitutions  of  individual  States. 

The  cases  relating  to  municipal  corporations  stand  upon  pecu- 
liar grounds  from  the  fact  that  those  corporations  are  agencies 
of  government,  and  as  such  are  subject  to  complete  legislative 
control.  Statutes  authorizing  the  sale  of  property  of  minors  and 
other  persons  under  disability  are  also  exceptional,  in  that  they 
are  applied  for  by  the  parties  representing  the  interests  of  the 
owners,  and  are  remedial  in  their  character.  Such  statutes  are 
supported  by  the  presumption  that  the  parties  in  interest  would 
consent  if  capable  of  doing  so;  and  in  law  they  are  to  be  con- 
sidered as  assenting  in  the  person  of  the  guardians  or  trustees  of 
their  rights.  And  perhaps  in  any  other  case,  if  a  party  petitions 
for  legislation  and  avails  himself  of  it,  he  may  justly  be  held 
estopped  from  disputing  its  validity ; l  so  that  the  great  bulk  of 
private  legislation  which  is  adopted  from  year  to  year  may  at 
once  be  dismissed  from  this  discussion. 

Laws  public  in  their  objects  may,  unless  express  constitutional 
provision  forbids,2  be  either  general  or  local  in  their  application  ; 

which  had  appropriated  private  property  who  had  obtained  a  statute  for  the  levy 

for   the  purposes  of  a  school-house,  and  of  a  tax  to  refund  bounty  moneys,  which 

erected  the  house  thereon.     The  law,  it  statute  was   held  void   as   to  other  per- 

was  said, did  not  apply  "where  a  party  is  sons.     And  see  Motz  v.  Detroit,  18  Mich, 

taking  land  by  force  of  the  statute,  and  495;  Dewlmrst  v.  Allegheny,  95  Pa.  St. 

is  bound  to  see  that  all  the  steps  are  reg-  437 ;  Andrus  v.  Board  of  Police,  41  La. 

ular.     If  it  did,  the  party  taking  the  land  Ann.   697,   6   So.  603.     A  man  may  be 

might  in  fact  compel  a  sale  of  the  land,  bound  by  his  assent  to  an  act  changing 

or  compel   the    party  to  buy  the  school-  the  rules  of  descent  in  his  particular  case, 

house,    or    any   other    building    erected  though  it  would  be  void  if  not  assented 

upon  it."    But  as  a  matter  of  constitu-  to.     Beall  v.  Beall,  8  Ga.  210. 
tional    authority,    we   see   no   reason    to         2  See  ante,  pp.  17(3-181,  notes,  and  cases 

doubt  that  the  legislature  might  extend  cited.     To  make  a  statute  a  public  law 

such   a  law   even   to  the   cases   of  this  of  general  obligation,  it  is  not  necessary 

description.  that  it  should  be  equally  applicable  to  all 

1  This  doctrine  was  applied  in  Fergu-  parts  of  the  State.     All  that  is  required 

son  v.  Landram,  5  Bush,  230,  to  parties  is  that  it  shall  apply  equally  to  all  per- 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        555 

they  may  embrace  many  subjects  or  one,  and  they  may  extend  to 
all  citizens,  or  be  confined  to  particular  classes,  as  minors  or 
married  women,  bankers  or  traders,  and  the  like. 1  The  authority 
that  legislates  for  the  State  at  large  must  determine  whether 
particular  rules  shall  extend  to  the  whole  State  and  all  its  citi- 
zens, or,  on  the  other  hand,  to  a  subdivision  of  the  State  or  a 
single  class  of  its  citizens  only.  The  circumstances  of  a  par- 
ticular locality,  or  the  prevailing  public  sentiment  in  that  section 
of  the  State,  may  require  or  make  acceptable  different  police 
regulations  from  those  demanded  in  another,  or  call  for  different 
taxation,  and  a  different  application  of  the  public  moneys.  The 
legislature  may  therefore  prescribe  or  authorize  different  laws  of 
police,  allow  the  right  of  eminent  domain  to  be  exercised  in 
different  cases  and  through  different  agencies,  and  prescribe 
peculiar  restrictions  upon  taxation  in  each  distinct  municipality, 
provided  the  State  constitution  does  not  forbid.2  These  discrim- 
inations are  made  constantly  ;  and  the  fact  that  the  laws  are  of 
local  or  special  operation  only  is  not  supposed  to  render  them 
obnoxious  in  principle.  The  legislature  may  also  deem  it  desir- 
able to  prescribe  peculiar  rules  for  the  several  occupations,  and  to 
establish  distinctions  in  the  rights,  obligations,  duties,  and  capaci- 
ties of  citizens.3  The  business  of  common  carriers,  for  instance, 

sons  within  the  territorial  limits  described  equal   protection  of   the  laws   does   not 

in  the  act.     State  v.  County  Commission-  make   necessary  the   same   local  regula- 

ers  of  Baltimore,  29  Md.  516.     See  Pol-  tions,  municipal  powers,   or   judicial  or- 

lock  v.  McClurken,  42  111.  370 ;  Haskel  v.  ganization   or  jurisdiction.     Missouri   v. 

Burlington,  30  Iowa,  232 ;  Unity  v.  Bur-  Lewis,  101  U.  S.  22.     See  Strauder  v.  W. 

rage,  103  U.  S.  447.    Liquor  sales  may  Virginia,   100   U.   S.    303;     Virginia  v. 

be   forbidden  in    the   country  and   per-  Rives,  100  U.  S.  313 ;  Ex  parte  Virginia, 

mitted  in  the  towns.     State  v.  Berlin,  21  100  U.  S.  339. 

S.  C.  292;  Howell  v.  State,  71  Ga.  324.  8  The  prohibition  of  special  legisla- 
See  Marmet  v.  State,  45  Ohio  St.  63,  12  N.  tion  for  the  benefit  of  individuals  does 
E.  463.  Compare  Hatcher  v.  State,  12  not  preclude  laws  for  the  benefit  of  par- 
Lea,  368.  An  act  may  be  made  a  mis-  ticular  classes ;  as,  for  example,  mechan- 
demeanor  in  certain  counties  only,  ics  and  other  laborers.  Davis  r.  State,  3 
Davis  v.  State,  68  Ala.  58;  State  v.  Lea,  376.  But  under  it  peculiar  provi- 
Moore,  104  N.  C.  714,  10  S.  E.  143.  But  sions  as  to  liens  cannot  be  made  appli- 
a  law  is  void  which  makes  pool  selling  cable  to  but  two  counties.  Woodard  v. 
innocent  under  certain  circumstances,  Brien,  14  Lea,  520.  QWhen  the  laws 
while  it  is  generally  an  offence.  Daly  already  provide  for  the  inspection  of 
v.  State,  13  Lea,  228.  QAn  act  requiring  grain,  live-stock,  and  dressed  meats,  an 
repayment  of  taxes  erroneously  paid  can-  exception  of  dealers  in  such  products 
not  be  made  applicable  to  a  single  county,  from  the  provisions  of  an  act  requiring 
Hamilton  Co.  Com'rs  v.  Rasche,  50  Ohio  commission  merchants  in  cities  of  speci- 
St.  103,  33  N.  E.  408,  19  L.  R.  A.  584.]  fled  size  to  take  out  licenses  is  not  void 

1  See  the  Iowa  R.  R.  Land  Co.  v.  Soper,  on  account  of  arbitrariness.     Lasher  v. 
39  Iowa,  112;  Matter  of  Goodell,  39  Wis.  People,  183  111.  226,  55  N.  E.   663,  47 
232,  20  Am.  Rep.  42;  Commonwealth  v.  L.  R.  A.  802,  75  Am.  St.  103.]    A  statute 
Hamilton  Mfg.  Co.,  120  Mass.  383.  exempting  from  taxation  property  to  the 

2  The    constitutional  requirement   of  amount  of  $500  of  widows  and  maids 


556 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XI. 


or  of  bankers,  may  require  special  statutory  regulations  for  the 
general  benefit,  and  it  may  be  matter  of  public  policy  to  give 
laborers  in  one  business  a  specific  lien  for  their  wages,  when  it 
would  be  impracticable  or  impolitic  to  do  the  same  for  persons 
engaged  in  some  other  employments,  (a)  If  the  laws  be  otherwise 
unobjectionable,  all  that  can  be  required  in  these  cases  is,  that 
they  be  general  in  their  application  to  the  class  or  locality  to 
which  they  apply  ;  and  they  are  then  public  in  character,  and  of 
their  propriety  and  policy  the  legislature  must  judge,  (b) 

But  a  statute   would  not  be   constitutional  which  should  pro- 
scribe  a  class  or  a  party  for  opinion's  sake,1  or  which  should 


held  unconstitutional  because  unequal. 
State  v.  Indianapolis,  69  Ind.  375,  35  Am. 
Rep.  223;  Warner  v.  Outran,  75  Ind. 
309.  QA  statute  forbidding  contracts 
between  railway  companies  and  their  em- 
ployees, and  exempting  such  companies 
from  liability  for  danlages  for  personal 
injuries,  is  void  as  class  legislation  and  as 
an  unreasonable  restraint  upon  freedom  of 
contract.  Shaver  v.  Pennsylvania  Ry. 
Co.,  71  Fed.  Rep.  931.] 

It  is  not  competent  to  except  from 
right  to  recover  for  injury  from  defective 
sidewalk  all  who  do  not  reside  in  States 
where  similar  injuries  constitute  right  of 
action.  Pearson  v.  Portland,  69  Me.  278, 
31  Am.  Rep.  276.  The  rule  of  non-lia- 
bility of  the  master  to  a  servant  for  in- 
jury suffered  through  a  fellow-servant's 
negligence  may  be  abrogated  as  to  rail- 
road companies.  Missouri  Pac.  Ry.  Co.  v. 
Mackeye,  33  Kan.  298,  6  Pac.  291.  A 
police  regulation,  affecting  all  railroads, 
to  enforce  a  quicker  delivery  of  freight 
is  valid.  Little  Rock,  &c.  Ry.  Co.  v. 
Hanniford,  49  Ark.  291,  5  S.  W.  294.  [A 
statute  rendering  telegraph  companies 
liable  for  mental  anguish  caused  by  fail- 
ure to  promptly  transmit  and  deliver 
messages  does  not  deprive  them  of  prop- 
erty without  due  process  of  law  or  deny 
them  the  equal  protection  of  the  law. 


Simmons  v.  West.  U.  Tel.  Co.,  63  S.  C.  425, 
41  S.  E.  521,  57  L.  R.  A.  607.]  So  one 
forbidding  burying  an  animal  killed  by 
a  train.  Bannon  v.  State,  49  Ark.  167,  4 
S.  W.  655.  An  attorney  fee,  as  a  penalty, 
may  be  allowed  for  non-compliance  with 
fencing  law  if  animal  is  so  killed.  Peoria, 
D.  &  E.  Ry.  Co.  v.  Duggan,  109  111.  537. 
Contra,  Wilder  v.  Chicago,  &c.  Ry.  Co., 
76  Mich.  382,  38  N.  W.  289 ;  South,  &c. 
R.  R.  Co.  v.  Morris,  65  Ala.  193;  as 
class  legislation.  QSee  in  addition  upon 
statutes  allowing  attorney's  fees  in  par- 
ticular classes  of  cases.  Gano  v.  Minne- 
apolis &  St.  L.  Ry.  Co.,  114  Iowa,  713,  87 
N.  W.  714,  55  L.  R.  A.  263,  and  cases 
cited.  Hocking  Valley  Coal  Co.  v.  Ros- 
ser,  53  Ohio  St.  12,  41  N.  E.  263,  29  L.  R, 
A.  386 ;  Vogel  v.  Pekoe,  157  III.  339,  42 
N.  E.  386,  30  L.  R.  A.  491 ;  Cameron  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  60  Minn. 
100,  61  N.  W.  814,  31  L.  R.  A.  553 ;  Title 
Guaranty  Co.  r.  Wrenn,  35  Oreg.  62,  56 
Pac.  271,  76  Am.  St.  454.] 

1  The  sixth  section  of  the  Metropoli- 
tan Police  Law  of  Baltimore  (1859)  pro- 
vided that  "  no  Black  Republican,  or  in- 
dorser  or  supporter  of  the  Helper  book, 
shall  be  appointed  to  any  office  "  under 
the  Board  of  Police  which  it  established. 
This  was  claimed  to  he  unconstitutional, 
as  introducing  into  legislation  the  princi- 


(a)  QThe  classification  underlying  such  legislation  must  be  a  reasonable  one.     If 
arbitrary  or  unreasonable,  the  courts  do  not  hesitate  to  declare  the  legislation  void. 
Sutton  v.  State,  96  Tenn.  696,  36  S.  W.  697,  33  L'.  R.  A.  589.     A  statute^ providing  for 
the  treatment  of  inebriates  at  the  expense  of  the  county,  and  limiting  the  operation 
of  such  legislation  to  counties  having  a  population  of  fifty  thousand  or  more,  is  void 
as  being  unreasonable  to  so  restrict  its  application.     Murray  v.  Board  of  Co.  Com'rs, 
81  Minn.  359,  84  N.  W.  103,  83  Am.  St.  379,  51  L.  R.  A.  828.] 

(b)  [But  see  People  v.  Coolidge,  124  Mich.  664,  83  N.  W.  594,  50  L.  R.  A.  493,  ap- 
parently conira.] 


CH.  XI.]  PROTECTION   BY   "THE   LAW   OF   TI1E   LAND." 


557 


select  particular  individuals  from  a  class  or  locality,  and  subject 
them  to  peculiar  rules,  or  impose  upon  them  special  obligations 
or  burdens  from  which  others  in  the  same  locality  or  class  are 
exempt.1 


pie  of  proscription  for  the  sake  of  politi- 
cal opinion,  which  was  directly  opposed 
to  the  cardinal  principles  on  which  the 
Constitution  was  founded.  The  court 
dismissed  the  objection  in  the  following 
words :  "  That  portion  of  the  sixth  sec- 
tion which  relates  to  Black  Republicans, 
&c.,  is  obnoxious  to  the  objection  urged 
against  it,  if  we  are  to  consider  that  class 
of  persons  as  proscribed  on  account  of 
their  political  or  religious  opinions.  But 
we  cannot  understand,  officially,  who  are 
meant  to  be  affected  by  the  proviso,  and 
therefore  cannot  express  a  judicial  opinion 
on  the  question."  Baltimore  c.  State,  15 
Md.  376,  4(58, 484.  This  does  not  seem  to 
be  a  very  satisfactory  disposition  of  so 
grave  a  constitutional  objection  to  a  leg- 
islative act.  That  courts  may  take  judi- 
cial notice  of  the  fact  that  the  electors  of 
the  country  are  divided  into  parties  with 
well-known  designations  cannot  be 
doubted  ;  and  when  one  of  these  is  pro- 
scribed by  a  name  familiarly  applied  to 
it  by  its  opponents,  the  inference  that  it 
is  done  because  of  political  opinion  seems 
to  be  too  conclusive  to  need  further  sup- 
port than  that  which  is  found  in  the  act 
itself.  And  we  know  no  reason  why 
courts  should  decline  to  take  notice  of 
these  facts  of  general  notoriety,  which, 
like  the  names  of  political  parties,  are  a 
part  of  the  public  history  of  the  times. 
A  statute  requiring  causes  in  which  the 
venue  has  been  changed  to  be  remanded 
on  the  affidavits  of  three  unconditional 
Union  men,  that  justice  can  be  had  in 
the  courts  where  it  originated,  held  void, 
on  the  principles  stated  in  the  text,  in 
Brown  v.  Haywood,  4  Heisk.  357. 

It  has  been  decided  that  State  laws 
forbidding  the  intermarriage  of  whites  and 
blacks  are  such  police  regulations  as  are 
entirely  within  the  power  of  the  States, 
notwithstanding  the  provisions  of  the 
new  amendments  to  the  federal  Constitu- 
tion. State  v.  Jackson,  80  Mo.  175 ;  State 
v.  Gibson,  36  Ind.  389,  10  Am.  Rep.  42; 
State  v.  Hairston,  63  N.  C.  451 ;  State  v. 
Kenny,  76  N.  C.  251,  22  Am.  Rep.  683; 
Ellis  r.  State,  42  Ala.  525 ;  Green  v.  State, 


58  Ala.  190,  29  Am.  Rep.  739;  Kinney's 
Case,  30  Gratt.  858 ;  Frasher  v.  State,  3 
Tex.  App.  263,  30  Am.  Rep.  131 ;  Lonas  v. 
State,  3  Heisk.  287,  1  Green,  Cr.  R.  452 ; 
Ex  rel.  Hobbs  &  Johnson,  1  Woods,  537 ; 
Ex  parte  Kinney,  3  Hughes,  9;  Ex  parte 
Francois,  3  Woods,  367.  FjThe  exclusion 
of  colored  persons  from  a  jury  on  account 
of  color  violates  the  constitutional  provi- 
sion for  the  protection  of  civil  rights. 
State  v.  Peoples,  131  N.  C.  784,  42  S.  E. 
814.]  It  is  also  said  colored  children 
may  be  required  to  attend  separate 
schools,  if  impartial  provision  is  made  for 
their  instruction.  State  v.  Duffy,  7  Nev. 
342,  8  Am.  Rep.  713;  Cory  v.  Carter,  48 
Ind.  327 ;  Ward  v.  Flood,  48  Cal.  36 ; 
State  v.  McCann,  21  Ohio  St.  198; 
People  v.  Gallagher,  93  N.  Y.  438 ;  Ber- 
tonneau  v.  School  Directors,  3  Woods, 
177.  But  some  States  forbid  this.  People 
v.  Board  of  Education,  18  Mich.  400; 
Clark  v.  Board  of  Directors,  24  Iowa, 
266;  Dove  v.  School  District,  41  Iowa, 
689;  Chase  v.  Stephenson,  71  111.  383; 
People  v.  Board  of  Education  of  Quincy, 
101  111.  308  ;  Board  of  Education  v.  Tin- 
non,  26  Kan.  1 ;  Pierce  v.  Union  Dist.,  46 
N.  J.  L.  76 ;  Kaine  v.  Com.,  101  Pa.  St.  490. 
See  Dawson  v.  Lee,  83  Ky.  49.  And 
when  separate  schools  are  not  established 
for  colored  children,  they  are  entitled  to 
admission  to  the  other  public  schools. 
State  v.  Duffy,  supra.  Where  separate 
schools  are  allowed,  property  of  whites 
cannot  be  taxed  for  white  schools  alone, 
and  of  negroes  for  negro  schools.  Puitt 
v.  Com'rs,  94  N.  C.  709;  Clay  brook  v. 
Owensboro,  16  Fed.  Rep.  297. 

i  Lin  Sing  v.  Washburn,  20  Cal.  534  ; 
Brown  r.  Haywood,  4  Heisk.  357.  A  San 
Francisco  ordinance  required  every  male 
person  imprisoned  in  the  county  jail  to 
have  his  hair  cut  to  an  uniform  length  of 
one  inch.  This  was  held  invalid,  as  be- 
ing directed  specially  against  the  Chinese. 
Ah  Kow  v.  Nonan,  5  Sawyer,  652.  See 
Tick  Wo  v.  Hopkins,  118  U.  S  356,  6 
Sup.  Ct.  Rep.  1064.  QA  statute  defining 
a  "  tramp  "  and  prescribing  a  heavier 
punishment  for  certain  criminal  conduct 


558 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


The  legislature  may  suspend  the  operation  of  the  general  laws 
of  the  State ;  but  when  it  does  so  the  suspension  must  be  general, 
and  cannot  be  made  for  individual  cases  or  for  particular  locali- 
ties.1 Privileges  may  be  granted  to  particular  individuals  when 
by  so  doing  the  rights  of  others  are  not  interfered  with ;  disabili- 
ties may  be  removed  ;  the  legislature  as  parens  patrice,  when  not 
forbidden,  may  grant  authority  to  the  guardians  or  trustees  of 
incompetent  persons  to  exercise  a  statutory  control  over  their 
estates  for  their  assistance,  comfort,  or  support,  or  for  the  dis- 


of  such  persons  than  is  attached  to  simi- 
lar conduct  of  others  is  not  invalid  for 
that  reason.  It  is  uniform  in  its  applica- 
tion to  all  within  the  class.  State  v. 
Hogan,  63  Ohio,  202,  58  N.  E.  672,  62 
L.  R.  A.  863.  See  post,  837,  a.  Upon 
question  of  special  legislation  see  Arms 
v.  Ayer,  192  111.  601,  61  N.  E.  851,  85 
Am.  St.  357.]  In  Louisiana  an  ordi- 
nance forbidding  the  sale  of  goods  on 
Sunday,  but  excepting  from  its  opera- 
tion those  keeping  their  places  of  business 
closed  on  Saturday,  was  held  partial  and 
therefore  unconstitutional.  Shreveport 
v.  Levy,  26  La.  Ann.  671,  21  Am.  Rep. 
653.  A  Sunday  closing  law  is  not  une- 
qual because  it  excepts  certain  business 
as  necessary.  Lieberman  v  State,  26  Neb. 
464,  42  N.  W.  419.  A  liquor  seller  may 
not  be  forbidden  to  sign  the  bond  of  an- 
other liquor  seller.  Kulm  v.  Common 
Council,  70  Mich.  534,  38  N.  W.  470. 
Nor  may  the  right  to  sell  liquor,  where 
a  lawful  business,  be  made  dependent  on 
the  caprice  or  private  judgment  of  the 
board  which  approves  the  sellers'  bond. 
People  v.  Haug,  68  Mich.  549,  37  N.  W. 
21.  Keeping  open  after  legal  hours  can- 
not be  declared  a  breach  of  the  peace  for 
which  an  arrest  may  be  made  without  a 
warrant.  Id.  There  is  no  reas.on,  how- 
ever, why  the  law  should  not  take  notice 
of  peculiar  views  held  by  some  classes  of 
people,  which  unfit  them  for  certain  pub- 
lic duties,  and  excuse  them  from  the 
performance  of  such  duties  ;  as  Quakers 
are  excused  from  military  duty,  and  per- 
sons denying  the  right  to  inflict  capital 
punishment  are  excluded  from  juries  in 
capital  cases.  These,  however,  are  in 
the  nature  of  exemptions,  and  they  rest 
upon  considerations  of  obvious  necessity. 
fjA  fire  tax  upon  property  is  void  as  to 
railroads  unless  their  property  is  accorded 
equality  of  opportunity  with  other  prop- 


erty taxed  to  be  protected  by  the  meas- 
ures provided  out  of  the  proceeds  of  such 
taxes.  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Clark,  60  Kan.  826,  58  Pac.  477,  47  L.  R. 
A.  77.  The  recent  "department  store" 
legislation  enacted  in  some  form  in  several 
of  the  StHtes  has  been  before  the  courts 
in  several  cases,  and  has  generally  been 
overturned  as  an  arbitrary  and  unreason- 
able restraint  upon  the  freedom  to  con- 
tract, as  an  attempt  to  use  the  police 
power  of  the  State  where  there  is  no 
occasion  for  its  exercise,  and  as  denying 
property  rights  to  one  class  in  the  com- 
munity, permitted  to  others.  Chicago  v. 
Netcher,  183  III.  104,  65  N.  E.  707,  75 
Am.  St.  93 ;  State  ex  rcl.  Wyatt  v.  Ash- 
brook,  154  Mo.  375, 55  S.  W.  627, 77  Am. 
St.  765,  48  L.  R.  A.  265.] 

1  The  statute  of  limitations  cannot  be 
suspended  in  particular  cases  while  al- 
lowed to  remain  in  force  generally.  Hoi- 
den  v.  James,  11  Mass.  396;  Davison  v. 
Johonnot,  7  Met.  388.  See  ante,  p.  521, 
note.  The  general  exemption  laws  can- 
not be  varied  for  particular  cases  or  local- 
ities. Bull  v.  Conroe,  13  Wis.  233,  244. 
The  legislature,  when  forbidden  to  grant 
divorces,  cannot  pass  special  acts  author- 
izing the  courts  to  grant  divorces  in  par- 
ticular cases  for  causes  not  recognized  in 
the  general  law.  Teft  v.  Teft,  3  Mich. 
67 ;  Simonds  v.  Simonds,  103  Mass.  672. 
See,  for  the  same  principle,  Alter's  Ap- 
peal, 67  Pa.  St.  341.  The  authority  in 
emergencies  to  suspend  the  civil  laws 
in  a  part  of  the  State  only,  by  a  declara- 
tion of  martial  law,  we  do  not  call  in 
question  by  anything  here  stated.  Nor 
in  what  we  have  here  said  do  we  have 
any  reference  to  suspensions  of  the  laws 
generally,  or  of  any  particular  law,  under 
the  extraordinary  circumstances  of  re- 
bellion or  war. 


CH.  XT.] 


PROTECTION    BY   "THE   LAW   OF   THE    LAND.' 


559 


charge  of  legal  or  equitable  liens  upon  their  property ;  but  every 
one  has  a  right  to  demand  that  he  be  governed  by  general  rules, 
and  a  special  statute  which,  without  his  consent,  singles  his  case 
out  as  one  to  be  regulated  by  a  different  law  from  that  which  is 
applied  in  all  similar  cases,  would  not  be  legitimate  legislation, 
but  would  be  such  an  arbitrary  mandate  as  is  not  within  the 
province  of  free  governments.  Those  who  make  the  laws  "  are  to 
govern  by  promulgated,  established  laws,  not  to  be  varied  in  par- 
ticular cases,  but  to  have  one  rule  for  rich  and  poor,  for  the 
favorite  at  court  and  the  countryman  at  plough."  1  This  is  a 
maxim  in  constitutional  law,  and  by  it  we  may  test  the  authority 
and  binding  force  of  legislative  enactments.2 


1  Locke  on  Civil  Government,  §  142; 
State  v.  Duffy,  7  Nev.  349 ;  Strauder  v. 
W.  Virginia,  100  U.  S.  303 ;  Bernier  v. 
Kussell,  89  111.  60.     [This  principle  is  not 
to  be  carried  so  far  as  to  put  all  persons 
on  an  equality  as  to  rights  which  are  not 
natural   rights.     So   though   there  be  a 
statute  providing  that  the  masculine  shall 
include  all  genders,  a  woman  is  not  enti- 
tled to  admission  to  the  bar  under  a  stat- 
ute providing  thnt"any   male   citizen," 
possessing  certain  qualifications,  shall  be 
admitted,  and  such  statute  is  valid.    Re 
Maddox,   93    Md.   727,   50   All.   487,   55 
L.  R.  A.  298,  and  cases  cited  in  note.] 

2  In  Lewis  v.  Webb,  3  Me.  326,  the 
validity  of  a  statute  granting  an  appeal 
from  a  decree  of  the  Probate  Court  in  a 
particular  case  came  under  review.     The 
court  say  :  "  On  principle  it  can  never  be 
within  the  bounds  of  legitimate  legisla- 
tion to  enact  a  special  law,  or  pass  a  re- 
solve dispensing  with  the  general  law  in 
a  particular  case,  and  granting  a  privilege 
and  indulgence  to  one  man,  by  way  of 
exemption  from  the  operation  and  effect 
of  such  general  law,  leaving  all  other  per- 
sons under  its  operation.     Such  a  law  is 
neither  just  nor  reasonable  in  its  conse- 
quences.    It  is  our  boast   that  we  live 
under  a  government  of  laws,  and  not  of 
men ;  but  this  can  hardly  be  deemed  a 
blessing,  unless  those  laws  have  for  their 
immovable  basis  the  great  principles  of 
constitutional  equality.     Can  it  be  sup- 
posed for  a  moment  that,  if  the  legisla- 
ture should  pass  a  general  law,  and  add 
a  section  by  way  of  proviso,  that  it  never 
should  be  construed  to  have  any  opera- 
tion or  effect  upon  the  persons,  rights,  or 
property  of   Archelaus  Lewis  or  John 


Gordon,  such  a  proviso  would  receive 
the  sanction  or  even  the  countenance  of 
a  court  of  law  ?  And  how  does  the  sup- 
posed case  differ  from  the  present  ?  A 
resolve  passed  after  the  general  law  can 
produce  only  the  same  effect  as  such  pro- 
viso. In  fact,  neither  can  have  any  legal 
operation."  See  also  Durham  v.  Lewis- 
ton,  4  Me.  140;  Holden  v.  James,  11  Mass. 
396  ;  Piquet,  Appellant,  6  Pick.  65;  Budd 
v.  State,  3  Humph.  483  ;  Van  Zant  v.  Wad- 
dell,  2  Yerg.  260 ;  People  ».  Frisbie,  26 
Cal.  135;  Davis  v.  Menasha,  21  Wis.491 ; 
Lancaster  r.  Barr,  25  Wis.  560;  Brown 
v.  Haywood,4  Heisk.  357  ;  Wally's  Heirs 
v.  Kennedy,  2  Yerg.  564,  24  Am.  Dec. 
511.  In  the  last  case  it  is  said:  "The 
rights  of  every  individual  must  stand  or 
fall  by  the  same  rule  or  law  that  governs 
every  other  member  of  the  body  politic, 
or  land,  under  similar  circumstances ; 
and  every  partial  or  private  law,  which 
directly  proposes  to  destroy  or  affect  in- 
dividual rights,  or  does  the  same  thing 
by  affording  remedies  leading  to  similar 
consequences,  is  unconstitutional  and  void. 
Were  it  otherwise,  odious  individuals  and 
corporations  would  be  governed  by  one 
law ;  the  mass  of  the  community  and 
those  who  made  the  law,  by  another; 
whereas  the  like  general  law  affecting 
the  whole  community  equally  could  not 
have  been  passed."  Special  burdens  can- 
not be  laid  upon  a  particular  class  in  the 
community.  Millett  v.  People,  117  111. 
294,  7  N.  E.  631.  Miners  and  manufac- 
turers alone  cannot  be  forbidden  to  pay 
in  store  orders.  State  v.  Goodwill,  38 
W.  Va.  179,  10  S.  E.  285.  See,  also, 
Godcharles  v.  Wigeman,  113  Pa.  St.  431, 
6  Atl.  364 ;  State  v.  Fire  Creek,  &c.  Co., 


560 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XI. 


Special  courts  cannot  be  created  for  the  trial  of  the  rights  and 
obligations  of  particular  parties ; 1  and  those  cases  in  which  legis- 
lative acts  granting  new  trials  or  other  special  relief  in  judicial 
proceedings,  while  they  have  been  regarded  as  usurpations  of 
judicial  authority,  have  also  been  considered  obnoxious  to  the 
objection  that  they  undertook  to  suspend  general  laws  in  special 
cases.  The  doubt  might  also  arise  whether  a  regulation  made 
for  any  one  class  of  citizens,  entirely  arbitrary  in  its  character,  and 
restricting  their  rights,  privileges,  or  legal  capacities  in  a  manner 
before  unknown  to  the  law,  could  be  sustained,  notwithstanding  its 


33  W.  Va.  188,  10  S.  E.  288.  [Statute 
attempting  to  give  laborers,  employed  by 
any  corporation  that  fails  to  pay  its  labor- 
ers monthly,  "  a  lien  on  all  tlie  property 
of  said  corporation  .  .  .  which  lien  shall 
take  preference  over  all  other  liens  ex- 
cept duly  recorded  mortgages  or  deeds 
of  trust,"  and  in  addition  "  a  reasonable 
attorney's  fee  "  upon  suit  brought  there- 
under, is  void  as  involving  an  uncon- 
stitutional discrimination.  Johnson  v. 
Goodyear  Mining  Co.,  127  Cal.  4,  59  Pac. 
304,  47  L.  R.  A.  338 ;  and  see  other  cases 
pro  and  con  in  notes  on  equal  protection  on 
pp.  15  and  560,  ante  and  post.  A  statute 
making  it  unlawful  to  prevent  or  attempt 
to  prevent  an  employee  from  joining  any 
lawful  labor  organization,  or  to  discharge 
a  laborer  because  of  his  connection  with 
such  organization,  is  void  as  violating  the 
constitutional  guarantee  against  depriv- 
ing any  person  of  life,  liberty,  or  property 
without  due  process  of  law.  Gillespie  v. 
People,  188  111.  176,  58  N.  E.  1007,  62 
L.  R.  A.  283;  State  v.  Julow,  129  Mo. 
163,  31  S.  W.  781,  29  L.  R.  A.  257,  50 
Am.  St.  443.]  Recovery  against  news- 
paper publishers  for  libel  cannot  be 
limited  to  actual  damage,  provided  a 
retraction  is  published  and  the  libel  was 
published  in  good  faith.  Park  v.  Detroit 
Free  Press  Co.,  72  Mich.  568,  40  N.  W. 
731.  Otherwise  in  Minnesota.  Allen  v. 
Pioneer  Press  Co.,  40  Minn.  1 17,  41  N.  W. 
936.  See  further,  Officer  v.  Young,  5 
Yerg.  320;  Griffin  v.  Cunningham,  20 
Gratt.  31  (an  instructive  case)  ;  Dorsey 
v.  Dorsey,  37  Md.  64,  11  Am.  Rep.  628; 
Trustees  v.  Bailey,  10  Fla.  238 ;  Lawson 
v.  Jeffries,  47  Miss.  686,  12  Am.  Rep. 
342;  Arnold  v.  Kelley,  6  W.  Va.  446; 
ante,  pp.  137-139.  But  an  act  was  sus- 
tained in  Minnesota  which  gave  one 
individual  a  right  of  appeal  from  the 


legal  tribunal  and  denied  it  to  others. 
Dike  v.  State,  38  Minn.  866,  38  N.  W.  95. 
[The  legislature  cannot  restrict  the  power 
of  the  courts  to  determine  whether  the 
facts  in  a  case  coming  before  the  court 
amount  to  negligence  or  not,  nor  can  it 
make  the  failure  of  a  railroad  commis- 
sioner to  require  a  flagman  to  be  sta- 
tioned at  a  railway  crossing  conclusive 
that  the  failure  of  the  railway  company 
to  station  one  there  is  not  negligence. 
Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  408, 
12  Sup.  Ct.  Rep.  679J  And  physicians 
who  have  not  a  diploma  and  have  not 
practised  a  certain  time  in  the  State  may 
be  required  to  take  out  a  license.  State 
v.  Green,  112  Ind.  462,  14  N.  E.  352; 
People  v.  Phippen,  70  Mich.  6,  37  N.  W. 
888.  Contra  in  New  Hampshire,  State 
v.  Pennoyer,  65  N.  H.  113,  18  Atl.  878; 
State  v.  Hinman,  65  N.  H.  103,  18  AtL 
194.  See  further  cases,  p.  890,  note  2, 
post. 

1  As,  for  instance,  the  debtors  of  a 
particular  bank.  Bank  of  the  State  ?;. 
Cooper,  2  Yerg.  699,  24  Am.  Dec.  517. 
Compare  Durkee  v.  Janesville,  28  Wis. 
464,  in  which  it  was  declared  that  a 
special  exemption  of  the  city  of  Janes- 
ville from  the  payment  of  costs  in  any 
proceeding  against  it  to  set  aside  a  tax  or 
tax  sale  was  void.  And  see  Memphis  v. 
Fisher,  9  Bax.  240.  In  Matter  of  Nichols, 
8  R.  I.  60,  a  special  act  admitting  a  tort 
debtor  committed  to  jail  to  take  the  poor 
debtor's  oath  and  be  discharged,  was  held 
void.  The  legislature  cannot  confer  upon 
a  corporation  privileges  or  exemptions 
which  it  could  not  confer  constitutionally 
upon  a  private  person.  Gordon  v.  Build- 
ing Association,  12  Bush,  110.  As  to 
what  is  not  a  violation  of  this  principle, 
see  United  States  v.  Union  Pac.  R.  R.  Co., 
98  U.  S.  669. 


CH.  XI.]  PROTECTION   BY  "THE   LAW   OF   THE   LAND."  561 

generality.  Distinctions  in  these  respects  must  rest  upon  some 
reason  upon  which  they  can  be  defended,  —  like  the  want  of  capa- 
city in  infants  and  insane  persons  ;  and  if  the  legislature  should 
undertake  to  provide  that  persons  following  some  specified  lawful 
trade  or  employment  should  not  have  capacity  to  make  contracts, 
or  to  receive  conveyances,  or  to  build  such  houses  as  others  were 
allowed  to  erect,  or  in  any  other  way  to  make  such  use  of  their  prop- 
erty as  was  permissible  to  others,  it  can  scarcely  be  doubted  that 
the  act  would  transcend  the  due  bounds  of  legislative  power,  even 
though  no  express  constitutional  provision  could  be  pointed  out  with 
which  it  would  come  in  conflict,  (a)  To  forbid  to  an  individual  or  a 
class  the  right  to  the  acquisition  or  enjoyment  of  property  in  such 
manner  as  should  be  permitted  to  the  community  at  large,  would 
be  to  deprive  them  tff  liberty  in  particulars  of  primary  importance 
to  their  "  pursuit  of  happiness  ; "  l  and  those  who  should  claim  a 
right  to  do  so  ought  to  be  able  to  show  a  specific  authority  there- 

1  Burlamaqui  (Politic.  Law,  c.  3,  §  15)  degree  as  the  same  claim  of  protection 
defines  natural  liberty  as  the  right  which  of  each  individual  admits  of,  or  in  the 
nature  gives  to  all  mankind  of  disposing  most  efficient  protection  of  his  rights, 
of  their  persons  and  property  after  the  claims,  interests,  as  a  man  or  citizen,  or 
manner  they  judge  most  consonant  to  of  his  humanity  manifested  as  a  social 
their  happiness,  on  condition  of  their  act-  being."  Civil  Liberty  and  Self-Govern- 
ing  within  the  limits  of  the  law  of  nature,  ment.  "  Legal  Liberty,"  says  Mackin- 
and  so  as  not  to  interfere  with  an  equal  tosh,  in  his  essay  on  the  Study  of  the 
exercise  of  the  same  rights  by  other  men.  Law  of  Nature  and  of  Nations,  "  con- 
See  1  Bl.  Com.  125.  Lieber  says  :  "  Lib-  sists  in  every  man's  security  against 
erty  of  social  man  consists  in  the  protec-  wrong." 
tion  of  unrestrained  action  in  as  high  a 

(a)  QAct  requiring  commission-merchants  engaged  in  the  sale  of  farm  produce  to 
give  bonds  in  specified  sum  conditioned  upon  faithful  performance  of  contracts,  held 
bad  in  People  o.  Coolidge,  124  Mich.  664,  83  N.  W.  594,  50  L.  H.  A.  493,  83  Am.  St. 
352.  On  the  other  hand,  such  legislation  was  sustained  in  State  v.  Wagener,  77 
Minn.  483,  80  N.  W.  633,  778,  1134,  46  L.  K.  A.  442,  77  Am.  St.  681,  and  in  Lasher 
v.  People,  183  111.  226,  55  N.  E.  663,  75  Am.  St.  103,  47  L.  K.  A.  802.  The  exemption 
of  real  estate  dealers  and  contractors  whose  business  does  not  amount  to  $1,000  per 
annum,  from  the  operation  of  an  ordinance  imposing  a  license  tax  for  the  transaction 
of  business,  is  unconstitutional.  Com.  v.  Clark,  195  Pa.  634,  46  Atl.  286,  57  L.  R.  A. 
348.  A  statute  providing  for  the  inspection  of  coal  mines  is  not  void  for  exempting 
mines  not  employing  more  than  five  men.  Consol.  Coal  Co.  v.  Illinois,  185  U.  S.  203, 
22  Sup.  Ct.  Rep.  616 ;  Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540,  22  Sup.  Ct. 
Rep.  431 ;  Brown  &  Allen  v.  Jacobs  Pharmacy  Co.,  115  Ga.  429,  41  So.  553,  67  L. 
R.  A.  547.  An  ordinance  giving  a  monopoly  to  union  labor  by  providing  that  all 
city  contracts  shall  provide  that  none  but  union  labor  shall  be  employed,  is  uncon- 
stitutional as  class  legislation.  Fiske  v.  State,  188  111.  206,  58  N.  E.  985,  52  L.  R.  A. 
291.  A  statute  requiring  persons  before  practising  osteopathy  to  study  four  years, 
and  pass  certain  examinations,  while  not  requiring  equivalent  preparation  of  those 
practising  according  to  other  schools  of  medicine,  is  unconstitutional.  State  v. 
Gravette,  65  Ohio,  289,  62  N.  E.  325,  87  Am.  St.  605,  55  L.  R.  A.  791.  See  also 
Cook  v.  Marshall  Co.,  —  Iowa,  — ,  92  N.  W.  372  ;  Verges  v.  Milwaukee  Co.,  —  Wis.  — , 
92  N.  W.  44.3 

86 


562 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


for,  instead  of  calling  upon  others  to  show  how  and  where  the 
authority  is  negatived. 

Equality  of  rights,  privileges,  and  capacities  unquestionably 
should  be  the  aim  of  the  law ;  and  if  special  privileges  are 
granted,  or  special  burdens  or  restrictions  imposed  in  any  case, 
it  must  be  presumed  that  the  legislature  designed  to  depart  as 
little  as  possible  from  this  fundamental  maxim  of  government.1 


1  In  the  Case  of  Monopolies,  Darcy  v. 
Allain,  11  Rep.  84,  the  grant  of  an  exclu- 
sive privilege  of  making  playing  cards 
was  adjudged  void,  inasmuch  as  "the 
sole  trade  of  any  mechanical  artifice,  or 
any  other  monopoly,  is  not  only  a  dam- 
age and  prejudice  to  those  who  exercise 
the  same  trade,  but  also  to  all  other  sub- 
jects ;  for  the  end  of  all  these  monopolies 
is  for  the  private  gain  of  the  patentees." 
And  see  Norwich  Gas  Light  Co.  v.  Nor- 
wich City  Gas  Co,  25  Conn.  19;  State  v. 
Cincinnati,  &c.  Gas  Co.,  18  Ohio  St.  262. 
Compare  with  these,  State  v.  Milwaukee 
Gas  Light  Co.,  29  Wis.  454.  On  this 
ground  it  has  been  denied  that  the  State 
can  exercise  the  power  of  taxation  on 
behalf  of  corporations  who  undertake  to 
make  or  to  improve  the  thoroughfares  of 
trade  and  travel  for  their  own  benefit. 
The  State,  it  is  said,  can  no  more  tax  the 
community  to  set  one  class  of  men  up  in 
business  than  another ;  can  no  more  sub- 
sidize one  occupation  than  another;  can 
no  more  make  donations  to  the  men  who 
build  and  own  railroads  in  consideration 
of  expected  incidental  benefits,  than  it 
can  make  them  to  the  men  who  build 
stores  or  manufactories  in  consideration 
of  similar  expected  benefits.  People  v. 
Township  Board  of  Salem,  20  Mich.  452. 
See  further,  as  to  monopolies,  Chicago  v. 
Kumpff,  45  111.  90 ;  Gale  v.  Kalamazoo, 
28  Mich.  344.  In  State  v.  Mayor,  &c.  of 
Newark,  35  N.  J.  157,  10  Am.  Rep.  223, 
the  doctrine  of  the  text  was  applied  to  a 
case  in  which  by  statute  the  property  of 
a  society  had  been  exempted  from  "  taxes 
and  assessments ;''  and  it  was  held  that 
only  the  ordinary  public  taxes  were  meant, 
and  the  property  might  be  subjected  to 
local  assessments  for  municipal  purposes. 
State  grants  are  not  exclusive  unless 
made  so  in  express  terms.  Tuckahoe 
Canal  Co.  v.  Railroad  Co.,  11  Leigh,  42, 
36  Am.  Dec.  374;  Gaines  v.  Coates,  5L 
Miss.  335 ;  Wright ».  Nagle,  101  U.  S.  791. 
Where  monopolies  are  forbidden,  it  is 


nevertheless  competent  to  give  exclusive 
rights  to  a  water  company  to  supply  a 
city  for  a  term  of  years.  Memphis  r. 
Water  Co.,  5  Heisk.  495.  A  corporation 
formed  under  a  general  law  allowing  for- 
mation of  gas  companies  cannot  as  part 
of  its  corporate  purposes  include  the  pur- 
chase and  holding  of  shares  of  existing 
gas  companies,  thus  creating  a  monopoly. 
People  v.  Chicago  Gas  Trust  Co.,  130 
Til.  268,  22  N.  E.  798.  See  People  v. 
Refining  Co.,  7  N.  Y.  Supp.  406.  [City 
council's  grant  of  exclusive  right  to  re- 
move garbage  from  all  places  within  city 
limits,  was  sustained  in  Walker  v.  Jame- 
son, 140  Ind.  591,  39  N.  E.  869,  28  L.  R.  A. 
679,  49  Am.  St.  222;  and  in  Smiley  v. 
McDonald,  42  Neb.  5,  60  N.  W.  355,  27 
L.  R.  A.  540,  47  Am.  St.  684 ;  but  not  in 
Re  Lowe,  54  Kan.  757,  39  Pac.  710,  27 
L.  R.  A.  545;  upon  such  contracts,  see 
note  in  27  L.  R.  A.  540.  The  question 
of  equality  of  protection  and  privilege 
under  the  Constitution  was  before  the 
Supreme  Court  of  the  United  States  in 
Connolly  v.  Union  Sewer-Pipe  Co.,  184 
U.  S.  540,  22  Sup.  Ct.  Rep.  431,  and  in 
speaking  of  an  anti-trust  statute  of  Illi- 
nois which  exempted  from  its  operation 
producers  of  agricultural  products  and 
raisers  of  live  stock,  that  court  said : 
"The  difficulty  is  not  met  by  saying  » 
that  generally  speaking  the  State,  when  t 
enacting  laws,  may,  in  its  discretion,  make  - 
a  classification  of  firms,  corporations,  and 
associations  in  order  to  subserve  public 
objects.  For  this  court  has  held  that  , 
^/classification  must  always  rest  upon  some 
difference  which  bears  a  reasonable  and 
just  relation  to  the  act  in  respect  to  which 
the  classification  is  proposed  and  can 
never  be  made  arbitrarily  and  without 
any  such  basis.  .  .  .  But  arbitrary  selec- 
tion can  never  be  justified  by  calling  it 
classification.  The  equal  protection  de- 
manded by  the  Fourteenth  Amendment 
forbids  this.  .  .  .  No  duty  rests  more 
imperatively  upon  the  courts  than  the 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND.' 


563 


The  State,  it  is  to  be  presumed,  has  no  favors  to  bestow,  and 
designs  to  inflict  no  arbitrary  deprivation  of  rights.  Special 
privileges  are  always  obnoxious,  and  discriminations  against  per- 
sons or  classes  are  still  more  so  ;  and,  as  a  rule  of  construction, 
it  is  to  be  presumed  they  were  probably  not  contemplated  or 
designed.  It  has  been  held  that  a  statute  requiring  attorneys  to 
render  services  in  suits  for  poor  persons  without  fee  or  reward, 
was  to  be  confined  strictly  to  the  cases  therein  prescribed,  and  if 
by  its  terms  it  expressly  covered  civil  cases  only,  it  could  not  be 
extended  to  embrace  defences  of  criminal  prosecutions.1  So 


enforcement  of  those  constitutional  pro- 
visions intended  to  secure  that  equality 
of  rights  which  is  the  security  of  free 
government.  ...  It  is  apparent  that 
the  mere  fact  of  classification  is  not  suffi- 
cient to  relieve  a  statute  from  the  reach 
of  the  equality  clause  of  the  Fourteenth 
Amendment,  and  that  in  all  cases  it  must 
appear,  not  only  that  a  classification  has 
been  made,  but  also  that  it  is  one  based 
upon  some  reasonable  ground  —  some 
difference  which  bears  a  just  and  proper 
relation  to  the  attempted  classification, 
and  is  not  a  mere  arbitrary  selection." 
The  Connolly  case  is  followed  in  People 
v.  Butler  St.  F.  &  I.  Co.,  —  111.  — ,  66  N.  E. 
349.  The  prior  cases  on  the  validity  of 
legislation  affecting  different  classes  dif- 
ferently are  cited  in  the  opinion,  and 
certain  of  them  distinguished,  particu- 
larly Magoun  •  v.  Illinois  Trust  &  S.  B. 
Co.,  170  U.  S.  283,  18  Sup.  Ct.  Rep.  594, 
and  American  Sugar  R.  Co.  v.  Louisiana, 
179  U.  S.  89,  21  Sup.  Ct.  Rep.  43.  See 
also  Iowa  Life  Ins.  Co.  v.  Lewis,  —  U.  S. 
— ,  23  Sup.  Ct.  Rep.  126,  upon  the  right 
of  a  State  to  provide  for  the  recovery  of 
damages  and  attorney's  fees  against  life 
and  health  insurance  companies  for  failure 
to  pay  losses  when  they  mature,  against 
the  objection  of  class  legislation.  In  the 
opinion,  Fidelity  Mut.  L.  Ins.  Asso.  v. 
Mettler,  185  U.  S.  308,  22  Sup.  Ct.  Rep. 
662,  is  relied  upon  and  followed,  the  court 
holding  the  act  valid.  In  Magoun  v. 
Illinois,  etc.,  su/>ra,  the  court  made  the  fol- 
lowing declaration  of  the  principles  appli- 
cable to  the  determination  of  questions  of 
classification  of  objects  for  purposes  of 
legislation :  "  The  State  may  distinguish, 
select,  and  classify  objects  of  legislation, 
and  necessarily  the  power  must  have  a 
wide  range  of  discretion,  and  this  because 
of  the  function  of  legislation  and  the  pur- 


poses to  which  it  is  addressed.  Classifi- 
cation for  such  purposes  is  not  invalid, 
because  not  depending  on  scientific  or 
marked  differences  in  things  or  persons 
or  their  relations.  It  suffices  if  it  is  prac-  X 
tical,  and  is  not  reviewable  unless  palpa-  \ 
bly  arbitrary."  In  Boorum  v.  Connelly,  / 
66  N.  3.  L.  197,  48  Atl.  955,  88  Am.  St. 
469,  it  is  held,  upon  the  authority  of  Van 
Riper  v.  Parsons,  40  N.  J.  L.  123,  and 
Rutgers  v.  Mayor  of  Brunswick,  42  N.  J.  L. 
51,  that  "a  law  framed  in  general  terms, 
restricted  to  no  locality,  and  operating 
equally  upon  all  of  a  group  of  objects 
which,  having  regard  to  the  purpose  of 
the  legislation,  are  distinguished  by  char- 
acteristics sufficiently  marked  and  im- 
portant to  make  them  a  class  by  them- 
selves, is  not  a  special  or  local  law, 
but  a  general  law,  without  regard  to 
the  consideration  that,  within  this  State, 
there  happens  to  be  but  one  individual  of 
that  class,  or  one  place  where  it  produces 
effect."} 

1  Webb  t>.Baird,6Ind.  13.  fJLegisIa- 
ture  cannot  confine  the  use  of  low-test 
petroleum  oil  for  lighting  purposes  to 
apparatus  of  one  maker,  where  there  are 
others  adapted  to  the  same  use.  State 
v.  Santee,  111  Iowa,  1,  82  N.  W.  445,  53 
L.  R.  A.  763,  82  Am.  St.  489.  It  may  be 
noted  that  this  case  is  not  authority  for 
the  doctrine  that  a  State  may  not  under 
any  circumstances  create  a  monopoly. 
A  statute  requiring  a  longer  course  of 
study  as  a  condition  to  the  obtaining 
of  a  limited  certificate  for  the  practice  of 
"  osteopathy  "  than  is  required  of  those 
contemplating  the  regular  practice  of 
medicine,  is  void  for  inequality.  State  v. 
Gravett,  65  Ohio  St.  289,  62  N.  E.  325,  55 
L.  R.  A.  791,  87  Am.  St.  605  ;  a  statute 
for  the  regulation  of  the  practice  of 
medicine  excluded  from  its  operation, 


564 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


where  a  constitutional  provision  confined  the  elective  franchise  to 
"  white  male  citizens,"  and  it  appeared  that  the  legislation  of  the 
State  had  always  treated  of  negroes,  mulattoes,  and  other  colored 
persons  in  contradistinction  to  white,  it  was  held  that  although 
quadroons,  being  a  recognized  class  of  colored  persons,  must  be  ex- 
cluded, yet  that  the  rule  of  exclusion  would  not  be  carried  further.1 
So  a  statute  making  parties  witnesses  against  themselves  cannot 
be  construed  to  compel  them  to  disclose  facts  which  would  subject 
them  to  criminal  punishment.2  And  a  statute  which  authorizes 
summary  process  in  favor  of  a  bank  against  debtors  who  have  by 
express  contract  made  their  obligations  payable  at  such  bank, 
being  in  derogation  of  the  ordinary  principles  of  private  right, 
must  be  subject  to  strict  construction.3  These  cases  are  only 
illustrations  of  a  rule  of  general  acceptance.4 

There  are  unquestionably  cases  in  which  the  State  may  grant 
privileges  to  specified  individuals  without  violating  any  constitu- 
tional principle,  because,  from  the  nature  of  the  case,  it  is  impos- 
sible they  should  be  possessed  and  enjoyed  by  all ; 5  and  if  it  is 
important  that  they  should  exist,  the  proper  State  authority  must 
be  left  to  select  the  grantees.6  Of  this  class  are  grants  of  the 
franchise  to  be  a  corporation.7  Such  grants,  however,  which  con- 


osteopaths,  dentists,  and  non-residents 
called  in  consultation  or  engaged  in 
practice  adjacent  to-  the  State  line,  and 
was  upheld  as  a  reasonable  classification. 
Parks  v.  State,  —  Ind.  — ,  64  N.  E.  862. 
An  act  imposing  a  penalty  upon  the  failure 
of  an  insurance  company  to  pay  its  losses 
as  provided  in  its  contracts,  is  not  uncon- 
stitutional, as  not  applicable  to  the  obli- 
gations of  all  persons.  New  York  Life 
Ins.  Co.  v.  English,  —  Tex.  Civ.  App.  — , 
70  S.  W.  440.  Decided  on  authority  of 
Association  v.  Mettler,  185  U.  S.  308,  22 
Sup.  Ct.  Rep.  662.] 

1  People  v.  Dean,  14  Mich.  406.  See 
Bailey  v.  Fiske,  34  Me.  77 ;  Monroe  v. 
Collins,  17  Ohio  St.  665.  The  decisions 
in  Ohio  were  still  more  liberal,  and  ranked 
as  white  persons  all  who  had  a  prepon- 
derance of  white  blood.  Gray  v.  State,  4 
Ohio,  353 ;  Jeffres  v.  Ankeny,  11  Ohio, 
372;  Thacker  v.  Hawk,  11  Ohio,  376; 
Anderson  v.  Millikin,  9  Ohio  St.  568. 
But  see  Van  Camp  i*.  Board  of  Education, 
9  Ohio  St.  406.  Happily  all  such  ques- 
tions are  now  disposed  of  by  constitutional 
amendments.  It  seems,  however,  in  the 
opinion  of  the  Supreme  Court  of  Cali- 
fornia, that  these  amendments  do  not 


preclude  a  State  denying  to  a  race,  e.  y. 
the  Chinese,  the  right  to  testify  against 
other  persons.  People  v.  Brady,  40  Cal. 
198,  6  Am.  Rep.  604. 

2  Broadbent  v.  State,  7  Md.  416.  See 
Knowles  v.  People,  15  Mich.  408. 

8  Bank  of  Columbia  v.  Okely ,  4  Wheat. 
235. 

4  See  1  Bl.  Com.  89,  and  note. 

5  Mason  v.  Bridge  Co.,  17  W.  Va.  396. 
But  a  franchise  is  not  necessarily  exclu- 
sive so  long  as  there  is  nothing  to  prevent 
grant!  ng  like  power  to  another  corporation. 
Matter  of  Union  Ferry  Co.,  98  N.  Y.  139. 

6  In  Gordon  v.   Building  Association, 
12  Bush,  110,  it  is  decided  that  a  special 
privilege  granted  to  a  particular  corpora- 
tion to    take    an    interest   on   its   loans 
greater  than  the  regular  interest  allowed 
by  law  is  void ;  it  not  being  granted  in 
consideration  of  any  obligation  assumed 
by  the  corporation  to  serve  the  pub'lic. 

7  That  proper  grants  of  this  sort  are 
not  to  be  regarded  as  partial  legislation, 
see    Tipton    v.   Locomotive    Works,    103 
U.  S.  623,  1  Am.  &  Eng.  R.  R.  Gas.  517; 
North  and  S.  Ala.  R.  R.  Co.  v.  Morris,  65 
Ala.  193. 


CH.  XI.] 


PROTECTION   BY   "THE   LAW   OF   THE   LAND." 


565 


fer  upon  a  few  persons  what  cannot  be  shared  by  the  many,  and 
which,  though  supposed  to  be  made  on  public  grounds,  are  never- 
theless frequently  of  great  value  to  the  corporators,  and  therefore 
sought  with  avidity,  are  never  to  be  extended  by  construction 
beyond  the  plain  terms  in  which  they  are  conferred.  No  rule  is 
better  settled  than  that  charters  of  incorporation  are  to  be  con- 
strued strictly  against  the  corporators.1  The  just  presumption 
in  every  such  case  is,  that  the  State  has  granted  in  express  terms 
all  that  it  designed  to  grant  at  all.  "  When  a  State,"  says  the 
Supreme  Court  of  Pennsylvania,  "  means  to  clothe  a  corporate 
body  with  a  portion  of  her  own  sovereignty,  and  to  disarm  herself 
to  that  extent  of  the  power  which  belongs  to  her,  it  is  so  easy  to 
say  so,  that  we  will  never  believe  it  to  be  meant  when  it  is  not 
said.  ...  In  the  construction  of  a  charter,  to  be  in  doubt  is  to 
be  resolved ;  and  every  resolution  which  springs  from  doubt  is 
against  the  corporation.  If  the  usefulness  of  the  company  would 
be  increased  by  extending  [its  privileges],  let  the  legislature  see 
to  it,  but  let  it  be  remembered  that  nothing  but  plain  English 
words  will  do  it." 2  This  is  sound  doctrine,  and  should  be 
vigilantly  observed  and  enforced. 


1  Providence  Bank  v.  Billings,  4  Pet. 
614;    Charles   River    Bridge  v.    Warren 
Bridge,  11  Pet.  420,  544 ;  Perrine  v.  Ches- 
apeake &  Delaware   Canal   Co.,  9  How. 
172 ;    Richmond,  &c.  R.   R.  Co.  v.  Louisa 
R.  R.  Co.,  13  How.  71 ;  Bradley  v.  N.  Y. 
&  N.  H.  R.  R.  Co.,  21  Conn.  294  ;  Parker 
v.   Sunbury   &  Erie   R.   R.  Co.,   19  Pa. 
St.  211;  Wales  v.  Stetson,  2  Mass.  143; 
Clionango    Bridge    Co.    v.    Binghamton 
Bridge  Co.,  27  N.  Y.  87,  and  3  Wall.  61 ; 
State  v.  Krebs,  64  N.  C.  604.     [Stein  >;. 
Bienville  Water  S.  Co.,  141  U.  S.  67,  11 
Sup.  Ct.  Rep.  892 ;  Central  Transp.  Co. 
v.  Pullman's  P.  C.  Co.,  139  U.  S.  24,  11 
Sup.  Ct.   Rep.  478;  Skaneateles  Water- 
works Co.  v.  Skaneateles,  161  N.  Y.  154, 
55  N.  E.  562,  46  L.  R.  A.  687.] 

2  Pennsylvania   R.   R.   Co.    v.   Canal 
Commissioners,   21  Pa.  St.  9,   22.    And 
see  Commonwealth  v.  Pittsburg,  &c.  R.  R. 
Co.,  24   Pa.  St.  169;    Chenango    Bridge 
Co.  v.  Binghamton  Bridge  Co.,  27  N.  Y. 
87,  93,  per  Wright,  J. ;  Baltimore  v.  Balti- 
more, &c.  R.  R.  Co.,  21  Md.  60  ;    Tucka- 
hoe  Canal  Co.  v.  Railroad  Co.,  11  Leigh, 
42,  36  Am.  Deo.  374;  Richmond  v.  Rich- 
mond  &  Danville  R.  R.   Co.,  21   Gratt. 
604;    Holyoke  Co.   v.   Lyman,  15  Wall. 
600 ;  Delancey  v.  Insurance  Co.,  52  N.  H. 


581 ;  Spring  Valley  Water  Works  v. 
San  Francisco,  62  Cal.  Ill ;  Gaines  v. 
Coates,  51  Miss.  335.  We  quote  from 
the  Supreme  Court  of  Connecticut  in 
Bradley  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  21 
Conn.  294,  306  :  "  The  rules  of  construc- 
tion which  apply  to  general  legislation,  in 
regard  to  those  subjects  in  which  the 
public  at  large  are  interested,  are  essen- 
tially different  from  those  which  apply  to 
private  grants  to  individuals,  of  powers 
or  privileges  designed  to  be  exercised 
with  special  reference  to  their  own  ad- 
vantage, although  involving  in  their 
exercise  incidental  benefits  to  the  com- 
munity generally.  The  former  are  to  be 
expounded  largely  and  beneficially  for 
the  purposes  for  which  they  were  en- 
acted, the  latter  liberally,  in  favor  of  the 
public,  and  strictly  as  against  the  gran- 
tees. The  power  in  the  one  case  is  origi- 
nal and  inherent  in  the  State  or  sovereign 
power,  and  is  exercised  solely  for  the 
general  good  of  the  community  ;  in  the 
other  it  is  merely  derivative,  is  special  if 
not  exclusive  in  its  character,  and  is  in 
derogation  of  common  right,  in  the  sense 
that  it  confers  privileges  to  which  the 
members  of  the  community  at  large  are 
not  entitled.  Acts  of  the  former  kind, 


566 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


And  this  rule  is  not  confined  to  the  grant  of  a  corporate  fran- 
chise, but  it  extends  to  all  grants  of  franchises  or  privileges  by 
the  State  to  individuals,  in  the  benefits  of  which  the  people  at 
large  cannot  participate.  "  Private  statutes,"  says  Parsons,  Ch.  J., 
"  made  for  the  accommodation  of  particular  citizens  or  corpora- 
tions, ought  not  to  be  construed  to  affect  the  rights  or  privileges 
of  others,  unless  such  construction  results  from  express  words  or 
from  necessary  implication."  1  And  the  grant  of  ferry  rights,  or 
the  right  to  erect  a  toll-bridge,  and  the  like,  is  not  only  to  be 


being  dictated  solely  by  a  regard  to  the 
benefit  of  the  public  generally,  attract 
none  of  that  prejudice  or  jealousy  towards 
them  which  naturally  would  arise  towards 
those  of  the  other  description,  from  the 
consideration  that  the  latter  were  obtained 
with  a  view  to  the  benefit  of  particular 
individuals,  and  the  apprehension  that 
their  interests  might  be  promoted  at  the 
sacrifice  or  to  the  injury  of  those  of  others 
whose  interests  should  be  equally  re- 
garded. It  is  universally  understood  to 
be  one.  of  the  implied  and  necessary  con- 
ditions upon  which  men  enter  into  society 
and  form  governments,  that  sacrifices 
must  sometimes  be  required  of  individuals 
for  the  general  benefit  of  the  community, 
for  which  they  have  no  rightful  claim  to 
specific  compensation ;  but,  as  between 
the  several  individuals  composing  the 
community,  it  is  the  duty  of  the  State  to 
protect  them  in  the  enjoyment  of  just  and 
equal  rights.  A  law,  therefore,  enacted 
for  the  common  good,  and  which  there 
would  ordinarily  be  no  inducement  to 
pervert  from  that  purpose,  is  entitled  to 
be  viewed  with  less  jealousy  and  distrust 
than  one  enacted  to  promote  the  interests 
of  particular  persons,  and  which  would 
constantly  present  a  motive  for  encroach- 
ing on  the  rights  of  others." 

1  Coolidge  v.  Williams,  4  Mass.  140. 
See  also  Dyer  v.  Tuscaloosa  Bridge  Co., 
2  Port.  (Ala.)  296,  27  Am.  Dec.  655; 
Grant  v.  Leach,  20  La.  Ann.  329.  In 
Sprague  v.  Birdsall,  2  Cow.  419,  it  was 
held  that  one  embarking  upon  the  Cayuga 
Lake  six  miles  from  the  bridge  of  the 
Cayuga  Bridge  Co.,  and  crossing  the  lake 
in  an  oblique  direction,  so  as  to  land 
within  sixty  rods  of  the  bridge,  was  not 
liable  to  pay  toll  under  a  provision  in  the 
charter  of  said  company  which  made  it 
unlawful  for  any  person  to  cross  within 
three  miles  of  the  bridge  without  paying 


toll.  In  another  case  arising  under  the 
same  charter,  which  authorized  the  com- 
pany to  build  a  bridge  across  the  lake  or 
the  outlet  thereof,  and  to  rebuild  in  case 
it  should  be  destroyed  or  carried  away 
by  the  ice,  and  prohibited  all  other  per- 
sons from  erecting  a  bridge  within  three 
miles  of  the  place  where  a  bridge  should 
be  erected  by  the  company,  it  waa 
held,  after  the  company  had  erected  a 
bridge  across  the  lake  and  it  had  been 
carried  away  by  the  ice,  that  they  had  no 
authority  afterwards  to  rebuild  across  the 
outlet  of  the  lake,  two  miles  from  the 
place  where  the  first  bridge  was  built, 
and  that  the  restricted  limits  were  to  be 
measured  from  the  place  where  the  first 
bridge  was  erected.  Cayuga  Bridge  Co. 
v.  Magee,  2  Paige,  116,  6  Wend.  85.  In 
Chapin  v.  The  Paper  Works,  30  Conn. 
461,  it  was  held  that  statutes  giving  a 
preference  to  certain  creditors  over  others 
should  be  construed  with  reasonable 
strictness,  as  the  law  favored  equality. 
In  People  v.  Lambier,  5  Denio,  9,  it  ap- 
peared that  an  act  of  the  legislature  had 
authorized  a  proprietor  of  lands  lying  in 
the  East  River,  which  is  an  arm  of  the 
sea,  to  construct  wharves  and  bulkheads 
in  the  river,  in  front  of  his  land,  and  there 
was  at  the  time  a  public  highway  through 
the  land,  terminating  at  the  river.  Held, 
that  the  proprietor  could  not,  by  filling 
up  the  land  between  the  shore  and  the 
bulkhead,  obstruct  the  public  right  of 
passage  from  the  Land  to  the  water,  but 
that  the  street  was,  by  operation  of  law, 
extended  from  the  former  terminus  over 
the  newly  made  land  to  the  water.  Com- 
pare Commissioners  of  Inland  Fisheries 
v.  Holyoke  Water  Power  Co.,  104  Mass. 
446, 6  Am.  Rep.  247  ;  Kingsland  v.  Mayor, 
&c.,  35  Hun,  458;  Backus  v.  Detroit,  49 
Mich.  110,  13  N.  W.  380. 


CH.  XI.]  PROTECTION   BY   "THE   LAW   OF   THE   LAND." 


567 


construed  strictly  against  the  grantees,  but  it  will  not  be  held  to 
exclude  the  grant  of  a  similar  and  competing  privilege  to  others, 
unless  the  terms  of  the  grant  render  such  construction  imperative.1 
The  Constitution  of  the  United  States  contains  provisions  which 
are  important  in  this  connection.  One  of  these  is,  that  the  citi- 
zens of  each  State  shall  be  entitled  to  all  the  privileges  and  im- 
munities of  citizens  of  the  several  States,2  and  all  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  its  jurisdiction, 
are  declared  to  be  citizens  thereof,  and  of  the  State  wherein  they 
reside.3  The  States  are  also  forbidden  to  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  the  citi- 
zens of  the  United  States,4  or  to  deprive  any  person  of  life,  liberty, 


1  Mills  v.  St.  Clair  County,  8  How. 
569;  Mohawk  Bridge  Co.  v.  Utica  &  S. 
R.  11.  Co.,  6  Paige,  554  ;  Clienango  Bridge 
Co.  v.  Binghamton  Bridge  Co.,  27  N.  Y. 
87,  3  Wall.  51;  Montjoy  o.  Pillow,  64 
Miss.  705,  2  So.  108.  See  cases,  ante, 
p.  549,  note  1.  Compare  Haoket  v.  Wil- 
son, 12  Oreg.  25,  6  Pac.  652.  A  ferry 
franchise  may  be  limited  to  carrying  one 
way,  and  another  granted  for  carrying 
the  other.  Power  v.  Athens,  99  N.  Y. 
592,  2  N.  E.  609.  An  exclusive  ferry 
franchise  over  a  river  within  certain 
limits  does  not  prevent  carrying  up  and 
down  the  river  from  a  point  within  the 
limits.  Broadnax  v.  Baker,  94  N.  C.  675. 
See  Hunter  v.  Moore,  44  Ark.  184. 

*.  Const,  of  United  States,  art.  4,  §  2. 
See  ante,  pp.  37,  38. 

3  Const,  of  United  States,  14th  Amend- 
ment. 

4  "  The  line  of  distinction  between  the 
privileges  and  immunities  of  citizens  of 
the  United  States  and  those  of  citizens 
of  the  several  States  must  be  traced  along 
the  boundary  of  their  respective  spheres 
of  action,  and  the  two  classes  must  be  as 
different  in  their  nature  as  are  the  func- 
tions of  the  respective  governments.   A 
citizen  of  the  United  States,  as  such,  has 
the   right  to  participate  in   foreign  and 
interstate  commerce,  to  have  the  benefit 
of  the  postal  laws,  to  make  use  in  com- 
mon with  others  of  the  navigable  waters 
of  the  United   States,  and  to  pass  from 
State  to  State,  and  into  foreign  countries, 
because  over  all  these  subjects  the  juris- 
diction of  the  United  States  extends,  and 
they  are  covered  by  its  laws.     Story  on 
Const.  4th  ed.  §  1937.     These,  therefore, 
are  among  the  privileges  of  citizens  of 


the  United  States.  So  every  citizen  may 
petition  the  federal  authorities  which  are 
set  over  him,  in  respect  to  any  matter  of 
public  concern ;  may  examine  the  public 
records  of  the  federal  jurisdiction ;  may 
visit  the  seat  of  government  without  be- 
ing subjected  to  the  payment  of  a  tax  for 
the  privilege  :  Crandall  v.  Nevada,  6  Wall. 
35 ;  may  be  purchaser  of  the  public  lands 
on  the  same  terms  with  others  ;  may  par- 
ticipate in  the  government  if  he  comes 
within  the  conditions  of  suffrage,  and 
may  demand  the  care  and  protection  of 
the  United  States  when  on  the  high  seas 
or  within  the  jurisdiction  of  a  foreign 
government.  Slaughter  House  Cases,  10 
Wall.  36.  The  privileges  suggest  the 
immunities.  Wherever  it  is  the  duty  of 
the  United  States  to  give  protection  to  a 
citizen  against  any  harm,  inconvenience, 
or  deprivation,  the  citizen  is  entitled  to 
an  immunity  which  pertains  to  federal 
citizenship. 

"  One  very  plain  and  unquestionable 
immunity  is  exemption  from  any  tax, 
burden,  or  imposition  under  State  laws, 
as  a  condition  to  the  enjoyment  of  any 
right  or  privilege  under  the  laws  of  the 
United  States.  A  State,  therefore,  can- 
not require  one  to  pay  a  tax  as  importer, 
under  the  laws  of  Congress,  of  foreign 
merchandise  :  Ward  v.  Maryland,  12  Wall. 
163;  nor  impose  a  tax  upon  travellers 
passing  by  public  conveyances  out  of  the 
State:  Crandall  v.  Nevada,  6  Wall.  35; 
nor  impose  conditions  to  the  right  of 
citizens  of  other  States  to  sue  its  citizens 
in  the  federal  courts.  Insurance  Co.  v. 
Morse,  20  Wall.  445.  These  instances 
sufficiently  indicate  the  general  rule. 
"Whatever  one  may  claim  as  of  right 


568 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


or  property,  without  due  process  of  law,  or  to  deny  to  any  person 
within  their  jurisdiction  the  equal  protection  of  the  laws.1     Al- 


under  the  Constitution  and  laws  of  the 
United  States  by  virtue  of  his  citizenship, 
is  a  privilege  of  a  citizen  of  the  Lnited 
States.  Whatever  the  Constitution  and 
laws  of  the  United  States  entitle  him  to 
exemption  from,  he  may  claim  an  immu- 
nity in  respect  to.  Slaughter  House 
Cases,  16  Wall.  36.  And  such  a  right  or 
privilege  is  abridged  whenever  the  State 
law  interferes  with  any  legitimate  opera- 
tion of  the  federal  authority  which  con- 
cern his  interest,  whether  it  be  an 
authority  actively  exerted,  or  resting 
only  in  the  express  or  implied  command 
or  assurance  of  the  federal  Constitution 
or  Laws."  Coo'ey,  Principles  of  Const. 
Law,  216.  See  United  States  v.  Reese, 
92  U.  S.  214;  United  States  v.  Cruik- 
shank,  92  U.  S/542;  Hall  v.  De  Cuir,  95 
U.  S.  485;  Kirkland  v.  Hotchkiss,  100 
U.  S.  491.  Qlt  is  a  privilege  of  a  citizen 
of  the  United  States  to  inform  the  proper 
United  States  officer  of  any  infraction  of 
the  laws  of  the  United  States,  and  any 
conspiracy  to  prevent  the  exercise  of  this 
privilege  is  a  crime.  Re  Quarles,  158 
U.  S.  532,  15  Sup.  Ct.  Rep.  959.  But  not 
to  practise  law  before  a  State  Court.  Ex 
parte  Lockwood,  154  U.  S.  116,  14  Sup. 
Ct.  Rep.  1C82.  A  citizen  of  the  United 
States  while  in  custody  of  a  Federal 
marshal  is  entitled  as  such  citizen  to  pro- 
tection from  unlawful  violence.  Logan 
v.  United  States,  144  U.  S.  263,  12  Sup. 
Ct.  Rep.  617.  Right  to  vote  for  a  United 
States  representative  is  a  privilege  of  a 
properly  qualified  citizen.  Wiley  v.  Sink- 
ler,  179  U.  S.  58,  21  Sup.  Ct.  Rep.  17.  So, 
to  use  the  United  States  flag  in  any  way 
not  prohibited  by  Congress.  Ruhstrat  v. 
People,  185  111.  133,  57  N.  E.  41,  49  L.  R. 
A.'  181,  76  Am.  St.  30.  But  not  the  right 
to  purchase  or  receive  as  gift,  intoxicating 
liquors.  People  v.  Bray,  105  Cal.  344,  38 
Pae.  731,  27  L.  R.  A.  158.] 

1  Const,  of  United  States,  14th  Amend- 
ment. See  cases  pp.  14-18,  ante.  The 
fourteenth  amendment  is  violated  by  a 
statute  which  allows  the  overseers  of  the 
poor  to  commit  paupers  and  vagrants  to 
the  work-house  without  trial.  Portland 
v.  Bangor,  65  Me.  120 ;  Dunn  v.  Burleigh, 
62  Me.  24.  It  does  not  confer  the  right 
of  suffrage  upon  females.  Van  Valken- 


burgh  v.  Brown,  43  Cal.  43;  Bradwell  v. 
State,  16  Wall.  130;  Minor  v.  Happersett, 
21  Wall.  162.  See  ante,  pp.  556, 557,  notes. 
Granting  licenses  for  the  sale  of  in- 
toxicating drinks  to  males  only  does  not 
violate  a  constitutional  provision  which 
forbids  the  grant  of  special  privileges  or 
immunities.  Blair  v.  Kilpatrick,  40  Ind. 
315.  L~State  may  require  a  licensed 
pharmacist  to  procure  from  the  county 
officers  a  druggist's  license  for  the  sale  of 
spirituous  liquors  before  he  can  use  them 
in  the  preparation  of  pharmacists'  com- 
pounds. Gray  v.  Connecticut,  159  U.  S. 
74,  15  Sup.  Ct.  Rep.  985.  Upon  constitu- 
tionality of  laws  regulating  sale  of  liquors, 
see  note  to  28  L.  ed.  U.  S.  696.  State 
may  compel  one  person  to  submit  his 
property  to  inspection  of  another  for 
purpose  of  procuring  evidence  to  aid 
that  other  in  enforcing  his  rights.  Mon- 
tana Co.  v.  St.  Louis  Mining  and  Milling 
Co.,  152  U.  S.  160,  14  Sup.  Ct.  Rep.  506; 
but  a  court  cannot.  Martin  v.  Elliott,  106 
Mich.  130,  63  N.  W.  998,  31  L.  R.  A.  169. 
With  regard  to  inspection  of  person  to 
procure  evidence,  see  note  4,  page  423, 
ante.  But  a  State  cannot  deny  the  right 
of  a  seller  of  merchandise  to  give  witli 
the  thing  sold  a  trading-stamp  which  en- 
titles the  purchaser  to  something  of  value 
upon  presentation  to  a  third  person. 
State  v.  Dalton,  22  R.  I.  77,  46  Atl.  234, 
48  L.  R.  A.  775.  Though  it  may  impose 
a  license  tax  upon  dealers  using  trading 
stamps,  and  so  may  a  city,  authorized  to 
require  licenses  for  any  lawful  purpose. 
Fleetwood  v.  Read,  21  Wash.  547,  58  Pac. 
665,  47  L.  R.  A.  205.  An  act  prohibiting 
payment  of  laborers  in  scrip,  truck,  &c., 
and  made  applicable  only  to  trusts  and 
corporations  employing  ten  or  more 
persons  is  void  as  denying  the  equal  pro- 
tection of  the  laws.  State  t».  Haun,  61 
Kan.  146,  59  Pac.  340,  47  L.  R.  A.  369. 
But  see  State  v.  Brown  &  S.  Mfg.  Co.,  18 
R.  1. 16,  25  Atl.  246, 17  L.  R.  A.  856  ;  and 
Com.  v.  Hillside  Coal  Co.,  22  Ky.  L.  659, 
58  S.W.  441  (Sept.  27, 1900),  both  of  which 
are  contra.  A  statute  which  requires  rail- 
roads to  transport  cattle  in  car-load  lots 
at  the  usual  rates,  and  in  addition  to 
furnish  the  shipper  free  transportation  to 
and  from  the  point  of  destination  of  the 


CH.  XI.] 


PROTECTION  BY  "THE  LAW  OF  THE  LAND. 


569 


though  the  precise  meaning  of  "  privileges  and  immunities "  is 
not  very  conclusively  settled  as  yet,  it  appears  to  be  conceded 


cattle,  is  void  as  denying  the  equal  pro- 
tection of  the  laws.  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Campbell,  61  Kan.  439,  59  Pac. 
1051,  48  L.  R.  A.  251.  The  defendant 
cannot  claim  that  he  is  denied  the  equal 
protection  of  the  laws  simply  because  he 
is  one  of  a  class  expressly  excepted  from 
the  shield  of  a  statute  of  limitations. 
Narron  v.  Wilmington  &  W.  R.  Co.,  122 
N.  C.  856,  29  S.  E.  356,  40  L.  R.  A.  415. 
Statute  providing  that  where  corporation 
neglects  to  file  list  of  officers  upon  whom 
process  against  it  may  be  served,  copies 
of  such  process  may  be  left  with  register 
of  deeds  of  county  in  which  is  the  prin- 
cipal office  of  corporation,  is  invalid  as 
not  providing  due  process.  Pinney  v. 
Providence  L.  &  Inv.  Co.,  106  Wis.  396, 
82  N.  W.  308,  50  L.  R.  A.  577,  and  note. 
Where  defendant  in  a  divorce  suit  denies 
that  plaintiff  is  his  wife,  no  decree  for 
temporary  alimony  can  issue  against  him 
until  this  question  has  been  determined 
adversely  to  him.  Kite  v.  Hite,  124  Cal. 
389,  57  Pac.  227,  45  L.  R.  A.  793,  71  Am. 
St.  82.  Due  process  of  law  is  satisfied 
where  persons  yet  unborn  are  repre- 
sented by  a  guardian  ad  litem.  Loring  v. 
Hildreth,  170  Mass.  328,  49  N.  E.  652,  40 
L.  R.  A.  127,  64  Am.  St.  301.  Prohibition 
to  sell  trout,  or  to  have  them  for  purpose 
of  sale,  does  not  deprive  of  property 
without  due  process,  so  long  as  owner  is 
permitted  to  eat  them  or  give  them  away. 
State  v.  Schuman,360reg.  16,  58  Pac.  661, 
47  L.  R.  A.  153.  Commission  merchants 
dealing  in  farm  produce  may  be  compelled 
to  take  out  licenses,  and  submit  their 
business  to  inspection,  and  give  bonds  to 
secure  the  faithful  performance  of  their 
duties  to  their  consignors.  State  r. 
Wagener,  77  Minn.  483,  80  N.  W.  633,  778, 
1134,46  L.  R.  A.  442,76  Am.  St.  681; 
contra^  People  t>.  Berrien  Circuit  Judge, 
124  Mich.  664,  83  N.  W.  594,  50  L.  R.  A. 
493, 83  Am.  St.  352.  See  other  cases,  ante, 
561,  note  a.  Statute  prohibiting  officers 
of  railroad  and  mining  corporations  from 
having  any  interest  in  mercantile  business 
in  a  certain  county,  but  not  prohibiting 
those  of  other  corporations,  is  void. 
Luman  v.  Hitchins  Bros.  Co.,  90  Md.  14, 
44  All.  1051,  46  L.  R.  A.  393.  An  act 
requiring  employers  of  unnaturalized 


foreign-born  persons  to  pay  a  per-diem 
tax  for  each  such  employee,  and  deduct 
the  same  from  his  wages,  is  a  denial  of 
the  equal  protection  of  the  laws.  Juniata 
Limestone  Co.  v.  Fagley,  187  Pa.  193,  40 
Atl.  977,  42  L.  R.  A.  442.  A  creditor 
whose  debt  is  secured  by  mortgage  can- 
not be  restricted  in  his  remedy  to  the 
property  mortgaged.  Such  a  restriction 
imposed  upon  freedom  of  contract  is  an 
arbitrary  and  unwarranted  infringement 
of  the  liberty  of  the  citizen.  Dennis  v. 
Moses,  18  Wash.  537,  52  Pac.  333,  40 
L.  R.  A.  302.  Nor  can  the  right  to 
contract  for  payment  in  gold  coin  be 
taken  away  by  State  statute.  76.  Tempo- 
rary confinement  of  a  person  duly  alleged 
to  be  insane,  made  during  pendency  of 
determination  of  question  of  insanity,  is 
not  an  unwarranted  deprival  of  liberty. 
Porter  v.  Ritch,  70  Conn.  235,  39  Atl.  169, 
39  L.  R.  A.  353.  Denial  of  right  to  make 
defence  in  contempt  proceedings  is  a 
denial  of  due  process.  McClatchy  o. 
Superior  Court  of  Sacramento  Co.,  119 
Cal.  413,  51  Pac.  696,  39  L.  R.  A.  691 ; 
and  striking  out  defendant's  answer  in 
proceedings  for  contempt  renders  void 
any  judgment  thereafter  entered  against 
him,  in  the  action.  Hovey  v.  Elliott,  145 
N.  Y.  126,  39  N.  E.  841,  39  L.  R.  A.  449, 
aff.  in  167  U.  S.  409, 17  Sup.  Ct.  Rep.  841. 
Employer  is  not  unlawfully  deprived  of 
his  property  when  he  has  entrusted  it  to 
his  travelling  salesman,  and  an  innkeeper 
seizes  it  from  such  salesman  to  enforce 
payment  of  hotel  bill.  Brown  Shoe  Co. 
r.  Hunt,  103  Iowa,  586,  72  N.  W.  765,  39 
L.  R.  A.  291,  64  Am.  St.  198.  Non- 
residents may  be  partially  or  wholly 
exempted  from  penalties  for  allowing 
stock  to  run  at  large  within  the  limits  of 
the  city.  Broadfoot  v.  Fayetteville,  121 
N.  C.  418,  28  S.  E.  515,  39  L.  R.  A.  245, 
61  Am.  St.  668;  Jones  v.  Duncan,  127 
N.  C.  118,  37  S.  E.  135.  An  act  for  the 
registration  of  land  titles,  making  such 
registration  conclusive  evidence  in  certain 
cases,  was  held  void  because  it  did  not 
provide  for  actual  notice  to  claimants 
within  the  State,  attempting  to  make  a 
constructive  notice  sufficient.  State  r. 
Guilbert,  66  Ohio,  575,  47  N.  E.  651,  38 
L.  R.  A.  619,  60  Am.  St.  756.  Service 


570 


CONSTITUTIONAL   LIMITATIONS. 


[GIL  XI. 


that  the  Constitution  secures  in  each  State  to  the  citizens  of  all 
other  States   the    right   to   remove   to,   and    carry   on   business 


upon  the  highest  officer  or  agent  within 
the  jurisdiction,  where  the  party  is  a  non- 
resident joint-stock  association,  is  suffi- 
cient. State  v.  Adams  Express  Co.,  66 
Minn.  271,  68  N.  W.  1085,  38  L.  R.  A.  225. 
Equal  protection  of  the  laws  is  denied  by 
a  statute  requiring  citizens  of  all  other 
counties  to  secure  licenses  before  fishing 
in  two  specified  counties, 'none  being  re- 
quired of  citizens  of  those  counties.  State 
v.  Higgins,  51  S.  C.  51,  28  S.  E.  15,  38  L. 
R.  A.  561.  Warrant  of  arrest  not  sup- 
ported either  by  oath  or  affirmation  is 
void.  Ib.  A  State  may  limit  the  liability 
of  a  railroad  company  for  fires  caused  by 
sparks  from  its  locomotives,  in  the  entire 
absence  of  negligence,  to  the  uninsured 
value  of  the  property  burned,  and  the 
insurer  whose  contract  subrogated  him  to 
the  rights  of  the  insured  against  the  tort 
feasor  cannot  complain  that  lie  is  denied 
the  equal  protection  of  the  law  or  deprived 
of  property  without  due  process.  Leavitt 
v.  Canadian  P.  R.  Co.,  90  Me.  153,  37  Atl. 
886,  38  L.  R.  A.  152.  A  statute  abolish- 
ing the  fellow-servant  rule  as  to  railway 
employees,  held  constitutional  in  Callahan 
v.  St.  Louis  M.  B.  T.  Co., —  Mo. —,71 
S.  W.  208,  following  Tullis  v.  Railway  Co., 
175  U.  S.  348,  20  Sup.  Ct.  Rep.  136. 
Statute  authorizing  administration  of 
property  of  person  who  has  disappeared 
and  not  been  heard  of  for  seven  years  is 
void.  Carr  v.  Brown,  20  R.  I.  215,  38  Atl. 
9,  38  L.  R.  A.  294.  So  is  a  statute  pro- 
viding for  an  ante  mortem  probate  of  a 
will.  Lloyd  v.  Chambers,  56  Mich.  236, 
23  N.  W.  28.  After  verdict  of  guilty,  due 
process  will  not  prevent  denial  of  request 
for  investigation  of  sanity  of  prisoner. 
Baughn  v.  State,  100  Ga.  554,  28  S.  E.  68, 
38  L.  R.  A.  677 ;  upon  insanity  after 
commission  of  criminal  act,  see  note  to 
this  case  in  L.  R.  A.  Law  prescribing 
eight  hour  day  for  work  in  underground 
mines  is  valid.  Holden  v.  Hardy,  14  Utah, 
71,  46  Pac.  756,  87  L.  R.  A.  103 ;  see  this 
case  in  Supreme  Court  of  the  United 
States,  169  U.  S.  366,  18  Sup.  Ct.  Rep. 
383,  where  the  judgment  of  the  State 
Court  is  affirmed.  Contra,  Re  Morgan, 
26  Col.  415,  58  Pac.  1071,  47  L.  R.  A.  62, 
and  see  Ritchie  v.  People,  155  111.  98,  40 
N.  E.  454,  462,  29  L.  R.  A.  79,  46  Am.  St. 


315,  denying  validity  of  an  act  providing 
that  no  woman  should  be  employed  in 
any  clothing  manufactory  more  than 
eight  hours  per  day.  See  also  Low  v. 
Ilees  Printing  Co.,  41  Neb.  127,  59  N.  W. 
362,  24  L.  R.  A.  702,  43  Am.  St.  670. 
Wages  cannot  be  required  to  be  computed 
upon  weight  of  coal  as  it  comes  from 
mine  before  it  is  sorted.  Ramsey  v. 
People,  142  111.  380,  32  N.  E.  364,  17  L.  R. 
A.  853 ;  Re  Preston,  63  Ohio  St.  428,  59  N. 
E.  101 ;  contra,  Peel  Splint  Coal  Co.  v. 
State,  36  W.  Va.  802,  15  S.  E.  1000,  17 
L.  R.  A.  385.  Statute  forbidding  pay- 
ment of  employees  in  anything  but  money 
is  void.  State  v.  Haun,  61  Kan.  146,  59 
Pac.  340.  In  People  v.  Hill,  163  111.  186, 
46  N.  E.  796,  36  L.  R.  A.  634,  a  law  com- 
pelling a  person  financially  able,  to  sup- 
port his  pauper  sister  was  sustained.  It  is 
not  clear,  however,  upon  what  ground 
such  a  law  can  be  sustained.  The  sup- 
port of  a  pauper  is  either  a  public  or  a  pri- 
vate purpose.  If  the  former,  it  would 
seem  that  moneys  to  be  used  therefor 
should  be  raised  by  taxation,  and  to  sad- 
dle the  support  of  such  pauper  upon  a 
person  of  whose  family  she  is  not  a  mem- 
ber, and  who  is  by  no  act  or  neglect  of 
his  own  chargeable  with  her  creation  and 
existence,  is  to  violate  the  uniformity  and 
equality  necessary  to  legitimate  taxation. 
If  the  purpose  is  private,  the  case  against 
the  validity  of  the  law  is  still  stronger. 
That  service  of  process  by  publication 
may  be  made  sufficient  in  case  no  officers 
or  agents  of  a  domestic  corporation  can 
be  found  within  the  State,  see  Bernhardt 
».  Brown,  118  N.  C.  700, 119  N.  C.  506,  24 
S.  E.  527,  715,  26  S.  E.  162,  36  L.  R.  A. 
402.  Statute  permitting  certain  agents 
of  humane  societies  to  kill  neglected, 
abandoned,  or  diseased  animals  without 
notice  to  owner,  is  void.  Loesch  v. 
Koehler,  144  Ind.  278,  41  N.  E.  326,  35 
L.  R.  A.  682.  Where  State's  lien  for  taxes 
had  expired  by  limitation,  the  State  can- 
not arbitrarily  seize  the  property.  Owner 
must  have  notice  and  opportunity  to 
defend.  Kipp  v.  Elwell,  65  Minn.  525, 
68  N.  W.  105,  33  L.  R.  A.  435.  Parties 
to  be  affected  by  location  of  section- 
corners  must  have  notice  of  the  time  at 
which  such  location  is  to  be  determined. 


CH.  XI.]  PROTECTION    BY   "THE   LAW    OF   THE   LAND." 


571 


therein ;  the  right  by  the  usual  modes  to  acquire  and  hold  prop- 
erty, and  to  protect  and  defend  the  same  in  the  law  ;  the  right  to 


Davis  v.  St.  Louis  County  Comr's,  65 
Minn.  310,  67  N.  W.  997,  33  L.  R.  A.  432. 
Private  property  cannot  be  taken  for 
private  use,  nor  can  fishermen  be  author- 
ized by  law  to  cross  private  property 
against  the  will  of  the  owner  in  order  to 
reach  public  fishing  grounds.  New 
England  Tr.  &  S.  Club  v.  Mather,  68  Vt. 
3'58,  35  Atl.  323,  33  L.  R,  A.  569.  See 
also  Priewe  v.  Wisconsin  State  L.  &  Imp. 
Co.,93  Wis.  534,  67  N.  W.  918,  33  L.  R.  A. 
645.  Denial  of  dramshop  license  to  a 
person  who  does  not  bring  petition  signed 
by  requisite  number  of  residents  is  not 
denial  of  equal  protection,  &c.  Swift  v. 
People,  162  111.  534,  44  N.  E.  528,  33 
L.  R.  A.  470.  Arbitrarily  to  single  out  a 
certain  class  of  men  (e.  g.  barbers)  and 
deny  to  them  the  right  to  pursue  their 
ordinary  vocation  upon  Sunday  deprives 
them  of  property  without  due  process. 
Eden  v.  People,  161  111.  296,  43  N.  E.  1108, 
32  L.  R.  A.  659,  52  Am.  St.  365.  Grant- 
ing the  right  of  appeal  to  resident  land- 
holders in  annexation  proceedings,  and 
not  to  non-resident  land-holders,  is  not  a 
denial  of  the  equal  protection  of  the  laws. 
Taggart  v.  Claypole,  145  Ind.  590,  44 
N.  E.  18,  32  L.  R.  A.  586.  Nor  is  a 
discrimination  between  different  localities 
and  between  different  kinds  of  fish  in 
game  laws.  Nor  is  a  summary  seizure 
and  destruction  of  nets,  used  in  violation 
of  such  laws.  Bittenhaus  v.  Johnston, 
92  Wis.  588,  66  N.  W.  805,  32  L.  R.  A. 
380.  Statute  may  allow  successful  plain- 
tiff in  certain  cases  reasonable  attorney's 
fees,  without  allowing  successful  de- 
fendant in  same  cases  his  attorney's  fees. 
Cameron  v.  Chicago,  M.  &  St.  P.  R.  Co., 
63  Minn.  384,  65  N.  W.  652,  31  L.  R.  A. 
653  ;  Vogel  v.  Pekoe,  157  111.  339,  42  N.  E. 
386,  30  L.  R.  A.  491 ;  see  also  Union  C. 
Life  Ins.  Co.  ».  Chowning,  86  Tex.  654, 
26  S.  W.  982,  24  L.  R.  A.  504;  Perkins  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  103  Mo.  52, 
15  S.  W.  320,  11  L.  R.  A.  426;  contra, 
Hocking  Valley  Coal  Co.  v.  Rosser,  53 
Ohio  St.  12,  41  N.  E.  263,  29  L.  R.  A.  386  ; 
Phenix  Ins.  Co.  v.  Hart,  112  Ga.  765,  38 
S.  E.  67,  and  see  also  Gulf,  C.  &  S.  F.  R. 
Co.  v.  Ellis,  165  U.  S.  150, 17  Sup.  Ct.  Rep. 
255;  Atchison,  T.,  etc.  R.  Co.v.  Matthews, 
174  U.  S  96,  19  Sup.  Ct.  Rep.  609.  Rail- 


roads cannot  arbitrarily  be  required  to 
haul  freight  over  long  lines  connecting 
certain  points  at  same  rates  as  are  charged 
for  hauling  over  short  lines  connecting 
those  points.  State  v.  Sioux  City,  O.  & 
W.  R.  Co.,  46  Neb.  682,  65  N.  W.  766, 
791,  31  L.  U.  A.  47.  Notice  by  letter  and 
by  publication  is  sufficient  when  the 
defendant  cannot  be  found  and  that  fact 
is  established  by  affidavit.  Bickerdike  v. 
Allen,  157  111.  95,  41  N.  E.  740, 29  L.  R.  A. 
782.  Making  any  person  who  drives  a 
herd  of  animals  over  a  hillside  road  liable 
for  all  damage  done  by  them,  does  not 
discriminate  against  him.  Brim  v.  Jones, 
11  Utah,  200,  39  Pac.  825,  29  L.  R.  A.  97 ; 
aff.  in  165  U.  S.  180, 17  Sup.  Ct.  Rep.  282. 
Refractory  witness  before  grand  jury  may 
be  summarily  imprisoned  by  justice  of 
peace  upon  complaint  of  the  grand  jury. 
Re  Clark,  65  Conn.  17,  31  Atl.  522,  28 
L.  E.  A.  242.  Statute  authorizing  a 
probate  judge  to  declare  a  turnpike  road 
abandoned  and  vacated,  no  provision 
being  made  for  jury  trial  or  for  right  of 
appeal,  is  void.  Salt  Creek  V.  T.  Co.  v. 
Parks,  50  Ohio  St.  568,  35  N.  E.  304, 
28  L.  R.  A.  769.  Statute  authorizing 
execution  against  members  of  limited 
partnership  to  extent  of  unpaid  subscrip- 
tions in  satisfaction  of  debts  of  partner- 
ship is  valid  if  amount  unpaid  is  subject 
to  judicial  ascertainment.  Rouse,  H.  & 
Co.  v.  Donovan,  104  Mich.  234,  62  N.  W. 
359,  27  L.  R.  A  577,  53  Am.  St.  457. 
Where  tenement-house  owner  is  entitled 
to  trial  before  any  penalty  can  be  assessed 
against  him,  he  is  not  entitled  to  be 
heard  before  board  of  health  can  issue 
order  requiring  him  to  furnish  city  water 
on  each  floor  of  tenement  house.  Health 
Dept.  v.  Rector  of  Trinity  Church,  145 
N.  Y.  32,  39  N.  E.  833,  27  L.  R.  A.  710, 
45  Am.  St.  578.  Held,  that  a  statute 
authorizing  a  road  supervisor  to  enter 
without  notice  upon  private  lands,  and 
take  therefrom  gravel  needed  in  repairing 
highways,  is  valid  so  long  as  it  contains 
provisions  whereby  land-owner  is  per- 
mitted to  sue  and  recover  from  the  county 
his  damages.  Branson  v.  Gee,  25  Oreg. 
462,  36  Pac.  627,  24  L.  R  A.  355.  State 
may  compel  corporations  to  pay  em- 
ployees at  time  of  discharge,  although 


572  CONSTITUTIONAL   LIMITATIONS.  [CH.  XI. 

the  usual  remedies  for  the  collection  of  debts  and  the  enforcement 


regular  pay  day  has  not  yet  arrived,  but 
cannot  prevent  deduction  for  damages 
caused  by  employee's  breach  of  contract 
resulting  in  his  discharge.  Leep  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  58  Ark.  407, 25  S. 
W.  75,  41  Am.  St.  109,  23  L.  R.  A.  264. 
Where  property  receives  no  benefit  what- 
ever from  a  local  improvement,  collection 
of  an  assessment  thereon  would  amount  to 
a  taking  without  due  process,  and  will  be 
enjoined.  Oregon  &  C.  R.  Co.  v.  Port- 
land, 25  Oreg.  229, 35  Pac.  452,  22  L.  R.  A. 
713.  A  statute  attempting  to  compel  the 
issue  of  interchangeable  railway  mileage 
tickets,  and  their  acceptance  by  other 
roads  in  payment  of  fare,  without  giving 
any  lien  on  tangible  property,  or  providing 
any  fund  for  their  redemption,  is  void. 
Att.-Gen.  v.  Old  Colony  R.  Co.,  160  Mass. 
62,  35  N.  E.  252,  22  L.  R.  A.  112. 
Attempted  vacation  of  portion  of  street 
solely  for  private  benefit  is  void.  Smith 
v.  McDowell,  148  111.  51,  35  N.  E.  141,  22 
L.  R.  A.  393.  Statute  attempting  to 
deprive  lot-owners  of  right  to  build  out 
to  street  line,  without  providing  com- 
pensation for  such  deprivation,  is  void. 
St.  Louis  v.  Hill,  116  Mo.  527,  22  S.  W. 
861,  21  L.  R.  A.  226.  Scrip  and  truck 
act  sustained.  Peel  Splint  Coal  Co.  ;•. 
State,  36  W.  Va.  802,  15  S.  E.  1000,  17 
L.  R.  A.  385 ;  Hancock  v.  Yaden,  121  Ind. 
366,  23  N.  E.  253,  6  L.  R.  A.  576,  16 
Am.  St.  396 ;  contra,  Frorer  v.  People, 
141  111.  171,31  N.  E.  395,  16  L.  R.  A.  492; 
State  v.  Goodwill,  33  W.  Va.  179,  10 
S.  E.  285,  6  L.  R.  A.  621,  25  Am.-St.  863 ; 
State  i'.  Fire  Creek  C.  &  C.  Co.,  33  W.  Va. 
188,  10  S.  E.  288,  6  L.  R.  A.  359,  25 
Am.  St.  891.  Statute  restricting  right  of 
banking  to  corporations  is  bad.  State  v. 
Scougal,  3  S.  D.  55,  51  N.  W.  858,  15 
L.  R.  A.  477,  and  note,  44  Am.  St.  756  ; 
contra,  State  v.  Woodmanse,  1  N.  D.  246, 
46  N.  W.  970,  11  L.  R.  A.  420.  So  is 
one  forbidding  employer  to  levy  fine  upon 
employee  for  defective  work.  Com.  v. 
Perry,  155  Mass.  117,  28  N.  E.  1126,  14 
L.  R.  A.  325,  and  note,  31  Am.  St.  633. 
So  in  one  requiring  judgment  debtor,  at 
whose  suit  execution  sale  is  set  aside,  to 
repay  to  purchaser  in  such  sale  the  money 
paid  by  purchaser.  Oilman  v.  Tucker, 
128  N.  Y.  190,  28  N.  E.  1040,  13  L.  R.  A. 
304,  26  Am.  St.  464.  Except  as  expressly 


provided  in  the  Constitution,  the  right  to 
appeal  is  subject  to  legislative  regulation. 
Sullivan  v.  Hang,  82  Mich.  548,  46  N.  W. 
795,  10  L.  R.  A.  263.  State  may  abso- 
lutely prohibit  the  taking  of  opium  into 
the  human  bo<ly.  Territory  v.  Ah  Lim, 
1  Wash.  156,  24  Pac.  588,  9  L.  R.  A.  395. 
In  Chavannes  v.  Priestly,  80  Iowa,  316, 
45  N.  W.  766,  9  L.  R.  A.  193,  it  was  held 
that  a  person  may  be  adjudged  insane 
without  notice  to  him,  and  thereupon 
may  be  confined  as  an  insane  person,  — 
certainly  a  most  unusual  declaration; 
contra,  Re  Gannon,  16  R.  I.  726,  19  Atl. 
331,  5  L.  R.  A.  359,  and  note.  But  where 
a  writ  of  capias  issues,  directing  the 
sheriff  to  seize  the  body  of  the  alleged 
lunatic,  give  him  notice  of  the  inquisition 
about  to  be  held,  and  have  him  before 
the  court  at  the  trial,  if  not  inconsistent 
with  his  health  and  safety,  and  a  guardian 
ad  litem  is  duly  appointed  and  acts,  the 
proceedings  will  not,  merely  because  the 
sheriff  returns  that  it  is  inconsistent  with 
the  health  and  safety  of  the  alleged  lun- 
atic to  have  him  before  the  court,  be 
adjudged  void  in  the  absence  of  allega- 
tion and  proof  that  he  requested  to  be 
permitted  to  appear  at  the  trial,  and  was 
denied  that  right.  Simon  v.  Craft,  182 
U.  S.  427,  21  Sup.  Ct.  Rep.  836,  aff. 
118  Ala.  625,  24  So.  380.  See  also 
Bumpus  v.  French,  179  Mass.  131,  60 
N.  E.  414 ;  Sfrite  v.  Billings,  55  Minn.  467, 
67  N.  W.  206,  794,  43  Am.  St.  525.  Col- 
lins, J.,  speaking  for  the  court,  says  : 
"  To  the  person  charged  with  being  in- 
sane to  a  degree  requiring  the  interposi- 
tion of  the  authorities  and  the  restraint 
provided  for,  there  must  be  given  notice 
of  the  proceeding,  and  also  an  opportunity 
to  be  heard  in  the  tribunal  which  is  to 
pass  judgment  upon  his  right  to  his  per- 
sonal liberty  in  the  future.  There  must 
be  a  trial  before  judgment  can  be  pro- 
nounced, and  there  can  be  no  proper  trial 
unless  there  is  guaranteed  the  right  to 
produce  witnesses  and  submit  evidence. 
The  question  here  is  not  whether  the  tri- 
bunal may  proceed  in  and  with  some 
regard  to  the  rights  of  the  person  before 
it,  but  rather,  is  the  right  to  have  it  so 
proceed  absolutely  secured  ?  Any  statute 
having  for  its  object  the  deprivation  of 
the  liberty  of  a  person  cannot  be  upheld 


CIT.  XI.]  PROTECTION    BY   "THE   LAW   OF   THE    LAND."  573 

of  other  personal  rights ;  and  the  right  to  be  exempt,  in  property 


unless  tliis  right  is  secured,  for  the  object 
may  be  attained  in  defiance  of  the  Consti- 
tution, and  without  due  process  of  law." 
See  extended  note  to  this  case  in  43  Am. 
St.  531-541,  on  "due  process  of  law,"  as 
applied  to  lunatics.  Service  of  summons 
upon  resident  defendants  who  can  be 
found  within  the  State  is  insufficient,  if 
made  by  publication  only.  Bardwell  v. 
Anderson,  44  Minn.  97,  46  N.  W.  315,  9 
L.  R.  A.  152.  Ordinance  authorizing 
arrest  and  incarceration  without  warrant 
or  hearing,  upon  mere  refusal  to  ''move 
on,"  when  so  commanded  by  police  offi- 
cer, is  void.  State  o.  Hunter,  106  N.  C. 
796,  11  S.  E.  366,  8  L.  R.  A.  529,  and 
note.  Statute  penalizing  the  sending  or 
taking  of  any  note,  bond,  account,  or  chose 
in  action  out  of  the  State  for  the  purpose 
of  suing  and  issuing  garnishment  or  like 
process  thereon,  against  any  resident  of 
the  State,  is  void  as  depriving  creditor  of 
property  without  due  process  of  law. 
Re  Flukes,  157  Mo.  125,  57  S.  W.  545, 

51  L.  R.  A.  176.     Statute  restricting  the 
number  of  persons  a  lodging-house  keeper 
may  allow  to  sleep  in  a  single  room,  but 
making    no    provision    concerning    inn- 
keepers, is  void  for  arbitrary  discrimina- 
tion.    Bailey   v.   People,  190   111.  28,  60 
N.  E.  98.     New  lien  cannot  be  made  s''pe- 
rior  to  an  older  lien  without  opportunity 
to  older  lienor   to  be   heard.     Fisher  v. 
Wineman,  125  Mich.  642,  84  N.  W.  1111, 

52  L.  R.  A.  192.     In  Gillespie  v.  People, 
188  111.  176,  58  N.  E.  1007,  it  was  held 
that  a  statute  which  made  it  a  criminal 
offence   to    intimidate    by   discharge    or 
threats  of  discharge  any  employee  from 
joining  a  labor  union,  was  void  as  being 
a  deprival  of  liberty  without  due  process 
of  law.     And  in  People  v.  Coler,  166  N. 
Y.  1,  59  N.  E.  716,  82  Am.  St.  605,  it  was 
held  that  an  act  requiring  that  contracts 
thereafter  entered  into  for  the  construc- 
tion of  public  works  should  bind  the  con- 
tractor to  pay  his  laborers  the  prevailing 
rates   of   wages,  was  void   as  an   undue 
deprival  of  his  liberty.     See  also,  in  this 
connection,  People  v.  Coler,  166  N.  Y.  1, 
58  N.   E.   776.    No    distinction    can   be 
made  between  aliens  and  citizens  in  regard 
to  occupations  which  may  be  carried  on 
of  common  right.     State  v.  Montgomery, 
94  Me.  192,  47  Atl.  165.     Determination 


of  insufficiency  of  a  pauper's  support  can- 
not be  made  by  a  commission  which  has 
no  power  to  administer  oaths  nor  to  ex- 
amine witnesses.  Church  v.  South  Kings- 
town, 22  It.-  1.  381,  48  Atl.  3.  Taxing 
holders  of  mortgages  issued  by  individu- 
als, and  exempting  those  of  mortgages 
issued  by  quasi-public  corporations,  is  a 
denial  of"  equal  protection.  Russell  v. 
Croy,  164  Mo.  69,  63  S.  W.  849.  A  stat- 
ute of  Nebraska  making  combinations  in 
restraint  of  trade  illegal,  and  exempting 
labor  unions,  is  held  valid  in  Cleland  v. 
Anderson,  —  Neb.  — ,  92  N.  W.  306.  The 
same  statute  is  declared  of  no  validity 
for  violation  of  the  rule  of  equal  privi- 
leges and  equal  protection  in  Niagara 
Ins.  Co.  v.  Cornell,  110  Fed.  Rep.  816. 
The  sale,  by  the  State,  of  ice  accumulat- 
ing on  navigable  waters,  violates  the  14th 
Amendment  guaranty  of  equal  protec- 
tion and  privileges.  Rossmiller  v.  State, 
114  Wis.  169,  89  N.  W.  839,  58  L.  R.  A. 
93.  In  Connolly  v.  Union  Sewer-Pipe  Co., 
184  U.  S.  540,  22  Sup.  Ct.  Rep.  431,  the 
court  says:  "As  the  Constitution  of  the 
United  States  is  the  supreme  law  of 
the 'land,  anything  in  the  Constitution  or 
statutes  of  the  State  to  the  contrary  not- 
withstanding, a  statute  of  a  State,  even 
when  avowedly  enacted  in  the  exercise 
of  the  police  powers,  must  yield  to  that 
law.  .  .  .  '  The  nullity  of  any  act  incon- 
sistent with  the  Constitution  is  produced 
by  the  declaration  that  the  Constitution 
is  the  supreme  law  of  the  land/  The 
State  has  undoubtedly  the  power  by 
appropriate  legislation  to  protect  the 
public  morals,  the  public  health,  and  the 
public  safety,  but  if  by  their  necessary 
operation  its  regulations  looking  to  either 
of  those  ends  amount  to  a  denial  to 
persons  within  its  jurisdiction  of  the 
equal  protection  of  the  laws,  they  must  be 
deemed  unconstitutional  and  void."  In 
Otis  &  Gassman  v.  Parker,  —  U.  S.  — , 
23  Sup.  Ct.  Rep.  168,  a  provision  of  the 
Constitution  of  California  was  before  the 
court  upon  the  objection  that  it  violated 
the  14th  Amendment.  The  provision 
reads :  "  All  contracts  for  the  sales  of 
shares  of  the  capital  stock  of  any  cor- 
poration or  association  on  margin  or  to 
be  delivered  at  a  future  day  shall  be 
void,"  and  further  that  any  money  paid 


574 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XI. 


and  person,  from  taxes  or  burdens  which  the  property,  or  persons, 
of  citizens  of  the  same  State  are  not  subject  to.1  To  this  extent, 
at  least,  discriminations  could  not  be  made  by  State  laws  against 
them.  But  it  is  unquestionable  that  many  other  rights  and  priv- 
ileges may  be  made  —  as  they  usually  are  —  to  depend  upon 
actual  residence :  such  as  the  right  to  vote,  to  have  the  benefit  of 
exemption  laws,  to  take  fish  in  the  waters  of  the  State,  and  the 
like.  And  the  constitutional  provisions  are  not  violated  by  a 
statute  which  allows  process  by  attachment  against  a  debtor  not 
a  resident  of  the  State,  notwithstanding  such  process  is  not  ad- 
missible against  a  resident.2  The  protection  by  due  process  of 
law  has  already  been  considered.  It  was  not  within  the  power 


on  such  contracts  may  be  recovered  back. 
It  was  held  by  a  divided  court  that  the 
provision  was  not  in  conflict  with  the 
Federal  Constitution,  against  the  conten- 
tions, that  it  destroyed  the  values  of  this 
class  of  property  without  due  process  of 
law,  and  that  it  unduly  discriminated 
against  this  class  of  property  while  other 
familiar  objects  of  speculation,  such  as 
cotton  or  grain,  were  not  touched.  It 
would  seem  that  the  prohibition,  unless 
the  contract  provides  for  immediate  de- 
livery, of  sales  of  such  property  as  the 
law  recognizes,  is  certainly  carrying 
the  police  power  to  its  boundary  line. 
For  other  cases  upon  due  process,  equal 
protection,  &c.,  see  Wadsworth  v.  Union 
P.  K.  Co.,  18  Col.  600,  33  Pac.  615,  23 
L.  R.  A.  812,  36  Am.  St.  309;  People  v. 
Yonkers,  140  N.  Y.  1,  35  N.  E.  320,  23 
L.  R.  A.  481 ;  Attorney-General  v.  Jochim, 
99  Mich.  358,  58  N.  W.  611,  23  L.  R.  A. 
699,  41  Am.  St.  606;  Braceville  Coal  Co. 
t7.  People,  147  111.  66,  35  N.  E.  62,  22 
L.  R.  A.  340,  37  Am.  St.  206 ;  Morton  v. 
New  York,  140  N.  Y.  207,  35  N.  E.  490, 
22  L.  R.  A.  241;  Schiltz  v.  Roenitz,  86 
Wis.  31,  56  N.  W.  194,  21  L.  R.  A.  483, 
39  Am.  St.  873;  State  v.  Loomis,  115  Mo. 
307,  22  S.  W.  350,  21  L.  R.  A.  789;  State 
v.  Wolfer,  53  Minn.  135,  54  N.  W.  1065, 
19  L.  R.  A.  783,  39  Am.  St.  582;  Jenkins 
v.  Ballantyne,  8  Utah,  245,  30  Pac.  760, 
1(5  L.  R.  A.  689;  Anderton  v.  Milwaukee, 
82  Wis.  279,  52  N.  W .  95,  15  L.  R.  A.  830 ; 
Louisville  Safety  Vault  &  T.  Co.  v.  Louis- 
ville &  N.  R.  Co.,  92  Ky.  233,  17  S.  W. 
567,  14  L.  R.  A.  579,  and  extensive  note 
on  constitutional  equality  of  privileges, 
immunities,  and  protection ;  Burdett  v. 
Allen,  35  W.  Va.  347,  13  S.  E.  1012,  14 


L.  R.  A.  337 ;  State  v.  Burgdoerfer,  107 
Mo.  1,  17  S.  W.  646,  14  L.  R.  A.  846;  Re 
Bonds  Madera  Irrigation  District,  92  Cal. 
296,  341,  28  Pac.  272,  675,  14  L.  R.  A.  755, 
27  Am.  St.  106;  Grand  Rapids  v.  Powers, 
89  Mich.  94,  50  N.  W.  661,  14  L.  R.  A; 
498,  and  note  on  establishment  of  dock 
lines,  28  Am.  St.  276.  Re  Clayton,  59 
Conn.  510,  21  All.  1005,  13  L.  R.  A.  66, 
21  Am.  St.  128;  Lehew  v.  Brummell,  103 
Mo.  546,  15  S.  W.  765,  11  L.  R.  A.  828, 
23  Am.  St.  895 ;  Louisville,  N.  A.  &  C.  R. 
Co.  v.  Wallace,  136  111.  87,  26  N.  E.  493, 
11  L.  R.  A.  787  (short-cause  calendar) ; 
State  v.  Robbins,  124  Ind.  308,  24  N.  E. 
978,  8  L.  R.  A.  438;  State  v.  Santee,  111 
Iowa,  1,  82  N.  W.  445 ;  State  v.  Warren, 
113  N.  C.  683,  18  S.  E.  498;  Attorney 
General  v.  Boston  &  A.  Ry.  Co.,  160 
Mass.  62,  35  N.  E.  252,  22  L.  R.  A.  112; 
State  v.  Eby,  —  Mo.  — ,  71  S.  W.  52; 
State  v.  Mitchell,  —  Me.  — ,  53  Atl.  887. 
In  which  last  case  a  hawker's  and 
peddler's  act  requiring  those  paying  less 
than  $25.00  in  taxes  on  stock  to  pay  a 
license  fee,  and  exempting  those  paying 
that  amount  or  more  of  taxes  on  stock, 
was  held  invalid  as  violating  the  right  of 
equal  protection.] 

1  Corfield    v.   Coryell,  4   Wash.  380; 
Campbell  v.  Morris,  3  H.  &  McH.  554; 
Crandall  v.  State,  10  Conn.  339 ;  Oliver  v. 
Washington  Mills,  11  Allen,  268. 

2  Campbell  v.  Morris,  3  H.  &  McH. 
554 ;  State  v.  Medbury,  3  R.  I.  138.    And 
see  generally  the  cases  cited,  ante,  p.  37, 
note.    Exemption  from  garnishment  does 
not  apply  to  a  non-resident  debtor  except 
by  express  provision.     Kile  v.  Montgom- 
ery, 73  Ga.  337. 


GIL  XI.]  PROTECTION    BY   "THE    LAW    OF   THE    LAND."  575 

of  the  States  before  the  adoption  of  the  fourteenth  amendment, 
to  deprive  citizens  of  the  equal  protection  of  the  laws ;  but  there 
were  servile  classes  not  thus  shielded,  and  when  these  were  made 
freemen,  there  were  some  who  disputed  their  claim  to  citizenship, 
and  some  State  laws  were  in  force  which  established  discrimina- 
tions against  them.  To  settle  doubts  and  preclude  all  such  laws, 
the  fourteenth  amendment  was  adopted  ;  and  the  same  securities 
which  one  citizen  may  demand,  all  others  are  now  entitled  to. 

Judicial  Proceedings. 

Individual  citizens  require  protection  against  judicial  action  as 
well  as  against  legislative ;  and  perhaps  the  question,  what  con- 
stitutes due  process  of  law,  arises  as  often  when  judicial  action  is 
in  question  as  in  any  other  cases.  But  it  is  not  so  difficult  here 
to  arrive  at  satisfactory  conclusions,  since  the  bounds  of  the  judi- 
cial authority  are  much  better  defined  than  those  of  the  legisla- 
tive, and  each  case  can  generally  be  brought  to  the  test  of  definite 
and  well-settled  rules  of  law. 

The  proceedings  in  any  court  are  void  if  it  wants  jurisdiction 
of  the  case  in  which  it  has  assumed  to  act.  (a)  Jurisdiction  is, 
first,  of  the  subject-matter ;  and,  second,  of  the  persons  whose 
rights  are  to  be  passed  upon.1 

A  court  has  jurisdiction  of  any  subject-matter,  if,  by  the  law  of 
its  organization,  it  has  authority  to  take  cognizance  of,  try,  and 
determine  cases  of  that  description.  If  it  assumes  to  act  in  a 
case  over  which  the  law  does  not  give  it  authority,  the  proceeding 
and  judgment  will  be  altogether  void,  and  rights  of  property  can- 
not be  divested  by  means  of  them. 

It  is  a  maxim  in  the  law  that  consent  can  never  confer  juris- 
diction:2 by  which  is  meant  that  the  consent  of  parties  cannot 

1  "Jurisdiction   is  a  power   constitu-  Rochester,    12    Wend.   165;     Dudley  v. 
tionally  conferred  upon  a  court,  a  single  Mayhew,  3  N.  Y.  9;  Preston  v.  Boston, 
judge,  or  a  magistrate,  to  take  cognizance  12  Pick.  7 ;  Chapman  v.  Morgan,  2  Greene 
and  decide  causes  according  to  law,  and'  (Iowa),   374;    Thompson    v.    Steamboat 
to   carry   their  sentence   into   execution.  Morton,  2  Ohio  St.  26  ;  Gilliland  v.  Admin- 
The  tract  of  land  within  which  a  court,  istrator  of  Sellers,  2  Ohio  St.  223;  Dicks 
judge,  or  magistrate   has  jurisdiction   is  v.  Hatch,  10  Iowa,  380;  McCall  v.  Peachey, 
called  his  territory;  and  his  power  in  rela-  1  Call,  55;  Bents  v.  Graves,  3  McCord, 
tion  to  his  territory  is  called  his  territorial  280;  Overstreet  v.  Brown,  4  McCord,  79 ; 
jurisdiction."     3  Bouv.  Inst.  71.  Green  r.  Collins,  6  Ired.  139;  Boswick  v. 

2  Coffin  v.  Tracy,  3  Caines,  129;  Blin  Perkins,  4  Ga.  47;  Georgia  R.  R.  &c.  v. 
v.  Campbell,  14  Johns.   432  ;    Cuyler   v.  Harris,  5  Ga.  527 ;  State  v.  Bonney,  34 

(«)  £Any  action  taken  by  a  court  in  the  absence  of  the  facts  upon  which  its  juris- 
diction rightfully  rests  is  void,  and  may  be  collaterally  impeached.  Scott  v.  McNeal, 
154  U.  S.  34,  14  Sup.  Ct.  Rep.  1108,  rev.  5  Wash.  309,'  31  Pac.  873,  34  Am.  St.  863.] 


576  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

empower  a  court  to  act  upon  subjects  which  are  not  submitted  to 
its  determination  and  judgment  by  the  law.  The  law  creates 
courts,  and  upon  considerations  of  general  public  policy  defines 
and  limits  their  jurisdiction;  and  this  can  neither  be  enlarged 
nor  restricted  by  the  act  of  the  parties. 

Accordingly,  where  a  court  by  law  has  no  jurisdiction  of  the 
subject-matter  of  a  controversy,  a  party  whose  rights  are  sought 
to  be  affected  by  it  is  at  liberty  to  repudiate  its  proceedings  and 
refuse  to  be  bound  by  them,  notwithstanding  he  may  once  have 
consented  to  its  action,  either  by  voluntarily  commencing  the 
proceeding  as  plaintiff,  or  as  defendant  by  appearing  and  pleading 
to  the  merits,  or  by  any  other  formal  or  informal  action.  This 
right  he  may  avail  himself  of  at  any  stage  of  the  case ;  and  the 
maxim  that  requires  one  to  move  promptly  who  would  take 
advantage  of  an  irregularity  does  not  apply  here,  since  this  is 
not  mere  irregular  action,  but  a  total  want  of  power  to  act  at  all. 
Consent  is  sometimes  implied  from  failure  to  object ;  but  there 
can  be  no  waiver  of  rights  by  laches  in  a  case  where  consent 
would  be  altogether  nugatory.1 

In  regard  to  private  controversies,  the  law  always  encourages 
voluntary  arrangements;2  and  the  settlements  which  the  parties 
may  make  for  themselves,  it  allows  to  be  made  for  them  by 
arbitrators  mutually  chosen.  But  the  courts  of  a  country  cannot 
have  those  controversies  referred  to  them  by  the  parties  which 
the  law-making  power  has  seen  fit  to  exclude  from  their  cogni- 
zance. If  the  judges  should  sit  to  hear  such  controversies,  they 
would  not  sit  as  a  court ;  at  the  most  they  would  be  arbitrators 
only,  and  their  action  could  not  be  sustained  on  that  theory, 
unless  it  appeared  that  the  parties  had  designed  to  make  the 
judges  their  arbitrators,  instead  of  expecting  from  them  valid 
judicial  action  as  an  organized  court.  Even  then  the  decision 
could  not  be  binding  as  a  judgment,  but  only  as  an  award  ;  and 
a  mere  neglect  by  either  party  to  object  to  the  want  of  jurisdiction 
could  not  make  the  decision  binding  upon  him  either  as  a  judg- 
ment or  as  an  award.  Still  less  could  consent  in  a  criminal  case 
bind  the  defendant;  since  criminal  charges  are  not  the  subject 
of  arbitration,  and  any  infliction  of  criminal  punishment  upon  an 

Me.  223;  Little  w.Fitts,  33  Ala.  343;  Ginn  v.  People,  16  Mich.  351;  White   v.  Bu- 

v.  Rogers,  9  111.  131;    Neill  v.   Keese,  5  chanan,  6  Cold.  32;  Collins  v.  Collins,  37 

Tex.  23;  Ames  v.  Boland,  1  Minn.  365  ;  Pa.  St.  387;  Green  v.  Creighton,  18  Miss. 

Brady   v.  Richardson,    18   Ind.    1  White  159. 

v.  Buchanan,    6    Cold.   32;    Andrews  v.          2  Moore  v.  Detroit  Locomotive  Works, 

Wheaton,    23    Conn.    112 ;    Collamer  v.  14  Mich.  266 ;  Coyner  v.  Lynde,  10  Ind. 

Page,  35  Vt.  387.  282. 
1  Bostwick  v.  Perkins,  4  Ga.  47 ;  Hill 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        577 

individual,  except  in  pursuance  of  the  law  of  the  land,  is  a  wrong 
done  to  the  State,  whether  the  individual  assented  or  not.  Those 
cases  in  which  it  has  been  held  that  the  constitutional  right  of 
trial  by  jury  cannot  be  waived  are  strongly  illustrative  of  the 
legal  view  of  this  subject.1 

If  the  parties  cannot  confer  jurisdiction  upon  a  court  by  con- 
sent, neither  can  they  by  consent  empower  any  individual  other 
than  the  judge  of  the  court  to  exercise  its  powers.  Judges  are 
chosen  in  such  manner  as  shall  be  provided  by  law ;  and  a  stipu- 
lation by  parties  that  any  other  person  than  the  judge  shall  exer- 
cise his  functions  in  their  case  would  be  nugatory,  even  though  the 
judge  should  vacate  his  seat  for  the  purposes  of  the  hearing.2 

Sometimes  jurisdiction  of  the  subject-matter  will  depend  upon 
considerations  of  locality,  either  of  the  thing  in  dispute  or  of  the 
parties.  At  law  certain  actions  are  local,  and  others  are  transi- 
tory. The  first  can  only  be  tried  where  the  property  which  is 
the  subject  of  the  controversy,  or  in  respect  to  which  the  contro- 
versy has  arisen,  is  situated.  The  United  States  courts  take 
cognizance  of  certain  causes  by  reason  only  of  the  fact  that  the 
parties  are  residents  of  different  States  or  countries.3  The  ques- 
tion of  jurisdiction  in  these  cases  is  sometimes  determined  by  the 
common  law,  and  sometimes  is  matter  of  statutory  regulation. 
But  there  is  a  class  of  cases  in  respect  to  which  the  courts  of  the 
several  States  of  the  Union  are  constantly  being  called  upon  to 
exercise  authority,  and  in  which,  while  the  jurisdiction  is  con- 
ceded to  rest  on  considerations  of  locality,  there  has  not,  unfor- 
tunately, at  all  times  been  entire  harmony  of  decision  as  to  what 
shall  confer  jurisdiction.  We  refer  now  to  suits  for  divorce  from 
the  bonds  of  matrimony. 

The  courts  of  one  State  or  country  have  no  general  authority 
to  grant  divorce,  unless  for  some  reason  they  have  control  over 
the  particular  marriage  contract  which  is  sought  to  be  annulled. 
But  what  circumstance  gives  such  control  ?  Is  it  the  fact  that 
the  marriage  was  entered  into  in  such  country  or  State  ?  Or  that 

1  Brown  v.  State,  8  Blackf.  561 ;  Work  force,  because  the  court  had  not  jnrisdic- 
v.  Ohio,  2  Ohio  St.  296 ;  Cancemi  v.  Peo-  tion  in  respect  to  the  plaintiff.     Vose  r. 
pie,  18   N.  Y.   128;   People  v.  Smith,  9  Morton,  4  Gush.  27.     As  to  third  persons, 
Mich.  193;  Hill  v.  People,  16  Mich.  351;  a  judgment  against  an  individual  may 
Whorton  v.  Morange,  62  Ala.  201 ;  Fleish-  sometimes  be  treated  as  void,  when  he 
man  v.  Walker,  91   111.  318 ;   Shissler  v.  was  not    suable  in  that  court  or  in  that 
People,   93   111.  472.      See  also   State   v.  manner,  notwithstanding  he  may  have  so 
Turner,!  Wright,  20.  submitted  himself  to  the  jurisdiction  as 

2  Winchesters.  Ayres,4  Greene  (Iowa),  to   be   personally   bound.     See  Georgia 
104     See  post,  589,  note.  R.  R.  &c.  r.  Harris,  5  Ga.  527  ;  Hinch- 

3  See  a  case  where  a  judgment  of  a    man  v.  Town,  10  Mich.  508. 
United  States  court  was  treated  as  of  no 

37 


578  CONSTITUTIONAL  LIMITATIONS.  [CH.  XI. 

the  alleged  breach  of  the  marriage  bond  was  within  that  jurisdic- 
tion ?  Or  that  the  parties  resided  within  it  either  at  the  time  of 
the  marriage  or  at  the  time  of  the  offence  ?  Or  that  the  parties 
now  reside  in  such  State  or  country,  though  both  marriage  and 
offence  may  have  taken  place  elsewhere  ?  Or  must  marriage, 
offence,  and  residence,  all  or  any  two  of  them,  combine  to  confer 
the  authority  ?  These  are  questions  which  have  frequently  de- 
manded the  thoughtful  attention  of  the  courts,  who  have  sought 
to  establish  a  rule  at  once  sound  in  principle,  and  that  shall  pro- 
tect as  far  as  possible  the  rights  of  the  parties,  one  or  the  other 
of  whom,  unfortunately,  under  the  operation  of  any  rule  which 
can  be  established,  it  will  frequently  be  found  has  been  the  victim 
of  gross  injustice. 

We  conceive  the  true  rule  to  be  that  the  actual,  bona  fide  resi- 
dence of  either  husband  or  wife  within  a  State  will  give  to  that 
State  authority  to  determine  the  status  of  such  party,  and  to  pass 
upon  any  questions  affecting  his  or  her  continuance  in  the  mar- 
riage relation,  irrespective  of  the  locality  of  the  marriage,  or  of 
any  alleged  offence ;  and  that  any  such  court  in  that  State  as  the 
legislature  may  have  authorized  to  take  cognizance  of  the  subject 
may  lawfully  pass  upon  such  questions,  and  annul  the  marriage 
for  any  cause  allowed  by  the  local  law.  But  if  a  party  goes  to  a 
jurisdiction  other  than  that  of  his  domicile  for  the  purpose  of 
procuring  a  divorce,  and  has  residence  there  for  that  purpose 
only,  such  residence  is  not  bona  fide,  and  does  not  confer  upon 
the  courts  of  that  State  or  country  jurisdiction  over  the  marriage 
relation,  and  any  decree  they  may  assume  to  make  would  be  void 
as  to  the  other  party.1 

1  There  are  a  number  of  cases  in  which  6  Gray,  157,  the  same  ruling  was  had  as 

this   subject  has    been   considered.      In  to  a  foreign  divorce,  notwithstanding  the 

Inhabitants    of    Hanover  v.  Turner,  14  wife  appeared  in  and  defended  the  foreign 

Mass.  227,  instructions  to  a  jury  weresus-  suit.     In  Clark  v.  Clark,  8  N.  H.  21,  the 

tained,  that  if   they  were   satisfied   the  court  refused  a  divorce  on  the  ground 

husband,  who  had  been  a  citizen  of  Mas-  that  the  alleged  cause  of  divorce  (adul- 

sachusetts,  removed  to  Vermont  merely  tery),  though  committed  within  the  State, 

for  the  purpose  of  procuring  a  divorce,  was  so  committed  while  the  parties  had 

and  that  the  pretended  cause  for  divorce  their  domicile  abroad.     This  decision  was 

arose,  if  it  ever  did  arise,  in  Massachu-  followed    in   Greenlaw   v.  Greenlaw,   12 

setts,  and  that  the  wife  was  never  within  N.  H.  200.     The  court  say  :     "  If  the  de- 

tlie  jurisdiction  of  the  court  of  Vermont,  fendant  never  had  any  domicile  in  this 

then  and  in  such  case  the  decree  of  di-  State,  the  libellant  could  not  come  here, 

vorce  which  the  husband  had  obtained  in  bringing  with  her  a  cause  of  divorce  over 

Vermont  must  be  considered  as  fraudu-  which  this  court  had  jurisdiction.    If  at 

lently  obtained,  and  that    it  could  not  the  time   of    the   [alleged   offence]   the 

operate  so  as  to  dissolve  the  marriage  domicile  of  the  parties   was   in   Maine, 

between  the  parties.     See  also  Vischer  r.  and  the  facts  furnished  no  cause  for  a  di- 

Vischer,  12  Barb.  640;  and  McGiffert  v.  vorce  there,  she  could  not  come  here  and 

McGiffert,  31  Barb.  69.  In  Chase  v.  Chase,  allege  those  matters  which  had  already 


CH.  XI.1 


PROTECTION   BY  "THE   LAW   OF   THE   LAND.' 


579 


But  to  render  the  jurisdiction  of  a  court  effectual  in  any  case, 
it  is  necessary  that  the  thing  in  controversy,  or  the  parties  in- 


occurred,  as  a  ground  for  a  divorce  under 
the  laws  of  this  State.  Should  she  under 
such  circumstances  obtain  a  decree  of  di- 
vorce here,  it  must  be  regarded  as  a  mere 
nullity  elsewhere."  In  Frary  v.  Frary, 
10  N.  II.  61,  importance  was  attached  to 
the  fact  that  the  marriage  took  place  in 
New  Hampshire ;  and  it  was  held  that 
the  court  had  jurisdiction  of  the  wife's 
application  for  a  divorce,  notwithstand- 
ing the  offence  was  committed  in  Ver- 
mont, but  during  the  time  of  the  wife's 
residence  in  New  Hampshire.  See  also 
Kimball  v.  Kimball,  13  N.  H.  222  ;  Batch- 
elder  t\  Batchelder,  14  N.  H.  380;  Pay- 
son  v.  Payson,  34  N.  H.  518;  Hopkins  v. 
Hopkins,  35  N.  II.  474;  Foss  v.  Foss, 
58  N.  H.  283;  Norris  v.  Norris,  64  N, 
H.  523,  16  Atl.  19.  See  Trevino  v. 
Trevino,  54  Tex.  261.  In  Wilcox  v. 
Wilcox,  10  Ind.  436,  it  was  held  that 
the  residence  of  the  libellant  at  the  time 
of  the  application  for  a  divorce  was 
sufficient  to  confer  jurisdiction,  and  a 
decree  dismissing  the  bill  because  the 
cause  for  divorce  arose  out  of  the  State 
was  reversed.  And  see  Tolen  v.  Tolen, 

2  Blackf.    407.      Compare    Jackson    v. 
Jackson,  1  Johns.  424;  Barber  v.  Root, 
10  Mass.  260 ;  Borden  v.  Fitch,  15  Johns. 
121 ;  Bradshaw  v.  Heath,  13  Wend.  407. 
In  any  of  these  cases   the  question   of 
actual  residence  will  be  open  to  inquiry 
whenever  it  becomes  important,  notwith- 
standing the  record  of  proceedings  is  in 
due  form,  and   contains   the  affidavit  of 
residence  required  by  the  practice.     Leith 
v.  Leith,  39  N.  H.  20.    And  see  McGiffert 
v.  McGiffert,  31  Barb.  69;  Todd  v.  Kerr, 
42  Barb.  317;   Hoffman  v.  Hoffman,  46 
N.  Y.  30 ;  People  v.  Dawell,  25  Mich.  247 ; 
Reed  v.  Reed,  52   Mich.  117,  17  N.  W. 
720;  Gregory   v.   Gregory,   78  Me.  187, 

3  Atl.  280;  Neff  v.  Beauchamp,  74  Iowa, 
92,36  N.  W.  905;  Clianey  v.  Bryan,  15 
Lea,  589.     £A  recital  in  proceedings  for 
divorce  of  the   facts   necessary  to   give 
jurisdiction  maybe  contradicted  in  a  suit 
in  another  State  between  the  same  par- 
ties.   Bell  r.  Bell,  181  U.  S.  175,  21  Sup. 
Ct.  Rep.  551 ;  Andrews   v.  Andrews,  — 
U.  S.  — ,  23  Sup.  Ct.  Rep.  237.     An  in- 
junction   may   issue   against  setting  up 
a  pretended  judgment  fraudulently   ob- 


tained in  another  State  in  bar  of  divorce 
proceedings.  Streitwolf  v.  Streitwolf,  181 
U.  S.  179,  21  Sup.  Ct.  Rep.  563.  J  In  a 
purely  collateral  civil  action,  jurisdic- 
tion is  conclusively  presumed.  Waldo 
v.  Waldo,  62  Mich.  94,  17  N.  W.  709. 
And  see  Van  Orsdal  v.  Van  Orsdal,  67 
Iowa,  35,  24  N.  W.  679.  The  Pennsyl- 
vania cases  agree  with  those  of  New 
Hampshire,  in  holding  that  a  divorce 
should  not  be  granted  unless  the  cause 
alleged  occurred  while  the  complainant 
had  domicile  within  the  State.  Dorsey  v. 
Dorsey,  7  Watts,  349 ;  Hollister  v.  Hollis- 
ter,  6  Pa.  St.  449 ;  McDermott's  Appeal, 
8  W.  &  S.  251.  And  they  hold  also  that 
the  injured  party  in  the  marriage  rela- 
tion must  seek  redress  in  the  forum  of 
the  defendant,  unless  where  such  defend- 
ant has  removed  from  what  was  before 
the  common  domicile  of  both.  Calvin 
v.  Reed,  35  Pa.  St.  375;  Elder  v.  Reel, 
62  Pa.  St.  308,  1  Am.  Rep.  414.  If  a 
divorce  is  procured  on  publication  in  an- 
other State  from  that  of  the  husband's 
domicile,  where  the  offence  was  com- 
mitted, it  is  a  nullity  in  the  latter  State. 
Flower  v.  Flower,  42  N.  J.  Eq.  152.  See 
Cook  v.  Cook,  56  Wis.  195,  44  N.  W. 
33,  443.  If  one  is  in  good  faith  a  resi- 
dent, his  motive  in  coming  to  the  State 
is  immaterial.  Colburn  v.  Colburn,  70 
Mich.  647,  38  N.  W.  607;  Gregory  v. 
Gregory,  76  Me.  535.  But  residence 
must  be  actual,  not  merely  legal.  Tip- 
ton  v.  Tipton,  87  Ky.  243,  8  S.  W.  440. 
For  cases  supporting  to  a  greater  or 
less  extent  the  doctrine  stated  in  the 
text,  see  Harding  v.  Alden,  9  Greenl. 
140  ;  Ditson  v.  Ditson,  4  R.  I.  87 ;  Pawling 
v.  Bird's  Ex'rs,  13  Johns.  192;  Kerr  v. 
Kerr,  41  N.  Y.  272  ;  Harrison  v.  Harrison, 
19  Ala.  499;  Thompson  v.  State,  28  Ala. 
12;  Cooper  v.  Cooper,  7  Ohio,  694  ;  Mans- 
field v.  Mclntyre,  10  Ohio,  28 ;  Smith  r. 
Smith,  4  Greene  (Iowa),  266;  Yates 
v.  Yates,  13  N.  J.  Eq.  280;  Maguire  v. 
Maguire,  7  Dana,  181 ;  Waltz  v.  Waltz, 
18  Ind.  449;  Hull  v.  Hull,  2  Strob.  Eq. 
174;  Manlcy  v.  Manley,  4  Chand.  97; 
Hubell  v.  Ilubell,  3  Wis.  662  ;  Gleason  v. 
Gleason,  4  Wis.  64;  Hare  v.  Hare,  10 
Tex.  355;  D'Auvilliers  v.  De  Livaudais, 
32  La.  Ann.  605;  Gettys  v.  Gettys,  3 


580 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


terested,  be  subjected  to  the  process  of  the  court.  Certain  cases 
are  said  to  proceed  in  rem,  because  they  take  notice  rather  of  the 
thing  in  controversy  than  of  the  persons  concerned  ;  and  the  pro- 
cess is  served  upon  that  which  is  the  object  of  the  suit,  without 
specially  noticing  the  interested  parties ;  while  in  other  cases  the 
parties  themselves  are  brought  before  the  court  by  process.  Of 
the  first  class,  admiralty  proceedings  are  an  illustration ;  the 
court  acquiring  jurisdiction  by  seizing  the  vessel  or  other  thing 


Lea,  260;  Smith  v.  Smith,  19  Neb.  706, 
28  N.  W.  296.  And  see  Story,  Confl. 
Laws,  §  230  a  ;  Bishop  on  Mar.  and  Div. 
(1st  ed  )  §  727  et  seq. ;  Ibid.  (4th  ed.) 
Vol.  II.  §  155  et  seq.  The  cases  of  Hoff- 
man v.  Hoffman,  46  N.  Y.  30,  7  Am. 
Rep.  299 ;  Elder  v.  Reel,  62  Pa.  St.  308, 
1  Am.  Rep.  414;  People  o.  Dawell,  25 
Mich.  247  ;  Strait  v.  Strait,  3  McArthur, 
415;  State  v.  Armington,  25  Minn.  29; 
Sewall  v.  Sewall,  122  Mass.  156,  23  Am. 
Rep.  299;  Hood  v.  State,  56  Ind.  263,  26 
Am.  Rep.  21 ;  Litowich  v.  Litowich,  19 
Kan.  451,  27  Am.  Rep.  145;  [Bell  v.  Bell, 
181  U.  S.  175,  21  Sup.  Ct.  Rep.  551  Q  are 
very  explicit  in  declaring  that  where 
neither  party  is  domiciled  within  a  par- 
ticular State,  its  courts  can  have  no  juris- 
diction in  respect  to  their  marital  status, 
and  any  decree  of  divorce  made  therein 
must  be  nugatory.  A  number  of  the 
cases  cited  hold  that  the  wife  may  have  a 
domicile  separate  from  the  husband,  and 
may  therefore  be  entitled  to  a  divorce, 
though  the  husband  never  resided  in  the 
State.  These  cases  proceed  upon  the 
theory  that,  although  in  general  the  domi- 
cile of  the  husband  is  the  domicile 
of  the  wife,  yet  that  if  he  be  guilty  of 
such  act  or  dereliction  of  duty  in  the  re- 
lation as  entitles  her  to  have  it  partially 
or  wholly  dissolved,  she  is  at  liberty  to 
establish  a  separate  jurisdictional  domi- 
cile of  her  own.  Ditson  v.  Ditson,  4  R.  I. 
87  ;  Harding  v.  Alden,  9  Me.  140 ;  Maguire 
v.  Maguire,  7  Dana,  181 ;  Hollister  v.  Hoi- 
lister,  6  Pa.  St.  449;  Derby  v.  Derby,  14 
111.  App.  645.  The  doctrine  in  New  York 
seems  to  be,  that  a  divorce  obtained  in 
another  State,  without  personal  service  of 
process  or  appearance  of  the  defendant, 
is  absolutely  void  :  Vischer  v.  Vischer,  12 
Barb.  640;  McGiffert  v.  McGiffert,  31 
Barb.  69 ;  Todd  v.  Kerr,  42  Barb.  317 ; 
People  v.  Baker,  76  N.  Y.  78,  32  Am. 
Rep.  274;  Cross  v.  Cross,  108  N.  Y.  628, 


15  N.  E.  333;  though  there  is  actual 
notice.  O'Dea  v.  O'Dea,  101  N.  Y.  23, 
4  N.  E.  110.  So  in  Ontario,  Magurn  r. 
Magurn,  11  Ont.  App.  178.  See  Cox  v. 
Cox,  19  Ohio  St.  502,  2  Am.  Rep.  415; 
[Matter  of  Christensen,  17  Utah,  412, 
53  Pac.  1003,  41  L.  R.  A.  504,  70  Am. 
St.  794.J  An  appearance  by  defendant 
afterwards  for  the  purposes  of  a  motion 
to  set  aside  the  decree,  which  motion 
was  defeated  on  technical  grounds,  will 
not  affect  the  question.  Hoffman  v. 
Hoffman,  46  N.  Y.  30,  7  Am.  Rep.  299. 

Upon  the  whole  subject  of  jurisdic- 
tion in  divorce  suits,  no  case  in  the  books 
is  more  full  and  satisfactory  than  that  of 
Ditson  v.  Ditson,  4  R.  I.  87,  which  re- 
views and  comments  upon  a  number  of 
the  cases  cited,  and  particularly  upon  the 
Massachusetts  cases  of  Barber  v.  Root, 
10  Mass.  260;  Inhabitants  of  .Hanover  v. 
Turner,  14  Mass.  227 ;  Harteau  v.  Har- 
teau,  14  Pick.  181 ;  and  Lyon  v.  Lyon,  2 
Gray,  367.  The  divorce  of  one  party 
divorces  both.  Cooper  v.  Cooper,  7  Ohio, 
594.  And  will  leave  both  at  liberty  to 
enter  into  new  marriage  relations,  unless 
the  local  statute  expressly  forbids  the 
guilty  party  from  contracting  a  second 
marriage.  See  Commonwealth  v.  Put- 
nam, 1  Pick.  136;  Baker?;.  People, 2  Hill, 
325.  [A  divorce  was  decreed  and  pro- 
hibited marriage  within  a  limited  period. 
A  marriage  was  consummated  in  another 
State  within  the  period  of  prohibition, 
and  this  marriage  upheld  in  In  re  Wood's 
Estate,  —  Cal.  — ,  69  Pac.  960.]  A  party 
who  has  gone  into  another  State  and  pro- 
cured a  divorce  will  not  be  heard  to 
allege  his  own  fraud  to  impeach  it. 
Elliott  v.  Wohlfrom,  55  Cal.  384.  A 
divorce  good  at  the  place  of  domicile 
will  be  sustained  in  England  though  the 
cause  would  not  sustain  a  divorce  there. 
Harvey  v.  Farnie,  L.  R.  8  App.  Cas.  43  ; 
Turner  v.  Thompson,  L.  R.  13  P.  D.  37. 


CH.  XI.]  PROTECTION   BY   "THE    LAW   OF   THE   LAND."  .  581 

to  which  the  controversy  relates.  In  cases  within  this  class, 
notice  to  all  concerned  is  required  to  be  given,  either  personally 
or  by  some  species  of  publication  or  proclamation ;  and  if  not 
given,  the  court  which  had  jurisdiction  of  the  property  will  have 
none  to  render  judgment.1  Suits  at  the  common  law,  however, 
proceed  against  the  parties  whose  interests  are  sought  to  be  af- 
fected ;  and  only  those  persons  are  concluded  by  the  adjudication 
who  are  served  with  process,  or  who  voluntarily  appear.2  Some 
cases  also  partake  of  the  nature  both  of  proceedings  in  rem  and 
of  personal  actions,  since,  although  they  proceed  by  seizing  prop- 
erty, they  also  contemplate  the  service  of  process  on  defendant 
parties.  Of  this  class  are  the  proceedings  by  foreign  attachment, 
in  which  the  property  of  a  non-resident  or  concealed  debtor  is 
seized  and  retained  by  the  officer  as  security  for  the  satisfaction 
of  any  judgment  that  may  be  recovered  against  him,  but  at  the 
same  time  process  is  issued  to  be  served  upon  the  defendant,  and 
which  must  be  served,  or  some  substitute  for  service  had,  before 
judgment  can  be  rendered. 

•  In  such  cases,  as  well  as  in  divorce  suits,  it  will  often  happen 
that  the  party  proceeded  against  cannot  be  found  in  the  State, 
and  personal  service  upon  him  is  therefore  impossible,  unless  it  is 
allowable  to  make  it  wherever  he  may  be  found  abroad.  But  any 

1  Doughty  v.  Hope,  3  Denio,  594.  See  to  a  hospital  for  the  insane  without  any 

Matter  of  Empire  City  Bank,  18  N.  Y.  provision  for  notice  to  the  person  alleged 

199  ;  Nations  v.  Johnson,  24  How.  204,  to  be  insane,  is  unconstitutional.  Re  Lam- 

205  ;  Blackwell  on  Tax  Titles,  213.  bert,  134  Cal.  620,  66  Pac.  851,  55  L.  R.  A. 

a  Jack  v.  Thompson,  41  Miss.  49.  As  to  856;  see,  a  statute  contemplating  pro- 
the  right  of  an  attorney  to  notice  of  pro-  ceedings  in  lunacy  in  the  absence  of  the 
ceedings  to  disbar  him,  see  notes  to  alleged  lunatic,  construed  in  Simon  v. 
pp.  481,482,  and  583.  "Notice  of  some  Craft,  182  U.  S.  427,  21  Sup.  Ct.  Rep. 
kind  is  the  vital  breath  that  animates  836.]  Where,  however,  a  statute  pro- 
judicial  jurisdiction  over  the  person.  It  videsfor  the  taking  of  a  certain  security, 
is  the  primary  element  of  the  application  and  authorizes  judgment  to  be  rendered 
of  the  judicatory  power.  It  is  of  the  es-  upon  it  on  motion,  without  process,  the 
sence  of  a  cause.  Without  it  there  can-  party  entering  into  the  security  must  be 
not  be  parties,  and  without  parties  there  understood  to  assent  to  the  condition,  and 
maybe  the  form  of  a  sentence,  but  no  to  waive  process  and  consent  to  judgment, 
judgment  obligating  the  person."  See  Lewis  v.  Garrett's  Adm'r,  6  Miss.  434; 
Bragg's  Case,  11  Coke,  99 a;  Rex  v.  People  r.  Van  Eps,  4  Wend.  387  ;  Chap- 
Chancellor  of  Cambridge,  1  Str.  567  ;  pee  ?;.  Thomas,  5  Mich.  53  ;  Gildersleeve 
Cooper  v.  Board  of  Works,  14  C.  B.  N.  s.  v.  People,  10  Barb.  35;  People  v.  Lolt,  21 
194;  Meade  v.  Deputy  Marshal,  1  Brock.  Barb.  130;  Pratt  v.  Donovan,  10  Wis. 
324;  Goetcheus  v.  Mathewson,  61  N.  Y.  378;  Murray  v.  Hoboken  Land  Co.,  18 
420 ;  Underwood  v.  McVeigh,  23  Gratt.  How.  272  ;  Philadelphia  v.  Common- 
409;  McVeigh  v.  United  States,  11  wealth,  52  Pa.  St.  451;  Whitehurst  r. 
Wall.  259;  Littleton  v.  Richardson,  34  Coleen,  53  111.  247.  [Decree  based  upon 
N.  H.  179;  Black  v.  Black,  4  Bradf.  Sur.  constructive  service  of  summons  against 
Rep.  174,  205;  Mead  v.  Larkin,  66  Ala.  a  dead  man  is  absolutely  void.  Green- 
87 ;  Succession  of  Townsend,  36  La.  Ann.  street  i;.  Thornton,  60  Ark.  369,  30  S.  W. 
447.  £A  statute  permitting  commitment  347,  27  L.  R.  A.  735-3 


582 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


such  service  would  be  ineffectual.  No  State  has  authority  to  in- 
vade the  jurisdiction  of  another,  and  by  service  of  process  compel 
parties  there  resident  or  being  to  submit  their  controversies  to 
the  determination  of  its  courts :  and  those  courts  will  conse- 
quently be  sometimes  unable  to  enforce  a  jurisdiction  which  the 
State  possesses  in  respect  to  the  subjects  within  its  limits,  unless 
a  substituted  service  is  admissible.  A  substituted  service  is  pro- 
vided by  statute  for  many  such  cases ;  generally  in  the  form  of  a 
notice,  published  in  the  public  journals,  or  posted,  as  the  statute 
may  direct ;  the  mode  being  chosen  with  a  view  to  bring  it  home, 
if  possible,  to  the  knowledge  of  the  party  to  be  affected,  and  to 
give  him  an  opportunity  to  appear  and  defend.  The  right  of  the 
legislature  to  prescribe  such  notice,  and  to  give  it  effect  as  pro- 
cess, rests  upon  the  necessity  of  the  case,  and  has  been  long 
recognized  and  acted  upon.1 


1  "It  may  be  admitted  that  a  statute 
which  should  authorize  any  debt  or  dam- 
ages to  be  adjudged  against  a  person  upon 
purely  ex  pane  proceedings,  without  a 
pretence  of  notice,  or  any  provision  for 
defending,  would  be  a  violation  of  the 
constitution,  and  be  void ;  but  where  the 
legislature  has  presented  a  kind  of  notice 
by  which  it  is  reasonably  probable  that 
the  party  proceeded  against  will  be  ap- 
prised of  what  is  going  on  against  him, 
and  an  opportunity  is  afforded  him  to 
defend,  I  am  of  opinion  that  the  courts 
have  not  the  power  to  pronounce  the 
proceeding  illegal."  Denio,  J.,  in  Matter 
of  Empire  City  Bank,  18  N.  Y.  199,  215. 
See  also,  per  Morgan,  J.,  in  Rockwell  v. 
Nearing,  35  N.  Y.  302,  314  ;  Nations  v. 
Johnson,  24  How.  195 ;  Beard  v.  Beard, 
21  Ind.  321  ;  Mason  v.  Messenger,  17 
Iowa,  261 ;  Cupp  v.  Commissioners  of 
Seneca  Co.,  19  Ohio  St.  173;  Campbell 
r.  Evans,  45  N.  Y.  356 ;  Happy  v.  Mosher, 
48  N.  Y.  313;  Jones  v.  Driskell,  94  Mo. 
190,  7  S.  W.  Ill ;  Palmer  v.  McCormick, 
28  Fed.  Rep.  541 ;  Traylor  v.  Lide,  7  S. 
W.  58  (Tex.).  If  an  absent  defendant 
returns  pending  publication,  he  need  not 
be  personally  served.  Duche  v.  Voisin, 
18  Abb.  N.  C.  358.  Jurisdiction  cannot 
be  acquired  by  ordering  goods  of  a  non- 
resident for  the  mere  purpose  of  attaching 
them.  Copas  v.  Anglo-Am.  Prov.  Co., 
73  Mich.  541,  41  N.  W.  690.  In  Burnham 
v.  Commonwealth,  1  Duv.  210,  a  personal 
judgment  against  the  absconding  officers 
of  the  provisional  government  was  sus- 


tained. But  in  the  case  of  constructive 
notice,  if  the  party  appears,  he  has  a  right 
to  be  heard,  and  this  cannot  be  denied 
him,  even  though  he  be  a  rebel.  Mc- 
Veigh v.  United  States,  11  Wall.  259,267. 
L~So  a  court  cannot  deprive  a  party  of  the 
right  to  be  he;ird  upon  an  application  for 
an  injunction  because  guilty  of  a  previous 
contempt.  Harley  v.  Montana  O.  P.  Co., 
—  Mont.  — ,  71  Pac.  407  (Jan.  26,  1903). 
There  is  no  valid  service  upon  a  foreign 
corporation  where  the  service  is  merely 
upon  the  president,  and  he  is  in  the  State 
purely  upon  private  business,  and  the 
corporation  is  not  and  has  not  been  doing 
business  within  the  State.  Fjtzgerald  & 
M.  Constr.  Co.  v.  Fitzgerald,  137  U.  S.  98, 
11  Sup.  Ct.  Rep.  36;  but  if  thereafter  the 
corporation  appears  in  court  by  its  at- 
torneys, and  goes  to  the  trial  of  the  case 
upon  its  merits,  the  invalidity  of  service 
is  waived.  76.  A  statute  providing  for 
service  upon  the  agent  of  a  non-resident 
doing  business  in  the  State,  is  void.  Ca- 
banne  v.  Graf,  —  Minn.  — ,  92  N.  W.  461. 
Upon  the  sufficiency  of  notice  by  reg- 
istered letter  to  last  known  address  of 
party,  in  proceedings  to  determine  pri- 
ority of  water  rights,  see  Farm  Ins.  Co. 
v.  Carpenter,  9  Wyo.  110,  61  Pac.  258,  50 
L.  R.  A.  747  ;  in  determining  title  to  lands 
under  the  Torrens  Land  Registration  sys- 
tem, Tyler  v.  Bd.  of  Registration,  175 
Mass.  71,  55  N.  E.  812,  51  L.  R.  A.  433. 
A  judgment  creating  a  preference  for  a 
labor  debt  over  pre-existing  lien  without 
notice  and  opportunity  to  be  heard  given 


CH.  XL] 


PKOTECT10N  BY  "THE  LAW  OF  THE  LAND. 


583 


But  such  notice  is  restricted  in  its  legal  effect,  and  cannot  be 
made  available  for  all  purposes.  It  will  enable  the  court  to  give 
effect  to  the  proceeding  so  far  as  it  is  one  in  rem,  but  when  the 
res  is  disposed  of,  the  authority  of  the  court  ceases.  The  statute 
may  give  it  effect  so  far  as  the  subject-matter  of  the  proceeding  is 
within  the  limits,  and  therefore  under  the  control,  of  the  State ; 
but  the  notice  cannot  be  made  to  stand  in  the  place  of  process,  so 
as  to  subject  the  defendant  to  a  valid  judgment  against  him  per- 
sonally. In  attachment  proceedings,  the  published  notice  may  be 
sufficient  to  enable  the  plaintiff  to  obtain  a  judgment  which  he 
can  enforce  by  sale  of  the  property  attached,  but  for  any  other 
purpose  such  judgment  would  be  ineffectual.  The  defendant 
could  not  be  followed  into  another  State  or  country,  and  there 
have  recovery  against  him  upon  the  judgment  as  an  established 
demand.  The  fact  that  process  was  not  personally  served  is  a 
conclusive  objection  to  the  judgment  as  a  personal  claim,  unless 
the  defendant  caused  his  appearance  to  be  entered  in  the  attach- 
ment proceedings.1  Where  a  party  has  property  in  a  State,  and 
resides  elsewhere,  his  property  is  justly  subject  to  all  valid 
claims  that  may  exist  against  him  there  ;  but  beyond  this,  due 


the  lien  holder,  is  void.  Fisher  v.  Wein- 
man, 125  Mich.  642,  84  N.  W.  1111,  62 
L.  R.  A.  192 ;  sale  of  property  to  pay 
license  fee  without  notice  is  void  sale. 
Chauvin  v.  Valiton,  8  Mont.  451,  20  Pac. 
658.] 

1  Pawling  v.  Willson,  13  Johns.  192; 
Heirs  of  Holman  v.  Bank  of  Norfolk,  12 
Ala.  369 ;  Curtis  v.  Gibbs,  1  Penn.  399 ; 
Miller's  Ex'r  v.  Miller,  1  Bailey,  242; 
Cone  v.  Cotton,  2  Blackf.  82 ;  Kilburn  v. 
Woodworth,  5  Johns.  37  ;  Robinson  v. 
Ward's  Ex'r,  8  Johns.  86;  Hall  v.  Wil- 
liams, 6  Pick.  232 ;  Bartlet  v.  Knight,  1 
Mass.  401 ;  St.  Albans  v.  Bush,  4  Vt.  58; 
Fen  ton  v.  Garlick,  6  Johns.  194  ;  Bissell 
v.  Briggs,  9  Mass.  462,  6  Am.  Dec.  88; 
Denison  v.  Hyde,  6  Conn.  508;  Aldrich 
v.  Kinney,  4  Conn.  380,  10  Am.  Dec. 
151 ;  Hoxie  v.  Wright,  2  Vt.  263  ;  Pros- 
ser  v.  Warner,  47  Vt.  657,  19  Am.  Rep. 
132;  Newell  v.  Newton,  10  Pick.  470; 
Starbuck  o.  Murray,  5  Wend.  148,  21 
Am.  Dec.  172 ;  Armstrong  v.  Harshaw,  1 
Dev.  187;  Bradshaw  v.  Heath,  13  Wend. 
407;  Bates  v.  Delavan,  5  Paige,  299; 
Webster  v.  Reid,  11  How.  437  ;  Gleason 
v.  Dodd,  4  Met.  333;  Green  v.  Custard, 
23  How.  484;  Eliot  v.  McCormick,  144 
Mass.  10, 10  N.  E.  705.  A  personal  judg- 
ment on  such  service  when  sued  on  is  no 


basis  for  recovery.  Needham  v.  Thayer, 
147  Mass.  536,  18  N.  E.  429 ;  Eastman  v. 
Dearborn,  63  N.  H.  364.  But  see  Ever- 
hart  v.  Holloway,  55  Iowa,  179,  7  N.  W. 
506.  A  personal  judgment  cannot  be 
based  on  service  by  publication  or  per- 
sonal service  out  of  the  State.  Denny  v. 
Ashley,  12  Col.  165,  20  Pac.  331.  Service 
by  publication  may  suffice  for  a  decree  of 
partition  of  land,  but  not  to  create  a  per- 
sonal demand  for  costs.  Freeman  v.  Al- 
derson,  119  U.  S.  185,  7  Sup.  Ct.  Rep.  165. 
So  if  notice  is  served  in  another  State. 
Cloyd  v.  Trotter,  118  111.  391.  A  judgment 
in  personam  declaring  bonds  void  does  not 
bind  a  non-resident  holder  where  the  only 
notice  was  constructive  by  publication. 
Pana  v.  Bowler,  107  U.  S.  529,  21  Sup.  Ct. 
Rep.  704.  In  Ex  fiarte  Heyfron,  8  Miss. 
127,  it  was  held  that  an  attorney  could 
not  be  stricken  from  the  rolls  without 
notice  of  the  proceeding,  and  opportunity 
to  be  heard.  And  see  ante,  p.  481,  note. 
Leaving  notice  with  one's  family  is  not 
equivalent  to  personal  service.  Rape  v. 
Heaton,  9  Wis.  329.  At  least  after  de- 
fendant has  himself  left  the  State.  Ams- 
baugh  v.  Exchange  Bank,  33  Kan.  100, 
5  Pac.  384.  And  see  Bimeler  v.  Dawson, 
5  111.  536. 


584  CONSTITUTIONAL   LIMITATIONS.  [CH.   XI. 

process  of  law  would  require  appearance  or  personal  service 
before  the  defendant  could  be  personally  bound  by  any  judgment 
rendered,  (a) 

The  same  rule  applies  in  divorce  cases.  The  courts  of  the 
State  where  the  complaining  party  resides  have  jurisdiction  of 
the  subject-matter ;  and  if  the  other  party  is  a  non-resident,  they 
must  be  authorized  to  proceed  without  personal  service  of  process. 
The  publication  which  is  permitted  by  the  statute  is  sufficient  to 
justify  a  decree  in  these  cases  changing  the  status  of  the  com- 
plaining party,  and  thereby  terminating  the  marriage;1  and  it 
might  be  sufficient  also  to  empower  the  court  to  pass  upon  the 
question  of  the  custody  and  control  of  the  children  of  the  mar- 
riage, if  they  were  then  within  its  jurisdiction.  But  a  decree  on 
this  subject  could  only  be  absolutely  binding  on  the  parties  while 
the  children  remained  within  the  jurisdiction ;  if  they  acquire  a 
domicile  in  another  State  or  country,  the  judicial  tribunals  of  that 
State  or  country  would  have  authority  to  determine  the  question 
of  their  guardianship  there.2 

But  in  divorce  cases,  no  more  than  in  any  other,  can  the  court 
make  a  decree  for  the  payment  of  money  by  a  defendant  not 
served  with  process,  and  not  appearing  in  the  case,  which  shall  be 
binding  upon  him  personally.  It  must  follow,  in  such  a  case, 
that  the  wife,  when  complainant,  cannot  obtain  a  valid  decree  for 
alimony,  nor  a  valid  judgment  for  costs.  If  the  defendant  had 
property  within  the  State,  it  would  be  competent  to  provide  by 
law  for  the  seizure  and  appropriation  of  such  property,  under  the 

1  Hull  t».  Hull,  2  Strob.  Eq.  174 ;  Man-  ciples,  as  the  appointment  of  guardians 
ley  v.  Manley,  4  Chand.  97  ;    Hubbell  v.  for   minors  is  of  local  force  only.     See 
Hubbell,   3  Wis.   662;  Mansfield   v.  Me-  Morrell  v.   Dickey,   1  Johns.    Ch.    153; 
Intyre,  10  Ohio,  28;  Ditson  v.  Ditson,  4  Woodworth  v.  Spring,  4  Allen,  321 ;  Pot- 
R.  I.  87;  Harrison   v.  Harrison,  19  Ala.  ter  v.  Hiscox,  30   Conn.   508;    Kraft    v. 
499 ;   Thompson  v.   State,    28   Ala.   12  ;  Wickey,  4  G.  &  J.  322,  23  Am.  Dec.  569. 
Harding  v.  Alden,  9   Me.   140,  23  Am.  In  Kline  v.  Kline,  57  Iowa,  386,  10  N.  W. 
Dec.  549 ;   Maguire  v.  Maguire,  7  Dana,  825,  an  order  awarding  custody  of  chil- 
181;    Hawkins  v.  Uagsdale,  80  Ky.  353.  dren   was  held  inoperative  when  at  the 
It  is  immaterial  in  these   cases  whether  time  the  children  were  in  another  State ; 
notice  was  actually  brought  home  to  the  and  in  People  v.  Allen,  40  Hun,  611,  an 
defendant  or  not.     And  see  Heirs  of  Hoi-  order  made  where  all  parties  resided  was 
man  v.  Bank  of  Norfolk,  12  Ala.  369.    But  held  binding  in  another  State.     The  case 
see  contra,  People  v.  Baker,  76  N.  Y.  78;  of   Townsend    v.  Kendall,  4  Minn.   412, 
O'Dea  v.  O'Dea,  101  N.  Y.  23,  4  N.  E.  appears  to  be  contra,  but  some  reliance  is 
110;   Magurn  v.  Magurn,  11  Ont.   App.  placed  by  the  court  on  the  statute  of  the 
178;  Flower  v.  Flower,  42  N.  J.  Eq.  152,  State  which  allows  the  foreign  appoint- 
7  Atl.  669.  ment  to  be  recognized  for  the  purposes 

2  This  must  be  so  on   general  prin-  of  a  sale  of  the  real  estate  of  a  ward. 

(a)  ^Statute  providing  for  service  by  publication  in  actions  in  rem  is  due  process. 
See  note,  87  Am.  St.  Rep.  360-3 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        585 

decree  of  the  court,  to  the  use  of  the  complainant;  but  the  legal 
tribunals  elsewhere  would  not  recognize  a  decree  for  alimony  or 
for  costs  not  based  on  personal  service  or  appearance.  The 
remedy  of  the  complainant  must  generally,  in  these  cases,  be 
confined  to  a  dissolution  of  the  marriage,  with  the  incidental 
benefits  springing  therefrom,  and  to  an  order  for  the  custody  of 
the  children,  if  within  the  State.1 

When  the  question  is  raised  whether  the  proceedings  of  a  court 
may  not  be  void  for  want  of  jurisdiction,  it  will  sometimes  be 
important  to  note  the  grade  of  the  court,  and  the  extent  of  its 
authority.  Some  courts  are  of  general  jurisdiction,  by  which  is 
meant  that  their  authority  extends  to  a  great  variety  of  matters  ; 
while  others  are  only  of  special  and  limited  jurisdiction,  by  which 
it  is  understood  that  they  have  authority  extending  only  to  certain 
specified  cases.  The  want  of  jurisdiction  is  equally  fatal  in  the 
proceedings  of  each;  but  different  rules  prevail  in  showing  it. 
It  is  not  to  be  assumed  that  a  court  of  general  jurisdiction  has  in 
any  case  proceeded  to  adjudge  upon  matters  over  which  it  had  no 
authority  ;  and  its  jurisdiction  is  to  be  presumed,  whether  there 
are  recitals  in  its  records  to  show  it  or  not.  On  the  other  hand, 
no  such  intendment  is  made  in  favor  of  the  judgment  of  a  court 
of  limited  jurisdiction,  but  the  recitals  contained  in  the  minutes 
of  proceedings  must  be  sufficient  to  show  that  the  case  was  one 
which  the  law  permitted  the  court  to  take  cognizance  of,  and  that 
the  parties  were  subjected  to  its  jurisdiction  by  proper  process.2 

There  is  also  another  difference  between  these  two  classes  of 

1  See  Jackson   v.  Jackson,   1   Johns,  pie  v.  Koeber,   7   Hill,   39 ;    Shelden   v. 
424 ;    Harding   v.    Alden,  9   Me.  140,  23  Wright,  5  N.  Y.  497  ;  Clark  v.  Holmes, 
Am.  Dec.  549;  Holmes  v.  Holmes, 4  Barb.  1  Doug.  (Mich.)  390;  Cooper  v.  Sunder- 
295;  Crane  v.  Meginnis,  1  Gill  &  J.  463;  land,  3  Iowa,  114;  Wall  v.  Trumbull,  16 
Maguire  v.  Maguire,  7  Dana,  181,  19  Am.  Mich.  228;  Denning  v.  Corwin,  11  Wend. 
Dec.  237 ;  Townsend  v.    Griffin,   4  Harr.  647  ;  Bridge  v.  Ford,  4  Mass.  641 ;  Smith 
440;  Sowders  v.  Edmunds,  76  Ind.  123.  v.  Rice,  11  Mass.  507;  Barrett  v.  Crane, 
In  Beard  v.  Beard,  21  Ind.  321,  Perkins,  16  Vt.  246 ;    Tift  v.  Griffin,  4  Ga.  185 ; 
J.,  after  a  learned  and  somewhat  elaborate  Jennings   v.  Stafford,  1    Ired.  404;    Per- 
examination  of  the  subject,  expresses  the  rine  v.  Farr,  22  N.  J.  356 ;  State  v.  Metz- 
opinion  that  the  State  may  permit  a  per-  ger,  26  Mo.  65;  Owen  v.  Jordan,  27  Ala. 
sonal  judgment  for  alimony  in  the  case  608;  Hill  v.  Pride,  4  Call,  107;  Sullivan 
of  a  resident  defendant,  on   service  by  v.   Blackwell,   28   Miss.  737.     If   without 
publication   only,   though    he    conceded  the  aid  of  parol  evidence  a  justice's  judg- 
that  there  would  be  no  such  power  in  the  ment  is  void,  it  cannot  be  aided  by  filing 
case  of  non-residents.     Upon  a  California  a  transcript  of  it  in  a  court  of  general 
divorce  a  wife  is  not  entitled   to  dower  jurisdiction.    Barren    v.   Dent,  17  S.  C. 
in  Oregon  lands,  which  in  such  case  is  75.     If  a  court  of  general  jurisdiction  ex- 
allowed  in   Oregon,   although    the   Cali-  ercises    special   powers   in  a  proceeding 
fornia  court  had  jurisdiction.     Barrett  v.  not  after  the  course  of  the  common  law, 
Failing,  111  U.  S.  523,  4  Sup.  Ct.  Rep.  598.  the  essential   jurisdictional    facts   must 

2  See  Dakin   v.  Hudson,  6  Cow.  221 ;  appear  of  record.     Furgeson  v.  Jones,  20 
Cleveland  v.  Rogers,  6  Wend.  438;  Peo-  Pac.  842  (Oreg.). 


586 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


tribunals  in  this,  that  the  jurisdiction  of  the  one  may  be  disproved 
tinder  circumstances  where  it  would  not  be  allowed  in  the  case  of 
the  other.  A  record  is  not  commonly  suffered  to  be  contradicted 
by  parol  evidence  ;  but  wherever  a  fact  showing  want  of  jurisdic- 
tion in  a  court  of  general  jurisdiction  can  be  proved  without  con- 
tradicting its  recitals,  it  is  allowable  to  do  so,  and  thus  defeat  its 
effect.1  But  in  the  case  of  a  court  of  special  and  limited  author- 
ity, it  is  permitted  to  go  still  further,  and  to  show  a  want  of 
jurisdiction  even  irt  opposition  to  the  recitals  contained  in  the 
record.2  This  we  conceive  to  be  the  general  rule,  though  there 
are  apparent  exceptions  of  those  cases  where  the  jurisdiction  may 
be  said  to  depend  upon  the  existence  of  a  certain  state  of  facts, 
which  must  be  passed  upon  by  the  courts  themselves,  and  in 
respect  to  which  the  decision  of  the  court  once  rendered,  if  there 
was  any  evidence  whatever  on  which  to  base  it,  must  be  held  final 
and  conclusive  in  all  collateral  inquiries,  notwithstanding  it  may 
have  erred  in  its  conclusions.3 


1  See  this  subject  considered  at  some 
length  in  Wilcox  v.  Kassick,  2  Mich.  165. 
The  record  cannot  be   contradicted  by 
parol.     Littleton  v.  Smith,  119  Ind.  230, 
21  N.  E.  886;  Turner  v.  Malone,  24  S.  C. 
398 ;  Boyd  v.  Roane,  19  Ark.  397,  5  S.  W. 
704;  Harris  v.  McClanahan,  11  Lea,  181. 
General  recitals  may  be  contradicted  by 
more  specific   ones  in  the  same  record. 
Cloud  v.  Pierce  City,  86  Mo.  457.     And 
see  Adams  v.  Cowles,  95  Mo.  501,  8  S.  W. 
711;  Rape  v.  Heaton,  9  Wis.  329;  Bimeler 
v.  Dawson,  6  111.  536 ;  Webster  v.  Reid, 
11  How.  437. 

2  Sheldon   v.   Wright,   5   N.   Y.  497; 
Dyckman  v.  Mayor,  &c.  of  N.  Y.,  5  N.  Y. 
434;  Clark  v.  Holmes,  1  Doug.  (Mich.) 
390;  Cooper  v.  Sunderland,  3  Iowa,  114; 
Sears  v.  Terry,  26  Conn.  273 ;  Brown  v. 
Foster,  6  R.  I.  564 ;  Fawcett  v.  Fowlis,  1 
Man.  &  R.  102.     But  see  Facey  v.  Fuller, 
13  Mich.  527,  where  it  was  held  that  the 
entry  in  the  docket  of  a  justice  that  the 
parties  appeared  and  proceeded  to  trial 
was  conclusive.     And  see  Selin  v.  Sny- 
der,  7  S.  &  R.  172. 

8  Britain  v.  Kinnaird,  1  B.  &  B.  432. 
Conviction  under  the  Bumboat  Act.  The 
record  was  fair  on  its  face,  but  it  was  in- 
sisted that  the  vessel  in  question  was  not 
a  "  boat "  within  the  intent  of  the  fact. 
Dallas,  Ch.  J. :  "  The  general  principle 
applicable  to  cases  of  this  description  is 
perfectly  clear:  it  is  established  by  all 
the  ancient,  and  recognized  by  all  the 


modern  decisions ;  and  the  principle  is, 
that  a  conviction  by  a  magistrate,  who 
has  jurisdiction  over  the  subject-matter, 
is,  if  no  defects  appear,  on  the  face 
of  it,  conclusive  evidence  of  the  facts 
stated  in  it.  Such  being  the  principle, 
what  are  the  facts  of  the  present  case  ? 
If  the  subject-matter  in  the  present  case 
were  a  boat,  it  is  agreed  that  the  boat 
would  be  forfeited;  and  the  conviction 
stated  it  to  be  a  boat.  But  it  is  said  that 
in  order  to  give  the  magistrate  jurisdic- 
tion, the  subject-matter  of  his  conviction 
must  be  a  boat;  and  that  it  is  competent 
to  the  party  to  impeach  the  conviction 
by  showing  that  this  was  not  a  boat.  I 
agree,  that  if  he  had  not  jurisdiction,  the 
conviction  signifies  nothing.  Had  he 
then  jurisdiction  in  this  case?  By  the 
act  of  Parliament  he  is  empowered  to 
search  for  and  seize  gunpowder  in  any 
boat  on  the  river  Thames.  Now,  allow- 
ing, for  the  sake  of  argument,  that '  boat ' 
is  a  word  of  technical  meaning,  and  some- 
what different  from  a  vessel,  still,  it  was 
a  matter  of  fact  to  be  made  out  before 
the  magistrate,  and  on  which  he  was  to 
draw  his  own  conclusion.  But  it  is  said 
that  a  jurisdiction  limited  as  to  person, 
place,  and  subject-matter  is  stinted  in  its 
nature,  and  cannot  be  lawfully  exceeded. 
I  agree :  but  upon  the  inquiry  before  the 
magistrate,  does  not  the  person  form  a 
question  to  be  decided  by  evidence? 
Does  not  the  place,  does  not  the  subject- 


CH.  XI.]  PROTECTION   BY  "THE   LAW   OF  THE   LAND.' 


587 


When  it  is  once  made  to  appear  that  a  court  has  jurisdiction 
both  of  the  subject-matter  and  of  the  parties,  the  judgment  which 
it  pronounces  must  be  held  conclusive  and  binding  upon  the 
parties  thereto  and  their  privies,  notwithstanding  the  court  may 
have  proceeded  irregularly,  or  erred  in  its  application  of  the  law 
to  the  case  before  it.  It  is  a  general  rule  that  irregularities  in 
the  course  of  judicial  proceedings  do  not  render  them  void.1  An 


matter,  form  such  a  question  ?  The  pos- 
session of  a  boat,  therefore,  with  gun- 
powder on  board,  is  part  of  the  offence 
charged ;  and  how  could  the  magistrate 
decide  but  by  examining  evidence  in 
proof  of  what  was  alleged?  The  magis- 
trate, it  is  urged,  could  not  give  himself 
jurisdiction  by  finding  that  to  be  a  fact 
which  did  not  exist.  But  he  is  bound  to 
inquire  as  to  the  fact,  and  when  he  has 
inquired,  his  conviction  is  conclusive  of 
it.  The  magistrates  have  inquired  in  the 
present  instance,  and  they  find  the  sub- 
ject of  conviction  to  be  a  boat.  Much 
has  been  said  about  the  danger  of  magis- 
trates giving  themselves  jurisdiction; 
and  extreme  cases  have  been  put,  as  of 
a  magistrate  seizing  a  ship  of  seventy- 
four  guns,  and  calling  it  a  boat.  Sup- 
pose such  a  thing  done,  the  conviction  is 
still  conclusive,  and  we  cannot  look  out 
of  it.  It  is  urged  that  the  party  is  with- 
out remedy ;  and  so  he  is,  without  civil 
remedy,  in  this  and  many  other  cases ; 
his  remedy  is  by  proceeding  criminally  ; 
and  if  the  decision  were  so  gross  as  to 
call  a  ship  of  seventy-four  guns  a  boat, 
it  would  be  good  ground  for  a  criminal 
proceeding.  Formerly  the  rule  was  to 
intend  everything  against  a  stinted  juris- 
diction :  that  is  not  the  rule  now ;  and 
nothing  is  to  be  intended  but  what  is  fair 
and  reasonable,  and  it  is  reasonable  to 
intend  that  magistrates  will  do  what 
is  right."  Richardson,  'J.,  in  the  same 
case,  states  the  real  point  very  clearly : 
"  Whether  the  vessel  in  question  were  a 
boat  or  no  was  a  fact  on  which  the  mag- 
istrate was  to  decide ;  and  the  fallacy 
lies  in  assuming  that  the  fact  which  the 
magistrate  has  to  decide  is  that  which 
constitutes  his  jurisdiction.  If  a  fact 
decided  as  this  has  been  might  be  ques- 
tioned in  a  civil  suit,  the  magistrate 
would  never  be  safe  in  his  jurisdiction. 
Suppose  the  case  for  a  conviction  under 
the  game  laws  of  having  partridges  in 
possession ;  could  the  magistrate,  in  an 


action  of  trespass,  be  called  on  to  show 
that  the  bird  in  question  was  really  a 
partridge  1  and  yet  it  might  as  well  be 
urged,  in  that  case,  that  the  magistrate 
had  no  jurisdiction  unless  the  bird  were  a 
partridge,  as  it  may  be  urged  in  the  pres- 
ent case  that  he  has  none  unless  the  ma- 
chine be  a  boat.  So  in  the  case  of  a 
conviction  for  keeping  dogs  for  the  de- 
struction of  game  without  being  duly 
qualified  to  do  so ;  after  the  conviction 
had  found  that  the  offender  kept  a  dog  of 
that  description,  could  he,  in  a  civil  ac- 
tion, be  allowed  to  dispute  the  truth  of 
the  conviction  ?  In  a  question  like  the 
present  we  are  not  to  look  to  the  incon- 
venience, but  at  the  law ;  but  surely  if 
the  magistrate  acts  bona  fide,  and  comes 
to  his  conclusion  as  to  matters  of  fact 
according  to  the  best  of  his  judgment,  it 
would  be  highly  unjust  if  he  were  to  have 
to  defend  himself  in  a  civil  action ;  and 
the  more  so,  as  he  might  have  been  com- 
pelled by  a  mandamus  to  proceed  on  the 
investigation.  Upon  the  general  prin- 
ciple, therefore,  that  where  the  magis- 
trate has  jurisdiction  his  conviction  is 
conclusive  evidence  of  the  facts  stated  in 
it,  I  think  this  rule  must  be  discharged." 
See  also  Basten  v.  Carew,  3  B.  &  C.  648 ; 
Fawcett  v.  Fowlis,  7  B.  &  C.  394 ;  Ash- 
croft  v.  Bourne,  3  B.  &  Ad.  684 ;  Mather 
v.  Hodd,  8  Johns.  44;  Mackaboy  v.  Com- 
monwealth, 2  Virg.  Cas.  270 ;  Ex  parte 
Kellogg,  6  Vt.  509;  State  v.  Scott,  1 
Bailey,  294;  Facey  v.  Fuller,  13  Mich. 
527;  Wall  v.  Trumbull,  16  Mich.  228; 
Sheldon  v.  Wright,  5  N.  Y.  497 ;  Wanzer 
v.  Rowland,  10  Wis.  16;  Ricketts  v. 
Spraker,  77  Ind.  371 ;  Fanning  v.  Krapfl, 
68  Iowa,  244,  26  N.  W.  133;  Schee  v. 
La  Grange,  78  Iowa,  101,  42  N.  W.  616; 
Sims  o.  Gay,  109  Ind.  501,  9  N.  E.  120; 
Epping  v.  Robinson,  21  Fla.  36;  Freeman 
on  Judgments,  §  523,  and  cases  cited. 

1  Ex  parte  Kellogg,  6  Vt.  509 ;  Edger- 
ton  v.  Hart,  8  Vt.  208 ;  Carter  v.  Walker, 
2  Ohio  St.  339;  White  ».  Crow,  110  U.  S. 


588  CONSTITUTIONAL   LIMITATIONS.  [CH.  XL 

irregularity  may  be  defined  as  the  failure  to  observe  that  par- 
ticular course  of  proceeding  which,  conformably  with  the  practice 
of  the  court,  ought  to  have  been  observed  in  the  case  ; l  and  if  a 
party  claims  to  be  aggrieved  by  this,  he  must  apply  to  the  court 
in  which  the  suit  is  pending  to  set  aside  the  proceedings,  or  to 
give  him  such  other  redress  as  he  thinks  himself  entitled  to ;  or 
he  must  take  steps  to  have  the  judgment  reversed  by  removing 
the  case  for  review  to  an  appellate  court,  if  any  such  there  be. 
Wherever  the  question  of  the  validity  of  the  proceedings  arises 
in  any  collateral  suit,  he  will  be  held  bound  by  them  to  the  same 
extent  as  if  in  all  respects  the  court  had  proceeded  according  to 
law.  An  irregularity  cannot  be  taken  advantage  of  collaterally  ; 
that  is  to  say,  in  any  other  suit  than  that  in  which  the  irregular- 
ity occurs,  or  on  appeal  or  process  in  error  therefrom.  And  even 
in  the  same  proceeding  an  irregularity  may  be  waived,  and  will 
commonly  be  held  to  be  waived  if  the  party  entitled  to  complain 
of  it  shall  take  any  subsequent  step  in  the  case  inconsistent  with 
an  intent  on  his  part  to  take  advantage  of  it.2 

We  have  thus  briefly  indicated  the  cases  in  which  judicial 
action  may  be  treated  as  void  because  not  in  accordance  with  the 
law  of  the  land.  The  design  of  the  present  work  does  not  per- 
mit an  enlarged  discussion  of  the  topics  which  suggest  themselves 
in  this  connection,  and  which,  however  interesting  and  important, 
do  not  specially  pertain  to  the  subject  of  constitutional  law. 

183,  4  Sup.  Ct.  Rep.  71 ;  Fox  v.  Cottage,          1  "The  doing  or  not  doing  that  in  the 

&c.  Ass.,  81  Va.  677 ;  King  v.  Burdett,  conduct  of  a  suit  at  law,  which,  conform- 

28  W.  Va.  601 ;  Levan  v.  Millholland,  114  ably  to  the  practice  of  the  court,  ought 

Pa.  St.  49,  7  Atl.  194 ;  Weiss  v.  Guerineau,  or  ought  not  to  be  done."     Bouv.  Law 

109  Ind.  438,  9  N.  E.  399 ;  Rosenheim  v.  Die.      See  Dick  v.  McLaurin,  63  N.  C. 

Hartsock,  90  Mo.  357,  2  S.  W.  473 ;  Head  185. 

v.  Daniels,  38  Kan.  1,  15  Pac.  911;  Spill-  2  Robinson  v.  West,  1  Sandf.  19;  Ma- 
man  v.  Williams,  91  N.  C.  483 ;  Freeman  lone  v.  Clark,  2  Hill,  657 ;  Wood  v.  Ran- 
on  Judgments,  §135.  See  Matthews  v.  dall,  4  Hill,  264;  Baker  v.  Kerr,  13  Iowa, 
Densmore,  109  U.  S.  216,  3  Sup.  Ct.  Rep.  384 ;  Loomis  v.  Wadhams,  8  Gray,  557 ; 
126;  Bonney  v.  Bowman,  63  Miss.  166.  Warren  v.  Glynn,  37  N.  H.  340.  A 
Compare  Seamster  v.  Blackstock,  83  Va.  strong  instance  of  waiver  is  where,  on 
232,  2  S.  E.  36.  Even  if  a  court,  after  appeal  from  a  court  having  no  jurisdic- 
acquiring  jurisdiction,  were  to  render  tion  of  the  subject-matter  to  a  court  hav- 
judgment  without  trial  or  an  opportunity  ing  general  jurisdiction,  the  parties  going 
for  hearing,  the  judgment  would  not  be  to  trial  without  objection  are  held  bound 
void,  but  only  erroneous.  Clark  v.  by  the  judgment.  Randolph  Co.  v.  Rails, 
County  Court,  55  Cal.  199.  £Mere  errors  18  111.  29 ;  Wells  v.  Scott,  4  Mich, 
in  the  administration  of  the  law  do  not  347 ;  Tower  v.  Lamb,  6  Mich.  362.  If  an 
constitute  want  of  due  process  of  law.  objection  to  proceeding  with  a  jury  of 
Lent  v.  Tillson,  140  U.  S.  316,  11  Sup.  Ct.  less  than  twelve  is  overruled,  it  is  not 
Rep.  825.]  waived  by  moving  for  judgment  on  the 
A  judge  cannot  perform  any  judicial  findings  of  such  jury.  Eshelman  v. 
act  when  he  is  beyond  the  limits  of  his  Chicago,  &c.  Ry.  Co.,  67  Iowa,  296,  25 
State ;  not  even  the  granting  of  a  certio-  N.  W.  251. 
ran.  Buchanan  v.  Jones,  12  Ga.  612. 


CH.  XL] 


PROTECTION   BY   "THE   LAW   OF   THE    LAND." 


589 


But  a  party  in  any  case  has  a  right  to  demand  that  the  judg- 
ment of  the  court  be  given  upon  his  suit,  and  he  cannot  be  bound 
by  a  delegated  exercise  of  judicial  power,  whether  the  delegation 
be  by  the  courts  or  by  legislative  act  devolving  judicial  duties  on 
ministerial  officers.1  Proceedings  in  any  such  case  would  be 
void  ;  but  they  must  be  carefully  distinguished  from  those  cases 
in  which  the  court  has  itself  acted,  though  irregularly.  All  the 
State  constitutions  preserve  the  right  of  trial  by  jury,  (#)  for  civil 


i  Hall  v.  Marks,  34  111.  358;  Chandler 
v.  Nash,  5  Mich.  409.  It  is  not  competent 
to  provide  by  statute  that  the  judge  may 
call  a  member  of  the  bar  to  sit  in  his 
place  in  a  special  case.  "  The  legisla- 
ture has  no  power  to  authorize  a  district 
judge  to  place  his  judicial  robe  upon  the 
shoulders  of  any  man."  Winchester  r. 
Ay  res,  4  Greene  (Iowa),  104.  See 
Wright  v.  Boon,  2  Greene  (Iowa),  458; 
Michalcs  v.  Hine,  3  Greene  (Iowa),  470; 
Smith  r.  Frisbie,  7  Iowa,  486.  To  allow 
it  would  be  to  provide  a  mode  for 
choosing  judges  different  from  that  pre- 
scribed by  the  Constitution.  State  v. 
Phillips,  27  La.  Ann.  663 ;  State  v.  Fritz, 
27  La.  Ann.  689.  Even  the  consent  of 
parties  would  not  give  the  judge  this 
authority.  Hoagland  v.  Creed,  81  111. 
506;  Andrews  v.  Beck,  23  Tex.  455; 
Haverly  I.  M.  Co.  v.  Howcutt,  6  Col. 
574.  In  Missouri  there  is  statutory  pro- 
vision for  a  special  judge.  State  v.  Hos- 
mer,  85  Mo.  553.  Under  the  Tennessee 
statute  a  special  judge  can  act  only  in 
civil  cases.  Neil  v.  State,  2  Lea,  674. 
It  is  competent  to  send  a  case  to  referees 
or  to  a  master  for  investigation  of  ac- 
counts. Underwood  r.  McDuffee,  15 
Mich.  361 ;  Hard  ».  Burton,  79  111.  504. 
All  the  issues  in  a  case  involving  accounts 
may  be  referred.  Huston  v.  Wadsworth, 
6  Col.  213.  But  it  is  not  competent  to 
give  the  referee  powers  of  final  decision. 
Johnson  v.  Wallace,  7  Ohio,  342 ;  King  v. 
Hopkins,  67  N.  H.  334 ;  St.  Paul,  &c.  R. 
R.  Co.  v.  Gardner,  19  Minn.  132,  18  Am. 
Rep.  334.  A  decree  for  the  payment  of 
money  must  specify  the  precise  amount 
to  be  paid,  and  not  leave  it  to  subsequent 
computation.  Aldrich  v.  Sharp,  4  111. 
261;  Smith  v.  Trimble,  27  111.  152.  For 
the  general  principle  that  judicial  power 
cannot  be  delegated,  see  further,  Gough  v. 
Dorsey,  27  Wis.  119;  Milwaukee  Indus- 


trial School  i».  Supervisors,  40  Wis.  328; 
Allor  v.  County  Auditors,  43  Mich.  76, 
4  N.  W.  492  ;  Ward  v.  Farwell,  97  111.  593. 
FJThe  indeterminate  sentence  law  giving 
authority  to  the  prison  board  to  determine 
the  term  of  imprisonment  within  limits 
fixed  by  the  judgment  of  the  court  is  not 
in  violation  of  the  rule  against  the  dele- 
gation of  judicial  power.  Miller  v.  State, 
149  Ind.  007,  49  N.  E.  894,  40  L.  R.  A. 
109.  Dreyer  v.  People,  188  III.  40,  58 
N.  E.  620.  Contra,  in  Michigan,  People 
v.  Cummings,  88  Mich.  249,  50  N.  W. 
810.  See  also,  9  Yale  Law  Jour.  17.]  A 
justice  having  power  to  issue  writs  as  the 
commencement  of  suit,  cannot  issue  them 
in  blank  to  be  filled  up  by  parties  or  by 
ministerial  officers.  Pierce  v.  Hubbard, 
10  Johns.  405:  Craighead  v.  Martin,  25 
Minn.  41.  But  a  writ  will  not  necessa- 
rily be  quashed  because  filled  up  by  an 
unauthorized  person.  Kinne  v.  Hinman, 
68  N.  H.  363.  The  clerk  of  a  court  of 
record  may  be  authorized  to  enter  up 
judgment  in  vacation  against  a  defendant 
whose  indebtedness  is  admitted  of  record  : 
Latlirop  v.  Snyder,  17  Wis.  110;  but  not 
in  other  cases.  See  Grattan  v.  Matteson, 
64  Iowa,  229,  6  N.  W.  298 ;  Keith  v.  Kel- 
logg, 97  111.  147.  Such  an  entry  not  au- 
thorized or  approved  by  the  court  is  void. 
Balm  v.  Nunn,  63  Iowa,  641,  19  N.  W. 
810;  Mitchell  v.  St.  John,  98  Ind.  598. 
For  the  distinction  between  judicial  and 
ministerial  action,  see  Flournoy  v.  Jeffer- 
sonville,  17  Ind.  169;  People  v.  Bennett, 
29  Midi.  451.  ^Statute  providing  for 
charging  a  town  with  maintenance  of  a 
pauper  upon  report  of  a  commission 
whose  members  are  not  required  to  take 
an  oath,  or  to  administer  oaths  to  wit- 
nesses, or  to  pronounce  judgment,  vio- 
lates provision  for  due  process  of  law. 
Church  v.  South  Kingstown,  22  R.  I.  381, 
48  All.  3,  53  L.  R.  A.  739/] 


(a)  £Upon  extent  of  this  right,  see  note  to  41  L.  ed.  U.  S.  113-3 


590 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XL 


as  well  as  for  criminal  cases,  with  such  exceptions  as  are  specified, 
and  which  for  the  most  part  consist  in  such  cases  as  are  of  small 
consequence,  and  are  triable  in  inferior  courts.  The  constitu- 
tional provisions  do  not  extend  the  right;  they  only  secure  it  in 
the  cases  in  which  it  was  a  matter  of  right  before.1  But  in  doing 
this,  they  preserve  the  historical  jury  of  twelve  men,2  with  all  its 
incidents,  unless  a  contrary  purpose  clearly  appears.  The  party 
is  therefore  entitled  to  examine  into  the  qualifications  and  im- 


i  Backus  v.  Lebanon,  11  N.  H.  19; 
Opinions  of  Judges,  41  N.  H.  550;  Dane 
Co.  v.  Dunning,  20  Wis.  210;  Stilwell  v. 
Kellogg,  14  Wis.  461  ;  Mead  v.  Walker, 
17  Wis.  189;  Commissioners  v.  Seabrook, 
2  Strob.  560;  Tabor  r.  Cook,  15  Mich. 
322 ;  Lake  Erie,  &c.  R.  R.  Co.  v.  Heath, 
9  Ind.  568;  Byers  v.  Commonwealth,  42 
Pa.  St.  89;  State  v.  Peterson,  41  Vt. 
604 ;  In  re  Hackett,  53  Vt.  354 ;  Buffalo, 
&c.  R.  R.  Co.  v.  Ferris,  26  Tex.  688; 
Sands  v.  Kimbark,  27  N.  Y.  147 ;  Howell 
v.  Fry,  19  Ohio  St.  656 ;  Guile  v.  Brown, 
38  Conn.  237;  Howe  v.  Plainfield,  37 
N.  J.  145 ;  Commissioners  '-•.  Morrison,  22 
Minn.  178.  These  provisions  do  not 
apply  to  equitable  causes  or  proceedings  : 
Flaherty  v.  McCormick,  113  111.  638; 
State  v.  Churchill,  48  Ark.  426,  3  S.  W. 
352,  880;  Mahan  v.  Ca vender,  77  Ga.  118; 
In  re  Burrows,  33  Kan.  675,  7  Pac.  148; 
Eikenberry  v.  Edwards,  67  Iowa,  619,  25 
N.  W.  832;  McKinsey  v.  Squires,  32 
W.  Va.  41,  9  S.  E.  65 ;  not  even  to  enjoin- 
ing and  abating  a  building  as  a  liquor 
nuisance :  Carleton  v.  Rugg,  149  Mass. 
550,  22  N.  E.  55  ;  [Kansas  v.  Ziebold,  123 
U.  8.  623,  8  Sup.  Ct.  Rep.  273;  Littleton 
v.  Fritz,  65  Iowa,  488,  22  N.  W.  641 ;] 
nor  to  special  statutory  drainage  proceed- 
ings :  Lipes  v.  Hand,  104  Ind.  603,  1  N.  E. 
871,  4  N.  E.  160;  nor  to  proceedings  to 
determine  lunacy :  County  of  Black  Hawk 
v.  Springer,  58  Iowa,  417,  10  N.  W.  791 ; 
Crocker  v.  State,  60  Wis.  653,  19  N.  W. 
435 ;  nor  to  summary  landlord  and  tenant 
proceedings :  Frazee  v.  Beattie,  26  S.  C. 
348,  2  8.  E.  125 ;  nor  to  a  hearing  as  to 
damages  on  default  in  tort:  Seeley  v. 
Bridgeport,  53  Conn.  1,  22  Atl.  1017  ;  nor 
to  insolvency  proceedings.  Weston  v. 
Loyhed,  30  Minn.  221,  14  N.  W.  892; 
contra,  Risser  v.  Hoyt,  63  Mich.  185,  18 
N.  W.  611.  Nor  do  they  prevent  a  court 
from  denying  a  new  trial  unless  plaintiff 


remits  a  part  of  the  verdict.  Arkansas 
V.  L.  &c.  Co.  v.  Mann,  130  U.  S.  69,  9  Sup. 
Ct.  Rep.  458.  QNor  directing  a  verdict, 
Treat  Mfg.  Co.  v.  Standard  Steel  and  Iron 
Co.,  167  U.  S.  674, 15  Sup.  Ct.  Rep.  718.] 
Nor  summary  distress  for  rent  if  a  jury 
may  be  had,  by  replevying  property 
seized.  Blanchard  v.  Raines,  20  Fla.  467. 
They  do  prevent  making  the  findings  of 
appraisers  conclusive  evidence  of  value, 
ownership,  and  injury,  where  stock  is 
killed  by  a  railroad.  Graves  v.  Nor.  Pac. 
R.  R.  Co.,  6  Mont.  556,  6  Pac.  16.  That 
notwithstanding  jury  trial  is  preserved, 
the  jurisdiction  of  justices  to  try  petty 
cases  without  jury  may  be  extended,  see 
Beers  v.  Beers,  4  Conn.  535,  10  Am.  Dec. 
186;  Keddie  v.  Moore,  2  Murph.  41,  6 
Am.  Dec.  618.  [[That  length  and  com- 
plication of  accounts  will  not  warrant 
compulsory  reference  to  a  master  and 
denial  of  jury  in  New  York,  see  Steck  v. 
Colorado  F.  &  I.  Co.,  142  N.  Y.  236,  37 
N.  E.  1,  25  L.  R.  A.  67,  and  see  note 
hereto  in  L.  R.  A.  on  compulsory  refer- 
ence and  right  to  jury  trial.] 

8  See  ante,  p.  453.  And  see  the  gen- 
eral examination  of  the  subject  histori- 
cally in  Hagany  v.  Cohnen,  29  Ohio  St. 
82 ;  and  Copp  v.  Henniker,  65  N.  H.  179. 
A  statute  allowing  less  than  twelve  to  sit 
if  a  juror  is  sick  is  bad.  Eshelman  v. 
Chicago,  &c.  Ry.  Co.,  67  Iowa,  296,  26 
N.  W.  251.  But  a  jury  of  six  may  be 
allowed  in  inferior  courts.  Higgins  v. 
Farmers'  Ins.  Co.,  60  Iowa,  60,  14  N.  W. 
118.  One  of  less  than  twelve  may  act  in 
statutory  highway  proceedings.  Mc- 
Manus  v.  McDonough,  107  111.  95.  [And 
judgment  may  be  given  upon  a  special 
verdict,  even  though  such  verdict  is  in- 
consistent with  the  general  verdict. 
Walker  v.  Southern  P.  Railroad,  166 
U.  S.  693,  17  Sup.  Ct.  Rep.  421.] 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND." 


591 


partiality  of  jurors  ; l  and  to  have  the  proceedings  public  ;  2  and  no 
conditions  can  be  imposed  upon  the  exercise  of  the  right  that 
shall  impair  its  value  and  usefulness.3  It  has  been  held,  however, 
in  many  cases,  that  it  is  competent  to  deny  to  parties  the  privi- 
lege of  a  trial  in  a  court  of  first  instance,  provided  the  right  is 
allowed  on  appeal.4  It  is  undoubtedly  competent  to  create  new 
tribunals  without  common-law  powers,  and  to  authorize  them  to 
proceed  without  a  jury  ;  but  a  change  in  the  forms  of  action  will 
not  authorize  submitting  common-law  rights  to  a  tribunal  in  which 
no  jury  is  allowed.5  In  any  case,  we  suppose  a  failure  to  award 


1  Palmore  v.  State,  29  Ark.  249 ;  Paul 
v.  Detroit,  32  Mich.  108. 

2  Watertown   Bank,   &c.   v.  Mix,   61 
N.  Y.  658. 

8  Greene  v.  Briggs,  1  Curt.  C.  C.  311; 
Lincoln  v.  Smith,  27  Vt.  328;  Norristown, 
&c.  Co.  v.  Burket,  26  Ind.  63;  State  v. 
Gurney,  37  Me.  156 ;  Copp  v.  Henniker, 
65  N.  H.  179.  It  is  not  inadmissible, 
however,  to  require  of  a  party  demanding 
a  jury  that  he  shall  pay  the  jury  fee. 
Randall  v.  Kehlor,  60  Me.  37 ;  Connors  v. 
Burlington,  &c.  Ry.  Co.,  74  Iowa,  383,  37 
N.  W.  966;  Conneau  v.  Gels,  73  Cnl.  176, 
14  Pac.  580. 

*  Emerick  v.  Harris,  1  Binn.  416; 
Biddle  v.  Commonwealth,  13  S.  &  R.  405; 
McDonald  v.  Schell,  6  S.  &  R.  240;  Ked- 
die  v.  Moore,  2  Murph.  41 ;  Wilson  v. 
Simonton,  1  Hawks,  482 ;  Monford  v. 
Barney,  8  Yerg.  444 ;  Beers  v.  Beers,  4 
Conn.  635,  10  Am.  Dec.  186;  State  v. 
Brennan's  Liquors,  25  Conn.  278  ;  Curtis 
v.  Gill,  34  Conn.  49 ;  Reckner  v.  Warner, 
22  Ohio  St.  275;  Jones  v.  Robbins,  8 
Gray,  329 ;  Hapgood  v.  Doherty,  8  Gray, 
373 ;  Flint  River,  &c.  Co.  r.  Foster,  6  Ga. 
194;  State  v.  Beneke,  9  Iowa,  203;  Lin- 
coln v.  Smith,  27  Vt.  328,  360 ;  Steuart  v. 
Baltimore,  7  Md.  600;  Commonwealth 
v.  Whitney,  108  Mass.  5;  Maxwell  v. 
Com'rs  Fulton  Co.,  119  Ind.  20,  19  N.  E. 
617,  21  N.  E.  453 ;  Helverstine  r.  Yantes, 
88  Ky.  695,  11  S.  W.  811;  Beasley  v. 
Beckley,  28  W.  Va.  81;  State  v.  Fitz- 
patrick,  16  R.  I.  64,  60,  11  Atl.  767,  773; 
QBrown  v.  Epps,  91  Va.  726,  21  S.  E.  119, 
27  L.  R.  A.  676;  Re  Jahn,  65  Kan.  694, 
41  Pac.  956.  Contra,  State  v.  Gerry,  68 
N.  H.  495,  38  Atl.  272,  38  L.  R.  A.  228.] 
But  the  recognizance  to  the  lower  court 
on  appeal  must  not  be  burdened  with  un- 
reasonable conditions.  Liquors  of  Me- 


Sorley,  15  R.  I.  608, 10  Atl.  659.  Compare 
In  re  Marron,  60  Vt.  199,  12  Atl.  523. 
But  that  this  could  not  be  admissible 
in  criminal  cases  was  held  in  Matter  of 
Dana,  7  Benedict,  1,  by  Judge  Blatchford, 
who  very  sensibly  remarks,  "  In  my  judg- 
ment the  accused  is  entitled,  not  to  be 
first  convicted  by  a  court,  and  then  to  be 
acquitted  by  a  jury,  but  to  be  convicted  or 
acquitted  in  the  first  instance  by  a  jury." 
On  a  charge  of  criminal  conspiracy,  a 
prisoner  has  a  right  to  jury  trial,  "from 
the  first  moment  and  in  whatever  court 
he  is  put  on  trial  for  the  offence  charged." 
Callan  v.  Wilson,  127  U.  S.  540,  8  Sup. 
Ct.  Rep.  1301.  If  in  a  lower  court  one 
has  had  a  jury  trial  and  appeals  to  a 
higher  nisi  prius  court,  he  cannot  be  de- 
prived of  a  jury  there.  McGinty  »;. 
Carter,  48  N.  J.  L.  113,  3  Atl.  78.  That 
the  right  to  jury  trial  in  civil  cases  may 
be  waived  by  failure  to  demand  it,  see 
Gleason  v.  Keteltas,  17  N.  Y.  491 ;  Baird 
v.  Mayor,  74  N.Y.  382;  Garrison  v.  Hollins, 
2  Lea,  684;  Foster  v.  Morse,  132  Mass. 
354.  That  it  is  competent  to  provide  that 
the  failure  to  file  an  affidavit  of  defence 
shall  entitle  the  plaintiff  to  judgment,  see 
Hoffman  v.  Locke,  19  Pa.  St.  67;  Law- 
ranee  v.  Born,  86  Pa.  St.  225 ;  Dortic  v. 
Lock  wood,  61  Ga.  293. 

6  See  Rhines  w.  Clark,  61  Pa.  St.  96. 
Compare  Haines  v.  Levin,  51  Pa.  St. 
412;  Haine's  Appeal,  73  Pa.  St.  169. 
[^Wiggins  &  Johnson  v.  Williams,  36  Fla. 
637,  18  So.  859,  30  L.  R.  A.  764.] 
Whether  jury  trial  is  of  right  in  quo  war- 
ranto  cases,  see  State  v.  Allen,  6  Kan.  213; 
State  «.  Johnson,  26  Ark.  281 ;  William- 
son v.  Lane,  62  Tex.  335;  State  v.  Vnil, 
53  Mo.  07;  State  v.  Lupton,  64  Mo.  415, 
27  Am.  Rep.  253;  People  v.  Cicott,  16 
Mich.  283;  People  v.  Railroad  Co.,  67 


592 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XL 


a  jury  on  proper  demand  would  be  an  irregularity  merely,  render- 
ing the  proceedings  liable  to  reversal,  but  not  making  them  void. 

There  is  also  a  maxim  of  law  regarding  judicial  action  which 
may  have  an  important  bearing  upon  the  constitutional  validity 
of  judgments  in  some  cases.  No  one  ought  to  be  a  judge  in  his 
own  cause ;  and  so  inflexible  and  so  manifestly  just  in  this  rule, 
that  Lord  Coke  has  laid  it  down  that  "  even  an  act  of  Parliament 
made  against  natural  equity,  as  to  make  a  man  a  judge  in  his  own 
case,  is  void  in  itself ;  for  jura  naturae  sunt  immutabilia,  and  they 
are  leges  legum. "  1 

This  maxim  applies  in  all  cases  where  judicial  functions  are 
to  be  exercised,  and  excludes  all  who  are  interested,  however  re- 
motely, from  taking  part  in  their  exercise.  It  is  not  left  to  the 
discretion  of  a  judge,  or  to  his  sense  of  decency,  to  decide  whether 
he  shall  act  or  not ;  all  his  powers  are  subject  to  this  absolute 
limitation  ;  and  when  his  own  rights  are  in  question,  he  has  no 
authority  to  determine  the  cause.2  Nor  is  it  essential  that  the 
judge  be  a  party  named  in  the  record ;  if  the  suit  is  brought  or 
defended  in  his  interest,  or  if  he  is  a  corporator  in  a  corporation 
which  is  a  party,  or  which  will  be  benefited  or  damnified  by  the 
judgment,  he  is  equally  excluded  as  if  he  were  the  party  named.3 


N.  Y.  161 ;  Royal  v.  Thomas,  28  Gratt. 
130,  26  Am.  Rep.  335;  and  cases,  p.  938, 
note  2,  post. 

1  Co.  Lit.  §  212.    See  Day  v.  Savadge, 
Hobart,  85.     We  should  not  venture  to 
predict,  however,  that  even  in  a  case  of 
this  kind,  if  one  could  be  imagined  to  ex- 
ist, the  courts  would  declare  the  act  of 
Parliament    void;    though    they    would 
never  find  such  an  intent  in  the  statute,  if 
any  other  could  possibly  be  made  consist- 
ent with  the  words. 

2  Washington  Ins.  Co.  r.  Price,  Hopk. 
Ch.  2;  Sigourney  v.  Sibley,  21  Pick.  101 ; 
Freeman  on  Judgments,  §  144.     A  judge 
of  probate  cannot  act  upon  an  estate  of 
which  lie  is  executor:  Bedell  v.  Bailey, 
68  N.  H.  62;  or  creditor,  Burks  v.  Ben- 
nett, 62  Tex.  27  i.     Compare  Matter  of 
Hancock,  91  N.  Y.  284.     A  justice  may 
sit,  although  he  has  received  for  collec- 
tion the  note  in  suit.     Moon  v.  Stevens, 
53  Mich.  144,  18  N.  W.  600. 

3  Washington  Ins.  Co.  v.  Price,  Hopk. 
Ch.  1 ;  Dimes   v.    Proprieters   of  Grand 
Junction  Canal,  3  House  of  Lords  Cases, 
759;  Pearce   v.  Atwood,   13  Mass.  324; 
Kentish  Artillery  v.  Gardiner,  15  R.  I.  296, 
3  Atl.  662 ;  Peck  v.  Freeholders  of  Essex, 


20  N.  J.  457 ;  Commonwealth  v.  McLane, 
4  Gray,  427 ;  Dively  v.  Cedar  Falls,  21 
Iowa,  565 ;  Clark  v.  Lamb,  2  Allen,  396 ; 
Stockwell  v.  White  Lake,  22  Mich.  341 ; 
Petition  of  New  Boston,  49  N.  H.  328. 
If  the  property  of  a  judge  from  its 
situation  will  be  affected  like  complain- 
ant's by  his  ruling  he  cannot  sit.  North 
Bloomfield  G.  M.  Co.  v.  Keyser,  58  Cal. 
315.  FJOwner  of  property  subject  to  tax 
to  pay  bonded  indebtedness  of  city  can- 
not sit  as  judge  in  a  case  in  which  validity 
of  such  indebtedness  is  involved.  Meyer 
v.  San  Diego,  121  Cal.  102,  1 13,  53  Pac. 
434,  1128,  41  L.  R.  A.  762,  66  Am.  St.  22. 
Nor  can  one  who  has  theretofore  been  an 
attorney  in  the  case,  although  the  relation 
of  attorney  and  client  has  ceased.  State 
v.  Hocker,  34  Fla.  25,  15  So.  581,  25 
L.  R.  A.  114,  and  note.  Nor  if  he  is  a 
vestryman  can  he  act  in  a  case  involving 
the  interests  of  his  church.  State  v. 
Young,  31  Fla.  594, 12  So.  673, 19  L.  R.  A. 
636,  34  Am.  St.  41.]  As  to  disqualifi- 
cation by  relationship,  see  Russell  v. 
Belcher,  76  Me.  501 ;  Patterson  v.  Collier, 
75  Ga.  419;  Jordan  v.  Moore,  65  Tex. 
363;  Hume  v.  Commercial  Bank,  10 
Lea,  1. 


CH.  XI.]     PROTECTION  BY  "  THE  LAW  OF  THE  LAND."        593 

Accordingly,  where  the  Lord  Chancellor,  who  was  a  shareholder 
in  a  company  in  whose  favor  the  Vice-Chancellor  had  rendered  a 
decree,  affirmed  this  decree,  the  House  of  Lords  reversed  the  de- 
cree on  this  ground,  Lord  Campbell  observing  :  "  It  is  of  the  last 
importance  that  the  maxim  that  '  no  man  is  to  be  a  judge  in  his 
own  cause '  should  be  held  sacred.  And  that  is  not  to  be  con- 
fined to  a  cause  in  which  he  is  a  party,  but  applies  to  a  cause  in 
which  he  has  an  interest."  "  We  have  again  and  again  set  aside 
proceedings  in  inferior  tribunals,  because  an  individual  who  had 
an  interest  in  a  cause  took  a  part  in  the  decision.  And  it  will 
have  a-  most  salutary  effect  on  these  tribunals,  when  it  is  known 
that  this  high  court  of  last  resort,  in  a  case  in  which  the  Lord 
Chancellor  of  England  had  an  interest,  considered  that  his  decree 
was  on  that  account  a  decree  not  according  to  law,  and  was  set 
aside.  This  will  be  a  lesson  to  all  inferior  tribunals  to  take  care, 
not  only  that  in  their  decrees  they  are  not  influenced  by  their  per- 
sonal interest,  but  to  avoid  the  appearance  of  laboring  under  such 
an  influence."  1 

It  is  matter  of  some  interest  to  know  whether  the  legislatures 
of  the  American  States  can  set  aside  this  maxim  of  the  common 
law,  and  by  express  enactment  permit  one  to  act  judicially  when 
interested  in  the  controversy.  The  maxim  itself,  it  is  said,  in 
some  cases,  does  not  apply  where,  from  necessity,  the  judge  must 
proceed  in  the  case,  there  being  no  other  tribunal  authorized  to 
act ; 2  but  we  prefer  the  opinion  of  Chancellor  Sandford  of  New 
York,  that  in  such  a  case  it  belongs  to  the  power  which  created 
such  a  court  to  provide  another  in  which  this  judge  may  be  a 
party ;  and  whether  another  tribunal  is  established  or  not,  he  at 
least  is  not  entrusted  with  authority  to  determine  his  own  rights, 
or  his  own  wrongs.3 

It  has  been  held  that  where  the  interest  was  that  of  corporator 
in  a  municipal  corporation,  the  legislature  might  provide  that  it 
should  constitute  no  disqualification  where  the  corporation  was 
a  party.  But  the  ground  of  this  ruling  appears  to  be,  that  the 

1  Dimes  v.  Proprietors  of  Grand  June-  pal   creditor   was   held   void.      And   see 
tion  Canal,  3  House  of  Lords  Cases,  759,  People  v.  Gies,  25  Mich.  83.    £In  Florida 
793.  a  judge  is  disqualified  to  sit  in  a  cause  in 

2  Ranger  v.  Great  Western  R.,  5  House  which   the  husband  of  a   niece   of  the 
of  Lords  Cases,  72,  88;  Stuart  v.  Median-  judge  is  a  party.     State  v.  Wall,  41  Fla. 
ics'  &  Farmers'  Bank,  19  Johns.  496.  463,  26  So.  1020,  49  L.  R.  A.  548.   A  judge 

8  Washington  Insurance  Co.  v.  Price,  whose  wife  is  a  stockholder  in  a  corpora- 

Hopk.  Ch.  1.     This  subject  was  consid-  tion  cannot  sit  in  the  trial  of  a  cause  to 

ered  in  Hall  v.  Thayer,  105  Mass.  219,  and  which   it   is   party.     First  Nat.  Bank  v. 

an  appointment  by  a  judge  of  probate  of  McGuire,  12  S.  1).  22G,  80  N.  W.  1074,  47 

his  wife's  brother  as  administrator  of  an  L.  R.  A.  413,  76  Am.  St.  598-3 
estate  of  which  her  father  was  a  princi- 


594  CONSTITUTIONAL  LIMITATIONS.  [CH.  XL 

interest  is  so  remote,  trifling,  and  insignificant,  that  it  may  fairly 
be  supposed  to  be  incapable  of  affecting  the  judgment  or  of 
influencing  the  conduct  of  an  individual.1  And  where  penalties 
are  imposed,  to  be  recovered  only  in  a  municipal  court,  the  judges 
or  jurors  in  which  would  be  interested  as  corporators  in  the  re- 
covery, the  law  providing  for  such  recovery  must  be  regarded  as 
precluding  the  objection  of  interest.2  And  it  is  very  common,  in 
a  certain  class  of  cases,  for  the  law  to  provide  that  certain  town- 
ship and  county  officers  shall  audit  their  own  accounts  for  ser- 
vices rendered  the  public ;  but  in  such  case  there  is  no  adversary 
party,  unless  the  State,  which  passes  the  law,  or  the  municipali- 
ties, which  are  its  component  parts  and  subject  to  its  control,  can 
be  regarded  as  such. 

But  except  in  cases  resting  upon  such  reasons,  we  do  not  see 
how  the  legislature  can  have  any  power  to  abolish  a  maxim  which 
is  among  the  fundamentals  of  judicial  authority.  The  people  of 
the  State,  when  framing  their  constitution,  may  possibly  establish 
so  great  an  anomaly,  if  they  see  fit ; 3  but  if  the  legislature  is  en- 
trusted with  apportioning  and  providing  for  the  exercise  of  the 
judicial  power,  we  cannot  understand  it  to  be  authorized,  in  the 
execution  of  this  trust,  to  do  that  which  has  never  been  recog- 
nized as  being  within  the  province  of  the  judicial  authority.  To 
empower  one  party  to  a  controversy  to  decide  it  for  himself  is  not 
within  the  legislative  authority,  because  it  is  not  the  establishment 
of  any  rule  of  action  or  decision,  but  is  a  placing  of  the  other 
party,  so  far  as  that  controversy  is  concerned,  out  of  the  protec- 
tion of  the  law,  and  submitting  him  to  the  control  of  one  whose 
interest  it  will  be  to  decide  arbitrarily  and  unjustly.4 

1  Commonwealth  i*.  Reed,  1  Gray,  475;          8  Matter  of  Leefe,   2  Barb.   Ch.   39. 
Justices  v.  Fennimore,  1  N.  J.  190;  Com-  Even  this  must  be  deemed  doubtful  since 
missioners  v.  Little,  3  Ohio,  289;  Min-  the  adoption  of  the  fourteenth  article  of 
neapolis   v.    Wilkin,   30   Minn.    140,    14  the  amendments  to  the  Federal  Constitu- 
N.  ,W.  681.    See  Foreman  v.  Marianna,  tion,  which  denies  to  the  State  the  right 
43  Ark.  324,  case  of  annexing  territory  ;  to  deprive  one  of  life,  liberty,  or  property, 
Sauls  v.  Freeman,  24  Fla.  209,  225,  4  So.  without  due  process  of  law. 

625,  577,  case  of  changing  county  seat.          *  See  Ames  v.  Port  Huron  Log-Driv- 

fjAiid  a  judge  who  is  member  of  a  State  ing  and  Booming  Co.,  11  Mich.  139 ;  Hall 

bar  association  may   pass  upon   disbar-  v.  Tlmyer,  105  Mass.  219;  Stater.  Crane, 

ment  proceedings  brought  by  the  associa-  36  N.  J.  394:  Cypress  Pond  Draining  Co. 

tion,  although,   if  the   proceedings  fail,  v.  Hooper,  2  Met.  (Ky.)  350;  Scuffletown 

costs  will  go  against  the  association.     Ex  Fence  Co.  v.  McAllister,  12  Bush,  312; 

parte  Bar  Association,  92  Ala.  113,  8  So.  Reams  v.  Kearns,  5  Cold.  217.   No  power 

768,  12  L.  R.  A.  134.]  to  make  a  municipal  corporation  party 

2  Commonwealth  v.  Ryan,  6  Mass.  90;  and  judge  in  the  same  controversy  can 
Hill  v.  Wells,  6  Pick.  104;  Commonwealth  constitutionally  be  given.      Lanfear    v. 
v.  Emery,  11  Cush.  406;  State  v.  Craig,  Mayor,  4  La.  97,  23  Am.  Dec.  477. 

80  Me.  85,  13  Atl.  129 ;  In  re  Guerrero, 
69  Cal.  88,  10  Pac.  261. 


CH.  XL] 


PROTECTION   BY   "THE   LAW   OF   THE   LAND." 


595 


Nor  do  we  see  how  the  objection  of  interest  can  be  waived  by 
the  other  party.  If  not  taken  before  the  decision  is  rendered,  it 
will  avail  in  an  appellate  court ;  and  the  suit  may  there  be  dis- 
missed on  that  ground.1  The  judge  acting  in  such  a  case  is  not 
simply  proceeding  irregularly,  but  he  is  acting  without  jurisdic- 
tion. And  if  one  of  the  judges  constituting  a  court  is  disquali- 
fied on  this  ground,  the  judgment  will  be  void,  even  though  the 
proper  number  may  have  concurred  in  the  result,  not  reckoning 
the  interested  party.2 

Mere  formal  acts  necessary  to  enable  the  case  to  be  brought 
before  a  proper  tribunal  for  adjudication,  an  interested  judge  may 
do ; 3  but  that  is  the  extent  of  his  power. 


*  Richardson  v.  Welcome,  6  Cush.  332 ; 
Dimes  v.  Proprietors  of  Grand  Junction 
Canal,  3  H.  L.  Cas.  759.  And  see  Sigour- 
ney  v.  Sibley,  21  Pick.  101;  Oakley  v. 
Aspinwall,  3  N.  Y.  547.  But  it  is  held  in 
Pettigrew  v.  Washington  Co.,  43  Ark.  33, 
that  after  judgment  it  is  too  late  to  ob- 
ject that  relationship  to  a  party  disquali- 
fied a  judge.  But  see  succeeding  note. 

2  In  Queen  v.  Justices  of  Hertford- 
shire, 6  Q.  B.  753,  it  was  decided  that,  if 
any  one  of  the  magistrate  hearing  a  case 
at  sessions  was  interested,  the  court  was 
improperly  constituted,  and  an  order  made 
in  the  case  should  be  quashed.  It  was 
also  decided  that  it  was  no  answer  to  the 
objection  that  there  was  a  majority  in 
favor  of  the  decision  without  reckoning 
the  interested  party,  nor  that  the  inter- 
ested party  withdrew  before  the  decision, 
if  he  appeared  to  have  joined  in  discuss- 
ing the  matter  with  the  other  magis- 


trates. See  also  the  Queen  v.  Justices 
of  Suffolk,  18  Q.  B.  416;  The  Queen  v. 
Justices  of  London,  18  Q.  B.  421 ;  Pe- 
ninsula R.  R.  Co.  v.  Howard,  20  Mich.  18. 
8  Richardson  v.  Boston,  1  Curtis,  C.  C. 
250 ;  Washington  Insurance  Co.  i\  Price, 
Hopk.  Cli.  1 ;  Buckingham  v.  Davis,  9 
Md.  324;  Heydenfeldt  v.  Towns,  27  Ala. 
423;  State  v.  Judge,  37  La.  Ann.  253. 
If  the  judge  who  renders  judgment  in  a 
cause  had  previously  been  attorney  in 
it,  the  judgment  is  a  nullity.  Reams  v. 
Kearns,  5  Cold.  217  ;  Slaven  v.  Wheeler, 
68  Tex.  23.  [[Or  if  he  has  advised  one 
of  the  parties  upon  his  rights  in  regard 
to  any  fact  involved  in  the  case.  Tampa 
St.  R.  &  P.  Co.  v.  Tampa  Suburban  R. 
Co.,  30  Fla.  695,  11  So.  562,  17  L.  R.  A. 
681.]  So  though  the  case  in  suit  is  not 
precisely  the  one  in  which  he  has  been 
consulted.  Newcome  v.  Light,  68  Tex. 
141. 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIL 


CHAPTER  XII. 


LIBERTY   OP   SPEECH    AND   OP  THE   PRESS. 

THE  first  amendment  to  the  Constitution  of  the  United  States 
provides,  among  other  things,  that  Congress  shall  make  no  law 
abridging  the  freedom  of  speech  or  of  the  press.  The  privilege 
which  is  thus  protected  against  unfriendly  legislation  by  Con- 
gress, is  almost  universally  regarded  not  only  as  highly  impor- 
tant, but  as  being  essential  to  the  very  existence  and  perpetuity 
of  free  government.  The  people  of  the  States  have  therefore 
guarded  it  with  jealous  care,  by  provisions  of  similar  import  in 
their  several  constitutions,  and  a  constitutional  principle  is  there- 
by established  which  is  supposed  to  form  a  shield  of  protection  to 
the  free  expression  of  opinion  in  every  part  of  our  land.1 


1  The  following  are  the  constitutional 
provisions:  Maine:  Every  citizen  may 
freely  speak,  write,  and  publish  his  senti- 
ments on  any  subject,  being  responsible 
for  the  abuse  of  this  liberty.  No  law 
shall  be  passed  regulating  or  restraining 
the  freedom  of  the  press  ;  and,  in  prose- 
cutions for  any  publication  respecting  the 
official  conduct  of  men  in  public  capacity, 
or  the  qualifications  of  those  who  are 
candidates  for  the  suffrages  of  the  people, 
or  where  the  matter  published  is  proper 
for  public  information,  the  truth  thereof 
may  be  given  in  evidence  ;  and  in  all  in- 
dictments for  libel,  the  jury,  after  having 
received  the  direction  of  the  court,  shall 
have  a  right  to  determine,  at  their  dis- 
cretion, the  law  and  the  fact.  Declara- 
tion of  Rights,  §  4.  —  New  Hampshire  :  The 
liberty  of  the  press  is  essential  to  the 
security  of  freedom  in  a  State  ;  it  ought, 
therefore,  to  be  inviolably  preserved.  Bill 


the  security  of  freedom  in  a  State ;  it 
ought  not,  therefore,  to  be  restrained  in 
this  Commonwealth.  Declaration  of 
Rights,  Art.  W.—fflode  Island:  The  lib- 
erty of  the  press  being  essential  to  the 
security  of  freedom  in  a  State,  any  per- 
son may  publish  his  sentiments  on  any 
subject,  being  responsible  for  the  abuse 
of  that  liberty  ;  and  in  all  trials  for  libel, 
both  civil  and  criminal,  the  truth,  unless 
published  from  malicious  motives,  shall 
be  sufficient  defence  to  the  person  charged. 
Art.  1,  §  20.  —  Connecticut:  No  law  shall 
ever  be  passed  to  curtail  or  restrain  the 
liberty  of  speech  or  of  the  press.  In  all 
prosecutions  or  indictments  for  libel,  the 
truth  may  be  given  in  evidence,  and  the 
jury  shall  have  the  right  to  determine  the 
law  and  the  facts,  under  the  direction  of 
the  court.  Art.  1,  §§  6  and  7.  —  New 
York:  Every  person  may  freely  speak, 
write,  and  publish  his  sentiments  on  all 


of  Rights,  §  22.  —  Vermont:  That  the  peo-     subjects,  being  responsible  for  the  abuse 


ple  have  a  right  to  freedom  of  speech, 
and  of  writing  and  publishing  their  sen- 
timents concerning  the  transactions  of 
government  ;  therefore  the  freedom  of  the 
press  ought  not  to  be  restrained.  Decla- 
ration of  Rights,  Art.  13.  —  Massachusetts  : 
The  liberty  of  the  press  is  essential  to 


of  that  right ;  and  no  law  shall  be  passed 
to  restrain  or  abridge  the  liberty  of  speech 
or  the  press.  In  all  criminal  prosecutions 
or  indictments  for  libels,  the  truth  may 
be  given  in  evidence  to  the  jury,  and  if  it 
shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  pub- 


CH.  XII.]  LIBERTY  OF  SPEECH   AND   OF  THE  PRESS. 


597 


It  is  to  be  observed  of  these  several  provisions,  that  they  recog- 
nize certain  rights  as  now  existing,  and  seek  to  protect  and  per- 


lished  with  good  motives  and  for  justifia- 
ble ends,  the  party  shall  be  acquitted,  and 
the  jury  shall  have  the  right  to  determine 
the  law  and  the  fact.  Art.  1,  §  8.  —  New 
Jersey:  Every  person  may  freely  speak, 
write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse 
of  that  right.  No  law  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech 
or  of  the  press.  In  all  prosecutions  or 
indictments  for  libel,  the  truth  may  be 
given  in  evidence  to  the  jury;  and  if  it 
shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  pub- 
lished with  good  motives  and  for  justifia- 
ble ends,  the  party  shall  be  acquitted  ; 
and  the  jury  shall  have  the  right  to  de- 
termine the  law  and  the  fact.  Art.  1, 
§5. — Pennsylvania:  That  the  printing- 
press  shall  be  free  to  every  person  who 
may  undertake  to  examine  the  proceed- 
ings of  the  legislature,  or  any  branch  of 
government,  and  no  law  shall  ever  be 
made  to  restrain  the  right  thereof.  The 
free  communication  of  thoughts  and  opin- 
ions is  one  of  the  invaluable  rights  of 
man,  and  every  citizen  may  freely  speak, 
write,  and  print  on  any  subject,  being  re- 
sponsible for  the  abuse  of  that  liberty. 
No  conviction  shall  be  had  in  any  prose- 
cution for  the  publication  of  papers,  re- 
lating to  the  official  conduct  of  officers  or 
men  in  public  capacity,  or  to  any  other 
matter  proper  for  public  investigation  or 
information,  where  the  fact  that  such 
publication  was  not  maliciously  or  negli- 
gently made  shall  be  established  to  the 
satisfaction  of  the  jury  ;  and  in  all  in- 
dictments for  libels,  the  jury  shall  have 
the  right  to  determine  the  law  and  the 
facts,  under  the  direction  of  the  court,  as 
in  other  cases.  Art.  1,  §  7.  —  Delaware  : 
The  press  shall  be  free  to  every  citizen 
who  undertakes  to  examine  the  official 
conduct  of  men  acting  in  public  capacity, 
and  any  citizen  may  print  on  any  such 
subject,  being  responsible  for  the  abuse 
of  that  liberty.  In  prosecutions  for  pub- 
lications investigating  the  proceedings  of 
officers,  or  where  the  matter  published  is 
proper  for  public  information,  the  truth 
thereof  may  be  given  in  evidence  ;  and 
in  all  indictments  for  libels,  the  jury  may 
determine  the  facts  and  the  law,  as  in 


other  cases.  Art.  1,  §  6.  —  Maryland: 
That  the  liberty  of  the  press  ought  to  be 
inviolably  preserved  ;  that  every  citizen 
of  the  State  ought  to  be  allowed  to  speak, 
write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse 
of  that  privilege.  Declaration  of  Rights, 
Art.  40.  —  West  Virginia  :  No  law  abridg- 
ing the  freedom  of  speech  or  of  the  press 
shall  be  passed  ;  but  the  legislature  may 
provide  for  the  restraint  and  punishment 
of  the  publishing  and  vending  of  obscene 
books,  papers,  and  pictures,  and  of  libel 
and  defamation  of  character,  and  for  the 
recovery  in  civil  action  by  the  aggrieved 
party  of  suitable  damages  for  such  libel 
or  defamation.  Attempts  to  justify  and 
uphold  an  armed  invasion  of  the  State,  or 
an  organized  insurrection  therein  during 
the  continuance  of  such  invasion  or  in- 
surrection, by  publicly  speaking,  writing, 
or  printing,  or  by  publishing,  or  circulat- 
ing such  writing  or  printing,  may  be  bj 
law  declared  a  misdemeanor,  and  pun- 
ished accordingly.  In  prosecutions  and 
civil  suits  for  libel,  the  truth  may  be 
given  in  evidence  ;  and  if  it  shall  appear 
to  the  jury  that  the  matter  charged  as 
libellous  is  true,  and  was  published  with 
good  motives,  and  for  justifiable  ends,  the 
verdict  shall  be  for  the  defendant.  Art. 
2,  §§  4  and  5. — Kentucky :  That  printing- 
presses  shall  be  free  to  every  person  who 
undertakes  to  examine  the  proceedings  of 
the  General  Assembly,  or  any  branch  of 
the  government,  and  no  law  shall  ever 
be  made  to  restrain  the  right  thereof. 
The  free  communication  of  thoughts  and 
opinions  is  one  of  the  invaluable  rights 
of  man,  and  every  citizen  may  freely 
speak,  write,  and  print  on  any  subject, 
being  responsible  for  the  abuse  of  that 
liberty.  In  all  prosecutions  for  the  publi- 
cation of  pnpers  investigating  the  official 
conduct  of  officers  or  men  in  a  public 
capacity,  or  where  the  matter  published 
is  proper  for  public  information,  the  truth 
thereof  nriy  be  given  in  evidence  ;  and  in 
all  indictments  for  libels,  the  jury  shall 
have  a  right  to  determine  the  law  and 
the  facts,  under  the  direction  of  the 
court,  as  in  other  cases.  Art.  13,  §§  9 
and  10.  —  Tennessee:  Nearly  the  same 
as  Pennsylvania.  Art  1,  §  19.  —  Ohio: 


598 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


petuate  them,  by  declaring  that  they  shall  not  be  abridged,  or 
that  they  shall  remain  inviolate.     They  do  not  assume  to  create 


Every  citizen  may  freely  speak,  write, 
and  publish  his  sentiments  on  all  subjects, 
being  responsible  for  the  abuse  of  the 
right ;  and  no  law  shall  be  passed  to  re- 
strain or  abridge  liberty  of  speech  or  of 
the  press.  In  all  criminal  prosecutions 
for  libel,  the  truth  may  be  given  in  evi- 
dence to  the  jury ;  and  if  it  shall  appear 
to  the  jury  that  the  matter  charged  as  li- 
bellous is  true,  and  was  published  with 
good  motives  and  for  justifiable  ends,  the 
party  shall  be  acquitted.  Art.  1,  §  11. — 
Iowa,  Art.  1,  §  7,  and  Nevada,  Art.  1,  §  9. 
Substantially  same  as  Ohio.  —  Illinois: 
Every  person  may  freely  speak,  write, 
and  publish  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  liberty  ;  and  in 
all  trials  for  libel,  both  civil  and  criminal, 
the  truth,  when  published  with  good  mo- 
tives and  for  justifiable  ends,  shall  be  a 
sufficient  defence.  Art.  2,  §  4.  —  Indiana : 
No  law  shall  be  passed  restraining  the 
free  interchange  of  thought  and  opinion, 
or  restricting  the  right  to  speak,  write,  or 
print  freely  on  any  subject  whatever ,  but 
for  the  abuse  of  that  right  every  person 
shall  be  responsible.  In  all  prosecutions 
for  libel,  the  truth  of  the  matters  alleged 
to  be  libellous  may  be  given  in  justifica- 
tion. Art.  1,  §§  9  and  10.  —  Michtyan :  In 
all  prosecutions  for  libels,  the  truth  may 
be  given  in  evidence  to  the  jury  ;  and  if 
it  shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  pub- 
lished with  good  motives  and  for  justifia- 
ble ends,  the  party  shall  be  acquitted. 
The  jury  shall  have  the  right  to  deter- 
mine the  law  and  the  fact.  Art  6,  §  26.  — 
Wisconsin:  Same  as  New  York.  Art.  1, 
§  8.  —  Minnesota :  The  liberty  of  the  press 
shall  forever  remain  inviolate,  and  all 
persons  may  freely  speak,  write,  and  pub- 
lish their  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  such  right. 
Art.  1,  §3.-  Oregon:  No  law  shall  be 
passed  restraining  the  free  expression  of 
opinion,  or  restricting  the  right  to  speak, 
write,  or  print  freely  on  any  subject  what- 
ever ;  but  every  person  shall  be  responsi- 
ble for  the  abuse  of  this  right.  Art.  1,  §  8. 
—  California :  Same  as  New  York.  Art.  1, 
§  9.  —  Kansas :  The  liberty  of  the  press 
shall  be  inviolate,  and  all  persons  may 
freely  speak,  write,  or  publish  their  senti- 


ments on  all  subjects,  being  responsible 
for  the  abuse  of  such  right ;  and  in  all 
civil  or  criminal  actions  for  libel,  the  truth 
may  be  given  in  evidence  to  the  jury ; 
and  if  it  shall  appear  that  the  alleged  li- 
bellous matter  was  published  for  justifia- 
ble ends,  the  accused  party  shall  be  ac- 
quitted. Bill  of  Rights,  §  11.  —  Missouri  : 
That  no  law  shall  be  passed  impairing  the 
freedom  of  speech ;  that  every  person 
shall  be  free  to  say,  write,  or  publish 
whatever  he  will  on  every  subject,  being 
responsible  for  all  abuse  of  that  liberty  ; 
and  that  in  all  prosecutions  for  libel,  the 
truth  thereof  may  be  given  in  evidence, 
and  the  jury,  under  the  direction  of  the 
court,  shall  determine  the  law  and  the 
fact.  Art.  2,  §  14.  — Nebraska :  Same  as 
Illinois.  Art.  1,  §  5. — Arkansas:  The 
liberty  of  the  press  shall  forever  remain 
inviolate.  The  free  communication  of 
thoughts  and  opinions  is  one  of  the  inval- 
uable rights  of  man,  and  all  persons  may 
freely  speak,  write,  and  publish  their  sen- 
timents on  all  subjects,  being  responsible 
for  the  abuse  of  such  right.  In  all  crim- 
inal prosecutions  for  libel,  the  truth  may 
be  given  in  evidence  to  the  jury ;  and  if 
it  shall  appear  to  the  jury  that  the  matter 
charged  as  libellous  is  true,  and  was  pub- 
lished with  good  motives  and  for  justifia- 
ble ends,  the  party  shall  be  acquitted. 
Art.  1,  §  2.  —  Florida :  Every  person  may 
freely  speak  and  write  his  sentiments  on 
all  subjects,  being  responsible  for  the 
abuse  of  that  right,  and  no  law  shall  be 
passed  to  restrain  or  abridge  the  liberty 
of  speech  or  the  press.  In  all  criminal 
prosecutions  and  civil  actions  for  libel, 
the  truth  may  be  given  in  evidence  to  the 
jury  ;  and  if  it  appear  that  the  matter 
'charged  as  libellous  is  true,  and  was  pub- 
lished with  good  motives,  the  party  shall 
be  acquitted  or  exonerated.  Declaration 
of  Rights,  §  10.  —  Georgia  :  No  law  shall 
ever  be  passed  to  curtail  or  restrain  the 
liberty  of  speech  or  of  the  press  ;  any 
person  may  speak,  write,  and  publish  his 
sentiments  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  liberty.  Art. 
1,  §  1,  par.  15.  —  Louisiana :  No  law  shall 
be  passed  .  .  .  abridging  the  freedom  of 
speech  or  of  the  press.  Bill  of  Rights, 
Art.  4.  —  North  Carolina :  The  freedom  of 


CH.  XII.] 


LIBERTY   OF   SPEECH   AND   OF  THE   PRESS. 


509 


new  rights,  but  their  purpose  is  to  protect  the  citizen  in  the  enjoy- 
ment of  those  already  possessed.  We  are  at  once,  therefore, 
turned  back  from  these  provisions  to  the  pre-existing  law,  in 
order  that  we  may  ascertain  what  the  rights  are  which  are  thus 
protected,  and  what  is  the  extent  of  the  privileges  they  undertake 
to  assure. 

At  the  common  law,  however,  it  will  be  found  that  liberty  of 
the  press  was  neither  well  protected  nor  well  denned.  The  art 
of  printing,  in  the  hands  of  private  persons,  has,  until  within  a 
comparatively  recent  period,  been  regarded  rather  as  an  instru- 
ment of  mischief,  which  required  the  restraining  hand  of  the  gov- 
ernment, than  as  a  power  for  good,  to  be  fostered  and  encouraged. 
Like  a  vicious  beast  it  might  be  made  useful  if  properly  harnessed 
and  restrained.  The  government  assumed  to  itself  the  right  to 
determine  what  might  or  might  not  be  published  ;  and  censors 
were  appointed  without  whose  permission  it  was  criminal  to  pub- 
lish a  book  or  paper  upon  any  subject.  Through  all  the  changes 


the  press  is  one  of  the  great  bulwarks  of 
liberty,  and  therefore  ought  never  to  be 
restrained  ;  but  every  individual  shall  be 
held  responsible  for  the  abuse  of  the  same. 
Declaration  of  Rights,  §  20.  —  South  Caro- 
lina:  All  persons  may  freely  speak,  write, 
and  publish  their  sentiments  on  any  sub- 
ject, being  responsible  for  the  abuse  of 
that  right;  and  no  laws  shall  be  enacted 
to  restrain  or  abridge  the  liberty  of  speech 
or  of  the  press.  In  prosecutions  for  the 
publication  of  papers  investigating  the 
official  conduct  of  officers  or  men  in  pub- 
lic capacit)1,  or  when  the  matter  published 
is  proper  for  public  information,  the  truth 
thereof  may  be  given  in  evidence  ;  and  in 
all  indictments  for  libel  the  jury  shall  be 
judges  of  the  law  and  the  facts.  Art.  1, 
§§  7  and  8.  — Alabama  :  That  any  citizen 
may  speak,  write,  and  publish  his  senti- 
ments on  all  subjects,  being  responsible 
for  the  abuse  of  that  liberty.  That 
in  prosecutions  for  the  publication  of 
papers  investigating  the  official  conduct 
of  officers  or  men  in  public  capacity, 
or  when  the  matter  published  is  proper 
for  public  information,  the  truth  there- 
of may  be  given  in  evidence ;  and  that 
in  all  indictments  for  libels,  the  jury  shall 
have  the  right  to  determine  the  law  and 
the  facts,  under  the  direction  of  the  court. 
Art.  1,  §§  5  and  13.  —  Mississippi:  The 
freedom  of  speech  and  of  the  press  shall 
be  held  sacred  ;  and  in  all  indictments  for 
libel,  the  jury  shall  determine  the  law  and 


the  facts,  under  the  direction  of  the  court. 
Art.  1,  §  4.  —  Texas:  Every  citizen  shall 
be  at  liberty  to  speak,  write,  or  publish 
his  opinions  on  any  subject,  being  respon- 
sible for  the  abuse  of  that  privilege ;  and 
no  law  shall  ever  be  passed  curtailing  the 
liberty  of  speech  or  of  the  press.  In  pros- 
ecutions for  the  publication  of  papers,  in- 
vestigating the  official  conduct  of  officers 
or  men  in  a  public  capacity,  or  when  the 
matter  published  is  proper  for  public  in- 
formation, the  truth  thereof  may  be  given 
in  evidence ;  and  in  all  prosecutions  for 
libels,  the  jury  shall  have  the  right  to  de- 
termine the  law  and  the  facts,  under  the 
direction  of  the  court,  as  in  other  cases. 
Art.  1,  §§  6  and  6.  —  Virginia  :  That  the 
freedom  of  the  press  is  one  of  the  great 
bulwarks  of  liberty,  and  can  never  be  re- 
strained but  by  despotic  governments,  and 
any  citizen  may  speak,  write,  and  publish 
his  sentiments  on  all  subjects,  being  re- 
sponsible for  the  abuse  of  that  liberty. 
Art.  1,  §  14. — Colorado:  That  no  law 
shall  be  passed  impairing  the  freedom  of 
speech  ;  that  every  person  shall  be  free 
to  speak,  write,  or  publish  whatever  he 
will  on  any  subject,  being  responsible  for 
all  abuse  of  that  liberty  ;  and  that  [in] 
all  suits  and  prosecutions  for  libel,  the 
truth  thereof  may  be  given  in  evidence, 
and  the  jury,  under  the  direction  of  the 
court,  shall  determine  the  law  and  the 
fact.  Art.  2,  §  10. 


600  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

of  government,  this  censorship  was  continued  until  after  the 
Revolution  of  1688,  and  there  are  no  instances  in  English  history 
of  more  cruel  and  relentless  persecution  than  for  the  publication 
of  books  which  now  would  pass  unnoticed  by  the  authorities.  To 
a  much  later  time  the  press  was  not  free  to  publish  even  the  cur- 
rent news  of  the  day  where  the  government  could  suppose  itself 
to  be  interested  in  its  suppression.  Many  matters,  the  publica- 
tion of  which  now  seems  important  to  the  just,  discreet,  and  har- 
monious administration  of  free  institutions,  and  to  the  proper 
observation  of  public  officers  by  those  interested  in  the  discharge 
of  their  duties,  were  treated  by  the  public  authorities  as  offences 
against  good  order,  and  contempts  of  their  authority.  By  a  fic- 
tion not  very  far  removed  from  the  truth,  the  Parliament  was 
supposed  to  sit  with  closed  doors.  No  official  publication  of  its 
debates  was  provided  for,  and  no  other  was  allowed.1  The  brief 
sketches  which  found  their  way  into  print  were  usually  disguised 
under  the  garb  of  discussions  in  a  fictitious  parliament,  held  in  a 
foreign  country.  Several  times  the  Parliament  resolved  that  any 
such  publication,  or  any  intermeddling  by  letter-writers,  was  a 
breach  of  their  privileges,  and  should  be  punished  accordingly  on 
discovery  of  the  offenders.  For  such  a  publication  in  1747  the 
editor  of  the  "  Gentleman's  Magazine  "  was  brought  to  the  bar  of 
the  House  of  Commons  for  reprimand,  and  only  discharged  on 
expressing  his  contrition.  The  general  publication  of  parliamen- 
tary debates  dates  only  from  the  American  Revolution,  and  even 
then  was  still  considered  a  technical  breach  of  privilege.2 

The  American  Colonies  followed  the  practice  of  the  parent 
country.3     Even  the  laws  were  not  at  first  published  for  general 

1  In   1641,    Sir  Edward   Deering  was  to  be  privileged ;  and  comments  on  pub- 
expelled  and  imprisoned  for  publishing  a  lie  legislative  proceedings  are  not  action- 
collection  of  his  own  speeches,  and  the  able,  so  long  as  a  jury  shall  think  them 
book  was  ordered  to  be  burned  by  the  honest  and  made  in  a  fair  spirit,  and  such 
common    hangman.      See   May's    Const,  as    are  justified    by    the   circumstances. 
Hist.  c.  7.  Wason  v.  Walter,  Law  Rep.  4  Q.  B.  73. 

2  See    May's    Constitutional    History,        8  The  General  Court  of  Massachusetts 
c.  7,  9,  and  10,  for  a  complete  account  of  "  appointed  two  persons,  in  October,  1662, 
the  struggle  between  the  government  and  licensers  of  the  press,  and  prohibited  the 
the  press,  resulting  at  last  in  the  complete  publishing   any   books   or   papers  which 
enfranchisement  and    protection  of    the  snould  not  be  supervised  by  them  ;  and  in 
latter  in  the  publication  of  all  matters  of  1668  the  supervisors  having  allowed  of 
public  interest,  and  in  the  discussion  of  the  printing  '  Thomas  a  Kempis  de  Imi- 
public  affairs.     Freedom    to   report  pro-  tatione  Christ!,'  the  court  interposed,  '  it 
feedings  and  debates  was  due  at  last  to  being   wrote  by  a  popish  minister,  and 
Wilkes,  who,  worthless  as  he  was,  proved  containing  some  things  less  safe  to  be  in- 
a  great  public  benefactor  in  his  obstinate  fused  among  the  people,'  and  therefore 
defence  of  liberty  of  the  press  and  secu-  they  commended  to  the  licensers  a  more 
rity  from  arbitrary  search  and  arrest.     A  full  revisal,  and  ordered  the  press  to  stop 
fair  publication  of  a  debate  is  now  held  in  the  mean  time."    1  Hutchinson's  Mass 


CH.  XII.]  LIBERTY  OF  SPEECH   AND   OF   THE   PRESS.  601 

circulation,  and  it  seemed  to  be  thought  desirable  by  the  magis- 
trates to  keep  the  people  in  ignorance  of  the  precise  boundary  be- 
tween that  which  was  lawful  and  that  which  was  prohibited,  as 
more  likely  to  make  them  avoid  all  doubtful  actions.  The 
magistrates  of  Massachusetts,  when  compelled  by  public  opinion 
to  suffer  the  publication  of  general  laws  in  1649,  permitted  it 
under  protest,  as  a  hazardous  experiment.  For  publishing  the 
laws  of  one  session  in  Virginia,  in  1682,  the  printer  was  arrested 
and  put  under  bonds  until  the  king's  pleasure  could  be  known, 
and  the  king's  pleasure  was  declared  that  no  printing  should  be 
allowed  in  the  Colony.1  There  were  not  wanting  instances  of 
the  public  burning  of  books,  as  offenders  against  good  order. 
Such  was  the  fate  of  Elliot's  book  in  defence  of  unmixed  princi- 
ples of  popular  freedom,2  and  Calef's  book  against  Cotton  Mather, 
which  was  given  to  the  flames  at  Cambridge.3  A  single  print- 
ing-press was  introduced  into  the  Colony  so  early  as  1639  ;4  but 
the  publication  even  of  State  documents  did  not  become  free 
until  1719,  when,  after  a  quarrel  between  Governor  Shute  and  the 
House,  he  directed  that  body  not  to  print  one  of  their  remon- 
strances, and,  on  their  disobeying,  sought  in  vain  to  procure  the 
punishment  of  their  printer.6  When  Dongan  was  sent  out  as  Gov- 
ernor of  New  York  in  1683,  he  was  expressly  instructed  to  suffer 
no  printing,6  and  that  Colony  obtained  its  first  press  in  1692, 
through  a  Philadelphia  printer  being  driven  thence  for  publishing 
an  address  from  a  Quaker,  in  which  he  accused  his  brethren  in 
office  of  being  inconsistent  with  their  principles  in  exercising 
political  authority.7  So  late  as  1671,  Governor  Berkeley  of  Vir- 
ginia expressed  his  thankfulness  that  neither  free  schools  nor 
printing  were  introduced  in  the  Colony,  and  his  trust  that  these 
breeders  of  disobedience,  heresy,  and  sects,  would  long  be  un- 
known.8 

The  public  bodies  of  the  united  nation  did  not  at  once  invite 
publicity  to  their  deliberations.  The  Constitutional  Convention 
of  1787  sat  with  closed  doors,  and  although  imperfect  reports 

257,  2d  ed.     See  1  Tyler,  Hist,  of  Am.  and   an   almanac   printed   until  1640.     1 

Literature,  112,  113.     A  license  is  given  Thomas,  Hist,   of  Printing,   149;   Mass. 

in  Mass.  Hist.  Col.  3d  Ser.  vol.  7,  p.  171.  Hist.  Col.  4th  Ser.  vol.  6,  pp.  99,   370. 

1  1   Hildreth,   History   of   the   United  There  is  a  "  Narrative  of  Newspapers  in 
States,  561.  New  England  ;1  in  Mass.  Hist.  Col.  1st  Ser. 

2  1   Hutchinson's   Mass.  (2d  ed.)  211  ;  vol.  5,  p.  208. 

2  Bancroft,  73  ;  1  Hildreth,  452;  2  Pal-        5  2  Hildreth,  298. 
frey's  New  England,  511,  612.  s  2  Hildreth,  77. 

3  1  Bancroft,  97 ;  2  Hildreth,  166.  ?  2  Hildreth,  171. 

*  The  press  was  actually  brought  over  8  1  Hildreth,  526 ;  2  Hen.  Stat.  517 ; 
in  1638,  hut  not  set  up  until  the  following  1  Tyler,  Hist,  of  Am.  Literature,  89 ; 
year,  and  nothing  but  the  Freeman's  Oath  Wise's  Seven  Decades  of  the  Union,  310. 


602  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

of  the  debates  have  since  been  published,  the  injunction  of 
secrecy  upon  its  members  was  never  removed.  The  Senate  for  a 
time  followed  this  example,  and  the  first  open  debate  was  had  in 
1793,  on  the  occasion  of  the  controversy  over  the  right  of  Mr. 
Gallatin  to  a  seat  in  that  body.1  The  House  of  Representatives 
sat  with  open  doors  from  the  first,  tolerating  the  presence  of  re- 
porters,—  over  whose  admission,  however,  the  Speaker  assumed 
control, —  and  refusing  in  1796  the  pittance  of  two  thousand  dol- 
lars for  full  publication  of  debates. 

It  must  be  evident  from  these  historical  facts  that  liberty  of 
the  press,  as  now  understood  and  enjoyed,  is  of  very  recent 
origin ; 2  and  commentators  seem  to  be  agreed  in  the  opinion  that 
the  term  itself  means  only  that  liberty  of  publication  without  the 
previous  permission  of  the  government,  which  was  obtained  by 
the  abolition  of  the  censorship.  In  a  strict  sense,  Mr.  Hallam 
says,  it  consists  merely  in  exemption  from  a  licenser.3  A  similar 
view  is  expressed  by  De  Lolme.  "  Liberty  of  the  press,"  he  says, 
"  consists  in  this :  that  neither  courts  of  justice,  nor  any  other 
judges  whatever,  are  authorized  to  take  notice  of  writings  in- 
tended for  the  press,  but  are  confined  to  those  which  are  actually 
printed."  4  Blackstone  also  adopts  the  same  opinion,5  and  it  has 
been  followed  by  American  commentators  of  standard  authority 
as  embodying  correctly  the  idea  incorporated  in  the  constitu- 
tional law  of  the  country  by  the  provisions  in  the  American  Bills 
of  Rights.6 

It  is  conceded  on  all  sides  that  the  common-law  rules  that  sub- 
jected the  libeller  to  responsibility  for  the  private  injury,  or  the 
public  scandal  or  disorder  occasioned  by  his  conduct,  are  not 
abolished  by  the  protection  extended  to  the  press  in  our  constitu- 
tions. The  words  of  Ch.  J.  Parker  of  Massachusetts  on  this  sub- 
ject have  been'  frequently  quoted,  generally  recognized  as  sound 
in  principle,  and  accepted  as  authority.  "  Nor  does  our  constitu- 

1  "  This  broke  the  spell  of  delibera-  in  1766,  on  the  motion  of  Otis.     Tudor's 

tions  in  secret  conclave ;  and  a  few  days  Life  of  Otis,  252. 

afterwards,  on  the  20th  of  the  same  «  It  is  mentioned  neither  in  the  Eng- 
month,  a  general  resolution  was  adopted  lish  Petition  of  Rights  nor  in  the  Bill  ot 
by  the  Senate,  that,  after  the  end  of  the  Rights ;  of  so  little  importance  did  it 
present  annual  session,  its  proceedings  in  seem  to  those  who  were  seeking  to  re- 
its  legislative  capacity  should  be  with  dress  grievances  in  those  days, 
open  doors,  unless  in  special  cases  which,  a  Hallam's  Const.  Hist,  of  England, 
in  the  judgment  of  the  body,  should  re-  c.  15. 

quire    secrecy."      Life  of   Madison,  by  *  De  Lolme,  Const,  of  England,  254. 

Rives,  Vol.  III.  p.  371.  6  4  B1   Com   ]51 

The  first  legislative  body  in  America  6  Story  on   Const.  §  1880 ;  2  Kent,  17 

to  throw  open  its  debates  to  the  public  et  seq.  ;  Rawle  on  Const,  c.  10. 
was  the  General  Court  of  Massachusetts, 


OH.  XII.]  LIBERTY  OF   SPEECH  AND   OF   THE   PRESS.  603 

tion  or  declaration  of  rights,"  he  says,  speaking  of  his  own  State, 
"  abrogate  the  common  law  in  this  respect,  as  some  have  insisted. 
The  sixteenth  article  declares  that '  liberty  of  the  press  is  essen- 
tial to  the  security  of  freedom  in  a  State ;  it  ought  not  therefore 
to  be  restrained  in  this  Commonwealth.'  The  liberty  of  the  press, 
not  its  licentiousness :  this  is  the  construction  which  a  just  re- 
,  gard  to  the  other  parts  of  that  instrument,  and  to  the  wisdom  of 
.  those  who  founded  it,  requires.  In  the  eleventh  article  it  is  de- 
clared that '  every  subject  of  the  Commonwealth  ought  to  find  a 
certain  remedy,  by  having  recourse  to  the  laws,  for  all  injuries  or 
wrongs  which  he  may  receive  in  his  person,  property,  or  charac- 
ter ; '  and  thus  the  general  declaration  in  the  sixteenth  article  is 
qualified.  Besides,  it  is  well  understood  and  received  as  a  com- 
mentary on  this  provision  for  the  liberty  of  the  press,  that  it  was 
intended  to  prevent  all  such  previous  restraints  upon  publications 
and  has  been  practised  by  other  governments,  and  in  early  times 
here,  to  stifle  the  efforts  of  patriots  towards  enlightening  their 
fellow-subjects  upon  their  rights  and  the  duties  of  rulers.  The 
liberty  of  the  press  was  to  be  unrestrained,  but  he  who  used  it  was 
to  be  responsible  in  case  of  its  abuse  ;  like  the  right  to  keep  fire- 
arms, which  does  not  protect  him  who  uses  them  for  annoyance 
or  destruction.",1 

But  while  we  concede  that  liberty  of  speech  and  of  the  press 
does  not  imply  complete  exemption  from  responsibility  for  every 
thing  a  citizen  may  say  or  publish,  and  complete  immunity  to  ruin 
the  reputation  or  business  of  others  so  far  as  falsehood  and  de- 
traction may  be  able  to  accomplish  that  end,  it  is  nevertheless 
believed  that  the  mere  exemption  from  previous  restraints  can- 
not be  all  that  is  secured  by  the  constitutional  provisions,  inas- 
much as  of  words  to  be  uttered  orally  there  can  be  no  previous 

1  Commonwealth  v.  Blanding,  3  Pick,  prohibiting  any  public  speech  or  address 
304,  313.  See  charge  of  Chief  Justice  on  Boston  Common.  Com.  v.  Davis,  162 
McKean,  5  Hildreth  (Pa.),  166;  Whar-  Mass.  510,  39  N.  E.  113,  26  L.  R.  A.  712, 
ton's  State  Trials,  323;  State  v.  Lehre,  44  Am.  St.  389;  aff.  167  U.  S.  173,  17 
2  Rep.  Const.  Court,  809;  Respublica  v.  Sup.  Ct.  Rep.  731.  Nor  a  statute  against 
Dennie,  4  Yeates,  267,  2  Am.  Dec.  402 ;  wrongful  and  wilful  acts  seriously  en- 
Jones  v.  Townsend,  21  Fla.  431.  £An  dangering  the  public  peace,  and  making 
enactment  that  "  every  person  who  sliall  such  misdemeanors,  and  punishable  as 
sell,  offer  to  sell,  give,  or  lend  any  book,  such.  So  held  in  People  v.  Most,  171 
magazine,  pamphlet,  or  paper  devoted  N.  Y.  423,  64  N.  E.  175.  In  which  case 
wholly  or  principally  to  the  publication  Most  was  convicted  of  publishing  an 
of  criminal  news,  or  pictures  and  stories  article  advocating  wholesale  murder  of 
of  deeds  of  bloodshed,  lust,  or  crime,  shall  government  officials.  An  order  to  State 
be  fined,"  does  not  infringe  the  liberty  of  officers  not  to  engage  in  politics,  and  not 
speech  or  of  the  press.  State  v.  McKee,  to  make  public  speeches,  is  void.  Lonthan 
73  Conn.  18,  46  Atl.  409,  49  L.  R.  A.  542,  v.  Com.,  79  Va.  196.] 
84  Am.  St.  124.  Nor  does  an  ordinance 


604  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

censorship,  and  the  liberty  of  the  press  might  be  rendered  a 
mockery  and  a  delusion,  and  the  phrase  itself  a  byword,  if,  while 
every  man  was  at  liberty  to  publish  what  he  pleased,  the  public 
authorities  might  nevertheless  punish  him  for  harmless  pub- 
lications. 

An  examination  of  the  controversies  which  have  grown  out  of 
the  repressive  measures  resorted  to  for  the  purpose  of  restraining 
the  free  expression  of  opinion  will  -sufficiently  indicate  the  pur- 
pose of  the  guaranties  which  have  since  been  secured  against 
such  restraints  in  the  future.  Except  so  far  as  those  guaranties 
relate  to  the  mode  of  trial,  and  are  designed  to  secure  to  every 
accused  person  the  right  to  be  judged  by  the  opinion  of  a  jury 
upon  the  criminality  of  his  act,  their  purpose  has  evidently  been 
to  protect  parties  in  the  free  publication  of  matters  of  public  con- 
cern, to  secure  their  right  to  a  free  discussion  of  public  events 
and  public  measures,  and  to  enable  every  citizen  at  any  time  to 
bring  the  government  and  any  person  in  authority  to  the  bar  of 
public  opinion  by  any  just  criticism  upon  their  conduct  in  the 
exercise  of  the  authority  which  the  people  have  conferred  upon 
them.  To  guard  against  repressive  measures  by  the  several  de- 
partments of  the  government,  by  means  of  which  persons  in  power 
might  secure  themselves  and  their  favorites  from  just  scrutiny 
and  condemnation,  was  the  general  purpose ;  and  there  was  no 
design  or  desire  to  modify  the  rules  of  the  common  law  which 
protected  private  character  from  detraction  and  abuse,  except  so 
far  as  seemed  necessary  to  secure  to  accused  parties  a  fair  trial. 
The  evils  to  be  prevented  were  not  the  censorship  of  the  press 
merely,  but  any  action  of  the  government  by  means  of  which  it 
might  prevent  such  free  and  general  discussion  of  public  matters 
as  seems  absolutely  essential  to  prepare  the  people  for  an  intelli- 
gent exercise  of  their  rights  as  citizens. 

The  constitutional  liberty  of  speech «.nd  of  the  press,  as  we  un- 
derstand it,  implies  a  right  to  freely  utter  and  publish  whatever 
the  citizen  may  please,  and  to  be  protected  against  any  responsi- 
bility for  so  doing,  except  so  far  as  such  publications,  from  their 
blasphemy,  obscenity,  or  scandalous  character,  may  be  a  public 
offence,  or  as  by  their  falsehood  and  malice  they  may  injuriously 
affect  the  standing,  reputation,  or  pecuniary  interests  of  individ- 
uals, (a)  Or,  to  state  the  same  tiling  in  somewhat  different  words, 

(a)  [^Statute  may  make  it  a  crime  to  send  an  offensive  dun  or  a  letter  threaten- 
ing to  publish  the  debtor  as  a  "  dead  beat."  State  v.  MeCabe,  135  Mo.  450,  37  S.  W. 
123,  34  L.  R.  A.  127,  08  Am.  St.  589.  Upon  constitutional  freedom  of  speech  and  of 
press,  see  note  in  32  L.  R.  A.  829.  In  Wallace  v.  Georgia  C.  &  N.  Ry.  Co.,  94  Ga. 
732,  22  S.  E.  579,  it  was  held  that  this  constitutional  provision  not  only  secured  the 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE    PRESS.  605 

we  understand  liberty  of  speech  and  of  the  press  to  imply  not 
only  liberty  to  publish,  but  complete  immunity  from  legal  censure 
and  punishment  for  the  publication,  so  long  as  it  is  not  harmful 
in  its  character,  when  tested  by  such  standards  as  the  law  affords. 
For  these  standards  we  must  look  to  the  common-law  rules  which 
were  in  force  when  the  constitutional  guaranties  were  established, 
and  in  reference  to  which  they  have  been  adopted. 

At  the  common  law  an  action  would  lie  against  any  person 
publishing  a  false  and  malicious  communication  tending  to  dis- 
grace or  injure  another.  Falsehood,  malice,  and  injury  were  the 
elements  of  the  action ;  but  as  the  law  presumed  innocence  of 
crime  or  misconduct  until  the  contrary  was  proved,  the  falsity  of 
an  injurious  publication  was  presumed  until  its  truth  was  averred 
and  substantiated  by  the  defendant ;  and  if  false,  malice  in  the 
publication  was  also  presumed  unless  the  publication  was  privi- 
leged under  rules  to  be  hereafter  stated.  There  were  many  cases, 
also,  where  the  law  presumed  injury,  and  did  not  call  upon  the 
complaining  party  to  make  any  other  showing  that  he  was  damni- 
fied than  such  implication  as  arose  from  the  character  of  the  com- 
munication itself.  One  of  these  was  where  the  words  imputed  a 
crime  involving  moral  turpitude,  and  subjecting  the  guilty  party  to 
an  infamous  punishment;1  and  it  was  not  important  that  the 

i  Brooker  v.  Coffin,  5  Johns.  188,  4  Co.,  55  Mich.  224,21  N.  W.324;  Boogher 
Am.  Dec.  337  ;  Alexander  v.  Alexander,  v.  Knapp,  76  Mo.  457.  Words  imputing 
9  Wend.  141;  Young  v.  Miller,  3  Hill,  21 ;  a  non-indictable  offence  are  thus  action- 
Davis  v.  Brown,  27  Ohio  St.  326 ;  Todd  able.  Webb  v.  Beavan.L.  R.  11  Q.  B.  D. 
v.  Rough,  10  S.  &  R.  18;  Beck  v.  Stitzel,  609.  A  simple  charge  of  drunkenness  is 
21  Pa.  St.  522;  Stitzell  v.  Reynolds,  67  not,  though  an  ordinance  punishes  public 
Pa.  St.  54 ;  Klumph  v.  Dunn,  66  Pa.  St.  indecent  intoxication.  Seery  v.  Viall,  16 
141 ;  Shipp  v.  McGraw,  3  Murph.  463,  R.  I.  517,  17  All.  552.  See  Melvin  v. 
9  Am.  Dec.  611;  Hoag  v.  Hatch,  23  Weiant,  36  Ohio  St.  184;  Pollock  v. 
Conn.  585 ;  Billings  v.  Wing,  7  Vt.  439 ;  Hastings,  88  Ind.  248 ;  Sterling  v.  Jugen- 
Harrington  v.  Miles,  11  Kan.  480,  15  Am.  heimer,  69  Iowa,  210,  28  N.  W.  559;  Chris- 
Rep.  355 ;  Montgomery  v.  Deeley,  3  Wis.  tal  v.  Craig,  80  Mo.  367,  for  other  illustra- 
709 ;  Filber  v.  Dauhterman,  26  Wis.  518  ;  tions  of  charges  not  actionable  per  se.  If, 
Perdue  v.  Burnett,  Minor,  138 ;  M'Cuen  however,  the  words,  though  seeming  to 
v.  Ludlum,  17  N.  J.  12  ;  Gage  v.  Shelton,  charge  a  crime,  are  equivocal,  and  may 
3  Rich.  242 ;  Pollard  v.  Lyon,  91  U.  S.  be  understood  in  an  innocent  sense,  they 
225  ;  Wagaman  v.  Byers,  17  Md.  183 ;  will  not  be  actionable  without  the  proper 
Castleberry  v.  Kelly,  26  Ga.  606 ;  Burton  averment  to  show  the  sense  in  which 
v.  Burton,  3  Greene  (Iowa),  316;  Sim-  they  were  used;  as,  for  instance,  where 
mons  ?-.  Holster,  13  Minn.  219;  Seller  v.  one  is  charged  with  having  sworn  falsely; 
Jenkins,  97  Ind.  430;  Campbell  v.  Camp-  which  may  or  may  not  be  a  crime.  Gil- 
bell,  54  Wis.  90,  UN.  W.456;  Lemons  v.  man  v.  Lowell,  8  Wend.  573;  Sheely  ». 
Wells,  78  Ky.  117;  Brooks  v.  Harison,  91  Biggs,  2  Har.  &  J.  363,  3  Am.  Dec.  552; 
N.  Y.  83 ;  Bacon  v.  Mich.  Centr.  R.  R.  Brown  v.  Hanson,  53  Ga.  632 ;  Crone  v. 

liberty  to  speak,  but  by  implication  the  liberty  to  refrain  from  speaking,  and  applied 
the  principle  to  a  statute  requiring  employers  to  assign  the  reason  for  discharging 
an  employee,  holding  such  statute  invalid.^ 


606 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


charge  imported  a  crime  already  punished,  or  for  which  a  prosecu- 
tion was  barred  by  limitation  of  time.1  Another  was  where  one 
was  charged  with  contagious  disease ;  the  effect  of  the  charge,  if 
believed,  being  to  exclude  him  from  the  society  of  his  fellows.2  An- 
other was  where  the  charge  affected  the  party  in  his  business, 
office,  or  means  of  livelihood,  as  where  it  was  said  of  a  postmaster 
that  he  would  rob  the  mail ; 3  or  of  a  trader,  to  whom  credit  is  im- 
portant, that  he  is  insolvent ;  *  and  the  like.  Still  another  was 
where  any  injurious  charge  holding  a  party  up  to  public  contempt, 
scorn,  or  ridicule  was  propagated  by  printing,  writing,  signs,  bur- 
lesques, £c.5  And  although  it  was  formerly  held  that  to  charge  a 


Angell,  14   Mich.  340 ;  Bricker  v.  Potts, 

12  Pa.   St.  200;  Casselman  v.  Winship, 
3  Dak.  292,  19  N.  W.  412.   It  is  not  neces- 
sary, however,  that  technical  words  be 
employed ;    if    the  necessaiy   inference, 
taking  the  words  together,  is  a  charge  of 
crime,  it  is  sufficient.      Morgan   v.   Liv- 
ingston, 2  Rich.  573 ;  True  v.  Plumley, 
36  Me.  466 ;   Curtis  v.  Curtis,   10  Bing. 
477 ;  Stroebel  v.  Whitney,  31  Minn.  384, 
18  N.  W.  98 ;  Campbell  v.  Campbell,  54 
Wis.  90,  11  N.  W.  456  ;   Rea  v.  Harring- 
ton,  58   Vt.   181,  2   All.  475.     Compare 
Pollock  v.  Hastings,  88  Ind.  248  ;  Fawsett 
v.  Clark,  48  Md.  494.     But  to  say  of  one 
"  He  has  stolen  my  land "  is  not  action- 
able per  se,  land  not  being  the  subject  of 
larceny.     Cgden  v.  Riley,  14  N.  J.  186 ; 
Underbill  v.  Welton,  32  VL  40 ;  Ayers  v. 
Grider,  15  111.  37 ;  Edgerly  r.  Swain,  32 
N.  H.  478 ;  Trabue  v.  Mays,  3  Dana,  138  ; 
Perry  v.  Man,  1    11.  I.  263;    Wright  v. 
Lindsay,  20  Ala.  428 ;  Cock  v.  Weatherby, 

13  Miss.  333.     See,  as  to  charge  of  steal- 
ing fixtures,  Trimble  v.  Foster,  87  Mo.  49. 

1  Carpenter  v.  Tarrant,  Cas.  temp. 
Hardw.  339;  Smith  v.  Stewart,  5  Pa.  St. 
372  ;  Holley  v.  Burgess,  9  Ala.  728 ;  Van 
Ankin  v.  Westfall,  14  Johns.  233;  Krebs 
v.  Oliver,  12  Gray,  239  ;  Baum  v.  Clause, 
6  Hill,  196 ;  Utley  v.  Campbell,  5  T.  B. 
Monr.  396  ;  Indianapolis  Sun  v.  Horrell, 
63  Ind.  527  ;  Boogher  v.  Knapp,  8  Mo. 
App.  591  ;  Leyman  v.  Latimer,  L.  R.  3 
Ex.  D.  352. 

a  Taylor  v.  Hall,  2  Stra.  1389;  Carls- 
lake  v.  Mapledoram,  2  T.  R.  473  ;  Watson 
v.  McCarthy,  2  Kelly,  67 ;  Nichols  v.  Guy, 
2  Ind.  82 ;  Irons  v.  Field,  9  R.  I.  216 ; 
Kaucher  v.  Blinn,  29  Ohio,  N.  s.  62. 

8  Craig  v.  Brown,  6  Blackf.  44.  For 
other  illustrations  the  following  cases 


may  be  referred  to  :  Gottbehuet  v. 
Hubachek,  86  Wis.  515  ;  Robbins  v.  Tread- 
way,  2  J.  J.  Marsh.  540 ;  Hook  v.  Hack- 
ney, 16  S.  &  R.  385  ;  Harris  v.  Terry,  98 
N.  C.  131,  3  S.  E.  745 ;  De  Pew  v.  Robin- 
son, 95  Ind.  109 ;  Pratt  v.  Pioneer  Press 
Co.,  35  Minn.  251,  28  N.  W.  708 ;  Ludwig 
p.  Cramer,  53  Wis.  193,  10  N.  W.  81 ; 
Franklin  v.  Browne,  67  Ga.  272;  Hart- 
ford v.  State,  96  Ind.  461.  See  also 
Steketee  v.  Kimm,  48  Mich.  322, 12  N.  W. 
177 ;  Singer  v.  Bender,  64  Wis.  169,  24 
N.  W.  903 ;  Dooling  v.  Budget  Pub.  Co., 
144  Mass.  258,  10  N.  E.  809. 

*  Brown  v.  Smith,  13  C.  B.  596;  Lind- 
sey  v.  Smith,  7  Johns.  359 ;  Mott  v.  Corn- 
stock,  7  Cow.  654 ;  Lewis  v.  Hawley,  2 
Day,  495;  Nelson  v.  Borchenius,  52  111. 
236  ;  Orr  v.  Skofield,  56  Me.  183 ;  Weiss 
v.  Whittemore,  28  Mich.  366 ;  Newell  v. 
How,  31  Minn.  235,  17  N.  W.  383 ;  Wil- 
liams v.  Smith,  L.  R.  22  Q.  B.  D.  134. 
QThat  blacklisting  is  sometimes  libel, 
even  when  party  blacklisted  is  in  debt,  see 
Weston  v.  Barnicoat,  175  Mass.  454,  66 
N.  E.  619,  49  L.  R.  A.  612 ;  upon  black- 
listing as  libel,  see  note  to  this  case  in 
L.  R.  A.] 

6  Janson  v.  Stuart,  1  T.  R.  748 ;  Van 
Ness  v.  Hamilton,  19  Johns.  349 ;  Clegg 
v.  Laffer,  10  Bing.  250;  Steele  v.  South- 
wick,  9  Johns.  214 ;  Pollard  v.  Lyon,  91 
U.  S.  225 ;  Massuere  v.  Dickens,  70  Wis. 
83,  35  N.  W.  349;  State  v.  Smily,  37 
Ohio  St.  30 ;  Stewart  v.  Swift  Spec.  Co., 
76  Ga.  280 ;  Johnson  v.  Com.,  —  Pa.  St. 
— ,  14  Atl.  425 ;  Bettner  v.  Holt,  70  Cal. 
270,  11  Pac.  713;  Smith  v.  Smith,  73 
Mich.  445,  41  N.  W.  499.  For  illustra- 
tions of  charges  held  not  within  this  rule, 
see  Trimble  v.  Anderson,  79  Ala.  514 ; 
Allen  v.  Cape  Fear,  &c.  Ry.  Co.,  100  N.  C. 


CH.  XII.]  LIBERTY   OF   SPEECH  AND  OF   THE   PKESS. 


607 


female  verbally  with  want  of  chastity  was  not  actionable  without 
proof  of  special  damage,1  yet  of  late  a  disposition  has  been  exhibited 
to  break  away  from  this  rule  in  favor  of  one  more  just  and  sen- 
sible,2 and  the  statutes  of  several  of  the  States  have  either  made 
adultery  and  incontinence  punishable  as  crimes,  whereby  to  charge 
them  becomes  actionable  per  se  under  the  common-law  rule,  or 
else  in  express  terms  have  declared  such  a  charge  actionable 
without  proof  of  special  damage.3 

But  in  any  other  case  a  party  complaining  of  a  false,  malicious, 
and  disparaging  communication  might  maintain  an  action  there- 
for, on  averment  and  proof  of  special  damage ; 4  though  the  truth 


397,  6  S.  E.  105,  and  cases  in  Cooley  on 
Torts,  242,  note  4. 

1  Gascoign  v.  Ambler,  2  Ld.  Raym. 
1004;  Graves  v.  Blanchet,  2  Salk.  696; 
Wilby  v.  Elston,  8  C.    B.  142 ;    Buys  v. 
Gillespie,  2  Johns.  115,3  Am.  Dec.  404; 
Brooker  v.  Coffin,  6  Johns.  188,  4  Am. 
Dec.  337;   Bradt  v.  Towsley,  13  Wend. 
253 ;  Dyer  v.  Morris,  4  Mo.  214  ;   Stan- 
field  v.  Boyer,  6  H.  &  J.  248 ;  Woodbury 
v.   Thompson,   3   N.    H.    194;    Berry  v. 
Carter,  4  Stew.  &  Port.  387,  '24  Am.  Dec. 
762;  Elliot  v.  Ailsbury,  2  Bibb,  473,  5 
Am.  Dec.  631 ;  Linney  v.  Maton,  13  Tex. 
449;    Underbill  v.  Welton,   32   Vt.   40; 
Castleberry  v.  Kelly,  26  Ga.  606. 

2  See   the  cases  of  Sexton   v.  Todd, 
Wright,  317 ;  Wilson  v.  Runyan,  Wright, 
651 ;   Malone  v.  Stewart,  15  Ohio,   319 ; 
Barnett  v.  Ward,   36   Ohio  St.  107,   38 
Am.  Rep.  561 ;    Klewin  v.  Bauman,  53 
Wis.  244;  Moberly  v.  Preston,  8  Mo.  462; 
Sid  greaves  v.  Myatt,  22  Ala.  617  ;  Terry 
v.  Bright,  4  Md.  430 ;  Spencer  v.  Me  Mas- 
ters, 16  111.  105. 

8  See  Frisbie  v.  Fowler,  2  Conn.  707  ; 
Page  v.  Merwin,  64  Conn.  426,  8  Atl. 
675 ;  Miller  v.  Parish,  8  Pick.  384 ;  Rob- 
bins  v.  Fletcher,  101  Mass.  115;  Pledger 
v.  Hathcock,  1  Ga.  550;  Smally  v.  An- 
derson, 2  T.  B.  Monr.  56,  15  Am.  Dec. 
121 ;  Williams  v.  Bryant,  4  Ala.  44 ; 
Dailey  v.  Reynolds,  4  Greene  (Iowa), 
354;  Symonds  v.  Carter,  32  N.  H.  458; 
Me  Bray  er  v.  Hill,  4  Ired.  136;  Morris  v. 
Barkley,  1  Lit.  64 ;  Phillips  v.  Wiley,  2 
Lit.  153;  Watts  v.  Greenlee,  2  Dev.  115; 
Drummond  v.  Leslie,  5  Blackf.  453 ; 
Worth  v.  Butler,  7  Blackf.  251 ;  Richard- 
son v.  Roberts,  23  Ga.  215 ;  Burford  v. 
Wible,  32  Pa.  St.  95 ;  Freeman  v.  Price, 
2  Bailey,  115 ;  Regnier  v.  Cabot,  7  111.  34 ; 


Ranger  v.  Goodrich,  17  Wis.  78;  Adams 
v.  Rankin,  1  Duvall,  58;  Downing  v.  Wil- 
son, 36  Ala.  717  ;  Cox  v.  Bunker,  Morris, 
269 ;  Smith  v.  Silence,  4  Iowa,  321 ;  Tru- 
man v.  Taylor,  4  Iowa,  424;  Beardsley 
v.  Bridgeman,  17  Iowa,  290;  Patterson  v. 
Wilkinson,  55  Me.  42  ;  Mayer  v.  Schleich- 
ter,  29  Wis.  646  ;  Kelly  v.  Flaherty,  16 
R.  I.  234,  14  Atl.  876  ;  Reitan  v.  Goebel, 
33  Minn.  151,  22  N.  W.  291  ;  Barnett  v. 
Ward,  36  Ohio  St.  107  ;  Kedrolivansky  r. 
Niebaum,  70  Cal.  216,  11  Pac.  641.  The 
injustice  of  the  common-law  rule  is  made 
prominent  in  those  cases  where  it  has 
been  held  that  an  allegation  that,  in  con- 
sequence of  the  charge,  the  plaintiff  had 
fallen  into  disgrace,  contempt,  and  in- 
famy, and  lost  her  credit,  reputation,  and 
peace  of  mind  (Woodbury  v.  Thompson, 
3  N.  H.  194),  and  that  she  is  shunned  by 
her  neighbors  (Beach  v.  Ranney,  2  Hill, 
310),  was  not  a  sufficient  allegation  of 
special  damage  to  support  the  action.  In 
the  following  States,  and  perhaps  some 
others,  to  impute  unchastity  to  a  female 
is  actionable  per  se  by  statute  :  Alabama, 
Illinois,  Indiana,  Kentucky,  Maryland, 
Michigan,  Missouri,  New  York,  North 
Carolina,  and  South  Carolina. 

4  Kelley  v.  Partington,  3  Nev.  &  M. 
117  ;  Steele  v.  South  wick,  9  Johns.  214  ; 
Hallock  v.  Miller,  2  Barb.  630 ;  Powers 
v.  Dubois,  17  Wend.  63;  Weed  v.  Foster, 
11  Barb.  203;  Cooper  r.  Greeley,  1  Denio, 
347;  Stone  v.  Cooper,  2  Denio,  293;  Wil- 
son v.  Cottman,  65  Md.  190,  3  Atl.  890. 
The  damage,  however,  must  be  of  a 
pecuniary  character.  Beach  v.  Ranney, 
2  Hill,  309.  But  very  slight  damage  has 
been  held  sufficient  to  support  consider- 
able recoveries.  Williams  v.  Hill,  19 
Wend.  305 ;  Bradt  v.  Towsley,  13  Wend. 


608 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


of  the  charge,  if  pleaded  and  established,  was  generally  a  complete 
defence.1 

In  those  cases  in  which  the  injurious  charge  was  propagated  bj 
printing,  writing,  signs,  burlesques,  &c.,  there  might  also  be  a 
criminal  prosecution,  as  well  as  a  suit  for  private  damages.  The 
criminal  prosecution  was  based  upon  the  idea  that  the  tendency 
of  such  publications  was  to  excite  to  a  breach  of  the  public 
peace;2  and  it  might  be  supported,  in  cases  where  the  injurious 
publication  related  to  whole  classes  or  communities  of  people, 
without  singling  out  any  single  individual  so  as  to  entitle  him  to 
a  private  remedy.3  On  similar  grounds  to  publish  injurious 


253;  Olmsted  v.  Miller,  1  Wend.  506; 
Moore  v.  Meaglier,  1  Taunt.  39 ;  Knight 
v.  Gibbs,  1  Ad.  &  El.  43. 

1  See    Heard  on   Libel  and   Slander, 
§  151 ;  Townsend  on  Libel  and  Slander, 
§  73 ;  Bourland  v.  Eidson,  8  Gratt.  27  ; 
Scott  v.  McKinnisli,  15  Ala.  662 ;  Porter 
v.  Botkins,  69  Pa  St.  484 ;  Hutchinson  v. 
Wheeler,  35  Vt.  330  ;  Thomas  v.  Dunna- 
way,  30  111.  373 ;  Huson  v.  Dale,  19  Mich. 
17;  Jarnigan  v.  Fleming,  43  Miss.  710; 
Knight  v.  Foster,  39  N.  H.  576.     [Upon 
truth  as  a  defence,  see  note  to  2  L.  R.  A. 
502.] 

2  Commonwealth  v.  Clap,  4  Mass.  168, 
3  Am.  Dec.  212 ;  State  v.  Lehre,  2  Brev. 
446,  4  Am.  Dec.  596. 

f  In  Palmer  v.  Concord,  48  N.  H.  311, 
suit  was  brought  against  a  town  for  the 
destruction  of  a  printing  press  by  a  mob. 
The  defence  was,  that  plaintiff  had  caused 
the  mob  by  libellous  articles  published 
in  his  paper  reflecting  upon  the  army. 
Stnith,  J.,  says :  "  The  first  of  these  arti- 
cles charges  the  United  States  forces  in 
Virginia  with  cowardice,  and  holds  them 
up  as  objects  of  ridicule  therefor.  The 
fourth  article  calls  the  army  a  '  mob ; ' 
and  although  the  charges  of  murder  and 
robbery  may  perhaps  be  considered  as 
limited  in  their  application,  the  charge 
of  cowardice  against  the  whole  army  is 
repeated.  The  fifth  article  in  effect 
charges  those  bodies  of  soldiers  who 
passed  through,  or  occupied,  Hampton, 
Martinsburg,  Fairfax,  or  Germantown, 
with  improper  treatment  of  persons  of  all 
ages  and  sexes,  in  eacli  of  those  places. 
If  such  charges  had  been  made  against  a 
single  soldier  named  in  the  articles,  they 
would  prima  facie  have  constituted  a 
libel.  The  tendency  to  expose  him  to 


contempt  or  ridicule  could  not  be 
doubted,  and  the  tendency  to  injure  his 
professional  reputation  would  be  equally 
apparent.  A  soldier's  character  for  cour- 
age or  discipline  is  as  essential  to  his 
good  standing  as  a  merchant's  reputation 
for  honesty,  or  a  physician's  reputation  as 
to  professional  learning  or  skill,  would  be 
in  their  respective  callings.  And  by  mili- 
tary law,  to  which  the  soldier  is  amen- 
able, we  suppose  cowardice  would  be 
regarded  as  a  crime  punishable  by  severe 
penalties.  As  these  charges  were  made 
against  a  body  of  men,  without  specifying 
individuals,  it  may  be  that  no  individual 
soldier  could  have  maintained  a  pri- 
vate action  therefor.  But  the  question 
whether  the  publication  might  not  afford 
ground  for  a  public  prosecution  is  en- 
tirely different.  Civil  suits  for  libel  are 
maintainable  only  on  the  ground  that  the 
plaintiff  has  individually  suffered  damage. 
Indictments  for  libel  are  sustained  prin- 
cipally because  the  publication  of  a  libel 
tends  to  a  breach  of  the  peace,  and  thus 
to  the  disturbance  of  society  at  large.  It 
is  obvious  that  a  libellous  attack  on  a 
body  of  men,  though  no  individuals  be 
pointed  out,  may  tend  as  much,  or  more, 
to  create  public  disturbances  as  an  attack 
on  one  individual ;  and  a  doubt  has  been 
suggested  whether  '  the  fact  of  numbers 
defamed  does  not  add  to  the  enormity  of 
the  act.'  See  2  Bishop  on  Criminal  Law 
(3ded.),  §  922;  Holt  on  Libel,  246-247 ; 
Russell  on  Crimes  (IstAm.ed.),  305-332. 
In  Sumner  v.  Buel,  12  Johns.  475,  where 
a  majority  of  the  court  held  that  a  civil 
action  could  not  be  maintained  by  an 
officer  of  a  regiment,  for  a  publication 
reflecting  on  the  officers  generally,  unless 
there  was  an  averment  of  special  damage, 


CH.  XII.]  LIBERTY   OF   SPEECH  AND   OF   THE   PRESS. 


609 


charges  against  a  foreign  prince  or  ruler  was  also  held  punishable 
as  a  public  offence,  because  tending  to  embroil  the  two  nations, 
and  to  disturb  the  peace  of  the  world.1  These  common-law  rules 
are  wholesome,  and  are  still  in  force. 

We  are  not  so  much  concerned,  however,  with  the  general 
rules  pertaining  to  the  punishment  of  injurious  publications,  as 
with  those  special  cases  where,  for  some  reason  of  general  public 
policy,  the  publication  is  claimed  to  be  privileged,  and  where, 
consequently,  it  may  be  supposed  to  be  within  the  constitutional 
protection.  It  has  always  been  held,  notwithstanding  the  general 
rule  that  malice  is  to  be  inferred  from  a  false  and  injurious  pub- 
lication, that  there  were  some  cases  to  which  the  presumption 
would  not  apply.  These  are  the  cases  which  are  said  to  be  priv- 
ileged. The  term  "privileged"  is  applied  to  two  classes  of  com- 
munications :  First,  those  which,  for  reasons  of  State  policy,  the 
law  will  not  suffer  to  be  the  foundation  of  a  civil  action  ;  and, 
second,  those  in  which  the  circumstances  are  held  to  rebut  the 


Thompson,  Ch.  J.,  said,  p.  478  :  '  The  of- 
fender in  such  case  does  not  go  without 
punishment.  The  law  has  provided  a  fit 
and  proper  remedy,  by  indictment;  and 
the  generality  and  extent  of  such  libels 
make  them  more  peculiarly  public  of- 
fences.' In  liyckman  v.  Delavan,  25 
Wend.  186,  Waluuorth,  Chancellor,  —  who 
held,  in  opposition  to  the  majority  of  the 
Court  of  Errors,  that  the  plaintiff  could 
not  maintain  a  civil  suit,  because  the 
publication  reflected  upon  a  class  of  in- 
dividuals, and  not  upon  the  plaintiff  per- 
sonally, — said,  pp.  195-196  :  '  There  are 
many  cases  in  the  books  where  the  writ- 
ers and  publishers  of  defamatory  charges, 
reflecting  upon  the  conduct  of  particular 
classes  or  bodies  of  individuals,  have  been 
proceeded  against  by  indictment  or  infor- 
mation, although  no  particular  one  was 
named  or  designated  therein  to  whom  the 
charge  had  a  personal  application.  AH 
those  cases,  however,  whether  the  libel  is 
upon  an  organized  body  of  men,  as  a 
legislature,  a  court  of  justice,  a  church, 
or  a  company  of  soldiers,  or  upon  a  par- 
ticular class  of  individuals,  proceed  upon 
the  ground  that  the  charge  is  a  misde- 
meanor, although  it  has  no  particular 
personal  application  to  the  individual  of 
the  body  or  class  libelled ;  because  it 
tends  to  excite  the  angry  passions  of  the 
community  either  in  favor  of  or  against 
the  body  or  class  in  reference  to  the  con- 


89 


duct  of  which  the  charge  is  made,  or  be- 
cause it  tends  to  impair  the  confidence 
of  the  people  in  their  government  or  in 
the  administrations  of  its  laws.'  In  the 
course  of  his  opinion  the  chancellor  men- 
tions a  Scotch  case  (Shearlock  v.  Beards- 
worth,  1  Murray's  Report  of  Jury  Cases) 
where  a  civil  suit  was  maintained,  which 
was  '  brought  by  a  lieutenant-colonel,  in 
behalf  of  his  whole  regiment,  for  defama- 
tion, in  calling  them  a  regiment  of  cow- 
ards and  blackguards.'  In  Eexv.  Hector 
Campbell,  King's  Bench,  Hil.  Term,  1808 
(cited  in  Holt  on  Libel,  249,  250),  an 
information  was  granted  for  a  libel  on 
the  College  of  Physicians  ;  and  the  re- 
spondent was  convicted  and  sentenced. 
Cases  may  be  supposed  where  publi- 
cations, though  of  a  defamatory  nature, 
have  such  a  wide  and  general  application 
that,  in  all  probability,  a  breach  of  the 
peace  would  not  be  caused  thereby  ;  but 
it  does  not  seem  to  us  that  the  present 
publication  belongs  to  that  class. 

"  Our  conclusion  is  that  the  jury 
should  have  been  instructed  that  the  first, 
fourth,  and  fifth  articles  were  prima  facie 
libellous ;  and  that  the  publication  of 
those  articles  must  be  regarded  as  '  ille- 
gal conduct,'  unless  justified  or  excused 
by  facts  sufficient  to  constitute  a  defence 
to  an  indictment  for  libel." 

1  27  State  Trials,  627 ;  2  May,  Const. 
History  of  England,  c.  9. 


610 


CONSTITUTIONAL  LIMITATIONS. 


[CII.  XII. 


legal  inference  of  malice,  and  to  throw  upon  the  plaintiff  the  bur- 
den of  offering  some  evidence  of  its  existence  beyond  the  mere 
falsity  of  the  charge.1  The  first  class  is  absolutely  privileged  ;  it 
embraces  but  few  cases,  which  for  the  most  part  concern  the  ad- 
ministration of  the  government  in  some  of  its  branches  (a)  ;  the 
second  is  conditionally  privileged,  and  the  cases  falling  within  it 
are  more  numerous.  They  are  generally  cases  in  which  a  party 
has  a  duty  to  discharge  which  requires  that  he  should  be  allowed 
to  speak  freely  and  fully  that  which  he  believes  ;  or  where  he  is 
himself  directly  interested  in  the  subject-matter  of  the  communi- 
cation, and  makes  it  with  a  view  to  the  protection  or  advancement 
of  bis  own  interest,  or  where  he  is  communicating  confidentially 
with  a  person  interested  in  the  communication,  and  by  way  of  ad- 
vice or  admonition.2  Many  such  cases  suggest  themselves  which 
are  purely  of  private  concern  :  such  as  answers  to  inquiries  into 
the  character  or  conduct  of  one  formerly  employed  by  the  person 
to  whom  the  inquiry  is  addressed,  and  of  whom  the  information 
is  sought  with  a  view  to  guiding  the  inquirer  in  his  own  action  in 


1  Lewis  v.  Chapman,   16   N.  Y.  369, 
373,  per  Selden,  J. ;  Townsend  on  Libel 
and  Slander,   §  20!).     "  It  properly   sig- 
nifies this  and  nothing  more :   that   the 
excepted   instances   shall  so   far   change 
the  ordinary  rule  with  respect  to  slander- 
ous or  libellous  matter  as  to  remove  the 
regular  and  usual  presumption  of  malice, 
and  to  make  it  incumbent  on  the  party 
complaining  to  show  malice."     Daniel,  J., 
in  White  v.  Nichols,  3   How.  266,  287. 
And  see  Dillard  v.  Collins,  25  Gratt.  343 ; 
Mclntyre  v.  McBean,  13  Q,  B.  (Ontario) 
634. 

2  When  a  communication  is  made  in 
confidence,  either  by  or  to  a  person  in- 
terested in  the  communication,  supposing 
it  to  be  true,  or  by  way  of  admonition  or 
advice,  it  seems  to  be  a  general  rule  that 
malice    {/.   e.  express   malice)    is   essen- 
tial to  the  maintenance  of  an  action."     1 
Starkie  on  Slander,  321.     See  Harrison  v. 
Bush,  5  El.   &  Bl.   344;   Somerville   v. 
Hawkins,  10  C.  B.  583 ;  Wright  v.  Wood- 
gate,  2  Cr.   M.   &   R.  576;  Whiteley   r. 
Adams,  45  C.   B.   N.  s.  392.      A  paper 
signed  by  a  number  of  parties  agreeing 
to   join   in   the   expense   of  prosecuting 
others,  who  were  stated  therein  to  have 


"  robbed  and  swindled  "  them,  is  privi- 
leged. Klinck  v.  Colby,  46  N.  Y.  427, 
7  Am.  Rep.  360.  The  statement  in  a 
report  of  an  incorporated  society  cau- 
tioning the  public  against  trusting  a  per- 
son who  had  formerly  been  employed  in 
collecting  subscriptions  for  them,  is  privi- 
leged. Gasset  v.  Gilbert,  6  Gray,  94. 
But  see  Holliday  v.  Ont.  Farmers,  &c. 
Co.,  1  Ont.  App.  483.  And  the  com- 
munication by  a  merchant  to  a  subsequent 
employer  of  a  clerk  whom  he  had  recom- 
mended, of  facts  which  caused  him  to 
change  his  opinion,  is  privileged.  Fowles 
v.  Bowen,  30  N.  Y.  20.  And  so  is  a  com- 
munication made  in  good  faith  by  a  per- 
son employed  in  a  confidential  relation. 
Atwill  v.  Mackintosh,  120  Mass.  177.  So  is 
one  charging  a  child  with  stealing,  made  in 
answer  to  inquiry  of  the  mother.  Long  v. 
Peters,  47  Iowa,  239.  So  is  a  statement 
of  an  investigating  officer  as  to  the 
worthiness  of  a  person,  to  one  interested 
in  aiding  him.  Waller  v.  Loch,  L.  R.  7 
Q.  B.  D.  619.  So  is  a  statement  by  a 
vendor's  servant  to  the  vendee  of  cattle, 
of  the  former's  fraud.  Mott  o.  Dawson, 
46  Iowa,  533. 


(a)  [Publication  by  a  town  of  a  report  made  to  it  by  its  investigating  committee, 
upon  manner  in  which  a  contract  with  the  town  has  been  performed,  is  privileged. 
Howland  v.  Maynard,  159  Mass.  434,  21  L.  R.  A.  600,  34  N.  E.  515.] 


CH.  XII.]  LIBERTY  OF   SPEECH   AND   OF   THE   PRESS. 


611 


determining  upon  employing  the  same  person;1  answers  to  in- 
quiries by  one  tradesman  of  another  as  to  the  solvency  of  a  person 
whom  the  inquirer  has  been  desired  to  trust  ;2  answers  by  a  cred- 
itor to  inquiries  regarding  the  conduct  and  dealings  of  his  debtor, 
made  by  one  who  had  become  surety  for  the  debt ; 3  communica- 
tions from  an  agent  to  his  principal,  reflecting  injuriously  upon 
the  conduct  of  a  third  person  in  a  matter  connected  with  the 
agency;4  communications  to  a  near  relative  respecting  the  char- 
acter of  a  person  with  whom  the  relative  is  in  negotiation  for 
marriage ; 5  and  as  many  more  like  cases  as  would  fall  within  the 
same  reasons.6  The  rules  of  law  applicable  to  these  cases  are 


1  Pattison  v.  Jones,  8   B.  &  C.  578; 
Elam  v.  Badger,  23  111.  498;  Noonan  v. 
Orton,  32  Wis.  106;  Hatch  v.  Lane,  105 
Mass.  394 ;  Bradley  v.  Heath,  12  Pick.  163. 
Compare  Fryer  v.  Kinnersley,  15  C.  B. 
x.  s.   422.     If   the  employer   states   his 
honest  suspicion  of  the  employee's  guilt, 
the  fact  that  he  does  not  fully  believe  him 
guilty  will  not  remove  the  privilege  of 
the  occasion.     Billings  v.  Fairbanks,  139 
Mass.  66,  29  N.  E.  544. 

2  Smith  v.  Thomas,  2  Bing.  N.  C.  372; 
Storey  v.  Challands,  8  C.  &  P.  234.     A 
statement  made  in  honest  belief  to  an  in- 
quirer as  to  credit  of  a  person  who  has 
referred  him  to  the  speaker,  is  privileged. 
Fahr  v.  Hayes,  5.0  N.  J.  L.  275,  13  Atl. 
261.      But   the   reports  of  a  mercantile 
agency,  published  and  distributed  to  its 
customers  without  regard  to  their  special 
interest  in  any  particular  case,  are  not 
privileged.     Taylor  v.  Church,  8  N.  Y. 
452;  Sunderlin  v.  Bradstreet,  46  N.  Y. 
188,  7  Am.  Rep.  322;  Beardsley  v.  Tap- 
pan.  5  Blatcli.  497  ;  King  v.  Patterson,  49 
N.  J.  L.  417,  9  Atl.  705 ;  Bradstreet  Co.  c. 
Gill,  72  Tex.  115,  9  S.  W.  753.     But  re- 
ports in  response  to  inquiries  from  those 
who  have  such  special  interest  are  privi- 
leged.    Ormsby   v.   Douglass,    37    N.    Y. 
477;   Trussell   v.  Scarlett,  18  Fed.  Rep. 
214;    Erber  v.  Dun,   12  Fed.  Rep.  526. 
See  also  State  v.  Lonsdale,  48  Wis.  348, 
4  N.  W.  390 ;  Locke  v.  Bradstreet  Co.,  22 
Fed.  Rep.  771 ;    Woodruff  v.  Bradstreet 
Co.,  116  N.  Y.  217, 22  N.  E.  354 ;  Johnson 
v.  Bradstreet  Co.,  77  Ga.  172. 

8  Dunman  v.  Bigg,  1  Campb.  269,  note  ; 
White  v.  Nicholls,  3  How.  266. 

*  Washburn  v.  Cooke,  3  Denio,  110. 
See  Easley  v.  Morse,  9  Ala.  266. 

6  Todd  v.  Hawkins,  8  C.  &  P.  88.     But 


there  is  no  protection  to  such  a  commu- 
nication from  a  stranger.  Joannes  v. 
Bennett,  6  Allen,  170.  Nor  from  a  friend, 
unless  it  is  in  reply  to  a  request  for  it. 
Byam  v.  Collins,  111  N.  Y.  143,  19  N.  E. 
75. 

6  As  to  whether  a  stranger  volunteer- 
ing to  give  information  injurious  to  an- 
other, to  one  interested  in  the  knowledge, 
is  privileged  in  so  doing,  see  Coxhead  v, 
Richards,  2  M.  G.  &  S.  569 ;  and  Bennett 
v.  Deacon,  2  M.  G.  &  S.  628.  A  letter 
volunteering  to  an  employer  information 
of  his  servant's  untrustsvorthiness  is  not 
privileged  when  sent  to  effect  the  writer's 
purpose,  and  not  in  good  faith  to  protect 
the  employer.  Over  v.  Schiffling,  102 
Ind.  191,  26  N.  E.  91.  Where  a  con- 
fidential relation  of  any  description  exists 
between  the  parties,  the  communication 
is  privileged ;  as  where  the  tenant  of  a 
nobleman  had  written  to  inform  him  of 
his  gamekeeper's  neglect  of  duty.  Coek- 
agne  v.  Hodgkisson,  5  C.  &  P.  543.  Where 
a  son-in-law  wrote  to  warn  his  mother-in- 
law  of  the  bad  character  of  a  man  she 
was  about  to  marry.  Todd  v.  Hawkins, 
8  C.  &  P.  88.  Where  a  banker  communi- 
cated with  his  correspondent  concerning 
a  note  sent  to  him  for  collection  ;  the 
court  saying  that  "all  that  is  necessary 
to  entitle  such  communications  to  be 
regarded  as  privileged  is,  that  the  relation 
of  the  parties  should  be  such  as  to  afford 
reasonable  ground  for  supposing  an  inno- 
cent motive  for  giving  the  information, 
and  to  deprive  the  act  of  an  appearance 
of  officious  intermeddling  with  the  affairs 
of  others,"  Lewis  v.  Chapman,  16  N.  Y. 
369,  375.  Where  one  communicated  to 
an  employer  his  suspicions  of  dishonest 
conduct  in  a  servant  towards  himself. 


612  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

very  well  settled,  and  are  not  likely  to  be  changed  with  a  view  to 
greater  stringency.1 

Libels  upon  the  Government. 

At  the  common  law  it  was  indictable  to  publish  anything 
against  the  constitution  of  the  country,  or  the  established  system 
of  government.  The  basis  of  such  a  prosecution  was  the  ten- 
dency of  publications  of  this  character  to  excite  disaffection  with 
the  government,  and  thus  induce  a  revolutionary  spirit.  The  law 
always,  however,  allowed  a  calm  and  temperate  discussion  of 
public  events  and  measures,  and  recognized  in  every  man  a  right 
to  give  every  public  matter  a  candid,  full,  and  free  discussion. 
It  was  only  when  a  publication  went  beyond  this,  and  tended  to 
excite  tumult,  that  it  became  criminal.2  It  cannot  be  doubted, 
however,  that  the  common-law  rules  on  this  subject  were  admin- 
istered in  many  cases  with  great  harshness,  and  that  the  courts, 
in  the  interest  of  repression  and  at  the  instigation  of  the  govern- 
ment, often  extended  them  to  cases  not  within  their  reasons. 
This  was  especially  true  during  the  long  and  bloody  struggle  with 
France,  at  the  close  of  the  last  and  beginning  of  the  present 
century,  and  for  a  few  subsequent  years,  until  a  rising  public  dis- 
content with  political  prosecutions  began  to  lead  to  acquittals, 
and  finally  to  abandonment  of  all  such  attempts  to  restrain  the 
free  expression  of  sentiments  on  public  affairs.  Such  prosecu- 
tions have  now  altogether  ceased  in  England.  Like  the  censor- 
ship of  the  press,  they  have  fallen  out  of  the  British  constitutional 
system.  "  When  the  press  errs,  it  is  by  the  press  itself  that  its 
errors  are  left  to  be  corrected.  Repression  has  ceased  to  be  the 
policy  of  rulers,  and  statesmen  have  at  length  fully  realized  the 
wise  maxim  of  Lord  Bacon,  that  '  the  punishing  of  wits  enhances 
their  authority,  and  a  forbidden  writing  is  thought  to  be  a  certain 

Amann  v.  Damm,  8  C.  B.  N.  8.  597.  l  See  further,  Harrison  P.  Bush,  5  El. 
Where  a  tradesman  published  in  a  news-  &  Bl.  344;  Shipley  v.  Todhunter,  7  C.  & 
paper  that  his  servant  had  left  his  employ,  P.  680;  Lawler  v.  Earle,  6  Allen,  22; 
and  taken  upon  himself  to  collect  the  Grimes  v.  Coyle,  6  B.  Monr.  301 ;  Rector 
tradesman's  bills.  Hatch  r.  Lane,  105  v.  Smith,  11  Iowa,  302;  Goslin  v.  Can- 
Mass.  394.  Compare  Lawler  ».  Earle,  5  non,  1  Harr.  3;  Joannes  v.  Bennett,  6 
Allen,  22.  QA  publication  by  the  officers  Allen,  169;  State  v.  Burnham,  9  N.  H.  34; 
of  a  church  through  their  church  paper,  Campbell  i:  Bannister,  79  Ky.  205;  Beeler 
made  after  inquiry,  that  their  pastor  is  v.  Jackson,  64  Md.  589,  2  All.  916;  Billings 
unworthy  of  his  position,  and  is  insub-  v.  Fairbanks,  136  Mass.  177;  Bacon  v. 
ordinate  and  unworthy  of  confidence,  Mich.  Centr.  R.  R.  Co.,  66  Mich.  166,  33 
where  such  publication  is  made  in  good  N.  W.  181. 

faith  and  without  malice,  is  privileged.          2  Regina  v.  Collins,  9  C.  &  P.  456,  per 

Redgate  v.  Roush,  61  Kan.  480,  59  Pac.  Littledale,  J.   See  the  proceedings  against 

1050,  48  L.  R.  A.  236.]  Thomas  Paine,  27  State  Trials,  357. 


CH.  XII.]  LIBERTY   OF   SPEECH    AND   OF   THE   PRESS.  613 

spark  of  truth  that  flies  up  in  the  faces  of  them  that  seek  to  tread 
it  out.' "  i 

We  shall  venture  to  express  a  doubt  if  the  common-law  princi- 
ples on  this  subject  can  be  considered  as  having  been  practically 
adopted  in  the  American  States.  It  is  certain  that  no  prosecu- 
tions could  now  be  maintained  in  the  United  States  courts  for 
libels  on  the  general  government,  since  those  courts  have  no 
common-law  jurisdiction,2  and  there  is  now  no  statute,  and  never 
was  except  during  the  brief  existence  of  the  Sedition  Law,  which 
assumed  to  confer  any  such  power. 

The  Sedition  Law  was  passed  during  the  administration  of  the 
elder  Adams,  when  the  fabric  of  government  was  still  new  and 
untried,  and  when  many  men  seemed  to  think  that  the  breath  of 
heated  party  discussions  might  tumble  it  about  their  heads.  Its 
constitutionality  was  always  disputed  by  a  large  party,  and  its  im- 
policy was  beyond  question.  It  had  a  direct  tendency  to  produce 
the  very  state  of  things  it  sought  to  repress  ;  the  prosecutions 
under  it  were  instrumental,  among  other  things,  in  the  final  over- 
throw and  destruction  of  the  party  by  which  it  was  adopted,  and 
it  is  impossible  to  conceive,  at  the  present  time,  of  any  such  state 
of  things  as  would  be  likely  to  bring  about  its  re-enactment,  or  the 
passage  of  any  similar  repressive  statute.3 

When  it  is  among  the  fundamental  principles  of  the  govern- 
ment that  the  people  frame  their  own  constitution,  and  that  in 
doing  so  they  reserve  to  themselves  the  power  to  amend  it  from 
time  to  time,  as  the  public  sentiment  may  change,  it  is  difficult 
to  conceive  of  any  sound  principle  on  which  prosecutions  for 
libels  on  the  system  of  government  can  be  based,  except  when 
they  are  made  in  furtherance  of  conspiracy  with  the  evident 
intent  and  purpose  to  excite  rebellion  and  civil  war.4  It  is  very 
easy  to  lay  down  a  rule  for  the  discussion  of  constitutional  ques- 
tions ;  that  they  are  privileged,  if  conducted  with  calmness  and 
temperance,  and  that  they  are  not  indictable  unless  they  go 
beyond  the  bounds  of  fair  discussion.  But  what  is  calmness  and 
temperance,  and  what  is  fair  in  the  discussion  of  supposed  evils 
in  the  government  ?  And  if  something  is  to  be  allowed  ';  for  a 

1  May,  Constitutional  History,  c.  10.  State   Trials,   688.     And  see  2  Randall, 

2  United  States  v.  Hudson,  7  Cranch,  Life  of  Jefferson,   417-421 ;    5    Hildreth, 
32.     See  ante,  p.  46,  and  cases  cited  in  History  of  United  States,  247,  365. 
note-.  *  The  author  of  the  Life  and  Times 

8  For  prosecutions  under  this  law,  see  of  Warren  very  truly  remarks  that  "  the 

Lyon's  Case,  Wharton's  State  Trials,  333 ;  common-law  offence  of  libelling  a  govern- 

Cooper's  Case,    Wharton's   State  Trials,  ment  is  ignored  in  constitutional  systems, 

659 ;    HaswelPs    Case,    Wharton's   State  as    inconsistent  with  the  genius  of  free 

Trials,  684;  Callendar's  Case,  Wharton's  institutions."    P.  47. 


614  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

little  feeling  in  men's  minds," l  how  great  shall  be  the  allowance  ? 
The  heat  of  the  discussion  will  generally  be  in  proportion  to  the 
magnitude  of  the  evil  as  it  appears  to  the  party  discussing  it ; 
must  the  question  whether  he  has  exceeded  due  bounds  or  not 
be  tried  by  judge  and  jury,  who  may  sit  under  different  circum- 
stances from  those  under  which  he  has  spoken,  or  at  least  after 
the  heat  of  the  occasion  has  passed  away,  and  who,  feeling  none 
of  the  excitement  themselves,  may  think  it  unreasonable  that  any 
one  else  should  ever  have  felt  it?  The  dangerous  character  of 
such  prosecutions  would  be  the  more  glaring  if  aimed  at  those 
classes  who,  not  being  admitted  to  a  share  in  the  government, 
attacked  the  constitution  in  the  point  which  excluded  them. 
Sharp  criticism,  ridicule,  and  the  exhibition  of  such  feeling  as  a 
sense  of  injustice  engenders,  are  to  be  expected  from  any  discus- 
sion in  these  cases ;  but  when  the  very  classes  who  have  estab- 
lished the  exclusion  as  proper  and  reasonable  are  to  try  as  judges 
and  jurors  the  assaults  made  upon  it,  they  will  be  very  likely  to 
enter  upon  the  examination  with  a  preconceived  notion  that  such 
assaults  upon  their  reasonable  regulations  must  necessarily  be 
unreasonable.  If  any  such  principle  of  repression  should  ever  be 
recognized  in  the  common  law  of  America,  it  might  reasonably 
be  anticipated  that  in  times  of  high  party  excitement  it  would 
lead  to  prosecutions  by  the  party  in  power,  to  bolster  up  wrongs 
and  sustain  abuses  and  oppressions  by  crushing  adverse  criticism 
and  discussion.  The  evil,  indeed,  could  not  be  of  long  contin- 
uance ;  for,  judging  from  experience,  the  reaction  would  be 
speedy,  thorough,  and  effectual ;  but  it  would  be  no  less  a  seri- 
ous evil  while  it  lasted,  the  direct  tendency  of  which  would  be  to 
excite  discontent  and  to  breed  a  rebellious  spirit.  Repression  of 
full  and  free  discussion  is  dangerous  in  any  government  resting 
upon  the  will  of  the  people.  The  people  cannot  fail  to  believe 
that  they  are  deprived  of  rights,  and  will  be  certain  to  become 
discontented,  when  their  discussion  of  public  measures  is  sought 
to  be  circumscribed  by  the  judgment  of  others  upon  their  temper- 
ance or  fairness.  They  must  be  left  at  liberty  to  speak  with  the 
freedom  which  the  magnitude  of  the  supposed  wrongs  appears  in 
their  minds  to  demand  ;  and  if  they  exceed  all  the  proper  bounds 
of  moderation,  the  consolation  must  be,  that  the  evil  likely  to 
spring  from  the  violent  discussion  will  probably  be  less,  and  its 
correction  by  public  sentiment  more  speedy,  than  if  the  terrors  of 
the  law  were  brought  to  bear  to  prevent  the  discussion. 

The  English  common-law  rule  which  made  libels  on  the  consti- 
tution or  the  government  indictable,  as  it  was  administered  by 

1  Regina  v.  Collins,  9  C.  &  P.  456,  460,  per  Littledale,  J. 


CH.  XII.]  LIBERTY   OF    SPEECH   AND    OF   THE    PRESS.  615 

the  courts,  seems  to  us  unsuited  to  the  condition  and  circum- 
stances of  the  people  of  America,  and  therefore  never  to  have 
been  adopted  in  the  several  States.  If  we  are  correct  in  this,  it 
would  not  be  in  the  power  of  the  State  legislatures  to  pass  laws 
which  should  make  mere  criticism  of  the  constitution  or  of  the 
measures  of  government  a  crime,  however  sharp,  unreasonable, 
and  intemperate  it  might  be.  The  constitutional  freedom  of 
speech  and  of  the  press  must  mean  a  freedom  as  broad  as  existed 
when  the  constitution  which  guarantees  it  was  adopted,  and  it 
would  not  be  in  the  power  of  the  legislature  to  restrict  it,  unless 
it  might  be  in  those  cases  of  publications  injurious  to  private 
character,  or  public  morals  or  safety,  which  come  strictly  within 
the  reasons  of  civil  or  criminal  liability  at  the  common  law,  but 
in  which,  nevertheless,  the  common  law  as  we  have  adopted  it 
failed  to  provide  a  remedy.  It  certainly  could  not  be  said  that 
freedom  of  speech  was  violated  by  a  law  which  should  make 
imputing  the  want  of  chastity  to  a  female  actionable  without  proof 
of  special  damage  ;  for  the  charge  is  one  of  grievous  wrong,  with-; 
out  any  reason  in  public  policy  demanding  protection  to  the  com- 
munication ;  and  the  case  is  strictly  analogous  to  many  other 
cases  where  the  common  law  made  the  party  responsible  for  his 
false  accusations.  The  constitutional  provisions  do  not  prevent 
the  modification  of  the  common-law  rules  of  liability  for  libels 
and  slanders,  but  they  would  not  permit  bringing  new  cases 
within  those  rules  when  they  do  not  rest  upon  the  same  or  similar 
reasons.1 

1  In  Respublica  v.  Dennie,  4  Yeates,  cally  contemptible  and  vicious  is  a  mera- 
267,  2  Am.  Dec.  402,  the  defendant  was  orable  example  of  what  the  villany  of 
indicted  in  1805  for  publishing  the  follow-  some  men  can  devise,  the  folly  of  others 
ing  in  a  public  newspaper:  "A  democracy  receive,  and  both  establish  in  spite  of 
is  scarcely  tolerated  at  any  period  of  reason,  reflection,  and  sensation."  Judge 
national  history.  Its  omens  are  always  Yeates  charged  the  jury,  among  other 
sinister,  and  its  powers  are  unpropitious.  things,  as  follows:  "The  seventh  sec- 
With  all  the  lights  of  experience  blazing  tion  of  the  ninth  article  of  the  constitution 
before  our  eyes,  it  is  impossible  not  to  of  the  State  must  be  our  guide  upon  this 
discover  the  futility  of  this  form  of  govern-  occasion;  it  forms  the  solemn  compact  be- 
merit.  It  was  weak  and  wicked  at  Athens,  tween  the  people  and  the  three  branches 
it  was  bad  in  Sparta,  and  worse  in  Rome,  of  the  government,  —  the  legislative,  ex- 
It  has  been  tried  in  France,  and  termi-  euutive,  and  judicial  powers.  Neither  of 
nated  in  despotism.  It  was  tried  in  Eng-  them  can  exceed  the  limits  prescribed  to 
land,  and  rejected  with  the  utmost  loath-  them  respectively.  To  this  exposition  of 
ing  and  abhorrence.  It  is  on  its  trial  here,  the  public  will  every  branch  of  the  com- 
and  its  issue  will  be  civil  war,  desolation,  mon  law  and  of  our  municipal  acts  of 
and  anarchy.  No  wise  man  but  discerns  assembly  must  conform ;  and  if  incom- 
its  imperfections,  no  good  man  but  shud-  patible  therewith,  they  must  yield  and 
ders  at  its  miseries,  no  honest  man  but  pro-  give  way.  Judicial  decisions  cannot 
claims  its  fraud,  and  no  brave  man  but  weigh  against  it  when  repugnant  thereto, 
draws  his  sword  against  its  force.  The  It  runs  thus:  'The  printing-presses  shall 
institution  of  a  scheme  of  polity  so  radi-  be  free  to  every  person  who  under- 


616 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


Criticism  upon  Officers  and  Candidates  for  Office. 

There  are  certain   cases  where  criticism  upon  public  officers, 
their  actions,  character,  and  motives,  is  not  only  recognized  as 


takes  to  examine  the  proceedings  of  the 
legislature,  or  any  branch  of  the  govern- 
ment ;  and  no  law  shall  ever  be  made  to 
restrain  the  right  thereof.  The  free 
communication  of  thoughts  and  opinions 
is  one  of  the  invaluable  rights  of  man ; 
and  every  citizen  may  freely  speak,  write, 
and  print  on  any  subject,  being  respon- 
sible for  the  abuse  of  that  liberty.  In 
prosecutions  for  the  publication  of  papers, 
investigating  the  official  conduct  of  offi- 
cers or  men  in  a  public  capacity,  or  where 
the  matter  published  is  proper  for  public 
information,  the  truth  thereof  may  be 
given  in  evidence;  and  in  all  indictments 
for  libels,  the  jury  shall  have  a  right  to 
determine  the  law  and  the  facts,  under 
the  direction  of  the  court,  as  in  other 
cases.'  Thus  it  is  evident  that  legislative 
acts,  or  of  any  branch  of  the  government, 
are  open  to  public  discussion  ;  and  every 
citizen  may  freely  speak,  write,  or  print 
on  any  subject,  but  is  accountable  for  the 
abuse  of  that  privilege.  There  shall  be 
no  licensers  of  the  press.  Publish  as  you 
please  in  the  first  instance,  without  con- 
trol; but  you  are  answerable  both  to  the 
community  and  the  individual  if  you 
proceed  to  unwarrantable  lengths.  No 
alteration  is  hereby  made  in  the  law  as 
to  private  men  affected  by  injurious  pub- 
lications, unless  the  discussion  he  proper 
for  public  information.  But  '  if  one  uses 
the  weapon  of  truth  wantonly  for  dis- 
turbing the  peace  of  families,  he  is  guilty 
of  a  libel.'  Per  General  Hamilton,  in 
CroswelPs  Trial,  p.  70.  The  matter  pub- 
lished is  not  proper  for  public  informa- 
tion. The  common  weal  is  not  interested 
in  such  a  communication,  except  to  sup- 
press it. 

"  What  is  the  meaning  of  the  words 
'being  responsible  for  the  abuse  of  that 
liberty,'  if  the  jury  are  interdicted  from 
deciding  on  the  case  ?  Who  else  can 
constitutionally  decide  on  it?  The  ex- 
pressions relate  to  and  pervade  every 
part  of  the  sentence.  The  objection  that 
the  determinations  of  juries  may  vary  at 
different  times,  arising  from  their  differ- 
ent political  opinions,  proves  too  much. 


The  same  matter  may  be  objected  against 
them  when  party  spirit  runs  high,  in  other 
criminal  prosecutions.  But  we  have  no 
other  constitutional  mode  of  decision 
pointed  out  to  us,  and  we  are  bound  to 
use  the  method  described. 

"  It  is  no  infraction  of  the  law  to  pub- 
lish temperate  investigations  of  the  na- 
ture and  forms  of  government.  The  day 
is  long  past  since  Algernon  Sidney's  cele- 
brated treatise  on  government,  cited  on 
this  trial,  was  considered  as  a  treasonable 
libel.  The  enlightened  advocates  of  rep- 
resentative republican  government  pride 
themselves  in  the  reflection  that  the  more 
deeply  their  system  is  examined,  the  more 
fully  will  the  judgments  of  honest  men 
be  satisfied  that  it  is  the  most  conducive 
to  the  safety  and  happiness  of  a  free  peo- 
ple. Such  matters  are  '  proper  for  public 
information.'  But  there  is  a  marked  and 
evident  distinction  between  such  publica- 
tions and  those  which  are  plainly  accom- 
panied with  a  criminal  intent,  deliberately 
designed  to  unloosen  the  social  band  of 
union,  totally  to  unhinge  the  minds  of  the 
citizens,  and  to  produce  popular  discon- 
tent with  the  exercise  of  power  by  the 
known  constituted  authorities.  These 
latter  writings  are  subversive  of  all  gov- 
ernment and  good  order.  '  The  liberty 
of  the  press  consists  in  publishing  the 
truth,  from  good  motives  and  for  justifi- 
able ends,  though  it  reflects  on  govern- 
ment or  on  magistrates.'  Per  General 
Hamilton,  in  Croswell's  Trial,  pp.  63,  64. 
It  disseminates  political  knowledge,  and, 
by  adding  to  the  common  stock  of  free- 
dom, gives  a  just  confidence  to  every  in- 
dividual. But  the  malicious  publications 
wl.ich  I  have  reprobated  infect  insidiously 
the  public  mind  with  a  subtle  poison,  and 
produce  the  most  mischievous  and  alarm- 
ing consequences  by  their  tendency  to 
anarchy,  sedition,  and  civil  war.  We 
cannot,  consistently  with  our  official  duty, 
declare  such  conduct  dispunishable.  We 
believe  that  it  is  not  justified  by  the 
words  or  meaning  of  our  constitution.  It 
is  true  it  may  not  be  easy  in  every  in- 
stance to  draw  the  exact  distinguishing 


CH.  XII.]  LIBERTY   OF   SPEECH  AND   OF  THE   PRESS. 


617 


legitimate,  but  large  latitude  and  great  freedom  of  expression  are 
permitted,  so  long  as  good  faith  inspires  the  communication. 
There  are  cases  where  it  is  clearly  the  duty  of  every  one  to  speak 
freely  what  he  may  have  to  say  concerning  public  officers,  or 
those  who  may  present  themselves  for  public  positions.  Through 
the  ballot-box  the  electors  approve  or  condemn  those  who  ask 
their  suffrages ;  and  if  they  condemn,  though  upon  grounds  the 
most  unjust  or  frivolous,  the  law  affords  no  redress.  Some 
officers,  however,  are  not  chosen  by  the  people  directly,  but  desig- 
nated through  some  other  mode  of  appointment.  But  the  public 
have  a  right  to  be  heard  on  the  question  of  their  selection ;  and 
they  have  the  right,  for  such  reasons  as  seem  to  their  minds 
sufficient,  to  ask  for  their  dismissal  afterwards.  They  have  also 
the  right  to  complain  of  official  conduct  affecting  themselves,  and 


line.  To  the  jury  it  peculiarly  belongs 
to  decide  on  the  intent  and  object  of  the 
writing.  It  is  their  duty  to  judge  can- 
didly and  fairly,  leaning  to  the  favorable 
side  when  the  criminal  intent  is  not 
clearly  and  evidently  ascertained. 

"  It  remains,  therefore,  under  our  most 
careful  consideration  of  the  ninth  article 
of  the  Constitution,  for  the  jury  to  divest 
themselves  of  all  political  prejudices  (if 
any  such  they  have),  and  dispassionately 
to  examine  the  publication  which  is  the 
ground  of  the  present  prosecution.  They 
must  decide  on  their  oaths,  as  they  will 
answer  to  God  and  their  country,  whether 
the  defendant,  as  a  factious  and  seditious 
person,  with  the  criminal  intentions  im- 
puted to  him,  in  order  to  accomplish  the 
object  stated  in  the  indictment,  did  make 
and  publish  the  writing  in  question. 
Should  they  find  the  charges  laid  against 
them  in  the  indictment  to  be  well  founded, 
they  are  bound  to  find  him  guilty.  They 
must  judge  for  themselves  on  the  plain 
import  of  the  words,  without  any  forced 
or  strained  construction  of  the  meaning 
of  the  author  or  editor,  and  determine  on 
the  correctness  of  the  innuendoes.  To 
every  word  they  will  assign  its  natural 
sense,  but  will  collect  the  true  intention 
from  the  context,  the  whole  piece.  They 
will  accurately  weigh  the  probabilities  of 
the  charge  against  a  literary  man.  Con- 
sequences they  will  wholly  disregard,  but 
firmly  discharge  their  duty.  Represen- 
tative republican  governments  stand  on 
immovable  bases,  which  cannot  be  shaken 
by  theoretical  systems.  Yet  if  the  con- 


sciences of  the  jury  shall  be  clearly  satis- 
fied that  the  publication  was  seditiously, 
maliciously,  and  wilfully  aimed  at  the 
independence  of  the  United  States,  the 
Constitution  thereof,  or  of  this  State, 
they  should  convict  the  defendant.  If, 
on  the  other  hand,  the  production  was 
honestly  meant  to  inform  the  public  mind, 
and  warn  them  against  supposed  dangers 
in  society,  though  the  subject  may  have 
been  treated  erroneously,  or  that  the  cen- 
sures on  democracy  were  bestowed  on 
pure  unmixed  democracy,  where  the 
people  en  masse  execute  the  sovereign 
power  without  the  medium  of  their  rep- 
resentatives (agreeably  to  our  forms  of 
government),  as  have  occurred  at  different 
times  in  Athens,  Sparta,  Rome,  France, 
and  England,  then,  however  the  judg- 
ments of  the  jury  may  incline  them  to 
think  individually,  they  should  acquit 
the  defendant.  In  the  first  instance  the 
act  would  be  criminal ;  in  the  last  it  would 
be  innocent.  If  the  jury  should  doubt  of 
the  criminal  intention,  then  also  the  law 
pronounces  that  he  should  be  acquitted. 
4  Burr.  2552,  per  Lord  Mansfield.1'  Ver- 
dict, not  guilty.  The  fate  of  this  prose- 
cution was  the  same  that  would  attend 
any  of  a  similar  character  in  this  country, 
admitting  its  law  to  be  sound,  except 
possibly  in  cases  of  violent  excitement, 
and  when  a  jury  could  be  made  to  be- 
lieve that  the  defendant  contemplated 
and  was  laboring  to  produce  a  change  of 
government,  not  by  constitutional  means, 
but  by  rebellion  and  civil  war. 


618  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

to  petition  for  a  redress  of  grievances.  A  principal  purpose  in 
perpetuating  and  guarding  the  right  of  petition  is  to  insure  to 
the  public  the  privilege  of  being  heard  in  these  and  the  like  cases. 
In  New  York  a  party  was  prosecuted  for  a  libel  contained  in  a 
petition  signed  by  him  and  a  number  of  other  citizens  of  his 
county,  and  presented  to  the  council  of  appointment,  praying  for 
the  removal  of  the  plaintiff  from  the  office  of  district  attorney  of 
the  county,  which,  the  petition  charged,  he  was  prostituting  to 
private  purposes.  The  defendant  did  not  justify  the  truth  of  this 
allegation,  and  the  plaintiff  had  judgment.  ,  On  error,  the  sole 
question  was,  whether  the  communication  was  to  be  regarded  as 
privileged,  that  character  having  been  denied  to  it  by  the  court 
below.  The  prevailing  opinion  in  the  court  of  review  character- 
ized this  as  "  a  decision  which  violates  the  most  sacred  and 
unquestionable  rights  of  free  citizens  ;  rights  essential  to  the  very 
existence  of  a  free  government ;  rights  necessarily  connected  with 
the  relations  of  constituent  and  representative  ;  the  right  of  peti- 
tioning for  a  redress  of  grievances,  and  the  right  of  remonstrating 
to  the  competent  authority  against  the  abuse  of  official  functions." 
The  privilege  of  the  petitioners  was  fully  asserted  and  main- 
tained, and  it  was  decided  that  to  support  an  action  for  libel  upon 
the  petition,  the  plaintiff  must  assume  the  burden  of  showing 
that  it  was  malicious  and  groundless,  and  presented  for  the  pur- 
pose of  injuring  his  character.1  Such  a  petition,  it  was  said, 
although  containing  false  and  injurious  aspersions,  did  not  prima 
facie  carry  with  it  the  presumption  of  malice.2  A  similar  ruling 
was  made  by  the  Supreme  Court  of  Pennsylvania,  where  a  party 
was  prosecuted  for  charges  against  a  justice  of  the  peace,  con- 
tained in  a  deposition  made  to  be  presented  to  the  governor.3  A 
subsequent  New  York  case  enlarged  this  rule  somewhat,  and  re- 
quired of  the  plaintiff,  in  order  to  sustain  his  action  in  any  such 
case,  to  prove  not  only  malice  in  the  defendant,  but  also  a  want 
of  probable  cause  for  believing  the  injurious  charges  which  the 
petition  contained.  The  action  for  libel,  in  such  a  case,  it  was 
said,  was  in  the  nature  of  an  action  for  malicious  prosecution  ; 
and  in  that  action  malice  and  want  of  probable  cause  are  both 

1  Thorn   v.  Blanchard,  5  Johns.  508,  v.  Soniat,  33  La.  Ann.  1400.     A  retnon- 
628,  per  Clinton,  Senator.  strance  against    the    employment  of   a 

2  Ibid.     p.  526,  per  L'Hommedieu,  Sen-  school  teacher  is  privileged.     Van  Ars- 
ator.     A  petition  to  the  town  council  for  dale   v.   Laverty,   69  Pa.   St.   103.    For 
the  removal  of  a  constable  charging  un-  similar  cases  of  privilege,  see  Larkin  v. 
fitness  and  misconduct  is  privileged  un-  Noonan,  19  Wis.  82;  Whitney  v.  Allen, 
less   express   malice  is   shown.     Kent  v.  62111.472;  Reid  v.  Delorne,  2  Brev.  76 ; 
Bongartz,  15  R.  I.  72,  22  All.  1023.  Decker  «;.  Gaylord,  35  Hun,  584. 

8  Gray  v.  Pentland,  2  S.  &  R.  23  ;  Fisk 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PKESS. 


619 


necessary  ingredients.1  And  it  has  also  been  held  that  in  such  a 
case  the  court  will  neither  compel  the  officer  to  whom  it  was 
addressed  to  produce  the  petition  in  evidence,  nor  suffer  its  con- 
tents to  be  proved  by  parol.2 

The  rule  of  protection  which  these  cases  lay  down  is  generally 
conceded  to  be  sound,  and  it  has  been  applied  in  many  other 
cases  coming  within  the  same  reasons.3  To  make  it  applicable, 


1  Howard  v.  Thompson,  21  Wend.  319. 
See  Harris  v.  Huntington,  2  Tyler,  129, 
4   Am.   Dec.   728;    Bodwell   v.    Osgood, 
3   Pick.   379,   15  Am.   Dec.   228;    State 
v.  Burnliam,   9  N.  H.  34,  31  Am.  Dec. 
217;   Hill   v.   Miles,  9  N.   H.   9 ;   Cook 
v.  Hill,  3  Sandf.  341 ;  Whitney  v.  Allen, 
62   111.   472;   Forbes   r.   Johnson,   11   B. 
Monr.   48.     But  in    Banner  Pub.  Co.  v. 
State,  16  Lea,  176,  it  is  held  that  false 
charges   against    State    officers   are   not 
justified  by  probable  cause  and  absence 
of  malice. 

2  Gray  v.  Pentland,  2  S.  &  R.  23.    See 
Hare  v.  Mellor,  3  Lev.  138. 

8  In  Kershaw  v.  Bailey,  1  Exch.  743, 
the  defendant  was  prosecuted  for  slander 
in  a  communication  made  by  him  to  the 
vestry,  imputing  perjury  to  the  plain- 
tiff as  a  reason  why  the  vestry  should  not 
return  him  on  the  list  of  persons  qualified 
to  serve  as  constables.  The  defendant 
was  a  parishioner,  and  his  communica- 
tion was  held  privileged.  In  O'Donaghue 
v.  McGovern,  23  Wend.  26,  a  communica- 
tion from  a  member  of  a  church  to  his 
bishop,  respecting  the  character,  moral 
conduct,  and  demeanor  of  a  clergyman 
of  the  church,  was  placed  upon  the  same 
footing  of  privilege.  And  see  Reid  v. 
Delorme,  2  Brev.  76  ;  Chapman  v.  Calder, 
14  Pa.  St.  365;  Vickers  v.  Stoneman,  73 
Mich.  419,  41  N.  W.  495.  The  proceed- 
ings of  a  church  tribunal  are  quasi  judicial, 
and  those  who  participate  in  its  proceed- 
ings in  good  faitli  and  within  the  scope  of 
its  authority  are  privileged  in  law.  Farns- 
wortli  v.  Storrs,  5  Gush.  412  ;  Fairchild  v. 
Adams,  11  Gush.  549;  Remington  v. 
Gongdon,  2  Pick.  310;  Lucas  v.  Case,  9 
Bush,  297  ;  Kleizer  v.  Symmes,  40  Ind. 
662;  Servatius  v.  Pichel,  34  Wis.  292; 
Chapman  v.  Calder,  14  Pa.  St.  365; 
Shurtleff  v.  Stevens,  51  Vt.  501,  31 
Am.  Rep.  698?  York  v.  Pease,  2  Gray, 
282;  Dunn  v.  Winters,  2  Humph.  512; 
McMillan  v.  Birch,  1  Binn.  178,  2 


Am.  Dec.  426.  Making  charges  to  a 
church  having  authority  to  discipline  is 
not  actionable  unless  there  is  express 
malice:  Dial  v.  Hoher,  6  Ohio  St.  228; 
Over  v.  Hildebrand,  92  Ind.  19;  and 
words  spoken  between  members  of  the 
same  church  in  the  course  of  discipline 
are  privileged.  Jarvis  v.  Hatheway,  3 
Johns.  180 ;  Landis  v.  Campbell,  79  Mo. 
433.  But  an  accusation  by  a  church 
member  against  one  who  is  not  a  church 
member  cannot  be  considered  privileged. 
Coombs  v.  Rose,  8  Blackf.  155.  Nor  ac- 
cusations by  a  parishioner  against  a 
clergyman  not  made  to  church  authorities. 
State  v.  Bienvenu,  36  La.  Ann.  378.  A 
letter  to  a  member  of  a  minister's  associa- 
tion about  another  member  written  by 
one  not  a  member  is  not  privileged. 
Shurtleff  v.  Parker,  130  Mass.  293.  The 
preferring  of  charges  to  a  lodge  of  Odd 
Fellows  by  one  member  against  another 
is  privileged  :  Streety  v.  Wood,  15  Barb. 
105  ;  and  reports  made  to  a  lodge  of  Odd 
Fellows  and  published  with  the  minutes 
are  privileged.  Kirkpatrick  v.  Eagle 
Lodge,  26  Kan.  384.  An  affidavit  as  to 
the  credibility  of  a  witness  at  a  masonic 
trial  is  not  privileged  where  neither  the 
witness  nor  affiant  is  a  member  of  the 
lodge.  Nix  v.  Caldwell,  81  Ky.  293.  A 
communication  is  privileged  if  made  in 
good  faith  with  a  view  to  recovering 
stolen  goods.  Grimes  v.  Coyle,  6  B. 
Monr.  301  ;  Brow  v.  Hathaway,  13  Allen, 
239 ;  Eames  v.  Whittaker,  123  Mass.  342. 
An  agreement  by  partners  to  prosecute 
persons  suspected  of  robbing  the  firm  is 
privileged.  Klinck  v.  Colby,  46  N.  Y. 
427,  7  Am.  Rep.  360.  And  so  is  a 
communication  advising  a  sheriff  to  pros- 
ecute a  person  for  larceny,  sent  by  a  law 
student  who  was  employed  by  the  sheriff. 
Washburne  v.  Cooke,  3  Denio,  110.  An 
advertisement  warning  the  public  against 
negotiable  notes  alleged  to  have  been 
stolen  is  privileged.  Commonwealth  v. 


620 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XII. 


however,  it  is  essential  that  the  petition  or  remonstrance  be  ad- 
dressed to  the  body  or  officer  having  the  power  of  appointment 
or  removal,  or  the  authority  to  give  the  redress  or  grant  the  re- 
lief which  is  sought ;  or  at  least  that  the  petitioner  should  really 
and  in  good  faith  believe  he  is  addressing  himself  to  an  authority 
possessing  power  in  the  premises.1 

Such  being  the  rule  of  privilege  when  one  is  interested  in  the 
discharge  of  powers  of  a  public  nature  is  addressing  himself  to 
the  body  having  the  authority  of  appointment,  supervision,  or 
removal,  the  question  arises  whether  the  same  reasons  do  not 
require  the  like  privilege  when  the  citizen  addresses  himself  to 


Featherstone,  9  Phil.  (Pa.)  594.  Words 
spoken  in  good  faith  by  a  public  officer 
in  discharge  of  his  official  duties  are 
privileged.  Mayo  v.  Sample,  18  Iowa, 
306;  Bradley  v.  Heath,  12  Pick.  163,  22 
Am.  Dec.  418 ;  In  re  Invest.  Com.,  16  R.  I. 
751,  11  Atl.  429;  Dewe  v.  Waterbury, 
6  Can.  S.  C.  R.  143.  So  is  a  communi- 
cation in  good  faith  by  a  school  prin- 
cipal to  the  trustees  of  charges  against 
the  character  of  a  subordinate.  Halstead 
v.  Nelson,  36  Hun,  149.  See  O'Connor  v. 
Sill,  60  Mich.  175,  27  N.  W.  13.  A  re- 
monstrance to  the  board  of  excise,  against 
the  granting  of  a  license  to  the  plaintiff, 
comes  under  the  same  rule  of  protection. 
Vanderzee  v.  McGregor,  12  Wend.  545. 
See  also  Kendillon  v.  Maltby,  1  Car.  & 
Marsh.  402 ;  Woodward  v.  Lander,  6  C. 
&  P.  548.  So  does  a  statement  by  a  mayor 
to  a  council  as  to  the  unfitness  of  a  city 
attorney  for  his  post.  Greenwood  v. 
Cobbey,  26  Neb.  449,  42  N.  W.  413.  A 
report  by  officers  to  stockholders  is  privi- 
leged, but  not,  it  seems,  the  publication  of 
it.  Philadelphia,  &c.  R.  R.  Co.  v.  Quigley, 
21  How.  202.  A  statement  of  causes  of 
discharge  of  an  employee,  given  only  to 
officers  of  the  employing  company,  and  of 
other  like  companies  for  their  protection, 
is  conditionally  privileged.  Missouri  Pac. 
Ry.  Co.  v.  Richmond,  73  Tex.  568,  US. 
W.  655. 

1  This  is  recognized  in  all  the  cases 
referred  to.  See  also  Fairman  v.  Ives,  5 
B.  &  Aid.  642.  In  that  case  a  petition 
addressed  by  a  creditor  of  an  officer  in 
the  army  to  the  Secretary  of  War,  bona 
fide  and  with  a  view  of  obtaining  through 
his  interference  the  payment  of  a  debt 
due,  and  containing  a  statement  of  facts 
which,  though  derogatory  to  the  officer's 


character,  the  creditor  believed  to  be 
true,  was  held  not  to  support  an  action. 
A  letter  to  the  Postmaster-General  corn- 
plaining  of  the  conduct  of  a  postmaster, 
with  a  view  to  the  redress  of  grievances, 
is  privileged.  Woodward  v.  Lander,  6 
C.  &  P.  548;  Cook  ».  Hill,  3  Sandf.  341. 
A  statement  to  a  legislative  committee  in 
good  faith  as  to  a  matter  with  which  it 
had  power  to  deal  is  privileged.  Wright 
v.  Lothrop,  149  Mass.  385,  21  N.  E.  903. 
And  a  complaint  to  a  master,  charging  a 
servant  with  a  dishonest  act  which  had 
been  imputed  to  the  complaining  party, 
has  also  been  held  privileged.  Coward  v. 
Wellington,  7  C.  &  P.  531.  And  see, 
further,  Hosmer  v.  Loveland,  19  Barb. 
111.  A  petition  is  privileged  while  being 
circulated.  Vanderzee  v.  McGregor,  12 
Wend.  545;  Streety  v.  Wood,  15  Barb. 
105.  If,  however,  a  petition  is  circulated 
and  exhibited,  but  never  presented,  the 
fact  that  the  libellous  charge  has  assumed 
the  form  of  a  petition  will  not  give  it  pro- 
tection. State  v.  Burnham,  9  N.  H.  34. 
And  see  Hunt  v.  Bennett,  19  N.  Y.  173 ; 
Van  Wyck  v.  Aspinwall,  17  N.  Y.  190. 
An  address  by  citizens  to  an  officer  re- 
questing his  resignation  on  the  ground  of 
his  corruption  is  not  privileged.  Cotulla 
v.  Kerr,  74  Tex.  89, 11  S.  W.  1058.  [\Mere 
conclusions  stated  unqualifiedly  as  facts, 
and  without  mention  of  the  specific  facts 
upon  which  they  are  based,  are  not  privi- 
leged. Eikhoff  v.  Gilbert,  124  Mich.  353, 
83  N.  W.  110,  51  L.  R.  A.  451.  But  in 
South  Dakota  an  elector  may  call  a  can- 
didate for  aldermanic  honors  a  thief,  if  he 
makes  the  allegation  to  other  electors  and 
does  it  in  good  faith.  Ross  v.  Ward,  14 
S.  D.  240,  85  N.  W.  182J 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PRESS. 

his  fellow-citizens  in  regard  to  the  conduct  of  persons  elevated  to 
offices  by  their  suffrages,  or  in  regard  to  the  character,  capacity, 
or  fitness  of  those  who  may  present  themselves,  or  be  presented 
by  their  friends, —  which  always  assumes  their  assent,  —  as  can- 
didates for  public  positions. 

When  Morgan  Lewis  was  governor  of  the  State  of  New  York, 
and  was  a  candidate  for  re-election,  a  public  meeting  of  his  oppo- 
nents was  called,  at  which  an  address  was  adopted  reviewing 
his  public  conduct,  and  bringing  various  charges  against  him. 
Among  other  things  he  was  charge  with  want  of  fidelity  to  his 
party,  with  pursuing  a  system  of  family  aggrandizement  in  his 
appointments,  with  signing  the  charter  of  a  bank,  having  notice 
that  it  had  been  procured  by  fraudulent  practices,  with  publishing 
doctrines  unworthy  of  a  chief  magistrate  and  subversive  of  the 
dearest  interests  of  society,  with  attempting  to  destroy  the  liberty 
of  the  press  by  vexatious  prosecutions,  and  with  calling  out  the 
militia  without  occasion,  thereby  putting  them  to  unnecessary 
trouble  and  expense.  These  seem  to  have  been  the  more  serious 
charges.  The  chairman  of  the  meeting  signed  the  address,  and 
he  was  prosecuted  by  the  governor  for  the  libel  contained  therein. 
No  justification  was  attempted  upon  the  facts,  but  the  defendant 
relied  upon  his  constitutional  privilege.  His  defence  was  not 
sustained.  Said  Mr.  Justice  Thompson,  speaking  for  the  court :  — 

"  Where  the  act  is  in  itself  unlawful,  the  proof  of  justification 
or  excuse  lies  on  the  defendant,  and  on  failure  thereof  the  law 
implies  a  criminal  intent.1  If  a  libel  contains  an  imputation  of  a 
crime,  or  is  actionable  without  showing  special  damage,  malice 
is,  prima  facie,  implied;  and  if  the  defendant  claims  to  be  exon- 
erated, on  the  ground  of  want  of  malice,  it  lies  with  him  to  show 
it  was  published  under  such  circumstances  as  to  rebut  this  pre- 
sumption of  law.2  The  manner  and  occasion  of  the  publication 
have  been  relied  on  for  this  purpose,  and  in  justification  of  the 
libel.  It  has  not  been  pretended  but  that  the  address  in  question 
would  be  libellous  if  considered  as. the  act  of  an  individual ;  but 
its  being  the  act  of  a  public  meeting,  of  which  the  defendant  was 
a  member,  and  the  publication  being  against  a  candidate  for  a 
public  office,  have  been  strenuously  urged  as  affording  a  complete 
justification.  The  doctrine  contended  for  by  the  defendant's 
counsel  results  in  the  position  that  every  publication  ushered 
forth  under  the  sanction  of  a  public  political  meeting,  against  a 
candidate  f&p  an  elective  office,  is  beyond  the  reach  of  legal  in- 
quiry. To  such  a  proposition  I  can  never  yield  my  assent.  Al- 
though it  was  urged  by  the  defendant's  counsel,  I  cannot  discover 

i  5  Burr.  2667 ;  4  T.  R.  127.  2  1  T.  R.  110. 


622  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

any  analogy  whatever  between  the  proceedings  of  such  meetings 
and  those  of  courts  of  justice,  or  any  other  organized  tribunals 
known  in  our  law  for  the  redress  of  grievances.  That  electors 
should  have  a  right  to  assemble,  and  freely  and  openly  to  examine 
the  fitness  and  qualifications  of  candidates  for  public  offices,  and 
communicate  their  opinions  to  others,  is  a  position  to  which  I 
most  cordially  accede.  But  there  is  a  wide  difference  between 
this  privilege  and  a  right  irresponsibly  to  charge  a  candidate  with 
direct  specific  and  unfounded  crimes.  It  would,  in  my  judgment, 
be  a  monstrous  doctrine  to  establish,  that,  when  a  man  becomes 
a  candidate  for  an  elective  office,  he  thereby  gives  to  others  a 
right  to  accuse  him  of  any  imaginable  crimes  with  impunity. 
Candidates  have  rights  as  well  as  electors ;  and  those  rights  and 
privileges  must  be  so  guarded  and  protected  as  to  harmonize  one 
with  the  other.  If  one  hundred  or  one  thousand  men,  when  as- 
sembled together,  undertake  to  charge  a  man  with  specific  crimes, 
I  see  no  reason  why  it  should  be  less  criminal  than  if  each  ono 
should  do  it  individually  at  different  times  and  places.  All  that 
is  required,  in  the  one  case  or  the  other,  is,  not  to  transcend  the 
bounds  of  truth.  If  a  man  has  committed  a  crime,  any  one  has 
a  right  to  charge  him  with  it,  and  is  not  responsible  for  the  ac- 
cusation ;  and  can  any  one  wish  for  more  latitude  than  this  ?  Can 
it  be  claimed  as  a  privilege  to  accuse  ad  libitum  a  candidate  with 
the  most  base  and  detestable  crimes?  There  is  nothing  upon 
the  record  showing  the  least  foundation  or  pretence  for  the 
charges.  The  accusations,  then,  being  false,  the  prirna  facie  pre- 
sumption of  law  is,  that  the  publication  was  malicious  ;  and  the 
circumstance  of  the  defendant  being  associated  with  others  does 
not  per  se  rebut  this  presumption.  How  far  this  circumstance 
ought  to  affect  the  measure  of  damages  is  a  question  not  arising 
on  the  record.  It  may  in  some  cases  mitigate,  in  others  enhance, 
them.  Every  case  must  necessarily,  from  the  nature  of  the  ac- 
tion, depend  on  its  own  circumstances,  which  are  to  be  submitted 
to  the  sound  discretion  of  a  jury.  It  is  difficult,  and  perhaps 
impracticable,  to  prescribe  any  general  rule  on  the  subject."  1 

The  difficulty  one  meets  with  in  the  examination  of  this  opinion 
is  in  satisfying  himself  in  what  manner  the  privileges  of  electors, 
of  which  it  speaks,  are  protected  by  it.  It  is  not  discovered  that 
the  citizen  who  publicly  discusses  the  qualifications  and  fitness  of 
the  candidate  for  public  office  who  challenges  his  suffrage  is,  by 
this  decision,  so  far  as  suits  for  recovery  of  private  damages  are 
concerned,  placed  on  any  different  footing  in  the  law  from  that 

1  Lewis  v.  Few,  6  Johns.  1,  35.  See  also  Curtis  v.  Mussey,  6  Gray,  261 ;  Aldrich 
v.  Printing  Co.,  9  Minn.  133. 


CH.  XII.]  LIBERTY    OF    SPEECH   AND    OF   THE    PRESS.  623 

occupied  by  one  who  drags  before  the  public  the  character  of  a 
private  individual.  In  either  case,  if  the  publication  proves  to  be 
false,  the  law,  it  seems,  attaches  to  it  a  presumption  of  malice. 
Nothing  in  the  occasion  justifies  or  excuses  the  act  in  one  case 
more  than  in  the  other.  It  is  true,  it  is  intimated  that  it  may  lie 
in  the  sound  discretion  of  a  jury  to  be  moderate  in  the  imposition 
of  damages,  but  it  is  also  intimated  that  the  jury  would  be  at 
liberty  to  consider  the  circumstances  of  the  public  meeting  an 
aggravation.  There  is  absolutely  no  privilege  of  discussion  to 
the  elector  under  such  a  rule  ;  no  right  to  canvass  the  character 
and  conduct  of  candidates  any  more  than  the  character  and  con- 
duct of  others.  Whatever  reasons  he  may  give  his  neighbors  for 
voting  against  a  candidate,  he  must  be  prepared  to  support  by 
evidence  in  the  courts.  In  criminal  prosecutions,  if  he  can  prove 
the  truth  of  his  charges,  he  may  be  protected  in  some  cases  where 
he  would  not  be  if  the  person  assailed  was  not  thus  appealing  to 
public  favor ;  for  when  the  State  prosecutes,  the  accused  must  in 
all  cases  make  a  showing  of  a  justifiable  occasion  for  uttering 
even  the  truth,  and  this  occasion  for  speaking  the  truth  of  a 
candidate  the  pending  election  may  supply.? 

The  case  above  quoted  has  the  sanction  of  a  subsequent  decision 
of  the  Court  for  the  Correction  of  Errors,  which  in  like  manner 
repudiated  the  claim  of  privilege.1  The  office  then  in  question 
was  that  of  Lieutenant-Governor,  and  the  candidate  was  charged 
in  public  newspapers  with  habits  of  intoxication  which  unfitted 
him  for  the  position.  And  this  last  decision  has  since  been  fol- 
lowed as  authority  by  the  Superior  Court  of  New  York  ;  in  a  case 
which  differs  from  it  in  the  particular  that  the  office  which  the 
plaintiff  was  seeking  was  not  elective,  but  was  to  be  filled  by  an 
appointing  board.2 

The  case  of  King  v.  Root 3  will  certainly  strike  any  one  as  re- 
markable when  the  evidence  on  which  it  was  decided  is  con- 
sidered. The  Lieutenant-Governor  was  charged  in  the  public 
press  with  intoxication  in  the  Senate  Chamber,  exhibited  as  he 
was  proceeding  to  take  his  seat  as  presiding  officer  of  that  body. 
When  prosecuted  for  libel,  the  publishers  justified  the  charge  as 
true,  and  brought  a  number  of  witnesses  who  were  present  on  the 
occasion,  and  who  testified  to  the  correctness  of  the  statement. 
There  was  therefore  abundant  reason  for  supposing  the  charge  to 

1  King  v.  Root,  4  Wend.  113,  21  Am.         8  4  Wend.  113,  21  Am.  Dec.  102.    See 
Dec.  102.  the  same   case   in   the   Supreme  Court, 

2  Hunt  v.  Bennett,  4  E.  D.  Smith,  647  ;  7  Cow.  613.     It   1ms   recently  been   fol- 
s.  c.   19  N.  Y.  173.     See   Duncombe  v.  lowed  in  Illinois,  in  the  case  of  Rearick 
Daniel],  8  C.  &  P.  213.  v.  Wilcox,  81  111.  77. 


624  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

have  been  published  in  the  full  belief  in  its  truth.  If  it  was  true, 
there  was  abundant  reason,  on  public  grounds,  for  making  the 
publication.  Nevertheless,  the  jury  were  of  opinion  that  the  pre- 
ponderance of  evidence  was  against  the  truth  of  the  charge,  and 
being  instructed  that  the  only  privilege  the  defendants  had  was 
"simply  to  publish  the  truth  and  nothing  more,"  and  that  the 
unsuccessful  attempt  at  justification  —  which  in  fact  was  only 
the  forming  of  such  an  issue,  and  supporting  it  by  such  evidence 
as  showed  the  defendants  had  reason  for  making  the  charge  — 
was  in  itself  an  aggravation  of  the  offence,  they  returned  a  verdict 
for  the  plaintiff,  with  large  damages.  Throughout  the  instruc- 
tions to  the  jury  the  judge  presiding  at  the  trial  conceded  to  the 
defendant  no  privilege  of  discussion  whatever  as  springing  from 
the  relation  .of  elector  and  candidate,  or  of  citizen  and  representa- 
tive, but  the  case  was  considered  and  treated  as  one  where  the 
accusation  must  be  defended  precisely  as  if  no  public  considera- 
tions were  in  any  way  involved.1 

The  law  of  New  York  is  not  placed  by  these  decisions  on  a 
footing  very  satisfactory  to  those  who  claim  the  utmost  freedom 
of  discussion  in  publi'c  affairs.  The  courts  of  that  State  have 
treated  this  subject  as  if  there  were  no  middle  ground  between 
absolute  immunity  for  falsehood  and  the  application  of  the  same 
strict  rules  which  prevail  in  other  cases.  Whether  they  have 
duly  considered  the  importance  of  publicity  and  discussion  on  all 
matters  of  general  concern  in  a  representative  government  must 
be  left  to  the  consideration  of  judicial  tribunals,  as  these  questions 
shall  come  before  them  in  the  future.  It  is  perhaps  safe  to  say 
that  the  general  public  sentiment  and  the  prevailing  customs 
allow  a  greater  freedom  of  discussion,  and  hold  the  elector  less 

1  See  also  Onslow  v.  Home,  8  Wils.  99,   6  Am.   Dec.    656.      Charges    made 

177  ;  Harwood  v.  Astley,  1  New  Rep.  47.  through  a  newspaper  against  a  candidate 

It  is  libellous  to  charge  a  candidate  with  for  an   office  filled   by  appointment  do 

dishonesty   and   corruption  :    Rearick   v.  not,  it  seems,  stand  on  the  same  footing 

Wilcox,  81  111.  77 ;   Wheaton  v.  Beecher,  as  if  the  office   were  elective.     Hunt  v. 

66  Mich.  307,  33  N.  W.  603;  with  being  Bennett,  19  N.  Y.  173.    It  is  no  justifica- 

under  indictment :  Jones  v.  Townsend,  21  tion  for  a  libel  against  a  candidate  that  it 

Fla.  431 ;  with  being  guilty  of  forgery  :  was  published  by  the  order  of  a  public 

Bronson  v.  Bruce,  59  Mich.  467,  26  N.  W.  meeting  of  citizens.      Lewis  v.  Few,  5 

671 ;  with  being  a  professional  gambler,  Johns.   1.     By   an    honest    mistake   the 

thief,  and  bully  :  Sweeney  r.  Baker,  13  chairman  of  a  political   meeting  read  a 

W.  Va.  158,  31  Am.  Rep.  757;  with  bar-  letter  charging  a  candidate  with  official 

tering  away  a  public   improvement  for  misconduct,  and  it  was  held  he  was  not 

his  own  private  interests  :  Powers  v.  Du-  liable,  as  the  statement  was  conditionally 

bois,  17  Wend.  63 ;  to  utter  such  false-  privileged.     Briggs   v.  Garrett,  111  Pa. 

hoods  as  will  cause  persons  not  to  vote  St.  404,  2  Atl.  613. 
for  him.     Brewer  v.  Weakley,  2  Overt. 


CH.  XII.]  LIBERTY   OF   SPEECH    AND   OF   THE    PRESS.  625 

strictly  to  what  he  may  be  able  to  justify  as  true,  than  is  done  by 
these  decisions.1 

A  much  more  reasonable  rule  —  though  still,  we  think,  not 
sufficiently  comprehensive  and  liberal  —  was  indicated  by  Pollock, 
C.  B.,  in  a  case  where  it  was  urged  upon  the  court  that  a  sermon, 
preached  but  not  published,  was  the  subject  of  criticism  in  the 
enlarged  style  of  commentary  which  that  word  seems  to  introduce 
according  to  the  decided  cases  ;  and  that  the  conduct  of  a  clergy- 
man with  reference  to  the  parish  charity,  and  especially  to  the 
rules  governing  it,  justified  any  bona  file  remarks,  whether 
founded  in  truth  in  point  of  fact,  or  justice  in  point  of  commen- 
tary, provided  only  they  were  an  honest  and  bona  fide  comment. 
"  My  brother  Wilde,"  he  says,  "  urged  upon  the  court  the  impor- 
tance of  this  question  ;  and  I  own  I  think  it  is  a  question  of  very 
grave  and  deep  importance.  He  pressed  upon  us  that,  wherever 
the  public  had  an  interest  in  such  a  discussion,  the  law  ought  to 
protect  it,  and  work  out  the  public  good  by  permitting  public 
opinion,  through  the  medium  of  the  public  press,  to  operate  upon 
such  transactions.  I  am  not  sure  that  so  extended  a  rule  is  at 
all  necessary  to  the  public  good.  I  do  not  in  any  degree  com- 
plain ;  on  the  contrary,  I  think  it  quite  right  that  all  matters 
that  are  entirely  of  a  public  nature  —  conduct  of  ministers,  con- 
duct of  judges,  the  proceedings  of  all  persons  who  are  responsible 
to  the  public  at  large  —  are  deemed  to  be  public  property ;  and 
that  all  bona  fide  and  honest  remarks  upon  such  persons  and  their 
conduct  may  be  made  with  perfect  freedom,  and  without  being 
questioned  too  nicely  for  either  justice  or  truth."2  But  these 
remarks  were  somewhat  aside  from  the  case  then  before  the 
learned  judge,  and  though  supported  by  similar  remarks  from  his 
associates,  yet  one  of  those  associates  deemed  it  important  to 
draw  such  a  distinction  as  to  detract  very  much  from  the  value 

1  "  Freedom  of  speech  is  a  principal  and  an  impartial  posterity  will  not  fail  to 

pillar  of  a  free  government;    when  this  render  him  justice.     Those  abuses  of  the 

support  is  taken  away,  the  constitution  freedom  of  speech   are  the  excesses  of 

of  a  free  society  is  dissolved,  and  tyranny  liberty.     They  ought   to   be   repressed; 

is  erected  on  its  ruins.     Republics  and  but  to  whom  dare  we  commit  the  care  of 

limited  monarchies  derive  their  strength  doing  it?     An  evil  magistrate,  entrusted 

and  vigor  from  a  popular   examination  with  power  to  punish  for  words,  would  be 

into  the  action  of  the  magistrates  ;  this  armed  with  a  weapon  the  most  destructive 

privilege  in  all  ages  has  been  and  always  and  terrible.     Under  pretence  of  pruning 

will  be  abused.     The  best  of  men  could  off  the  exuberant  branches,  he  would  be 

not  escape  the  censure  and  envy  of  the  apt  to  destroy  the  tree."    Franklin,  Works 

times  they  lived  in.     Yet  this  evil  is  not  by  Sparks,  Vol.  II.  p.  28-3. 
so  great  as  it  might  appear  at  first  sight.  2  Gathercole  v.  Miall,  15  M.  &  W.  319, 

A  magistrate  who  sincerely  aims  at  the  332.     See  Commonwealth  r.  Clap,  4  Mass, 

good  of  society  will  always  have  the  in-  163,  3  Am.  Dec.  212,  per  Parsons,  Ch.  J. ; 

clinations  of  a  great  majority  on  his  side,  Townshend  on  Libel  and  Slander,  §  260. 

40 


626  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

of  this  privilege.  "  It  seems,"  he  says,  "  there  is  a  distinction, 
although  I  must  say  I  really  can  hardly  tell  what  the  limits  of  it 
are,  between  the  comments  on  a  man's  public  conduct  and  upon 
his  private  conduct.  I  can  understand  that  you  have  a  right  to 
comment  on  the  public  acts  of  a  minister,  upon  the  public  acts  of 
a  general,  upon  the  public  judgments  of  a  judge,  upon  the  public 
skill  of  an  actor;  I  can  understand  that;  but  I  do  not  know 
where  the  limit  can  be  drawn  distinctly  between  where  the 
comment  is  to  cease,  as  being  applied  solely  to  a  man's  public 
conduct,  and  where  it  is  to  begin  as  applicable  to  his  private 
character ;  because,  although  it  is  quite  competent  for  a  person 
to  speak  of  a  judgment  of  a  judge  as  being  an  extremely  erro- 
neous and  foolish  one,  —  and  no  doubt  comments  of  that  sort 
have  great  tendency  to  make  persons  careful  of  what  they  say,  — 
and  although  it  is  perfectly  competent  for  persons  to  say  of  an 
actor  that  he  is  a  remarkably  bad  actor,  and  ought  not  to  be 
permitted  to  perform  such  and  such  parts,  because  he  performs 
them  so  ill,  yet  you  ought  not  to  be  allowed  to  say  of  an  actor 
that  he  has  disgraced  himself  in  private  life,  nor  to  say  of  a  judge 
or  of  a  minister  that  he  has  committed  felony,  or  anything  of  that 
description,  which  is  in  no  way  connected  with  his  public  conduct 
or  public  judgment;  and  therefore  there  must  be  some  limits, 
although  I  do  not  distinctly  see  where  those  limits  are  to  be 
drawn.  No  doubt,  if  there  are  such  limits,  my  brother  Wilde  is 
perfectly  right  in  saying  that  the  only  ground  on  which  the 
verdict  and  damages  can  go  is  for  the  excess,  and  not  for  the 
lawful  exercise  of  the  criticism."  l 

The  radical  defect  in  this  rule,  as  it  seems  to  us,  consists  in  its 
assumption  that  the  private  character  of  a  public  officer  is  some- 
thing aside  from,  and  not  entering  into  or  influencing,  his  public 
conduct ;  that  a  thoroughly  dishonest  man  may  be  a  just  minister, 
and  that  a  judge  who  is  corrupt  and  debauched  in  private  life 
may  be  pure  and  upright  in  his  judgments  ;  in  other  words,  that 
an  evil  tree  is  as  likely  as  any  other  to  bring  forth  good  fruits. 
Any  such  assumption  is  false  to  human  nature,  and  contradictory 
to  general  experience  ;  and  whatever  the  law  may  say,  the  general 
public  will  still  assume  that  a  corrupt  life  will  influence  public 

1  Alderson,  B.,  same  case,  p.  338.  The  a  privileged  occasion.  Cora.  v.  Ward- 
publication  of  a  false  statement  of  spe-  well,  136  Mass.  164.  fJAnd  publication 
cific  acts  of  misconduct  in  office  of  a  of  charges,  when  made  outside  the  terri- 
puhlic  man* are  not  privileged.  Davis  tory  over  which  the  officer's  power  ex- 
v.  Shepstone,  L.  R.  11  App.  Cas.  187.  tends,  is  not  privileged.  State  v.  Haskins, 
Charges  against  the  private  character  of  a  109  Iowa,  656,  80  N.  W.  1063, 47  L.  11.  A. 
sheriff  who  has  not  announced  himself  as  a  223.] 
candidate  for  re-election  are  not  made  on 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE    PRESS. 


627 


conduct,  and  that  a  man  who  deals  dishonestly  with  his  fellows 
as  individuals  will  not  hesitate  to  defraud  them  in  their  aggregate 
and  corporate  capacity,  if  the  opportunity  shall  be  given  him. 
They  are  therefore  interested  in  knowing  what  is  the  character 
of  their  public  servants,  and  what  sort  of  persons  are  offering 
themselves  for  their  suffrages.  '  And  if  this  be  so,  it  would  seem 
that  there  should  be  some  privilege  of  comment ;  that  that  privi- 
lege could  only  be  limited  by  good  faith  and  just  intention;  and 
that  of  these  it  was  tbe  province  of  a  jury  to  judge,  in  view  of 
the  nature  of  the  charges  made  and  the  reasons  which  existed 
for  making  them. 

The  English  cases  allow  considerable  latitude  of  comment  to 
publishers  of  public  journals,  upon  subjects  in  the  discussion  of 
which  the  public  may  reasonably  be  supposed  to  have  an  interest, 
and  they  hold  the  discussions  to  be  privileged  if  conducted  within 
the  bounds  of  moderation  and  reason.1  A  more  recent  case,  how- 
ever, limits  the  range  of  privilege  somewhat,  and  suggests  a  dis- 
tinction which  we  are  not  aware  has  ever  been  judicially  pointed 
out  in  this  country,  and  which  we  are  forced  to  believe  the  Ameri- 
can courts  would  be  slow  to  adopt.  The  distinction  is  this  :  That 
if  the  officer  or  functionary  whose  conduct  is  in  question  is  one  in 
whose  duties  the  general  public,  and  not  merely  the  local  public, 
has  an  interest,  then  a  discussion  of  his  conduct  is  privileged ; 
otherwise  it  is  not.  Thus  the  public  journals  are  privileged  to  com- 


1  In  Kelley  v.  Sherlock,  Law  Rep. 
1  Q.  B.  686,  it  was  held  that  a  sermon 
commenting  upon  public  affairs  —  e.  g. 
the  appointment  of  chaplains  for  prisons 
and  the  election  of  a  Jew  for  mayor  — 
was  a  proper  subject  for  comment  in  the 
papers.  And  in  Kelly  v.  Tinling,  Law 
Rep.  1  Q.  B.  699,  a  church-warden,  hav- 
ing written  to  the  plaintiff,  the  incum- 
bent, accusing  him  of  having  desecrated 
the  church  by  allowing  books  to  be  sold 
in  it  during  service,  and  by  turning  the 
vestry-room  into  a  cooking-apartment,  the 
correspondence  was  published  without 
the  plaintiff's  permission  in  the  defend- 
ant's newspaper,  with  comments  on  the 
plaintiff's  conduct.  Held,  that  this  was  a 
matter  of  public  interest,  which  might  be 
made  the  subject  of  public  discussion ; 
and  that  the  publication  was  therefore 
not  libellous,  unless  the  language  used 
was  stronger  than,  in  the  opinion  of  the 
jury,  the  occasion  justified. 

In  Wason  v.  Walter,  L.  R.  4  Q.  B.  73, 
the  proprietor  of  the  "London  Times" 


was  prosecuted  for  comments  in  his  paper 
upon  a  debate  in  the  House  of  Lords. 
The  plaintiff  had  presented  a  petition  to 
that  body,  charging  Sir  Fitzroy  Kelly 
with  having,  many  years  before,  made  a 
statement  false  to  his  own  knowledge,  in 
order  to  deceive  a  committee  of  the  House 
of  Commons ;  and  praying  inquiry,  and 
his  removal  from  an  office  he  held,  if  the 
charge  was  found  true.  A  debate  ensued, 
and  the  charge  was  wholly  refuted.  Held, 
that  this  was  a  subject  of  great  public 
concern,  on  which  a  writer  in  a  public 
newspaper  had  full  right  to  comment ; 
and  the  occa.-ion  was  therefore  so  far 
privileged  that  the  comments  would  not 
be  actionable  so  long  as  a  jury  should 
think  them  honest,  and  made  in  a  fair 
spirit,  and  such  as  were  justified  by  the 
circumstances  disclosed  in  the  debate. 
The  opinion  by  Ciiief  Justice  Cockburn  is 
very  clear  and  pointed,  and  reviews  all 
the  previous  decisions.  See  further,  Fair- 
child,  v.  Adams,  11  Cush.  549;  Terry  v. 
Fellows,  21  La.  Ann.  375. 


628 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


ment  freely  within  the  limits  of  good  faith,  on  the  manner  in  which 
a  judge  performs  his  duties,  but  they  are  not  privileged  in  like  man- 
ner in  the  case  of  an  official  charged  with  purely  local  duties,  such, 
for  instance,  as  the  physician  to  a  local  public  charity.  We  can- 
not believe  there  is  any  sufficient  reason  for  allowing  free  discus- 
sion in  the  one  case  and  not  in  the  other ;  but  the  opinion  is  of 
sufficient  importance  to  justify  special  attention  being  directed  to 
it.1  And  in  this  country  it  has  been  held  that  where  a  charge 
against  an  officer  or  a  candidate  respects  only  his  qualifications  for 
the  office,  and  does  not  impugn  his  character,  it  forms  no  basis  for 
a  recovery  of  damages.  To  address  to  the  electors  of  a  district  let- 
ters charging  that  a  candidate  for  office  is  of  impaired  understand- 
ing, and  his  mind  weakened  by  disease,  is  presenting  that  subject  to 
"  the  proper  and  legitimate  tribunal  to  try  the  question."  "  Tal- 
ents and  qualifications  for  office  are  mere  matters  of  opinion,  of 
which  the  electors  are  the  only  competent  judges."  2 


1  Purcell  a.  Sowler,  L.  R.  1  C.  P.  Div. 
781.     The  plaintiff  was  medical  officer  of 
the  Knutsford  workhouse,  and  the  alleged 
libel  consisted  in  a  report  of  an  inquiry 
by  the  board  in  charge  into  his  conduct 
and  the  treatment  of  the  poor  under  him, 
and  comments   thereon.     The  following 
cases   are   commented   upon  and  distin- 
guished:    Davis  v.  Duncan,  9  C.  P.  396; 
Kelly  v.  Tinling,  L.  R.  1  Q.  B.  699;  Hen- 
wood  v.  Harrison,  L.  R.  7  C.  P.  606 ;  Wa- 
son  v.  Walter,  L.  R.  4  Q.  B.  73.     It  is 
clear  that  a  trustee  of  a  mining  corpora- 
tion is  not  such  an  officer  as  to  be  sub- 
jected to  general  criticism  under  the  priv- 
ilege of  the  press.     Wilson  v.  Fitch,  41 
Cal.  363.     (^Charges  must  have  a  better 
foundation  than  mere  rumors  in  order  to 
be  privileged.     State   v.  Ford,  82  Minn. 
452,  85  N.  W.  217-3 

2  Mayrant   v.   Richardson,   1  Nott  & 
McCord,  348,  9  Am.  Dec.  707.     It  is  not 
libellous  to   publish   in   good   faith  any 
charges  against  a  candidate  for  office,  af- 
fecting his  qualifications  and  fitness  for 
the   office :    Commonwealth  v.  Morris,  1 
Va.  Cases,  175,  5  Am.  Dec.  515;    Com- 
monwealth v.  Odell,  3  Pittsb.   (Pa.)  449  ; 
Commonwealth    v.  Clap,  4    Mass.   163, 
3  Am.  Dec.   212;    Mott  v.   Dawson,  46 
Iowa,  533  ;  Bays  v.  Hunt.  60  Iowa,  251, 
14  N.  W.  785;   State  v.  Balch,  31  Kan. 
465,  2  Pac.  609 ;  Marks  v.  Baker,  28  Minn. 
162,  9  N.  W.  678;  Express  Printing  Co. 
v.   Copeland,  64   Tex.   354;  [Posnett  v. 
Marble,  62  Vt.  481,  20  All.  813, 11  L.  R.  A. 


162,  22  Am.  St.  126  ;  Ross  v.  Ward,  14 
S.  D.  240,  85  N.  W.  182  ;]  to  charge  him 
with  being  idle,  uneducated,  and  igno- 
rant :  Sweeney  v.  Baker,  13  W.  Va.  158, 
31  Am.  Rep.  757.  But  see  cases,  ante, 
p.  624,  note  1.  [And  see  Belknap  v. 
Ball,  83  Mich.  583,  47  N.  W.  674,  11 
L.  R.  A.  72,  21  Am.  St.  622.]  It  is  libel- 
lous to  charge  an  officer  with  having 
taken  a  bribe  :  Hamilton  v.  Eno,  81  N.  Y. 
110;  Wilson  v.  Noonan,  35  Wis.  321; 
with  corruption  or  want  of  integrity  : 
Gove  v.  Blethen,  21  Minn.  80, 18  Am.  Rep. 
380 ;  Russell  v.  Anthony,  21  Kan.  450,  30 
Am.  Rep.  436;  Littlejohn  v.  Greeley,  13 
Abb.  Pr.  41;  Dole  p.  Van  Rensselaer,  1 
Johns.  Cas.  330  ;  Negley  v.  Farrow,  60  Md. 
158;  Neeb  v.  Hope,  111  Pa.  St.  145,2  All. 
568  ;  [Augusta  Evening  News  v.  Radford, 
91  Ga.  494, 17  S.  E.  612,  20  L  R.  A.  533, 
44  Am.  St.  53;]  with  being  intoxicated 
while  in  discharge  of  his  official  duties: 
King  v.  Root,  4  Wend.  113,  21  Am.  Dec. 
102;  Gottbehuet  v.  Hubachek,  36  Wis. 
515;  to  charge  a  judge  with  being  desti- 
tute of  capacity  or  attainments  necessary 
for  his  station  :  Robbins  v.  Treadway,  2 
J.  J.  Marsh.  540, 19  Am.  Dec  152 ;  Spier- 
ing  v.  Andrae,  45  Wis.  330,  30  Am.  Rep. 
744 ;  to  charge  him  with  being  disquali- 
fied and  liable  to  impeachment :  Richard- 
son v.  State,  66  Md.  205,  7  Atl.  43  ;  see 
Cooper  v.  People,  13  Col.  337,  373,  22 
Pac.  790 ;  to  charge  an  officer  with  having 
done  that  which  should  remove  him  from 
his  seat  :  Hook  v.  Hackney,  16  S.  &  R. 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PRESS. 


629 


Statements  in  the  Course  of  Judicial  Proceedings. 

Among  the  cases  which  are  so  absolutely  privileged  on  reasons 
of  public  policy,  that  no  inquiry  into  motives  is  permitted  in  an  ac- 
tion for  slander  or  libel,  is  that  of  a  witness  giving  evidence  in  the 
course  of  judicial  proceedings.  It  is  familiar  law  that  no  action 
will  lie  against  him  at  the  suit  of  a  party  aggrieved  by  his  false 
testimony,  even  though  malice  be  charged.1  The  remedy  against 
a  dishonest  witness  is  confined  to  the  criminal  prosecution  for 
perjury.2  So  what  a  juror  may  say  to  his  fellows  in  the  jury- 
room  while  they  are  considering  their  verdict,  concerning  one  of 


385 ;  Lansing  v.  Carpenter,  9  Wis.  540  ; 
to  charge  a  sealer  of  weights  and 
measures  with  "tampering  with"  and 
"  doctoring  "  such  weights  and  measures  : 
Eviston  v.  Cramer,  47  Wis.  659,  3  N.  W. 
392;  to  charge  a  city  physician  with 
causing  the  death  of  a  patient  by  reckless 
treatment.  Foster  v.  Scripps,  39  Mich. 
376,  33  Am.  Rep.  403 ;  see  Hart  r.  Von 
Gumpach,  L.  R.  4  Priv.  C  439;  s.  c.  4 
Moak,  138  ;  to  call  a  member  of  Congress 
"  a  fawning  sycophant,  a  misrepresenta- 
tive  in  Congress,  and  a  grovelling  office 
seeker."  Thomas  v.  Crosswell,  7  Johns. 
264,  6  Am.  Dec.  269.  It  is  not  libellous 
to  charge  a  judge  with  improprieties 
which  would  be  no  cause  of  impeachment : 
Robbins  v.  Treadway,  2  J  J.  Marsh.  540, 
19  Am.  Dec  152 ;  nor  with  ordering  un- 
reasonable bail  :  Miner  v.  Detroit  Post, 
&c.  Co.,  49  Mich.  358,  13  N.  W.  773  ;  or 
an  officer  with  giving  his  wife  work  in  a 
public  office  and  paying  her  in  her  maiden 
name:  Bell  v.  Sun  Printing,  &c.,  Co.,  42 
N.  Y.  Sup.  Ct.  567  ;  and  it  is  not  libellous 
for  a  committee  of  a  college  of  pharmacy 
to  charge  an  inspector  of  drugs  with  gross 
violation  of  duty,  in  a  report  made  in 
good  faith  which  was  presented  to  the 
Secretary  of  the  Treasury.  Van  Wyck 
v.  Aspinwall,  17  N.  Y.  190,  4  Duer,  268. 
To  charge  corruption,  intimidation,  and 
fraud  in  an  election  is  actionable  per  se. 
Tillsou  v.  Robbing,  68  Me.  205,  28  Am. 
Rep.  50.  See  Barr  v.  Moore,  87  Pa.  St. 
385,  30  Am.  Rep.  367.  [For  a  case  in 
which  the  candidate  was  charged  with 
nearly  all  the  crimes  in  the  calendar,  see 
Upton  v.  Hume,  24  Oreg.  420,  33  Pac.  810, 
21  L.  R.  A.  493,  41  Am.  St.  863.] 

1  Allen  v.  Crofoot,  2  Wend.     515,  20 
Am.   Dec.  647;  Marsh   v.  Ellsworth,  50 


N.  Y.  309;  Terry  v.  Fellows,  21  La. 
Ann.  375;  Smith  v.  Howard,  28  Iowa, 
61 ;  Shock  v.  McChesney,  4  Yeates,  507, 
2  Am.  Dec.  415;  Calkins  v.  Sumner,  13 
Wis.  193;  Barnes  v.  McCrate,  32  Me. 
442;  Dunlap  v.  Glidden,  31  Me.  435; 
Hutchinson  v.  Lewis,  75  Ind.  55 ;  Verner 
v.  Verner,  64  Miss.  321,  1  So.  479.  See 
White  v.  Carroll,  42  N.  Y.  161, 1  Am.  Rep. 
603.  So  of  an  answer  to  a  legislative 
committee,  though  not  under  oath. 
Wright  v.  Lothrop,  149  Mass.  885,  21 
N.  E.  963.  [So  with  relevant  testimony 
before  a  committee  of  a  board  of  aldermen 
having  power  to  compel  the  same. 
Blakeslee  v.  Carroll,  64  Conn.  223,  29  Atl. 
473,  25  L.  R.  A.  106.] 

2  But  he  is  not  protected  if  what  is 
testified  is  not  pertinent  or  material  to 
the  cause,  and  he  has  been  actuated  by 
malice  in  stating  it.  White  v.  Carroll, 
42  N.  Y.  166,  1  Am.  Rep.  503 ;  Barnes 
v.  McCrate,  32  Me.  442;  Kidder  v.  Park- 
hurst,  3  Allen.  393  ;  Shadden  v.  McElwee, 
86  Tenn.  146,  5  S.  W.  602.  But  in 
Hunckel  v.  Voneiff,  69  Md.  179,  14  Atl. 
600,  17  Atl.  1056,  the  privilege  is  held  to 
cover  reflections  thrown  out  needlessly. 
He  is  not,  however,  to  be  himself  the 
judge  of  what  is  pertinent  or  material 
when  questions  are  put  to  him,  and  no 
objection  or  warning  comes  to  him  from 
court  or  counsel.  Calkins  v.  Sumner,  13 
Wis.  193  See  also  Warner  v.  Paine,  2 
Sandf.  195;  Garr  v.  Selden,  4  N.  Y.  91; 
Jennings  v.  Paine,  4  Wis.  358  ;  Perkins  v. 
Mitchell,  31  Barb.  461 ;  Revis  v.  Smith, 
18  C.  B.  126  ;  Grove  v.  Brandenburg,  7 
Blackf.  234;  Cunningham  v.  Brown,  18 
Vt.  123;  Dunlap  v.  Glidden,  31  Me. 
435 ;  Steinecke  v.  Marx,  10  Mo.  App.  580. 
See  Liles  v.  Gaster,  42  Ohio  St.  631. 


630 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XII. 


the  parties  to  the  suit  who  has  been  a  witness  therein,  cannot  be 
the  subject  of  an  action  for  slander.1  False  accusations,  however, 
contained  in  the  affidavits  or  other  proceedings,  by  which  a  prose- 
cution is  commenced  for  supposed  crime,  or  in  any  other  papers 
in  the  course  of  judicial  proceedings,  are  not  so  absolutely  pro- 
tected. They  are  privileged,2  but  the  party  making  them  is  liable 
to  action,  if  actual  malice  be  averred  and  proved.3  Preliminary 
information,  furnished  with  a  view  to  set  on  foot  an  inquiry  into 
an  alleged  offence,  or  to  institute  a  criminal  prosecution,  is,  in  like 
manner,  privileged ; 4  but  the  protection  only  extends  to  those 


1  Dunham  v.  Powers,  42  Vt.  1  ;  Rec- 
tor v.  Smith,  11  Iowa,  302. 

2  Astley  v.  Younge,  Burr.  807 ;  Strauss 
v.  Meyer,  48  III.  385 ;  Vausse  v.  Lee,  1 
Hill  (S.  C.),  197,  26  Am.  Dec.  168 ;  Bun- 
ton  v.  Worley,  4  Bibb,  38,  7   Am.  Dec. 
735;  Sanders  v.  Rollinson,  2  Strobh.  447; 
Francis   v.  Wood,  75   Ga.  648 ;  but   not 
if  spoken  without  bona  fide  intention  of 
prosecuting :  Marshall  v.  Gunter,  6  Rich. 
419  ;  or  in  a  court  which  does  not  have 
jurisdiction    of    the    case.      Hosmer    v. 
Loveland,  19  Barb.  111.     All  allegations 
in  pleadings,  if  pertinent,  are  absolutely 
privileged.    Strauss  v.  Meyer,  48  III  385; 
Lea  v.  White,  4   Sneed,  111 ;   Forbes  v. 
Johnson,  11  B.  Monr.  48 ;  Vinas  v.  Merch. 
&c.  Co.,  33  La.  Ann.  1265  ;  Prescott  v. 
Tousey,  53  N.  Y.  S.  C.  56;   Wilson  v. 
Sullivan,  81  Ga.  238,  7  S.  E.  274  ;  Runge 
v.  Franklin,  72  Tex.  585,  10  S.  W.  721. 
See  Lanning  v.  Christy,  30  Ohio  St.  115. 
So,  though   the  complaint  is  dismissed. 
Dada  v.  Piper,  41  Hun,  25'4.     A  petition 
alleging  misconduct  in  office  filed   by  a 
receiver  against   his   co-receiver  in   the 
action   in   which    they   were    appointed 
is  privileged.    Bartlett  v.  Christhilf,  69 
Md.  219,  14  Atl.  518.     Charges  made  in 
the  interest  of  his  client  by  an  attorney 
in  opposition  to  the  discharge  of  an  in- 
solvent debtor  are  absolutely  privileged. 
Hollis  v.  Meux,  69  Cal.  625,  11  Pac.  248. 
But   libellous   words   spoken  of  a   third 
person  in  the  pleadings,  if  relevant,  are 
only  conditionally  privileged :    Ruohs  v. 
Backer,  6  Heisk.  395,  19  Am.  Rep.  598; 
Davis  v.  McNees,  8  Humph.  40 ;  and  when 
not  pertinent  and  material  are  not  privi- 
leged.    McLaughlin  v.  Cowley,  127  Mass. 
316,  131  Mass.   70 ;   Wyatt  v.  Buell,  47 
Cal.  624. 

3  Padmore  v.  Lawrence,  11  Ad.  &  El. 
380 ;  Kine  v.  Sewell,  3  M.  &  W.  297 ;  Bur- 


lingame  v.  Burlingame,  8  Cow.  141 ;  Kid- 
der  v.  Parkhurst,  3  Allen,  393 ;  Doyle  r. 
O'Doherty,  1  Car.  &  Marsh.  418 ;  Wilson 
v.  Collins,  5  C.  &  P.  373 ;  Home  v.  Ben- 
tinck,  2  Brod.  &  Bing.  130;  Jarvis  v. 
Hathaway,  3  Johns.  180.  In  Goslin  v. 
Cannon,  1  Harr.  3,  it  was  held  that 
where  a  crime  had  been  committed,  ex- 
pressions of  opinion  founded  upon  facts 
within  the  knowledge  of  the  party,  or 
communicated  to  him,  made  prudently 
and  in  confidence  to  discreet  persons, 
and  made  obviously  in  good  faith  with  a 
view  only  to  direct  their  watchfulness, 
and  enlist  their  aid  in  recovering  the 
money  stolen,  and  detecting  and  bringing 
to  justkie  the  offender,  were  privileged. 
The  cause,  occasion,  object,  and  end,  it 
was  said,  was  justifiable,  proper,  and 
legal,  and  such  as  should  actuate  every 
good  citizen.  If  a  party,  in  presenting 
his  case  to  a  court,  wanders  from  what 
is  material  to  libel  another,  the  libel  is 
not  privileged.  Wyatt  v.  Buell,  47  Cal. 
624. 

*  Grimes  v.  Coyle,  6  B.  Monr.  801. 
The  subject  of  communications  privileged 
on  grounds  of  public  policy  will  be  found 
considered,  at  some  length  and  with 
ability,  in  the  recent  case  of  Dawkins  v. 
Lord  Paulet,  Law  Rep.  5  C.  B.  94.  The 
publication  complained  of  was  by  a  mili- 
tary officer  to  his  superior  concerning  the 
qualifications  and  capacity  of  the  plain- 
tiff as  a  subordinate  military  officer  under 
him ;  and  it  was  averred  that  the  words 
were  published  by  the  defendant  of  ac- 
tual malice,  and  without  any  reasonable, 
probable,  or  justifiable  cause,  and  not 
bona  Jide,  or  in  the  bona  fide  discharge  of 
defendant's  duty  as  superior  officer.  On 
demurrer,  a  majority  of  the  court  (Mellor 
and  Lush,  JJ.)  held  the  action  would  not 
lie :  planting  themselves,  in  part,  on 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PRESS.  631 

communications  which  are  in  the  course  of  the  proceedings  to 
bring  the  supposed  offender  to  justice,  or  are  designed  for  the  pur- 
pose of  originating  or  forwarding  such  proceedings  ;  and  commu- 
nications not  of  that  character  are  not  protected,  even  although 
judicial  proceedings  may  be  pending  for  the  investigation  of  the 
offence  which  the  communication  refers  to.1  Still  less  would  a 
party  be  justified  in  repeating  a  charge  of  crime,  after  the  person 
charged  has  been  examined  on  his  complaint,  and  acquitted  of  all 
guilt.2 

Privilege  of  Counsel. 

One  of  the  most  important  cases  of  privilege,  in  a  constitutional 
point  of  view,  is  that  of  counsel  employed  to  represent  a  party  in 
judicial  proceedings.  The  benefit  of  the  constitutional  right  to 
counsel  depends  very  greatly  on  the  freedom  with  which  he  is  al- 
lowed to  act,  and  to  comment  on  the  facts  appearing  in  the  case, 
and  on  the  inferences  deducible  therefrom.  The  character,  con- 
duct, and  motives  of  parties  and  their  witnesses,  as  well  as  of 
other  persons  more  remotely  connected  with  the  proceedings, 
enter  very  largely  into  any  judicial  inquiry,  and  must  form  the 
subject  of  comment,  if  they  are  to  be  usefully  sifted  and  weighed. 
To  make  the  comment  of  value,  there  must  be  the  liberty  to  exam- 
ine tbe  case  in  every  possible  light,  to  advance  theories,  and  to  sug- 
gest to  those  having  the  power  of  decision  any  view  of  the  facts 
and  of  the  motives  of  actors  which  shall  appear  tenable  or  even 
plausible.  It  sometimes  happens  in  criminal  proceedings,  that, 
while  no  reasonable  doubt  can  exist  that  a  crime  has  been  corn- 
grounds  of  public  policy,  and  in  part,  also,  to  a  witness  who  was  giving  his  testimony 
on  the  fact  that  the  military  code  pro-  on  a  material  point  in  a  cause  then  on 
vided  a  remedy  for  wrongs  of  the  nature  trial,  to  which  defendant  was  a  party, 
complained  of;  and  quoting  with  ap-  "  That 's  a  lie,"  and  for  repeating  the  same 
proval  Johnstone  v.  Sutton,  1  T.  R.  544,  statement  to  counsel  for  the  opposite  party 
and  Dawkins  v.  Lord  Rokeby,  4  N.  &  F.  afterwards.  The  words  were  held  not  to 
841.  Cockburn,  Ch.  J.,  delivered  an  able  be  privileged.  To  the  same  effect  are  the 
dissenting  opinion.  The  decision  is  criti-  cases  of  McClaughry  E.  Wetmore,  6  Johns, 
cised  in  Maurice  v.  Worden,  54  Md.  233,  82,  and  Kean  v.  McLaughlin,  2  S.  &  R. 
39  Am.  Rep.  384,  where  an  analogous  469.  See  also  Torrey  v.  Field,  10  Vt. 
communication  was  held  privileged  con-  353 ;  Gilbert  v.  People,  1  Denio,  41.  A 
ditionally,  but  not  absolutely.  report  made  by  a  grand  jury  upon  a 

1  Dancaster  v.  Hewson,  2  M.  &  Ry.     subject  which  they  conceive  to  be  within 
176.     Statements  by  a  justice  as  to  what     their  jurisdiction,  but   which   is  not,  is 
was  said  by  a  person  applying  for  a  war-    nevertheless  privileged.    Rector  v.  Smith, 
rant  but  not  as  part  of  a  judicial  hearing     11  Iowa,  302.     Matter  inserted  as  part  of 
are  not  privileged.     McDermott  v.  Even-     a  justice's  official  return  is  privileged,  if 
ing  Journal  Co.,  43  N.  J.  L.  488.  believed  by  the  justice  to  be  material  to 

2  Burlingame  v.  Burlingame,  8  Cow.     the  return.     Aylesworth  v.  St.  John,  25 
141.     In  Mower  v.  Watson,  11  Vt.  636,  an     Hun,  156. 

action  was  brought  for  slander  in  saying 


632  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

mitted,  there  may  be  very  grave  doubt  whether  the  prosecutor  or 
the  accused  is  the  guilty  party  ;  and  to  confine  the  counsel  for  the 
defence  to  such  remarks  concerning  the  prosecutor  as  he  might 
justify,  if  he  had  made  them  without  special  occasion,  would  render 
the  right  to  counsel,  in  such  cases,  of  little  or  no  value.  The  law 
is  not  chargeable  with  the  mockery  of  assuming  to  give  a  valuable 
privilege  which,  when  asserted,  is  found  to  be  so  hampered  and 
restricted  as  to  be  useless. 

The  rule  upon  this  subject  was  laid  down  in  these  words  in  an 
early  English  case :  "  A  counsellor  hath  privilege  to  enforce  any- 
thing which  is  informed  him  by  his  client,  and  to  give  it  in  evi- 
dence, it  being  pertinent  to  the  matter  in  question,  and  not  to 
examine  whether  it  be  true  or  false  ;  for  a  counsellor  is  at  his  peril 
to  give  in  evidence  that  which  his  client  informs  him,  being  per- 
tinent to  the  matter  in  question ;  but  matter  not  pertinent  to  the 
issue,  or  the  matter  in  question,  he  need  not  deliver;  for  he  is  to 
discern  in  his  discretion  what  he  is  to  deliver,  and  what  not;  and 
although  it  be  false,  he  is  excusable,  it  being  pertinent  to  the 
matter.  But  if  he  give  in  evidence  anything  not  material  to  the 
issue,  which  is  scandalous,  he  ought  to  aver  it  to  be  true ;  other- 
wise he  is  punishable ;  for  it  shall  be  considered  as  spoken  mali- 
ciously and  without  cause ;  which  is  a  good  ground  for  the 
action.  ...  So  if  counsel  object  matter  against  a  witness  which 
is  slanderous,  if  there  be  cause  to  discredit  his  testimony,  and  it 
be  pertinent  to  the  matter  in  question,  it  is  justifiable,  what  he 
delivers  by  information,  although  it  be  false."  1  The  privilege  of 
counsel  in  these  cases  is  the  same  with  that  of  the  party  himself,2 
and  the  limitation  upon  it  is  concisely  suggested  in  a  Pennsylvania 
case,  "that  if  a  man  should  abuse  his  privilege,  and,  under  pre- 
tence of  pleading  his  cause,  designedly  wander  from  the  point  in 
question,  and  maliciously  heap  slander  upon  his  adversary,  I  will 
not  say  that  he  is  not  responsible  in  an  action  at  law."  3  Chief 
Justice  STiaiv  has  stated  the  rule  very  fully  and  clearly :  "  We  take 
the  rule  to  be  well  settled  by  the  authorities,  that  words  spoken  in 
the  course  of  judicial  proceedings,  though  they  are  such  as  impute 
crime  to  another,  and  therefore,  if  spoken  elsewhere,  would  import 
malice  and  be  actionable  in  themselves,  are  not  actionable,  if  they 

1  Brook  v.  Montague,   Cro.  Jac.   90.  For  the  liability  of  counsel  for  inserting 
See  this  case  approved   and   applied   in  irrelevant  and   injurious   matter   in   the 
Hodgson  v.  Scarlett,  1  B.  &   Aid.    232.  pleadings,  see  McLaughlin  v.  Cowley,  127 
And  see  Mackay  v.  Ford,  5  H.  &  M.  792.  Mass.  316.     The  client  is  not  answerable 

2  Hoar  v.  Wood,  3  Met.  193,  per  Shaw,  for  the  slanders  of  his  counsel  in  manag- 
Ch.  J.  ing  his  cause.     Bayly  v.  Fourchy,  32  La. 

8  McMillan  v.  Birch,   1  Binney,  178,    Ann.  136. 
2  Am.  Dec.  426,  per  Tilghman,  Ch.  J. 


GIL  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE   PRESS.  633 

are  applicable  and  pertinent  to  the  subject  of  inquiry.  The  ques- 
tion, therefore,  in  such  cases  is,  not  whether  the  words  spoken  are 
true,  not  whether  they  are  actionable  in  themselves,  but  whether 
they  were  spoken  in  the  course  of  judicial  proceedings,  and 
whether  they  are  relevant  or  pertinent  to  the  cause  or  subject  of 
inquiry.  And  in  determining  what  is  pertinent,  much  latitude 
must  be  allowed  to  the  judgment  and  discretion  of  those  who  are 
entrusted  with  the  conduct  of  a  cause  in  court,  and  a  much  larger 
allowance  made  for  the  ardent  and  excited  feelings  with  which  a 
party,  or  counsel  who  naturally  and  almost -necessarily  identifies 
himself  with  his  client,  may  become  animated,  by  constantly  re- 
garding one  side  only  of  an  interesting  and  animated  controversy, 
in  which  the  dearest  rights  of  such  party  may  become  involved. 
And  if  these  feelings  sometimes  manifest  themselves  in  strong 
invectives,  or  exaggerated  expressions,  beyond  what  the  occasion 
would  strictly  justify,  it  is  to  be  recollected  that  this  is  said  to  a 
judge  who  hears  both  sides,  in  whose  mind  the  exaggerated  state- 
ment may  be  at  once  controlled  and  met  by  evidence  and  argument 
of  a  contrary  tendency  from  the  other  party,  and  who,  from  the 
impartiality  of  his  position,  will  naturally  give  to  an  exaggerated 
assertion,  not  warranted  by  the  occasion,  no  more  weight  than  it 
deserves.  Still,  this  privilege  must  be  restrained  by  some  limit, 
and  we  consider  that  limit  to  be  this  :  that  a  party  or  counsel 
shall  not  avail  himself  of  his  situation  to  gratify  private  malice  by 
uttering  slanderous  expressions,  either  against  a  party,  witness,  or 
third  person,  which  have  no  relation  to  the  cause  or  subject-matter 
of  the  inquiry.  Subject  to  this  restriction,  it  is,  on  the  whole,  for 
the  public  interest,  and  best  calculated  to  subserve  the  purposes 
of  justice,  to  allow  counsel  full  freedom  of  speech  in  conducting 
the  causes  and  advocating  and  sustaining  the  rights  of  their  con- 
stituents; and  this  freedom  of  discussion  ought  not  to  be  im- 
paired by  numerous  and  refined  distinctions."  1 

1  Hoar  v.  Wood,  3  Met.  193, 197.  See  Atl.  505.  In  a  unanimous  opinion  in  both 
also  Padmore  v.  Lawrence,  11  Ad.  &  El.  the  Divisional  and  Appeal  Courts  it  has 
380 ;  Ring  v.  Wheeler,  7  Cow.  725  ;  Mower  been  held  recently  in  England  that  coun- 
v.  Watson,  11  Vt.  536,  34  Am.  Dec.  704 ;  sel  stand  on  the  same  ground  as  wit- 
Gilbert  v.  People,  1  Denio,  41;  Hastings  nesses  and  judges;  that  their  statements 
r.  Lusk,  22  Wend.  410,  34  Am.  Dec.  380 ;  when  made  in  the  course  of  a  judicial 
Bradley  v.  Heath,  12  Pick.  163  ;  Stackpole  proceeding,  are  absolutely  privileged, 
v.  Hennen,  6  Mart.  N.  s.  481,  17  Am.  Dec.  even  though  they  are  false,  malicious, 
187;  Shelfer  v.  Gooding,  2  Jones  (N.  C.),  and  irrelevant  to  the  issue  in  the  case, 
175;  Lea  v.  White,  4  Sneed,  111;  Mar-  and  without  reasonable  and  probable 
shall  t-.  Gunter,  6  Rich.  419;  Ruohs  v.  cause.  Munster  v.  Lamb,  L.  R.  11  Q. 
Backer,  6  Heisk.  395  ;  Jennings  v.  Paine,  B.  D.  588.  In  Hastings  v.  Lusk,  supra, 
4  Wis.  358;  Lawson  t;.  Hicks,  38  Ala.  it  is  said  that  the  privilege  of  counsel  is  as 
279 ;  Lester  v.  Thurmond,  51  Ga.  118  ;  broad  as  that  of  a  legislative  body  ;  how- 
Maulsby  v.  Reifsnider,  69  Md.  143,  14  ever  false  and  malicious  may  be  the 


634  CONSTITUTIONAL   LIMITATIONS.  •  [CH.  XII. 


Privilege  of  Legislators. 

The  privilege  of  a  legislator  in  the  use  of  language  in  debate 
is  made  broader  and  more  complete  than  that  of  the  counsel  or 
party  in  judicial  proceedings  by  constitutional  provisions,  which 
give  him  complete  immunity,  by  forbidding  his  being  questioned 
in  any  other  place  for  anything  said  in  speech  or  debate.1  In  an 
early  case  in  Massachusetts,  the  question  of  the  extent  of  this  con- 
stitutional privilege  came  before  the  Supreme  Court,  and  was 
largely  discussed,  as  well  by  counsel  as  by  the  court.  The  con- 
stitutional provision  then  in  force  in  that  State  was  as  follows : 
"The  freedom  of  deliberation,  speech,  and  debate  in  either  house 
cannot  be  the  foundation  of  any  accusation  or  prosecution,  action 
or  complaint,  in  any  other  court  or  place  whatsoever."  The  de- 
fendant was  a  member  of  the  General  Court,  and  was  prosecuted 
for  uttering  slanderous  words  to  a  fellow-member  in  relation  to 
the  plaintiff.  The  member  to  whom  the  words  were  uttered  had 
moved  a  resolution,  on  the  suggestion  of  the  plaintiff,  for  the  ap- 
pointment of  an  additional  notary-public  in  the  county  where  the 
plaintiff  resided.  The  mover,  in  reply  to  an  inquiry  privately  made 
by  defendant,  as  to  the  source  of  his  information  that  such  appoint- 
ment was  necessary,  had  designated  the  plaintiff,  and  the  defend- 
ant had  replied  by  a  charge  against  the  plaintiff  of  a  criminal 
offence.  The  question  before  the  court  was,  whether  this  reply 
was  privileged.  The  house  was  in  session  at  the  time,  but  the  re- 
mark was  not  made  in  course  of  speech  or  debate,  and  had  no  other 
connection  with  the  legislative  proceedings  than  is  above  shown. 

Referring  to  the  constitutional  provision  quoted,  the  learned 
judge  who  delivered  the  opinion  of  the  court  in  this  case  thus 
expressed  his  views :  "  In  considering  this  article,  it  appears  to 
me  that  the  privilege  secured  by  it  is  not  so  much  the  privilege  of 
the  house  as  an  organized  body,  as  of  ench  individual  member 
composing  it,  who  is  entitled  to  this  privilege,  even  against  the 
declared  will  of  the  house.  For  he  does  not  hold  this  privilege 
at  the  pleasure  of  the  house,  but  derives  it  from  the  will  of  the 

charge  made  by  him  affecting  the  repu-  x  There  are  provisions  to  this  effect  in 

tation   of  another,  an  action  of  slander  every  State  Constitution  except  those  of 

will  not  lie,  provided  what  is  said  be  per-  North  Carolina,  South  Carolina,  Missis- 

tinent  to  the  question  under  discussion,  sippi,    Texas,    California,    and   Nevailn. 

And  see   Harden    r.   Cumstock,  2  A.  K.  Mr.  Gushing,  in  his  work  on  the  Law  and 

Marsh.  480,   12  Am.  Dec.  168;  Warner  Practice  of  Legislative  Assemblies,  §  602, 

v.  Paine,  2  Sandf.  195 ;  Garr  v.  Selden,  4  has  expresst-d  the  opinion  that  these  pro- 

N.  Y.  91 ;  Marsh  v.  Ellsworth,  50  N.  Y.  visions   are   unnecessary,   and   that    the 

309 ;  Spaids  r.  Barrett,  57  111.  289 ;  Jen-  protection   is  equally   complete   without 

nings  v.  Paine,  4  Wis.  358.  them. 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PRESS.  635 

people,  expressed  in  the  constitution,  which  is  paramount  to  the 
will  of  either  or  both  branches  of  the  legislature.  In  this  respect, 
the  privilege  here  secured  resembles  other  privileges  attached  to 
each  member  by  another  part  of  the  constitution,  by  which  he  is 
exempted  from  arrest  on  mesne  (or  original)  process,  during  his 
going  to,  returning  from,  or  attending  the  General  Court.  Of 
these  privileges,  thus  secured  to  each  member,  he  cannot  be  de- 
prived by  a  resolve  of  the  house,  or  by  an  ,act  of  the  legislature. 
"  These  privileges  are  thus  secured,  not  with  the  intention  of 
protecting  the  members  against  prosecutions  for  their  own  benefit, 
but  to  support  the  rights  of  the  people,  by  enabling  their  repre- 
sentatives to  execute  the  functions  of  their  office  without  fear  of 
prosecutions  civil  or  criminal.  I  therefore  think  that  the  article 
ought  not  to  be  construed  strictly,  but  liberally,  that  the  full 
design  of  it  may  be  answered.  I  will  not  confine  it  to  delivering 
an  opinion,  uttering  a  speech,  or  haranguing  in  debate,  but  will 
extend  it  to  the  giving  of  a  vote,  to  the  making  of  a  written  re- 
port, and  to  every  other  act  resulting  from  the  nature  and  in  the 
execution  of  the  office ;  and  I  would  define  the  article  as  securing 
to  every  member  exemption  from  prosecution  for  everything  said 
or  done  by  him,  as  a  representative,  in  the  exercise  of  the  func- 
tions of  that  office,  without  inquiring  whether  the  exercise  was 
regular  according  to  the  rules  of  the  house,  or  irregular  and 
against  their  rules.  I  do  not  confine  the  member  to  his  place  in 
the  house,  and  I  am  satisfied  that  there  are  cases  in  which  he  is 
entitled  to  this  privilege  when  not  within  the  walls  of  the  repre- 
sentatives' chamber.  He  cannot  be  exercising  the  functions  of 
his  office  as  member  of  a  body,  unless  the  body  be  in  existence. 
The  house  must  be  in  session  to  enable  him  to  claim  this  privi- 
lege, and  it  is  in  session  notwithstanding  occasional  adjournments 
for  short  intervals  for  the  convenience  of  its  members.  If  a 
member,  therefore,  be  out  of  the  chamber,  sitting  in  committee, 
executing  the  commission  of  the  house,  it  appears  to  me  that  such 
member  is  within  the  reason  of  the  article,  and  ought  to  be  con- 
sidered within  the  privilege.  The  body  of  which  he  is  a  member 
is  in  session,  and  he,  as  a  member  of  that  body,  is  in  fact  dis- 
charging the  duties  of  his  office.  He  ought,  therefore,  to  be 
protected  from  civil  or  criminal  prosecutions  for  everything  said 
or  done  by  him  in  the  exercise  of  his  functions  as  a  representa- 
tive, in  committee,  either  in  debating  or  assenting  to  or  draught- 
ing a  report.  Neither  can  I  deny  the  member  his  privilege  when 
executing  the  duties  of  his  office,  in  a  convention  of  both  houses, 
although  the  convention  should  be  holden  in  the  Senate  Chamber." 
And  after  considering  the  hardships  that  might  result  to  individ- 


636  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

uals  in  consequence  of  this  privilege,  he  proceeds :  "  A  more  ex- 
tensive construction  of  the  privileges  of  the  members  secured  by 
this  article  I  cannot  give,  because  it  could  not  be  supported  by 
the  language  or  the  manifest  intent  of  the  article.  When  a 
representative  is  not  acting  as  a  member  of  the  house,  he  is  not 
entitled  to  any  privileges  above  his  fellow-citizens ;  nor  are  the 
rights  of  the  people  affected  if  he  is  placed  on  the  same  ground 
on  which  his  constituents  stand."  And  coming  more  particularly 
to  the  facts  then  before  the  court,  it  was  shown  that  the  defendant 
was  not  in  the  discharge  of  any  official  duty  at  the  time  of  utter- 
ing the  obnoxious  words  ;  that  they  had  no  connection  or  relevancy 
to  the  business  then  before  the  house,  but  might  with  equal  perti- 
nency have  been  uttered  at  any  other  time  or  place,  and  conse- 
quently could  not,  even  under  the  liberal  rule  of  protection  which 
the  court  had  laid  down,  be  regarded  as  within  the  privilege.1 

Publication  of  Privileged  Communications  through  the  Press. 

If  now  we  turn  from  the  rules  of  law  which  protect  communi- 
cations because  of  the  occasion  on  which  they  are  made,  and  the 
duty  resting  upon  the  person  making  them,  to  those  rules  which 
concern  the  spreading  before  the  world  the  same  communications, 
we  shall  discover  a  very  remarkable  difference.  It  does  not  fol- 
low because  a  counsel  may  freely  speak  in  court  as  he  believes  or 
is  instructed,  that  therefore  he  may  publish  his  speech  through 
the  public  press.  The  privilege  in  court  is  necessary  to  the  com- 
plete discharge  of  his  duty  to  his  client ;  but  when  the  suit  is 
ended,  that  duty  is  discharged,  and  he  is  not  called  upon  to 
appeal  from  the  court  and  the  jury  to  the  general  public.2  Indeed 
such  an  appeal,  while  it  could  not  generally  have  benefit  to  the 
client  in  view,  would  be  unfair  and  injurious  to  the  parties  re- 
flected upon  by  the  argument,  inasmuch  as  it  would  take  only  a 
partial  and  one-sided  view  of  the  case,  and  the  public  would  not 
have,  as  the  court  and  jury  did,  all  the  facts  of  the  case  as  given 
in  evidence  before  them,  so  that  they  might  be  in  position  to 
weigh  the  arguments  fairly  and  understandingly,  and  reject 
injurious  inferences  not  warranted  by  the  evidence. 

The  law,  however,  favors  publicity  in  legal  proceedings,  so  far 
as  that  object  can  be  attained  without  injustice  to  the  persons 
immediately  concerned.  The  public  are  permitted  to  attend 

1  Coffin  v.  Coffin,  4  Mass.  1,  27,  8  Am.  2  The  publication  of  slanderous  re- 
Dec.  189.  See  Jefferson's  Manual,  §  3 ;  marks  of  counsel  during  a  trial  is  not 
Hosmer  v.  Loveland,  19  Barb.  Ill ;  State  privileged.  Com.  v.  Godshalk,  13  Phila. 
v.  Burnhaui,  9  N.  H.  34.  575. 


CH.  XII.]  LIBERTY   OF   SPEECH  AND   OF   THE   PRESS. 


637 


nearly  all  judicial  inquiries,  and  there  appears  to  be  no  sufficient 
reason  why  they  should  not  also  be  allowed  to  see  in  print  the 
reports  of  trials,  if  they  can  thus  have  them  presented  as  fully  as 
they  are  exhibited  in  court,  or  at  least  all  the  material  portion  of 
the  proceedings  impartially  stated,  so  that  one  shall  not,  by  means 
of  them,  derive  erroneous  impressions,  which  he  would  not  have 
been  likely  to  receive  from  hearing  the  trial  itself. 

It  seems  to  be  settled  that  a  fair  and*  impartial  account  of 
judicial  proceedings,  which  have  not  been  ex  parte,  but  in  the 
hearing  of  both  parties,  is,  generally  speaking,  a  justifiable  publi- 
cation.1 But  it  is  said  that,  if  a  party  is  to  be  allowed  to  publish 
what  passes  in  a  court  of  justice,  he  must  publish  the  whole  case, 
and  not  merely  state  the  conclusion  which  he  himself  draws 
from  the  evidence.2  A  plea  that  the  supposed  libel  was,  in  sub- 
stance, a  true  account  and  report  of  a  trial  has  been  held  bad ; 3 
and  a  statement  of  the  circumstances  of  a  trial  as  from  counsel 
in  the  case  has  been  held  not  privileged.4  The  report  must 
also  be  strictly  confined  to  the  actual  proceedings  in  court,  and 
must  contain  no  defamatory  observations  or  comments  from  any 
quarter  whatsoever,  in  addition  to  what  forms  strictly  and  prop- 
erly the  legal  proceedings.5  And  if  the  nature  of  the  case  is 


iHoare  v.  Silverlock,  9  C.  B.  20; 
Lewis  v.  Levy,  E.  B.  &  E.  537 ;  Ryalls  v. 
Leader,  Law  Rep.  1  Excli.  296.  And  see 
Stanley  v.  Webb,  4  Sandf.  21 ;  Cincinnati 
Gazette  Co.  u.  Timberlake,  10  Ohio  St. 
648  ;  Torrey  v.  Field,  10  Vt.  353 ;  Faw- 
cett  v.  Charles,  13  Wend.  473 ;  McBee  v. 
Fulton,  47  Md.  403,  28  Am.  Rep.  465. 
But  it  is  held  the  report  must  not  only 
be  fair,  but  be  without  malice.  Stevens 
v.  Sampson,  L.  R.  5  Ex.  D.  53.  A 
fair  report  of  a  judgment  without  publish- 
ing the  evidence  is  prima  facie  privileged. 
MacDougall  v.  Knight,  L  R.  17  Q.  B.  D. 
636.  The  privilege  extends  to  the  publi- 
cation of  testimony  taken  on  an  investi- 
gation by  Congress.  Terry  v.  Fellows, 
21  La.  Ann.  375.  And  of  the  proceed- 
ings on  trials  in  voluntary  organizations. 
Barrows  v.  Bell,  7  Gray,  301.  There  is 
no  privilege  in  publishing  the  contents  of 
a  bill  or  petition  merely  filed  before  a 
hearing.  Barber  v.  St.  Louis,  &c.  Co.,  3 
Mo.  App.  377;  Cowley  v.  Pulsifer,  137 
Mass.  392. 

2  Lewis  v.  Walter,  4  B.  &  Aid.  603. 

3  Flint  v.  Pike,  4  B.  &  C.  473.     See 
Ludwig  v.  Cramer,  53  Wis.  193, 10  N.  W. 
81. 


*  Saunders  v.  Mills,  6  Bing.  213  ;  Flint 
v.  Pike.  4  B.  &  C.  473.  And  see  Stanley 
v.  Webb,  4  Sandf.  21 ;  Lewis  v.  Walter, 
4  B.  &  Aid.  605.  A  statement  made  by  a 
newspaper,  not  purporting  to  be  upon  the 
authority  of  judicial  proceedings,  is  not 
privileged.  Storey  v.  Wallace,  60  111.  51. 
See  Ludwig  v.  Cramer,  53  Wis.  193, 
10  N.  W.  81.  And  a  publication  of  ju- 
dicial proceedings  is  not  privileged  if  it 
contain  intrinsic  evidence  that  it  was  not 
published  for  good  motives,  and  for  jus- 
tifiable ends.  Saunders  v.  Baxter,  6 
Heisk.  369.  The  publication  in  a  medical 
journal  of  an  account  of  the  proceedings 
of  a  medical  society  in  the  expulsion  of 
a  member  for  cause  is  privileged.  Bar- 
rows v.  Bell,  7  Gray,  301.  And  so  is  the 
publication  in  a  denominational  organ  of 
resolutions  of  an  association  of  ministers. 
Shurtleff  v.  Stevens,  51  Vt.  501,  31  Am. 
Rep.  698. 

5  Stiles  v.  Nokes,  7  East,  493  ;  Delegal 
v.  Highley,  3  Bing.  N.  C.  950.  And  see 
Lewis  v.  Clement,  3  B.  &  Aid.  792;  Pit- 
tock  v.  O'Neill,  63  Pa.  St.  253,3  Am.  Rep. 
544  ;  Clark  v.  Binney,  2  Pick.  112 ;  Scripps 
v.  Reilly,  38  Mich.  10;  Bathrick  v.  Detroit 
Post,  &c.  Co.,  50  Mich.  6^9,  16  N.  W. 


638 


CONSTITUTIONAL   LIMITATIONS. 


XII. 


such  as  to  make  it  improper  that  the  proceedings  should  be  spread 
before  the  public  because  of  their  immoral  tendency,  or  of  the 
blasphemous  or  indecent  character  of  the  evidence  exhibited,  the 
publication,  though  impartial  and  full,  will  be  a  public  offence, 
and  punishable  accordingly.1 

It  has,  however,  been  held,  that  the  publication  of  ex  parte 
proceedings,  or  mere  preliminary  examinations,  though  of  a  judi- 
cial character,  is  not  privileged ;  and  when  they  reflect  injuri- 
ously upon  individuals,  the  publisher  derives  no  protection  from 
their  having  already  been  delivered  in  court.2  The  reason  for 


172.  Publication  of  a  report  of  a  judg- 
ment with  a  headline  "  Hotel  Proprietors 
Embarrassed,"  is  not  privileged.  Hayes 
v.  Press  Co.,  127  Pa.  St.  642,  18  All. 
331.  A  statement  that  one  was  arrested 
after  testifying,  on  account  of  his  crim- 
inating evidence,  is  not  privileged  as  a 
report  of  a  judicial  proceeding.  God- 
shalk  v.  Metzgar,  —  Pa.  St.  —  17  Atl.  215. 

1  Hex  v.  Carlile,  3  B.  &  Aid.  107  ;  Rex 
v.  Creevey,  1  M.  &  S.  273.    [But  a  court 
has  no  inherent  power  to   prohibit  the 
publication   of   such    testimony,   nor  to 
punish   such  publication  as  a  contempt. 
Re  Shortridge,  99  Cal.  526,  34  Pac.  227, 
21  L.  11.  A.  765,  37  Am.  St.  78.] 

2  Duncan  v.  Thwaites,  3  B.  &  C.  556 ; 
Flint  v.  Pike,  4  B.  &  C.  473  ;  Charlton  v. 
Watton,  6  C.  &  P.  385;  Rex  v.  Lee,  5 
Esp.  123;  Rex  v.  Fisher,  2  Camp.  563; 
Delegal  v.  Highley,  3  Bing.  N.  C.  950 ; 
Behrens  v.  Allen,  3  Fost.  &  F.  135  ;  Cin- 
cinnati  Gazette   Co.   v.  Timberlake,   10 
Ohio,   N.  s.   548;   Mathews  v.   Beach,  6 
Sandf.  256;   Huff  v.  Bennett,  4   Sandf. 
120 ;  Stanley  v.  Webb,  4  Sandf.  21 ;  Usher 
v.   Severance,   20  Me.   9,   37   Am.   Dec. 
33.     It  seems,  however,  that  if  the  pro- 
ceeding lias  resulted  in  the  discharge  of 
the  person  accused,  or  in  a  decision  that 
no  cause  exists   for  proceeding  against 
him,  a  publication  of  an  account  of  it  is 
privileged.     In  Curry  v.  Walter,  1  B.  &  P. 
625,  the   Court  of  Common  Pleas   held 
that,  in  an  action  for  libel,  it  was  a  good 
defence,  under  the   plea  of  not   guilty, 
that  the  alleged  libel  was  a  true  account 
of  what  had  passed  upon  a  motion  in  the 
Court  of  King's  Bench  for  an  information 
against  two  magistrates  for  corruption  in 
refusing  to  license  an  inn  ;   the   motion 
having  been  refused  for  want  of  notice  to 
the  magistrates.     In  Lewis  v.  Levy,  El. 
Bl.  &  El.  637,  the  publisher  of  a  news- 


paper gave  a  full  report  of  an  examina- 
tion before  a  magistrate  on  a  charge  of 
perjury,  resulting  in  the  discharge  of  the 
defendant ;  and  the  Court  of  Queen's 
Bench  sustained  the  claim  of  privilege ; 
distinguishing  the  case  from  those  where 
the  party  was  held  for  trial,  and  where 
the  publication  of  the  charges  and  evi- 
dence might  tend  to  his  prejudice  on  the 
trial.  The  opinion  of  Lord  Campbell  in 
the  case,  however,  seems  to  go  far  tow- 
ards questioning  the  correctness  of  the 
decisions  above  cited.  See  especially  his 
quotation  from  the  opinion  of  Lord  Den- 
man,  delivered  before  a  committee  of  the 
House  of  Lords,  in  the  year  1843,  on  the 
law  of  libel :  "I  have  no  doubt  that  [po- 
lice reports]  are  extremely  useful  for  the 
detection  of  guilt  by  making  facts  notori- 
ous, and  for  bringing  those  facts  more 
correctly  to  the  knowledge  of  all  parties 
interested  in  unravelling  the  truth.  The 
public,  I  think,  are  perfectly  aware  that 
those  proceedings  are  ex  parte,  and  they 
become  more  and  more  aware  of  it  in 
proportion  to  their  growing  intelligence; 
they  know  that  such  proceedings  are  only 
in  course  of  trial,  and  they  do  not  form 
their  opinion  until  the  trial  is  had.  Per- 
fect publicity  in  judicial  proceedings  is  of 
the  highest  importance  in  other  points  of 
view,  but  in  its  effects  on  character  I 
think  it  desirable.  The  statement  made 
in  open  court  will  probably  find  its  way 
to  the  ears  of  all  in  whose  good  opinion 
the  party  assailed  feels  an  interest,  prob- 
ably in  an  exaggerated  form,  and  the  im- 
putation may  often  rest  upon  the  wrong 
person  ;  both  these  evils  are  prevented  by 
correct  reports."  In  the  case  of  Lewis  v. 
Levy,  it  was  insisted  that  the  privilege  of 
publication  only  extended  to  the  pro-  • 
ceedings  of  the  superior  courts  of  /aw,  and 
equity  ;  but  the  court  gave  no  counte- 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE   PRESS.  639 

distinguishing  these  cases  from  those  where  the  parties  are  heard 
is  thus  stated  by  -Lord  Ellenborough,  in  the  early  case  of  The 
King  v.  Fisher : l  "  Jurors  and  judges  are  still  but  men  ;  they 
cannot  always  control  feeling  excited  by  inflammatory  language. 
If  they  are  exposed  to  be  thus  warped  and  misled,  injustice  must 
sometimes  be  done.  Trial  at  law,  fairly  reported,  although  they 
may  occasionally  prove  injurious  to  individuals,  have  been  held 
to  be  privileged.  Let  them  continue  so  privileged.  The  benefit 
they  produce  is  great  and  permanent,  and  the  evil  that  arises 
from  them  is  rare  and  incidental.  But  these  preliminary  exami- 
nations have  no  such  privilege.  Their  only  tendency  is  to  pre- 
judge those  whom  the  law  still  presumes  to  be  innocent,  and  to 
poison  the  sources  of  justice.  It  is  of  infinite  importance  to  us 
all,  that  whatever  has  a  tendency  to  prevent  a  fair  trial  should  be 
guarded  against.  Every  one  of  us  may  be  questioned  in  a  court 
of  law,  and  called  upon  to  defend  his  life  and  character.  We 
would  then  wish  to  meet  a  jury  of  our  countrymen  with  unbiassed 
minds.  But  for  this  there  can  be  no  security,  if  such  publications 
are  permitted."  And  in  another  case  it  has  been  said  :  "  It  is 
our  boast  that  we  are  governed  by  that  just  and  salutary  rule 
upon  which  security  of  life  and  character  often  depends,  that 
every  man  is  presumed  innocent  of  crimes  charged  upon  him, 
until  he  is  proved  guilty.  But  the  circulation  of  charges  founded 
on  ex  parte  testimony,  of  statements  made,  often  under  excite- 
ment, by  persons  smarting  under  real  or  fancied  wrongs,  may 
prejudice  the  public  mind,  and  cause  the  judgment  of  conviction 
to  be  passed  long  before  the  day  of  trial  has  arrived.  When  that 
day  of  trial  comes,  the  rule  has  been  reversed,  and  the  presump- 
tion of  guilt  has  been  substituted  for  the  presumption  of  inno- 
cence. The  chances  of  a  fair  and  impartial  trial  are  diminished. 
Suppose  the  charge  to  be  utterly  groundless.  If  every  prelimi- 
nary ex  parte  complaint  which  may  be  made  before  a  police 
magistrate  may,  with  entire  impunity,  be  published  and  scattered 
broadcast  over  the  land,  then  the  character  of  the  innocent,  who 
may  be  the  victim  of  a  conspiracy,  or  of  charges  proved  afterwards 
to  have  arisen  entirely  from  misapprehension,  may  be  cloven 
down,  without  any  malice  on  the  part  of  the  publisher.  The 

nance  to  any  such  distinction.     See  also  is  clear  that  the  report  is  not  privileged, 

Wason  v.  Walter,  L.  R.  4  Q.  B.  73;  Terry  if  accompanied  with  injurious  comments. 

v.  Fellows,  21  La.  Ann.  375.  Stiles  v.  Nokes,  7  East,  493 ;  Common- 

1  2    Camp.  563.    Compare  with   this  wealth  v.  Blanding,  3  Pick.  304,  15  Am. 

and  the  cases  cited  in  the  preceding  note,  Dec.  214 ;  Usher  r.  Severance,  20  Me.  9, 

Ryalls   v.  Leader,  L.   R.  1  Exch.   295  ;  37  Am.  Dec.  33  ;  Pittock  v.  O'Niell,  63  Pa. 

Smith  v.  Scott,  2  C.  &  K.  580 ;  Acker-  St.  253,  3  Am.  Rep.  644. 
man  v.  Jones,  37  N.  Y.  Sup.  C.  R.  42.    It 


640  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

refutation  of  slander,  in  such  cases,  generally  follows  its  propaga- 
tion at  distant  intervals,  and  brings  often  but  an  imperfect  balm 
to  wounds  which  have  become  festered,  and  perhaps  incurable. 
It  is  not  to  be  denied  that  occasionally  the  publication  of  such 
proceedings  is  productive  of  good,  and  promotes  the  ends  of 
justice.  But,  in  such  cases,  the  publisher  must  find  his  justifica- 
tion, not  in  privilege,  but  the  truth  of  the  charges."  1 

Privilege  of  Publishers  of  News. 

Among  the  inventions  of  modern  times,  by  which  the  world 
has  been  powerfully  influenced,  and  from  which  civilization  has 
received  a  new  and  wonderful  impulse,  must  be  classed  the 
newspaper.  Beginning  with  a  small  sheet,  insignificant  alike  in 
matter  and  appearance,  published  at  considerable  intervals,  and 
including  but  few  in  its  visits,  it  has  become  the  daily  vehicle,  to 
almost  every  family  in  the  land,  of  information  from  all  quarters 
of  the  globe,  and  upon  every  subject.  Through  it,  and  by  means 
of  the  electric  telegraph,  the  public  proceedings  of  every  civilized 
country,  the  debates  of  the  leading  legislative  bodies,  the  events 
of  war,  the  triumphs  of  peace,  the  storms  in  the  physical,  and  the 
agitations  in  the  moral  and  mental  world,  are  brought  home  to 
the  knowledge  of  every  reading  person,  and,  to  a  very  large  ex- 
tent, before  the  day  is  over  on  which  the  events  have  taken  place. 
And  not  public  events  merely  are  discussed  and  described,  but 
the  actions  and  words  of  public  men  are  made  public  property  ; 
and  any  person  sufficiently  eminent  or  notorious  to  become  an 
object  of  public  interest  will  find  his  movements  chronicled  in 
this  index  of  the  times.  Every  party  has  its  newspaper  organs  ; 
every  shade  of  opinion  on  political,  religious,  literary,  moral,  in- 
dustrial, or  financial  questions  has  its  representative ;  every 
locality  has  its  press  to  advocate  its  claims,  and  advance  its 
interests,  and  even  the  days  regarded  as  sacred  have  their  special 
papers  to  furnish  reading  suitable  for  the  time.  The  newspaper 
is  also  the  medium  by  means  of  which  all  classes  of  the  people 
communicate  with  each  other  concerning  their  wants  and  desires, 
and  through  which  they  offer  their  wares,  and  seek  bargains.  As 

i  Stanley  v.  Webb,  4  Sandf.   21,  30.  with   full  opportunity  of  defence.     See 

See  this  case  approved  and  followed  in  Rex  v.  Fisher,  2  Camp.  663  ;  Duncan  v. 

Cincinnati  Gazette  Co.  v.  Timberlake,  10  Thwaites,  3  B.  &  C.  556  ;  Flint  v.  Pike,  4 

Ohio  St.  548,  where,  however,  the  court  B.  &  C.  473  ;  Charlton  v.  Watton,  6  C.  &  P. 

are  careful   not  to  express  an   opinion  385;   Behrens  v.  Allen,  3  F.  &  F.  135; 

whether  a  publication  of  the  proceedings  Usher   v.  Severance,  20  Me.  9,  37  Am. 

on  preliminary  examinations  may  not  be  Dec.  33. 
privileged,  where  the  accused  is  present 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PRESS.  641 

it  has  gradually  increased  in  value,  and  in  the  extent  and  variety 
of  its  contents,  so  the  exactions  of  the  community  upon  its  con- 
ductors have  also  increased,  until  it  is  demanded  of  the  news- 
paper publisher  that  he  shall  daily  spread  before  his  readers  a 
complete  summary  of  the  events  transpiring  jn  the  world,  public 
or  private,  so  far  as  those  readers  can  reasonably  be  supposed  to 
take  an  interest  in  them ;  and  he  who  does  not  comply  with  this 
demand  must  give  way  to  him  who  will. 

The  newspaper  is  also  one  of  the  chief  means  for  the  education 
of  the  people.  The  highest  and  the  lowest  in  the  scale  of  intelli- 
gence resort  to  its  columns  for  information ;  it  is  read  by  those 
who  read  nothing  else,  and  the  best  minds  of  the  age  make  it  the 
medium  of  communication  with  each  other  on  the  highest  and 
most  abstruse  subjects.  Upon  politics  it  may  be  said  to  be  the 
chief  educator  of  the  people ;  its  influence  is  potent  in  every  leg- 
islative body ;  it  gives  tone  and  direction  to  public  sentiment  on 
each  important  subject  as  it  arises  ;  and  no  administration  in  any 
free  country  ventures  to  overlook  or  disregard  an  element  so  per- 
vading in  its  influence,  and  withal  so  powerful. 

And  yet  it  may  be  doubted  if  the  newspaper,  as  such,  lias  ever 
influenced  at  all  the  current  of  the  common  law,  in  any  particular 
important  to  the  protection  of  the  publishers.  The  railway  has 
become  the  successor  of  the  king's  highway,  and  the  plastic  rules 
of  the  common  law  have  accommodated  themselves  to  the  new 
condition  of  things  ;  but  the  changes  accomplished  by  the  public 
press  seem  to  have  passed  unnoticed  in  the  law,  and,  save  only 
where  modifications  have  been  made  by  constitution  or  statute, 
the  publisher  of  the  daily  paper  occupies  to-day  the  position  in  the 
courts  that  the  village  gossip  and  retailer  of  scandal  occupied 
two  hundred  years  ago,  with  no  more  privilege  and  no  more 
protection. 

We  quote  from  an  opinion  by  the  Supreme  Court  of  New  York, 
in  a  case  where  a  publisher  of  a  newspaper  was  prosecuted  for 
libel,  and  where  the  position  was  taken  by  counsel,  that  the  pub- 
lication was  privileged  :  "  It  is  made  a  point  in  this  case,  and  was 
insisted  upon  in  argument,  that  the  editor  of  a  public  newspaper 
is  at  liberty  to  copy  an  item  of  news  from  another  paper,  giving 
at  the  same  time  his  authority,  without  subjecting  himself  to  legal 
responsibility,  however  libellous  the  article  may  be,  unless  express 
malice  be  shown.  It  was  conceded  that  the  law  did  not,  and  ought 
not,  to  extend  a  similar  indulgence  to  any  other  class  of  citizens  ; 
but  the  counsel  said  that  a  distinction  should  be  made  in  favor  of 
editors,  on  the  ground  of  the  peculiarity  of  their  occupation.  That 
their  business  was  to  disseminate  useful  knowledge  among  the 

41 


642  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

people  ;  to  publish  such  matters  relating  to  the  current  events  of 
the  day  happening  at  home  or  abroad  as  fell  within  the  sphere  of 
their  observation,  and  as  the  public  curiosity  or  taste  demanded; 
and  that  it  was  impracticable  for  them  at  all  times  to  ascertain 
the  truth  or  falsehood  of  the  various  statements  contained  in  other, 
journals.  We  were  also  told  that  if  the  law  were  .not  thus  indul- 
gent, some  legislative  relief  might  become  necessary  for  the  pro- 
tection of  this  class  of  citizens.  Undoubtedly  if  it  be  desirable 
to  pamper  a  depraved  public  appetite  or  taste,  if  there  be  any 
such,  by  the  republication  of  all  the  falsehoods  and  calumnies 
upon  private  character  that  may  find  their  way  into  the  press,  — 
to  give  encouragement  to  the  widest  possible  circulation  of  these 
vile  and  defamatory  publications  by  protecting  the  retailers  of 
them,  —  some  legislative  interference  will  be  necessary,  for  no 
countenance  can  be  found  for  the  irresponsibility  claimed  in  the 
common  law.  That  reprobates  the  libeller,  whether  author  or 
publisher,  and  subjects  him  to  both  civil  and  criminal  respohsi- 
bility.  His  offence  is  there  ranked  with  that  of  the  receiver  of 
stolen  goods,  the  perjurer  and  suborner  of  perjury,  the  disturber 
of  the  public  peace,  the  conspirator,  and  other  offenders  of  like 
character."  And  again  :  "  The  act  of  publication  is  an  adoption 
of  the  original  calumny,  which  must  be  defended  in  the  same  way 
as  if  invented  by  the  defendant.  The  republication  assumes  and 
indorses  the  truth  of  the  charge,  and  when  called  on  by  the 
aggrieved  party,  the  publisher  should  be  held  strictly  to  the  proof. 
If  he  chooses  to  become  the  indorser  and  retailer  of  private  scan- 
dal, without  taking  the  trouble  of  inquiring  into  the  truth  of  what 
he  publishes,  there  is  no  ground  for  complaint  if  the  law,  which  is 
as  studious  to  protect  the  character  as  the  property  of  the  citizen, 
holds  him  to  this  responsibility.  The  rule  is  not  only  just  and 
wise  in  itself,  but  if  steadily  and  inflexibly  adhered  to  and  applied 
by  courts  and  juries,  will  greatly  tend  to  the  promotion  of  truth, 
good  morals,  and  common  decency  on  the  part  of  the  press,  by 
inculcating  caution  and  inquiry  into  the  truth  of  charges  against 
private  character  before  they  are  published  and  circulated  through- 
out the  community."  1 

1  Hotchkiss  v.  Olipliant,  2  Hill,  510-  as  are  common  to  all.  They  have  just 
613,  per  Nelson,  Ch.  J.  And  see  King  v.  the  same  rights  that  the  rest  of  the  corn- 
Root,  4  Wend.  113-138,  21  Am.  Dec.  102,  munity  have,  and  no  more.  They  have 
per  Walworth,  Chancellor.  "  It  has  been  the  right  to  publish  the  truth,  but  no 
urged  upon  you  that  conductors  of  the  right  to  publish  falsehood  to  the  injury  of 
public  press  are  entitled  to  peculiar  others  with  impunity."  Instructions  ap- 
indulgences  and  have  special  rights  and  proved  in  Sheckell  v.  Jackson,  10  Gush, 
privileges.  The  law  recognizes  no  such  25.  And  see  Palmer  v.  Concord,  48 
peculiar  rights,  privileges,  or  claims  to  in-  N.  H.  211.  In  People  v.  Wilson,  64 
dulgence.  They  have  no  rights  but  such  111.  195,  16  Am.  Rep  528,  a  publication 


CH.  XII.]  LIBERTY  OF   SPEECH   AND   OF  THE  PRESS.  643 

If  this  strong  condemnatory  language  were  confined  to  the 
cases  where  private  character  is  dragged  before  the  public  for 
detraction  and  abuse,  to  pander  to  a  depraved  appetite  for  scan- 
dal, its  propriety  and  justice  and  the  force  of  its  reasons  would  be 
at  once  conceded.  But  a  very  large  proportio'n  of  what  the  news- 
papers spread  before  the  public  relates  to  matters  of  public  con- 
cern, in  which,  nevertheless,  individuals  figure,  and  must  therefore 
be  mentioned  -in  any  account  or  discussion.  To  a  great  extent, 
also,  the  information  comes  from  abroad  ;  the  publisher  can  have 
no  knowledge  concerning  it,  and  no  inquiries  which  he  could 
make  would  be  likely  to  give  him  more  definite  information,  un- 
less he  delays  the  publication  until  it  ceases  to  be  of  value  to  his 
readers.  Whatever  view  the  law  may  take,  the  public  sentiment 
does  not  brand  the  publisher  of  a  newspaper  as  libeller,  conspira- 
tor, or  villain,  because  the  telegraph  despatches  transmitted  to 
him  from  all  parts  of  the  world,  without  any  knowledge  on  his 
part  concerning  the  facts,  are  published  in  his  paper,  in  reliance 
upon  the  prudence,  care,  and  honesty  of  those  who  have  charge 
of  the  lines  of  communication,  and  whose  interest  it  is  to  be  vigi- 
lant and  truthful.  The  public  demand  and  expect  accounts  of 
every  important  meeting,  of  every  important  trial,  and  of  all  the 
events  which  have  a  bearing  upon  trade  and  business,  or  upon 
political  affairs.  It  is  impossible  that  these  shall  be  given  in  all 
cases  without  matters  being  mentioned  derogatory  to  individuals  ; 
and  if  the  question  were  a  new  one  in  the  law,  it  might  be  worthy 
of  inquiry  whether  some  line  of  distinction  could  not  be  drawn 
which  would  protect  the  publisher  when  giving  in  good  faith  such 
items  of  news  as  would  be  proper,  if  true,  to  spread  before  the 
public,  and  which  he  gives  in  the  regular  course  of  his  employ- 
ment, in  pursuance  of  a  public  demand,  and  without  any  negli- 
gence, as  they  come  to  him  from  the  usual  and  legitimate  sources, 
which  he  has  reason  to  rely  upon;  at  the  same  time  leaving  him 
liable  when  he  makes  his  columns  the  vehicle  of  private  gossip, 
detraction,  and  malice. 

regarding  a  pending  cause  calculated  to  State,  110  Ind.  301,  11  N.  E.  426.     As  to 

bring  public  odium   upon   the   court   in  the  power  in  England  to  punish  the  like 

respect  to  its  treatment  of  the  case,  was  conduct  as  a  contempt,  see  The  King  v. 

punished  as  a  contempt  of  court.     See  Clement,  4  B.  &  Aid.  218;  The  Queen 

also  Respublica  v.  Oswald,  1  Dall.  319,  v.  Lefroy,  L.  R.  8  Q.  B.  134,2  Moak,  250. 

1  Am.  Dec.  246  ;  Respublica  v.  Passmore,  But  in  Storey  v.  People,  79  111.  46,  22  Am. 

3  Yeates,  441,  2  Am.  Dec.  388;  People  v.  Rep.   158,  it  was  held  a  publisher  could 

Freer,  1  Caines,  518;  Tenney's  Case,  23  not  be  punished  as  for  contempt  for  an 

N.  H.  162 ;  Sturoc's  Case,  48  N.  H.  428 ;  article  reflecting  on  the  grand  jury,  be- 

State  v.  Morrill,  16  Ark.  384 ;   State  v.  cause,  under  the  guaranty  of  freedom  of 

Frew,  24  W.  Va.  416.     But  not  publica-  the  press  in  the  Constitution  of  Illinois, 

tions  as  to  a  past  proceeding.    Cheadle  v.  he  was  entitled  to  jury  trial. 


644 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XII. 


The  question,  however,  is  not  new,  and  when  the  authorities 
are  examined  it  appears  that  they  have  generally  held  the  pro- 
prietors of  public  journals  to  the  same  rigid  responsibility  with 
all  other  persons  who  publish  what  is  injurious.  If  what  they 
give  as  news  proves  untrue  as  well  as  damaging  to  individuals, 
malice  in  the  publication  is  presumed.1  It  is  no  excuse  that  what 
was  published  was  copied  without  comment  from  another  paper,2 
or  was  given  as  a  rumor  merely,3  or  that  the  source  of  the  infor- 
mation was  stated  as  a  part  of  the  publication,4  or  that  the  pub- 
lication was  made  in  the  paper  without  the  knowledge  of  the 
proprietor,  as  an  advertisement  or  otherwise,5  or  that  it  is  a 
correct  and  impartial  account  of  a  public  meeting,6  or  that  it  is 
the  speech  of  a  murderer  at  the  gallows,7  or  that  it  has  to  do 
with  the  conduct  of  the  plaintiff  as  a  public  official.8  Criticisms 


1  Barnes  v.  Campbell,  59  N.  H.  128; 
McAllister  v.  Detroit  Free  Press  Co.,  76 
Mich.  388,  43  N.  W.  431 ;  Pratt  v.  Pioneer 
Press   Co.,  30  Minn.  41,   14  N.  W.  62; 
Mallory  v.  Pioneer  Press  Co.,  34  Minn. 
521,  26  N.  W.  904.   See  Bronson  /-.  Bruce, 
59  Mich.  467,  26  N.  W.  671 ;  Negley  v. 
Farrow,  60  Md.  158.     QUpton  v.   Hume. 
24  Oreg.  420,  33  Pac.  810, 21  L.  R.  A.  493.] 

2  Hotchkiss  v.  Oliphant,  2  Hill,  510. 
[Upton  v.  Hume,  24  Oreg.  420,  33  Pac. 
810,  21  L.  R.  A.  493 ;  Burt ».  Advertiser  N. 
Co.,  154  Mass.  238,  28  N.  E.  1,  13  L.  R.  A. 
97.]     Even  though  they  be  preceded  by 
the  statement  that  they  are  so  copied : 
Sanford  v.  Bennett,  24  N.   Y.  20;  and 
accompanied  by  a  statement  of  disbelief. 
Com.  v.  Chambers,  15  Pliila.  415. 

3  Wheeler  v.  Shields,  3  111.  348 ;  Mason 
v.   Mason,  4  N.   H.    110.     See   State  v. 
Butman,  15  La.  Ann.  1(36  ;  Parker  v.  Mc- 
queen,  8  B.  Monr.  16;   Sans  v.  Joerris, 
14  Wis.  663 ;  Hampton  v.  Wilson,  4  Dev. 
468 ;    Beardsley  v.   Bridgman,    17  Iowa, 
290;  Hawkins  v.  Lumsden,  10  Wis.  359; 
Knight  v.  Foster,  39  N.  H.  576;  Carpen- 
ter v.  Bailey,  53  N.  H.  590 ;  Farr  v.  Hasco, 
9  Mich.  353;  Sheahan  n.  Collins,  20  III. 
325;  McDonald  v.  Woodruff,  2  Dill.  244; 
Rex  r.  Newman,  1  El.  &  Bl.  268. 

4  Dole  v.  Lyon,  10  Johns.  447,  6  Am. 
Dec.  346;  Mapes  v.  Weeks,  4  Wend.  659; 
Inman  v.  Foster,  8  Wend.  602 ;  Hotchkiss 
v.  Oriphant,  2  Hill,  510;  Gates  c.  Kellogg, 
9  Ind.  506 ;  Fowler  v.  Chiehester,  26  Ohio 
St.  9;  Cummerford  r.  McAvoy,  15  111.  311. 

6  Andres  v.  Wells,  7  Johns.  260,  5  Am. 
Dec.  257  ;  Huff  c.  Bennett,  4  Sandf.  120, 


6  N.  Y.  337;  Marten  v.  Van  Schaick, 
4  Paige,  479;  Commonwealth  v.  Nichols, 
10  Met.  259. 

6  Daw  son  v.  Duncan,  7  El.  &  Bl.  229. 
See  Lewis  v.  Few,  5  Johns.  1. 

1  Sanford  v.  Bennett,  24  N.  Y.  20. 

8  King  v.  Root,  4  Wend.  113,  21  Am. 
Dec.  102.  The  action  was  for  a  libel, 
published  in  the  "New  York  American," 
reflecting  upon  Root,  who  was  candidate 
for  lieutenant-governor.  We  quote  from 
the  opinion  of  the  chancellor:  "It  is  in- 
sisted that  this  libel  was  a  privileged 
communication.  If  so,  the  defendants 
were  under  no  obligation  to  prove  the 
truth  of  the  charge,  and  the  party  libelled 
had  no  right  to  recover,  unless  he  estab- 
lished malice  in  fact,  or  showed  that  the 
editors  knew  the  charge  to  be  false.  The 
effect  of  such  a  doctrine  would  be  deplor- 
able. Instead  of  protecting,  it  would  be 
destroying  the  freedom  of  the  press,  if  it 
were  understood  that  an  editor  could  pub- 
lish what  he  pleased  against  candidates 
for  office,  without  being  answerable  for 
the  truth  of  such  publications.  No  hon- 
est man  could  afford  to  be  an  editor,  and 
no  man  who  had  any  character  to  lose 
would  be  a  candidate  for  office  under  such 
a  construction  of  the  law  of  libel.  The 
only  safe  rule  to  adopt  in  such  cases  is  to 
permit  editors  to  publish  what  they  please 
in  relation  to  the  character  and  qualifica- 
tions of  candidates  for  office,  but  holding 
them  responsible  for  the  truth  of  what 
they  publish."  Notwithstanding  the  de- 
plorable consequences  here  predicted  from 
too  great  license  to  the  press,  it  is  matter 


CH.  XII. J  LIBERTY   OF   SPEECH   AND  OF  THE   PRESS.  645 

on  works  of  art  and  literary  productions  are  allowable,  but  they 
must  be  fair  and  temperate,  and  the  author  himself  must  not  be 
criticised  under  cover  of  a  criticism  of  his  works ;  nor  must  it  be 
assumed  that  because  he  seeks  the  favor  of  the  public  for  his 
productions,  he  thereby  makes  his  private  character  and  conduct 
public  property.1  For  further  privilege  it  would  seem  that  pub- 
lishers of  news  must  appeal  to  the  protection  of  public  opinion, 
or  they  must  call  upon  the  legislature  for  such  modification  of  the 
law  as  may  appear  important  to  their  just  protection. 

But  there  is  a  difference  between  the  mere  publication  of  items 
of  news  in  which  the  public  may  take  an  interest,  as  news  merely, 
and  the  discussion  of  matters  which  concern  the  public  because 
they  are  their  own  affairs.  It  is  one  thing  to  reproduce  in  the 
newspaper  injurious  reports  respecting  individuals,  however  will- 
ing the  public  may  be  to  hear  them,  and  a  very  different  thing  to 
discuss  the  public  conduct  of  a  high  official.  A  private  individual 
only  challenges  public  criticism  when  his  conduct  becomes  or 
threatens  to  be  injurious  to  others  ;  public  characters  and  public 
institutions  invite  it  at  all  times.  The  distinction  is  palpable,  and 
it  indicates  a  line  of  privilege  which  is  by  no  means  unimportant 
to  the  publishers  of  public  journals,  even  when  their  right  is  de- 
termined by  the  same  standard  which  determines  the  right  of  all 
other  persons.  If  they  may  not  publish  news  with  impunity,  they 
may  at  least  discuss  with  freedom  and  boldness  all  matters  of 

of  daily  observation  that  the  press,  in  its  154  Mass.  238,  23  N.  E.  1,  13  L.  R.  A.  97, 

comments  upon  public  events  and  public  and  note.    See  also  Smith  v   Burrus,  106 

men,  proceeds  in  all  respect  as  though  it  Mo.  94,  16  S.  W.  881,   13  L.  R.  A.  59, 

were  privileged ;   public  opinion   would  27  Am.  St.  329.] 

not  sanction  prosecutions  by  candidates  l  See  Cooper  v.  Stone,  24  Wend.  434; 
for  office  for  publications  amounting  to  Cooper  v.  Barber,  24  Wend.  105;  Cooper 
technical  libels,  but  which  were  neverthe-  v.  Greeley,  1  Denio,  347.  A  newspaper 
less  published  without  malice  in  fact;  and  criticism  on  a  play  is  not  privileged.  If 
the  man  who  has  a  "character  to  lose"  it  goes  beyond  fair  criticism  in  the  jury's 
presents  himself  for  the  suffrages  of  his  opinion  it  is  libellous.  Merivale  v.  Car- 
fellow-citizens  in  the  full  reliance  that  de-  son,  L.  R.  20  Q.  B.  D.  275.  As  to  criti- 
traction  by  the  public  press  will  be  cor-  cisms  on  public  entertainments,  see  Fry 
reeled  through  the  same  instrumentality,  v.  Bennett,  5  Sandf.  54,  and  28  N.  Y.  324; 
and  that  unmerited  abuse  will  react  on  Dibdin  v.  Swan,  1  Esp.  28;  Green  v. 
the  public  opinion  in  his  favor.  Mean-  Chapman,  4  Bing.  N.  C.  92.  As  to  how 
time  the  press  is  gradually  becoming  far  sermons,  preached,  but  not  otherwise 
more  just,  liberal,  and  dignified  in  its  published,  form  a  proper  subject  for  coin- 
dealings  with  political  opponents,  and  ment  and  criticism  by  the  public  press, 
vituperation  is  much  less  common,  reck-  see  Gathercole  v.  Miall,  15  M.  &  W.  318. 
less,  and  bitter  now  than  it  was  at  the  be-  If  one  sends  a  communication  to  a  paper 
ginning  of  the  century,  when  repression  which  is  altered  before  publication,  he  is 
was  more  often  resorted  to  as  a  remedy,  liable  for  it  as  published  only  if  he  has 
[[That  fair  criticism  of  public  men  is  ratified  it  as  changed.  Dawson  v.  Holt, 
allowable,  see  Burt  v.  Advertiser  N.  Co.,  11  Lea,  583. 


646  CONSTITUTIONAL    LIMITATIONS.  [CH.  XII. 

public  concern,  because  this  is  the  privilege  of  everyone.1  The 
privilege  extends  to  matters  of  government  in  all  its  grades  and 
all  its  branches ;  to  the  performance  of  official  duty  by  all  classes 
of  public  officers  and  agents  ;  to  the  courts,  the  prisons,  the  re- 
formatories, the  public  charities,  and  the  public  schools ;  to  all 
means  of  transportation  and  carriage,  even  when  in  private  hands 
and  management.  But  the  privilege  is  not  limited  to  these  ;  but 
extends  to  all  schemes,  projects,  enterprises,  and  organizations  of 
a  semi-public  nature,  which  invite  the  public  favor,  and  depend 
for  their  success  on  public  confidence.2  The  soundness  of  a  bank 
or  an  insurance  company,  the  humanity  of  the  managers  of  a 
private  asylum,  the  integrity  of  a  board  of  trade,  the  just  man- 
agement of  a  public  fair,  are  all  matters  which  directly  and 
immediately  concern  the  interest  of  the  public.  That  interest 
can  only  be  adequately  protected  through  the  liberty  of  public 
discussion,  and  to  deny  this  would  be  to  offer  impunity  to  fraudu- 
lent schemes  and  enterprises.  The  law  invites  such  discussion, 
because  of  the  public  interest  in  it,  and  it  extends  its  protection 
to  all  publications  which  do  not  appear  on  their  face,  and  are  not 
shown  otherwise,  to  have  been  inspired  by  malice.  The  publisher 
of  a  newspaper  may  open  his  columns  to  them  freely,  so  long  as 
they  are  restricted  within  the  limits  of  good  faith,  not  because  he 
makes  the  furnishing  of  news  his  business,  but  because  the  dis- 
cussion is  the  common  right  and  liberty  of  every  citizen.3 

1  But  a  newspaper  has  no  peculiar  Pac.  790,  6  L.  R.  A.  430.  But  it  is  not  a 
privilege  to  publish  charges  of  corruption  contempt  of  court  to  charge  a  judge,  who 
against  an  officer,  or  of  crime  against  a  is  a  candidate  for  re-election,  with  cor- 
candidate.  Negley  v.  Farrow,  60  Md.  ruption  and  partiality  in  the  decision  of 
158;  Neeb  v.  Hope,  111  Pa  St.  145,  2  Atl.  actions  already  adjudicated.  State  t>. 
568;  Bronson  v.  Bruce,  59  Mich.  467,  26  Circuit  Court,  97  Wis.  1,  72  N.  W.  193, 
N.  W.  671.  And  see  cases,  p.  628,  note,  38  L.  R.  A.  554,  65  Am.  St.  90.] 
ante.  [[Newspapers  are  not  privileged  to  2  See  Crane  v.  Waters,  10  Fed.  Rep. 
attempt  by  their  comments  to  intimidate  619.  Lowell,  J.,  26  Alb.  Law  Jour.  217. 
the  judges  of  a  court  and  compel  them  3  The  following  extracts  are  made 
to  submit  to  popular  clamor  the  decision  from  an  opinion  in  Atkinson  v.  Detroit 
of  a  particular  case  before  the  court.  Free  Press,  46  Mich.  341,  376,  9  N.  W. 
Until  the  decision  has  been  rendered,  the  501,  which  was  a  suit  for  libel  in  a  pub- 
newspapers  have  no  right  to  comment  lication  concerning  what  appeared  to  be 
upon  or  to  criticise  what  they  suppose  that  the  dishonest  bankruptcy  of  a  member 
it  will  be.  After  it  is  rendered,  and  not  of  the  Detroit  Board  of  Trade.  As  the 
until  then,  is  it  properly  before  the  public,  case  went  off  on  an  unimportant  point, 
Conduct  contrary  to  this  rule  is  a  contempt  the  extracts  are  given  as  the  views  of 
bf  court  and  may  be  punished  as  such,  the  judge  from  whose  opinion  they  are 
State  v.  Bee  Pub.  Co.,  60  Neb.  282,  83  taken. 

N.   W.   204,  50  L.  R.  A.   195;  State  v.          "What  is   a   case   of   privilege?     In 

Tugwell,  19  Wash.  238,  52  Pac.  1056,  43  general  terms  it  may  be  said  to  be  a  case 

L.  R.  A.  717  ;  People   v.   Stapleton,   18  in  which  the  circumstances  rebut  the  pre- 

Col.  568,  33  Pac.  167,  23  L.  R.  A.  787;  sumption  of  legal  malice.     By  legal  ma-' 

Cooper   v.   People.    13  Col.  337,  373,  22  lice  is  meant  no  more  than  the  wrongful 


GIL  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE   PRESS. 


647 


The  publisher  of  a  newspaper,  however,  even  when  responsible 
for  all  the  actual  damage  which  a  party  may  suffer  in  consequence 


intention  which  the  law  always  presumes 
as  accompanying  a  wrongful  act,  without 
any  proof  of  malice  in  fact.  Wason  v. 
Walter,  L.  R.  4  Q.  B.  73,  87.  If  one  tra- 
duce another,  whether  knowing  him  or 
not,  and  whether  intending  to  do  him  an 
injury  or  not,  the  law  considers  it  as  done 
of  malice  because  it  is  wrongful  and  in- 
tentional. It  equally,  works  an  injury 
whether  injury  was  intended  or  not,  and 
if  there  was  no  excuse  for  the  slander, 
there  should  be  an  appropriate  remedy. 
Bromage  v.  Prosser,  4  B.  &  C.  247,  255. 
But  the  presumption  of  law  may  be  re- 
butted by  the  circumstances  under  which 
the  defamatory  words  have  been  uttered 
or  published  ;  and  whenever  this  is  the 
case  no  right  of  action  can  arise,  even 
though  the  character  of  the  party  con- 
cerned may  have  suffered,  unless  he  is 
able  to  show  that  there  was  malice  in  fact. 
Wason  v.  Walter,  L.  R.  4  Q.  B.  73,  87 ; 
Toogood  v.  Spyring,  1  C.  M.  &  R.  181 ; 
Lewis  v.  Levy,  El.  Bl.  &  El.  537 ;  Taylor 
v.  Hawkins,  16  Q.  B.  308,  321;  Clark  v. 
Molyneaux,  L.  R.  3  Q..B.  1).  237;  Bar- 
rows v.  Bell,  7  Gray,  301 ;  Terry  v.  Fel- 
lows, 21  La.  Ann.  375;  McBee  v.  Fulton, 
47  Md.  403. 

"  The  privilege  in  a  communication 
springs  from  the  fact  that  there  existed 
in  the  case  some  obligation  or  duty  to 
speak  or  publish  on  the  subject.  Some- 
times this  obligation  is  mandatory  ;  the 
duty  is  either  imposed  by  law,  or  the  cir- 
cumstances render  it  so  far  imperative 
that  the  party  upon  whom  it  rests  must 
suffer  some  penalty  or  loss  unles  she  rec- 
ognizes and  performs  it.  In  such  cases 
the  protection  should  be  as  conclusive 
as  the  duty  is  imperative.  We  have  an 
illustration  in  the  case  of  a  witness  in 
court;  the  law  compels  him  to  state  what 
he  knows  that  is  relevant  and  competent 
in  the  controversy,  and  he  will  not  be 
suffered  to  refuse  if  he  would.  But  the 
conflicts  in  testimony  give  abundant  evi- 
dence that  witnesses  are  frequently  mis- 
taken;  and  if  they  must  testify  under  a 
responsibility  to  civil  suits  for  all  mis- 
takes injurious  to  the  reputation  of  other 
persons,  we  should  encounter  such  evasion 
of  process  and  such  suppression  of  the 
facts  as  would  in  many  cases  make  the 


truth  practically  unattainable.  In  a  civil 
suit  against  the"  witness,  therefore,  the 
law  will  not  permit  malice  to  be  alleged 
or  shown ;  if  the  witness  testify  falsely 
with  evil  intent,  he  may  be  indicted  and 
punished  ;  but  in  a  civil  suit  which  brings 
it  in  question,  his  evidence  must  be  con- 
clusively presumed  to  have  been  given 
under  the  inspiration  of  proper  motives. 
The  same  conclusive  presumption  will 
attend  the  filing  of  the  necessary  plead- 
ings and  other  papers  in  a  cause,  and  the 
arguments  of  counsel,  provided  they  do 
not  wander  from  the  case  for  the  pur- 
poses of  vituperation  or  harmful  imputa- 
tion upon  character,  conduct,  or  motives. 
Torrey  v.  Field,  10  Vt.  353;  Gilbert  v. 
People,  1  Denio,  41 ;  Hoar  v.  Wood,  3 
Met.  193;  Strauss  v.  Meyer,  48  III.  386; 
Johnson  v.  Brown,  13  W.  Va.  71.  But 
there  are  other  cases  in  which  the  privi- 
lege is  only  pri ma  facie  and  conditional; 
it  exists  so  far  as  to  rebut  any  legal  pre- 
sumption of  malice,  and  constitutes  a 
protection  until  actual  malice  is  shown. 
It  is  therefore  a  privilege  conditioned  on 
the  publication  having  been  made  with 
proper  motives,  but  the  proof  of  bad  mo- 
tives—  or,  in  other  words,  of  malice  in 
fact  —  must  be  made  by  the  party  who 
asserts  it.  Spill  v.  Maule,  L.  R.  4  Ex. 
232;  Shurtleff  v.  Stevens,  51  Vt.  501. 
Such  a  case  is  where  a  voter  publicly 
criticises  and  condemns  the  character  or 
conduct  of  a  candidate  for  public  honors ; 
he  has  a  right  to  do  this,  and  is  prima 
facie  protected  in  his  criticism  ;  but  if  it  is 
made  to  appear  that  his  privilege  is  used 
as  a  cloak  for  groundless  and  malicious 
assaults,  the  protection  ceases,  because 
the  reason  on  which  it  rests  ceases.  The 
privilege  is  the  handmaid  of  good  faith. 

"  In  the  cases  of  qualified  privilege, 
the  duty  to  speak  or  publish  is  not  im- 
perative in  the  sense  that  a  law  is  violated 
if  it  is  not  recognized  ;  it  may  be  a  moral 
or  social  duty  of  imperfect  obligation. 
Lord  Campbell,  Ch.  J.,  in  Harrison  v.  Bush, 
6  E.  &  B.  344.  Indeed,  most  cases  of 
conditional  privilege  are  cases  in  which  a 
party  may  speak  or  abstain  at  his  option  ; 
and  if  he  speaks,  it  is  because  others  de- 
sire and  have  a  right  to  receive  infor- 
mation ou  some  subject  which  specially 


648  CONSTITUTIONAL  LIMITATIONS.  [CH.  XII. 

of  injurious  publications  in  bis  paper,  cannot  properly  be  made 
liable  for  exemplary  or  vindictive  damages,  if  the  article  corn- 


concerns  them,  or  because  in  his  opinion 
some  moral,  social,  or  political  obligation 
demands  it.  The  law  imposes  upon  no 
citizen  the  duty  to  call  the  attention  of 
the  public  to  the  maladministration 
of  public  affairs,  or  to  the  misconduct  of 
public  servants ;  but  good  citizenship 
may  require  him  to  speak,  if  his  real  mo- 
tive in  doing  so  is  to  bring  about  a  reform 
of  abuses,  or  to  defeat  the  re-election  or 
re-appointment  of  an  incompetent  officer. 
Palmer  v.  Concord,  48  N.  H.  211,  216. 
And  nothing  is  plainer  than  that  to  hold 
him  to  the  strict  and  literal  truth  of  every 
statement,  recital,  and  possible  inference 
would  be  to  subject  the  right  to  con- 
ditions making  any  attempt  at  public 
discussion  practically  worthless.  Lord 
Campbell  has  well  shown  in  Harrison  v. 
Bush,  5  El.  &  Bl.  844,  and  especially  by 
his  reference  to  the  cases  of  Rex  v.  Bailie, 
21  State  Trials,  1,  and  Fairman  ?-.  Ives,  5 
B.  &  Aid.  642,  that  the  law  cherishes  this 
right,  and  regards  liberally  its  exercise 
for  the  public  good,  so  that  an  honest 
mistake  in  seeking  the  proper  remedy 
through  the  publication  will  not  be  suf- 
fered to  constitute  a  ground  for  recovery. 
Chief  Justice  Parker  thus  states  the  true 
rule  in  State  v.  Burnham,  9  N.  H.  34,  41 : 
'If  the  end  to  be  attained  is  justifiable; 
as,  if  the  object  is  the  removal  of  an  in- 
competent officer,  or  to  prevent  the  elec- 
tion of  an  unsuitable  person  to  office,  or, 
generally,  to  give  useful  information  to 
the  community  or  to  those  who  have  a 
right  and  ought  to  know,  in  order  that 
they  may  act  upon  such  information,  the 
occasion  is  lawful,  and  the  party  may 
then  justify  or  excuse  the  publication.' 
Still  more  comprehensive  is  the  language 
of  the  trial  judge  in  Kelly  v.  Sherlock, 
L.  R.  1  Q.  B.  686,  G89 :  '  Every  man  has  a 
right  to  discuss  matters  of  public  inter- 
est. A  clergyman  with  his  flock,  an  ad- 
miral with  his  fleet,  a  general  with  his 
army,  and  a  judge  with  his  jury,  —  we 
are  all  of  us  the  subjects  for  public  dis- 
cussion. So  also  is  it  matter  of  public  in- 
terest, the  dispute  between  the  plaintiff 
[a  clergyman]  and  his  organist,  and  the 
way  in  which  a  church  is  used :  they  are 
all  public  matters,  and  may  be  publicly 
discussed.  And  provided  a  man,  whether 


in  a  newspaper  or  not,  publishes  a  com- 
ment on  a  matter  of  public  interest, 
fair  in  tone,  and  temperate,  although  he 
may  express  opinions  that  you  may  not 
agree  with,  that  is  not  a  subject  for  an 
action  for  libel;  because  whoever  fills 
a  public  position  renders  himself  open 
to  public  discussion,  and  if  any  part  of 
his  public  acts  is  wrong,  he  must  accept 
the  attack  as  a  necessary  though  un- 
pleasant circumstance  attaching  to  his 
position.  In  this  country,  everything, 
either  by  speech  or  writing,  may  be  dis- 
cussed for  the  benefit  of  the  public.'  This 
strong  language  is  approved  in  Kelly  v. 
Tinling,  L.  R.  1  Q.  B.  699 ;  and  in  Hen- 
wood  v.  Harrison,  L.  R.  7  C.  P.  606,  622, 
the  principle  is  declared  to  be  '  a  univer- 
sal one,  that  the  public  convenience  is  to 
be  preferred  to  private  interests,  and 
that  communications  which  the  interests 
of  society  require  to  be  unfettered  may 
freely  be  made  by  persons  acting  hon- 
estly without  actual  malice,  notwithstand- 
ing that  they  involve  relevant  comments 
condemnatory  of  .individuals.'  The  same 
principle  is  found  in  Toogood  v.  Spyring, 
1  C.  M.  &  R.  181 ;  Whitely  v.  Adams,  15 
C.  B.  (N.  s.),  417;  Gott  v.  Pulsifer,  122 
Mass.  235 ;  McBee  v.  Fulton,  47  Md.  403  ; 
Shurtleff  v.  Stevens,  51  Vt.  501. 

[And  after  recapitulating  the  facts] : 
"  There  is  no  room  for  plausible  sug- 
gestion that  these  matters  \vere  not  of 
public  concern.  The  Detroit  Board  of 
Trade  is  a  public  institution,  in  the  sense 
that  it  challenges  public  confidence  by 
giving  assurances  that  it  is  composed  of 
individuals  whose  business  integrity  is 
known  and  undoubted.  The  public  had 
reason  to  trust  and  confide  in  Clark,  be- 
cause he  had  been  accepted  as  a  suitable 
and  proper  member  for  this  body  ;  and 
reason  is  found  in  this  record  for  the 
belief  that  his  associates  trusted  him  be- 
cause he  had  won  their  confidence,  and 
not  because  of  any  actual  responsibility. 
It  is  as  important  to  the  city  of  Detroit 
that  it  should  have  an  honorable  and 
trustworthy  board  of  trade  —  a  board 
that  would  reject  and  spurn  association 
with  one  known  or  believed  to  be  unre- 
liable and  dishonest  —  as  it  is  that  it 
should  have  a  trustworthy  mayor  or  con- 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PRESS. 


649 


plained  of  was  inserted  in  his  paper  without  his  personal  knowl- 
edge, and  he  has  been  guilty  of  no  negligence  in  the  selection  of 


troller,  or  police  authorities  or  other  pub- 
lic functionaries.  The  business  prosperity 
of  a  commercial  city  must  depend  quite 
as  largely  upon  the  honor  and  integrity  of 
its  commercial  classes  as  upon  the  char- 
acter of  its  political  rulers;  and  confidence 
in  these  must  cease  unless  fraud,  when  it 
appears,  can  be  publicly  rebuked. 

"  The  defendant  is  publisher  of  a  daily 
journal,  established  to  give  the  facts  of 
important  current  events,  and  to  discuss, 
for  the  information  and  instruction  of  its 
readers,  public  affairs.  This  case  affords 
neither  occasion  nor  excuse  for  any  gen- 
eral discussion  of  the  liberty  of  the  press 
in  giving  news ;  what  was  done  here 
might  have  been  done  by  any  individual  in 
a  pamphlet  under  the  same  privilege  that 
protects  a  newspaper.  Nor  has  the  fact 
that  the  liberty  of  the  press  is  frequently 
and  most  grossly  abused  any  relevancy 
in  this  case  ;  we  are  concerned  only  with 
the  question  whether  the  liberty  of  pub- 
lic discussion  was  abused  in  the  particular 
case.  The  conductors  of  the  defendant's 
paper,  in  the  regular  course  of  their  busi- 
ness, had  had  brought  to  their  attention 
the  facts  of  a  transaction  which  no  one 
ventures  to  defend.  This  transaction  in 
its  direct  consequences  was  calculated  to 
defraud  a  number  of  persons  of  consider- 
able sums  of  money ;  in  its  indirect  con- 
sequences it  was  likely  to  disturb  the 
prevailing  confidence  in  an  important 
public  institution,  and  to  injure  the  busi- 
ness reputation  of  the  city.  They  inves- 
tigated the  case,  and  laid  the  results 
before  the  public.  No  doubt  they  might 
have  used  more  carefully-guarded  lan- 
guage, and  avoided  irritfiting  head  lines  ; 
but  in  a  case  of  palpable  fraud,  which 
this  seemed  to  be  and  was,  something 
must  be  excused  to  honest  indignation  ; 
for  the  beneficial  ends  to  be  subserved  by 
public  discussion  would,  in  large  measure, 
be  defeated  if  dishonesty  must  be  handled 
with  delicacy,  and  fraud  spoken  of  with 
such  circumspection  and  careful  and  dif- 
ferential choice  of  words  as  to  make  it 
appear  in  the  discussion  a  matter  of  in- 
difference. It  is  complained  that  the 
paper  followed  its  first  publication  with 
a  review  of  the  whole  case  a  week  after 
it  was  all  settled ;  but  this  review  was 


quite  as  proper  as  the  first  notice.  No 
settlement  could  relieve  the  case  of  its 
worse  aspects.  If  Clark  had  repented 
before  he  left  Windsor,  and  had  followed 
his  money  in  its  remarkable  journey,  by 
hack  and  sail-boat,  on  foot  and  in  car- 
riage, and  recovered  it  for  the  use  of  his 
creditors,  he  ought  still  to  have  been 
brought  to  the  bar  of  public  opinion  to 
be  dealt  with  for  his  extraordinary  con- 
duct whereby  a  considerable  percentage 
of  his  assets  had  already  been  wasted. 
Mott  ».  Dawson,  46  Iowa,  533.  The  de- 
fendant's paper  would  have  been  unwor- 
thy of  the  confidence  and  support  of 
commercial  men  if  its  conductors  had 
shut  their  eyes  to  such  a  transaction.  If 
the  plaintiff  was  not  in  fault,  then  it  was 
his  misfortune  that  it  was  impossible  to 
deal  with  the  case  without  bringing  him 
into  the  discussion. 

"The  communication  in  this  case  be- 
ing privileged,  and  there  being  in  its 
terms  no  manifest  abuse  of  the  privilege, 
it  was  incumbent  on  the  plaintiff  to  give 
some  evidence  of  malice  before  he  was 
entitled  to  ask  a  verdict  in  his  favor. 
Taylor  v.  Hawkins,  16  Q.  B.  308,  321 ; 
Kenwood  v.  Harrison,  L.  R.  7  C.  B.  606. 
The  case  therefore  failed  to  be  made  out. 
If  such  a  discussion  of  a  matter  of  public 
interest  were  prima  facie  an  unlawful  act, 
and  the  author  were  obliged  to  justify 
every  statement  by  evidence  of  its  literal 
truth,  the  liberty  of  public  discussion 
would  be  unworthy  of  being  named  as  a 
privilege  of  value.  It  would  be  better  to 
restore  the  censorship  of  a  despotism  than 
to  assume  to  give  a  liberty  which  can 
only  be  accepted  under  a  responsibility 
that  is  always  threatening,  and  may  at 
any  time  be  ruinous.  A  caution  in  ad- 
vance after  despotic  methods  would  be 
less  objectionable  than  a  caution  in  dam- 
ages after,  in  good  faith,  the  privilege 
had  been  exercised.  No  public  discus- 
sion of  important  matters  involving  the 
conduct  and  motives  of  individuals  could 
possibly  be  at  the  same  time  valuable  and 
safe  under  the  rules  for  which  the  plain- 
tiff contends.  It  is  a  plausible  suggestion 
that  strict  rules  of  responsibility  are  es- 
sential to  the  protection  of  reputation  ; 
but  it  is  most  deceptive,  for  every  man 


650  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

agents,  and  no  personal  misconduct,  and  is  not  shown  habitually 
to  make  his  paper  the  vehicle  of  detraction  and  malice.1 

Publication  of  Legislative  Proceedings. 

Although  debates,  reports,  and  other  proceedings  in  legislative 
bodies  are  privileged,  it  does  not  seem  to  follow  that  the  publica- 
tion of  them  is  always  equally  privileged.  The  English  decisions 
do  not  place  such  publications  on  any  higher  ground  of  right  than 
any  other  communication  through  the  public  press.  A  member 
of  Parliament,  it  is  said,  has  a  right  to  publish  his  speech,  but  it 
must  not  be  made  the  vehicle  of  slander  against  any  individual, 
and  if  it  is,  it  is  a  libel.2  And  in  another  case  :  "  A  member  of 
[the  House  of  Commons]  has  spoken  what  he  thought  material, 
and  what  he  was  at  liberty  to  speak,  in  his  character  as  a  mem- 
ber of  that  house.  So  far  he  was  privileged  ;  but  he  has  not 
stopped  there,  but,  unauthorized  by  the  house,  has  chosen  to  pub- 
lish an  account  of  that  speech,  in  what  he  has  pleased  to  call  a 
more  corrected  form,  and  in  that  publication  has  thrown  out  re- 
flections injurious  to  the  character  of  an  individual."  And  he 
was  convicted  and  fined  for  the  libel.3 

The  circumstance  that  the  publication  was  unauthorized  by  the 
house  was  alluded  to  in  this  opinion,  but  the  rule  of  law  would 
seem  to  be  unaffected  by  it,  since  it  was  afterwards  held  that  an 
order  of  the  house  directing  a  report  made  to  it  to  be  published 
did  not  constitute  any  protection  to  the  official  printer,  who  had 

of  common   discernment,  who    observes  '    l  Daily    Post   Co.  v.  McArthur,   and 

what  is   taking  place  around  him,  and  Detroit  Free  Press  v.  Same,  16  Mich.  447  ; 

what  influences  control  public  opinion,  Perret  v.  New   Orleans   Times,   25  La. 

cannot  fail  to  know  that  reputation  is  Ann.  170 ;  Scripps  v.  Reilly,  35  Mich.  371 ; 

best  protected  when   the  press   is   free.  Same   v.   Same,   38   Mich.  10 ;   Evening 

Impose  shackles  upon  it  and  the  protec-  News  v.  Tryon,  42  Mich.  529,  4  N.  W.  267, 

tion  fails  when  the  need  is  greatest.   Who  36  Am.  Rep.  450.     A  statutory  provision 

would  venture  to  expose  a  swindler  or  a  that  in  actions  against  newspapers  only 

blackmailer,  or  to  give  in  detail  the  facts  actual  damages  to  property,  business,  &c., 

of  a  bank  failure  or  other  corporate  def-  should  be  recovered,  if  the  publication 

alcation,  if   every    word    and    sentence  was  in  good  faith  and  did  not  involve  a 

must  be  uttered  witli  judicial  calmness  criminal  charge,  and  if,  as  soon  as  possi- 

and  impartiality  as  between  the  swindler  ble,  a  correction  was  published,  is  bad  ;  a 

and  his  victims,  and  every  fact  and  every  class  of  citizens  cannot  be  thus  favored 

inference  be  justified  by  unquestionable  nor  can  damages  be  thus  limited.     Park  v. 

legal  evidence  ?     The  undoubted  truth  is  Detroit  Free  Press  Co.,  72  Mich.  560,  40 

that  honesty  reaps  the  chief  advantages  N.  W.  731.     But  a  like  statute  has  been 

of  free  discussion  ;  and  fortunately  it  is  upheld  in  Minnesota.     Allen  v.  Pioneer 

honesty  also  that  is  least  liable  to  suffer  Press  Co.,  40  Minn.  117,  41  N.  W.  936. 
serious  injury  when  the  discussion  inci-          2  Rex  v.  Lord  Abington,  2  Esp.  226. 
dentally  affects  it  unjustly."    And   see          8  Rex  v.  Creevey,  1  M.  &  S.  273,  278. 
Miner  v.  Detroit  Post  &  Tribune,  49  Mich. 
358,  13  N.  W.  773. 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF  THE   PEESS. 


651 


published  it  in  the  regular  course  of  his  duty,  in  compliance  with 
such  order.  All  the  power  of  the  house  was  not  sufficient  to  pro- 
tect its  printer  in  obeying  the  order  to  make  this  publication ; 
and  a  statute  was  therefore  passed  to  protect  in  the  future  per- 
sons publishing  parliamentary  reports,  votes,  or  other  proceedings, 
by  order  of  either  house.1 

It  has  been  intimated,  however,  that  what  a  representative  is 
privileged  to  address  to  the  house  of  which  he  is  a  member,  he  is 
also  privileged  to  address  to  his  constituents ;  and  that  the  bona 
fide  publication  for  that  purpose  of  his  speech  in  the  house  is  pro- 
tected.2 And  the  practice  in  this  country  appears  to  proceed  on 
this  idea  ;  the  speeches  and  proceedings  in  Congress  being  fully 
reported  by  the  press,  and  the  exemption  of  the  member  from 


1  Stat.  3  and  4  Victoria,  c.  9.  The 
case  was  tliat  of  Stockdale  v.  Hansard, 
very  fully  reported  in  9  Ad.  &  El.  1.  See 
also  11  Ad.  &  El.  253.  The  Messrs.  Han- 
sard were  printers  to  the  House  of  Com- 
mons, and  had  printed  by  order  of  that 
house  the  report  of  the  inspectors  of 
prisons,  in  which  a  book,  published  by 
Stockdale,  and  found  among  the  pris- 
oners in  Newgate,  was  described  as  ob- 
scene and  indecent.  Stockdale  brought 
an  action  against  the  printers  for  libel,  and 
recovered  judgment.  Lord  Denman,  pre- 
siding on  the  trial,  said  that  "  the  fact  of 
the  House  of  Commons  having  directed 
Messrs.  Hansard  to  publish  all  their  par- 
liamentary reports  is  no  justification  for 
them,  or  for  any  bookseller  who  publishes 
any  parliamentary  report  containing  a 
libel  against  any  man."  The  house  re- 
sented this  opinion  and  resolved,  "  that 
the  power  of  publishing  such  of  its  re- 
ports, votes,  and  proceedings  as  it  shall 
deem  necessary  or  conducive  to  the  pub- 
lic interests  is  an  essential  incident  to  the 
constitutional  functions  of  Parliament, 
more  especially  of  this  house  as  the  rep- 
resentative portion  of  it."  They  also 
resolved  that  for  any  person  to  institute  a 
suit  in  order  to  call  its  privileges  in  ques- 
tion, or  for  any  court  to  decide  upon 
matters  of  privilege  inconsistent  with 
the  determination  of  either  house,  was  a 
breach  of  privilege.  Stockdale,  however, 
brought  other  actions,  and  again  recov- 
ered. When  he  sought  to  enforce  these 
judgments  by  executions,  his  solicitor  and 
himself  were  proceeded  against  for  con- 
tempt of  the  house,  and  imprisoned. 


While  in  prison  Stockdale  commenced  a 
further  suit.  The  sheriffs,  who  had  been 
ordered  by  the  House  of  Commons  to 
restore  the  money  which  they  had  col- 
lected, were,  on  the  other  hand,  com- 
pelled by  attachments  from  the  Queen's 
Bench  to  pay  it  over  to  Stockdale.  In 
this  complicated  state  of  affairs,  the 
proper  and  dignified  mode  of  relieving 
the  difficulty  by  the  passage  of  a  statute 
making  such  publications  privileged  for 
the  future  was  adopted.  For  an  account 
of  this  controversy,  in  addition  to  what 
appears  in  the  law  reports,  see  May,  Law 
and  Practice  of  Parliament,  156-159,  2d 
ed. ;  May,  Constitutional  History,  c.  7.  A 
case  in  some  respects  similar  to  that  of 
Stockdale  v.  Hansard  is  that  of  Popham 
v.  Pickburn,  7  Hurl.  &  Nor.  891.  The 
defendant,  the  proprietor  of  a  newspaper, 
was  sued  for  publishing  a  report  made  by 
a  medical  officer  of  health  to  a  vestry 
board,  in  pursuance  of  the  statute,  and 
which  reflected  severely  upon  the  con- 
duct of  the  plaintiff.  The  publication 
was  made  without  any  comment,  and  as 
a  part  of  the  proceedings  of  the  vestry 
board.  It  was  held  not  to  be  privileged, 
notwithstanding  the  statute  provided  for 
the  publication  of  the  report  by  the  ves- 
try board,  —  which,  however,  had  not  yet 
been  made.  A  substantially  correct  re- 
port of  an  open  meeting  of  a  town  council 
is  privileged.  Wallis  v.  Bazet,  34  La. 
Ann.  131. 

2  Lives  of  Chief  Justices,  by  Lord 
Campbell,  Vol.  III.  p.  167;  Davison  v. 
Duncan,  7  El.  &  Bl.  229,  233. 


652  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

being  called  to  account  for  his  speech  being  apparently  supposed 
to  extend  to  its  publication  also.  When  complete  publicity  is 
thus  practised,  perhaps  every  speech  published  should  be  regarded 
as  addressed  bona  fide  by  the  representative,  not  only  to  the 
house,  but  also  to  his  constituents.  But  whether  that  view  be 
taken  or  not,  if  publication  is  provided  for  by  law,  as  in  the  case 
of  Congressional  debates,  the  publishing  must  be  considered  as 
privileged. 

The  Jury  as  Judges  of  the  Law. 

In  a  considerable  number  of  the  State  constitutions  it  is  pro- 
vided that,  in  prosecutions  for  libel,  the  jury  shall  have  a  right  to 
determine  the  law  and  the  fact.  In  some  it  is  added,  "  as  in 
other  cases  ;  "  in  others,  "  under  the  direction  of  the  court."  For 
the  necessity  of  these  provisions  we  must  recur  to  the  rulings  of 
the  English  judges  in  the  latter  half  of  the  last  century,  and  the 
memorable  contests  in  the  courts  and  in  Parliament,  resulting  at 
last  in  the  passage  of  Mr.  Fox's  Libel  Act,  declaratory  of  the 
rights  of  juries  in  prosecutions  for  libel. 

In  the  year  1770,  Woodfall,  the  printer  of  the  "  Morning  Ad- 
vertiser," was  tried  before  Lord  Mansfield  for  having  published  in 
his  paper  what  was  alleged  to  be  a  libel  on  the  king ;  and  his 
lordship  told  the  jury  that  all  they  had  to  consider  was,  whether 
the  defendant  had  published  the  paper  set  out  in  the  information, 
and  whether  the  innuendoes,  imputing  a  particular  meaning  to 

particular  words,  were  true,  as  that  "  the  K "  meant  his 

Majesty  King  George  III. ;  but  that  they  were  not  to  consider 
whether  the  publication  was,  as  alleged  in  the  information,  false 
and  malicious,  those  being  mere  formal  words ;  and  that  whether 
the  letter  was  libellous  or  innocent  was  a  pure  question  of  law, 
upon  which  the  opinion  of  the  court  might  be  taken  by  a  de- 
murrer, or  a  motion  in  arrest  of  judgment.  His  charge  obviously 
required  the  jury,  if  satisfied  the  publication  was  made,  and  had 
the  meaning  attributed  to  it,  to  render  a  verdict  of  guilty,  whether 
they  believed  the  publication  false  and  malicious  or  not;  in 
other  words,  to  convict  the  party  of  guilt,  notwithstanding  they 
might  believe  the  essential  element  of  criminality  to  be  wanting. 
The  jury,  dissatisfied  with  these  instructions,  and  unwilling  to 
make  their  verdict  cover  matters  upon  which  they  were  not  at 
liberty  to  exercise  their  judgment,  returned  a  verdict  of  "  guilty 
of  printing  and  publishing  only ;"  but  this  the  court  afterwards 
rejected  as  ambiguous,  and  ordered  a  new  trial.1 

In  Miller's  case,  which  was  tried  the  same  year,  Lord  Mansfield 

1  20  State  Trials,  895. 


CH.  XII.]  LIBERTY   OF   SPEECH    AND   OF   THE   PRESS.  653 

instructed  the  jury  as  follows :  "  The  direction  I  am  going  to 
give  you  is  with  a  full  conviction  and  confidence  that  it  is  the 
language  of  the  law."  "  If  you  by  your  verdict  find  the  defend- 
ant not  guilty,  the  fact  established  by  that  verdict  is,  he  did  not 
publish  a  paper  of  that  meaning;  that  fact  is  established,  and 
there  is  an  end  of  the  prosecution.  You  are  to  try  that  fact,  be- 
cause your  verdict  establishes  that  fact,  that  he  did  not  publish  it. 
If  you  find  that,  according  to  your  judgment,  your  verdict  is  final, 
and  if  you  find  it  otherwise  it  is  between  God  and  your  con- 
sciences, for  that  is  the  basis  upon  which  all  verdicts  ought  to  be 
founded ;  then  the  fact  finally  established  by  your  verdict,  if  you 
find  him  guilty,  is,  that  he  printed  and  published  a  paper  of  the 
tenor  and  of  the  meaning  set  forth  in  the  information ;  that  is 
the  only  fact  finally  established  by  your  verdict ;  and  whatever 
fact  is  finally  established  never  can  be  controverted  in  any  shape 
whatsoever.  But  you  do  not  by  that  verdict  give  an  opinion,  or 
establish  whether  it  is  or  not  lawful  to  print  or  publish  a  paper  of 
the  tenor,  and  meaning  in  the  information ;  for,  supposing  the 
defendant  is  found  guilty,  and  the  paper  is  such  a  paper  as  by 
the  law  of  the  land  may  be  printed  and  published,  the  defendant 
has  a  right  to  have  judgment  respited,  and  to  have  it  carried  to 
the  highest  court  of  judicature." l 

Whether  these  instructions  were  really  in  accordance  with  the 
law  of  England,  it  would  be  of  little  importance  now  to  inquire. 
They  were  assailed  as  not  only  destructive  to  the  liberty  of  the 
press,  but  as  taking  from  the  jury  that  right  to  cover  by  their 
verdict  all  the  matter  charged  and  constituting  the  alleged  of- 
fence, as  it  was  conceded  was  their  right  in  all  other  cases.  In 
no  other  case  could  the  jury  be  required  to  find  a  criminal  intent 
which  they  did  not  believe  to  exist.  In  the  House  of  Lords  they 
were  assailed  by  Lord  Chatham;  and  Lord  Camden,  the  Chief 
Justice  of  the  Common  Pleas,  in  direct  contradiction  to  Lord 
Mansfield,  declared  his  instructions  not  to  be  the  law  of  England. 
Nevertheless,  with  the  judges  generally,  the  view  of  Lord  Mans- 
field prevailed,  and  it  continued  to  be  enforced  for  more  than 
twenty  years,  so  far  as  juries  would  suffer  themselves  to  be  con- 
trolled by  the  directions  of  the  courts. 

The  act  known  as  Mr.  Fox's  Libel  Act  was  passed  in  1792, 
against  the  protest  of  Lord  Thurlow  and  five  other  lords,  who 
predicted  from  it  "•  the  confusion  and  destruction  of  the  law  of 
England."  It  was  entitled  "  An  act  to  remove  doubts  respect- 

1  20  State   Trials,  870,   891.     For  an     see  The  Forum,  by  David  Paul  Brown, 
account  of  the  raising  of  the  same  ques-     Vol.  I.  p.  280. 
tion  in  Pennsylvania,  so  early  as   1692, 


654  CONSTITUTIONAL   LIMITATIONS.  [CH.  XII. 

ing  the  functions  of  juries  in  cases  of  libel,"  and  it  declared  and 
enacted  that  the  jury  might  give  a  general  verdict  of  guilty  or 
not  guilty,  upon  the  whole  matter  put  in  issue  upon  the  indict- 
ment or  information,  and  should  not  be  required  or  directed  by 
the  court  or  judge  before  whom  it  should  be  tried  to  find  the  de- 
fendant guilty,  merely  on  the  proof  of  the  publication  of  the 
paper  charged  to  be  a  libel,  and  of  the  sense  ascribed  to  the  same 
in  the  indictment  or  information :  Provided,  that  on  every  such 
trial  the  court  or  judge  before  whom  it  should  be  tried  should, 
according  to  their  discretion,  give  their  opinion  and  direction  to 
the  jury  on  the  matter  in  issue,  in  like  manner  as  in  other  crim- 
inal cases :  Provided  also,  that  nothing  therein  contained  should 
prevent  the  jury  from  finding  a  special  verdict  in  their  discretion, 
as  in  other  criminal  cases :  Provided  also,  that  in  case  the  jury 
should  find  the  defendant  guilty,  he  might  move  in  arrest  of 
judgment  on  such  ground  and  in  such  manner  as  by  law  he  might 
have  done  before  the  passing  of  the  act. 

Whether  this  statute  made  the  jury  the  rightful  judges  of  the 
law  as  well  as  of  the  facts  in  libel  cases,  or  whether,  on  the  other 
hand,  it  only  placed  these  cases  on  the  same  footing  as  other 
criminal  prosecutions,  leaving  it  the  duty  of  the  jury  to  accept 
and  follow  the  instructions  of  the  judge  upon  the  criminal  char- 
acter of  the  publication,  are  questions  upon  which  there  are  still 
differences  of  opinion.  Its  friends  have  placed  the  former  con- 
struction upon  it,  while  others  adopt  the  opposite  view.1 

In  the  United  States  the  disposition  of  the  early  judges  was  to 
adopt  the  view  of  Lord  Mansfield  as  a  correct  exposition  of  the 
respective  functions  of  court  and  jury  in  cases  of  libel ;  and  on 
the  memorable  trial  of  Callendar,  which  lead  to  the  impeachment 
of  Judge  Chase,  of  the  United  States  Supreme  Court,  the  right  of 
the  jury  to  judge  of  the  law  was  the  point  in  dispute  upon  which 
that  judge  first  delivered  his  opinion,  and  afterwards  invited  argu- 
ment. The  charge  there  was  of  libel  upon  President  Adams, 
and  it  was  prosecuted  under  the  Sedition  Law,  so  called,  which 
expressly  provided  that  the  jury  should  have  the  right  to  deter- 
mine the  law  and  the  fact,  under  the  direction  of  the  court,  as  in 
other  cases.  The  defence  insisted  that  the  Sedition  Law  was 
unconstitutional  and  void,  and  proposed  to  argue  that  question  to 
the  jury,  but  were  stopped  by  the  court.  The  question  of  the 
constitutionality  of  a  statute,  it  was  said  by  Judge  Chase,  was  a 
judicial  question,  and  could  only  be  passed  upon  by  the  court ; 
the  jury  might  determine  the  law  applicable  to  the  case  under 

1  Compare  Forsyth  on  Trial  by  Jury,  c.  12,  with  May's  Constitutional  History  of 
England,  c.  9. 


CH.  XII.]  LIBERTY   OF   SPEECH   AND    OF   THE   PEESS.  655 

the  statute,  but  they  could  not  inquire  into  the  validity  of  the 
statute  by  which  that  right  was  given.1 

Whatever  may  be  the  true  import  of  Mr.  Fox's  Libel  Act,  it 
would  seem  clear  that  a  constitutional  provision  which  allows  the 
jury  to  determine  the  law,  refers  the  questions  of  law  to  them  for 
their  rightful  decision.  Wherever  such  provisions  exist,  the  jury, 
we  think,  are  the  judges  of  the  law ;  and  the  argument  of  coun- 
sel upon  it  is  rightfully  addressed  to  both  the  court  and  the  jury. 
Nor  can  the  distinction  be  maintained  which  was  taken  by  Judge 
Chase,  and  which  forbids  the  jury  considering  questions  affecting 
the  constitutional  validity  of  statutes.  When  the  question  before 
them  is,  what  is  the  law  of  the  case,  the  highest  and  paramount 
law  of  the  case  cannot  be  shut  from  view.  Nevertheless,  we  con- 
ceive it  to  be  proper,  and  indeed  the  duty  of  the  judge,  to  instruct 
the  jury  upon  the  law  in  these  cases,  and  it  is  to  be  expected  that 
they  will  generally  adopt  and  follow  his  opinion. 

Where,  however,  the  constitution  provides  that  they  shall  be 
judges  of  the  law  "as  in  other  cases,"  or  may  determine  the  law 
and  the  fact  "  under  the  direction  of  the  court,"  we  must  perhaps 
conclude  that  the  intention  has  been  simply  to  put  libel  cases  on 
the  same  footing  with  any  other  criminal  prosecutions,2  and  that 
the  jury  will  be  expected  to  receive  the  law  from  the  court. 

1  Wharton's  State  Trials,  688.  tock   v.   O'Neill,  63  Pa.   St.  256,  3  Am. 

2  "  By  the  last  clause  of  the  sixth  sec-  Rep.  544,  Sharswood,  J.,   says  :   "  There 
tion  of  the  eighth  article  of  the  Constitu-  can   be  no   doubt  that  both  in  criminal 
tion  of  this  State,  it  is  declared  that  '  in  and   civil  cases  the  court   may   express 
all  indictments  for  libels  the  jury  shall  to  thejury   their  opinion  as  to  whether 
have  the  right  to  determine  the  law  and  the   publication   is    libellous.     The    dif- 
the  facts  under  the  direction  of  the  court,  ference  is  that   in  criminal   cases   they 
as  in  other  cases.'    It  would  seem  from  are  not  bound  to  do  so,  and  if  they  do, 
this  that  the  framers  of  our  Bill  of  Rights  their  opinion  is  not  binding  on  the  jury, 
did  not  imagine  that  juries  were  right-  who  may  give  a  general  verdict  in  oppo- 
fully  judges  of  law  and  fact  in  criminal  sition  to  it;  and  if  that  verdict  is  for  the 
cases,  independently  of  the  directions  of  defendant,  a  new  trial  cannot  be  granted 
courts.     Their  right  to  judge  of  the  law  against  his  consent.     As  our  declaration 
is  a  right  to  be  exercised  only  under  the  of  rights  succinctly  expresses  it,  the  jury 
direction  of   the  court;  and   if  they  go  have  the  right  to  determine  the  law  and 
aside  from  that  direction  and  determine  the  facts  in   indictments  for  libel,  as  in 
the   law   incorrectly,    they  depart  from  other  cases.    But  in  civil  cases  the  judge 
their  duty,  and  commit  a  public  wrong ;  is  bound  to  instruct  the  jury  as  to  whether 
and  this  in  criminal  as  well  as  in  civil  the  publication  is  libellous,  supposing  the 
cases."     Montgomery  v.  State,  11  Ohio,  innuendoes  to  be   true ;   and  if  that  in- 
424,  427.      See  also,  State  v.  Allen,  1  Me-  struction  is  disregarded,  the  verdict  will 
Cord,   525 ;   State   v.  Jay,  34  N.  J.  368,  be  set  aside  as  contrary  to  law.     In  Eng- 
370.  land,  the  courts  have  recently  disregarded, 

The  Constitution  of  Pennsylvania  de-  to  some  extent,  this  plain  distinction  be- 

clares  that  "  in  all  indictments  for  libels  tween  criminal  and  civil  proceedings.    It 

the  jury  shall  have  a  right  to  determine  appears  to  be  put  upon  the  ground  that 

the  law  and  the  facts,  under  the  direction  Mr.  Fox's  act,  though  limited  in  terms  to 

of  the  court,  as  in  other  cases."    In  Pit-  indictments  and  informations, was  declara- 


656 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XII. 


"  Good  Motives  and  Justifiable  Ends" 

In  civil  suits  to  recover  damages  for  slander  or  libel,  the  truth 
is  generally  a  complete  defence,  if  pleaded  and  established.1  In 
criminal  prosecutions  it  was  formerly  not  so.  The  basis  of  the 
prosecution  being  that  the  libel  was  likely  to  disturb  the  peace 
and  order  of  society,  that  liability  was  supposed  to  be  all  the 
greater  if  the  injurious  charges  were  true,  as  a  man  would  be 
more  likely  to  commit  a  breach  of  the  peace  when  the  matters 
alleged  against  him  were  true  than  if  they  were  false,  in  which 
latter  case  he  might,  perhaps,  afford  to  treat  them  with  contempt.3 
Hence  arose  the  common  maxim,  "  The  greater  the  truth,  the 
greater  the  libel,"  which  subjected  the  law  on  this  subject  to  a 
great  deal  of  ridicule  and  contempt.  The  constitutional  provi- 
sions we  have  quoted  generally  make  the  truth  a  defence  if  pub- 
lished with  good  motives  and  for  justifiable  ends.  Precisely  what 
showing  shall  establish  good  motives  and  justifiable  occasion  must 
be  settled  by  future  decisions.  In  one  case  the  suggestion  was 
thrown  out  that  proof  of  the  truth  of  the  charge  alone  might  be 
sufficient,3  but  this  was  not  an  authoritative  decision,  and  it  could 


tory  of  the  law  in  all  cases  of  libel ;  upon 
what  principle  of  construction,  however, 
it  is  not  very  easy  to  understand.  It  is 
there  the  approved  practice  for  the  judge 
in  civil  actions,  after  explaining  to  the 
jury  the  legal  definition  of  a  libel,  to 
leave  to  them  the  question  whether  the 
publication  upon  which  the  action  is 
founded  falls  within  that  definition.  Fol- 
kard's  Stark.  202 ;  Baylis  v.  Lawrence, 
11  A.  &  E.  920;  Parmiter  v.  Coupland,  6 
M.  &  W.  105;  Campbell  v.  Spottiswoode, 
3  B.  &  S.  781 ;  Cox  v.  Lee,  L.  R.  4  Exch. 
284.  These  cases  were  followed  in  Shat- 
tuck  v.  Allen,  4  Gray,  540.  Yet  it  is  clearly 
held  that  a  verdict  for  the  defendant  upon 
that  issue  will  be  set  aside,  and  a  new 
trial  granted.  Hakewell  v.  Ingram,  28 
Eng.  Law  &  Eq.  413.  '  Though  in  crim- 
inal proceedings  for  libel,'  says  Jam's,  Ch. 
J.,  '  there  may  be  no  review,  in  civil 
matters  there  are  cases  in  which  verdicts 
for  the  defendant  are  set  aside  upon  the 
ground  that  the  matter  was  a  libel,  thougli 
the  jury  found  it  was  not.'  This  must 
be  conceded  to  be  an  anomaly ;  and  it 
will  be  best  to  avoid  a  practice  which 
leads  to  such  a  result.  The  law,  indeed, 
may  be  considered  as  settled  in  this  State 
by  long  practice,  never  questioned,  but 


incidentally  confirmed  in  McConkle  v. 
Binns,  6  Binn.  340  ;  and  Hays  v.  Brierly, 
4  Watts,  392.  It  was  held  in  the  case 
last  cited  that  where  words  of  a  dubious 
import  are  used,  the  plaintiff  has  a  right 
to  aver  their  meaning  by  innuendo,  and 
the  truth  of  such  innuendo  is  for  the  jury. 
In  New  York,  since  the  recent  English 
cases,  the  question  has  been  ably  dis- 
cussed and  fully  considered  in  Snyder  v. 
Andrews,  6  Barb.  43;  Green  v.  Telfair, 
20  Barb.  11;  Hunt  v.  Bennett,  19  N.  Y. 
173;  and  the  law  established  on  its  old 
foundations."  Under  like  provisions  in 
Tennessee,  it  is  held  no  error  to  charge 
that,  if  the  jury  finds  certain  things  true, 
the  publication  is  prima  fucte  libellous. 
Banner  Pub.  Co.  v.  State,  16  Lea,  176. 
Although  the  jury  are  judges  of  the  law 
and  facts,  it  is  held  that  the  court  should 
declare  the  law,  as  in  other  cases.  State 
v.  Syphrett,  27  S.  C.  29,  2  S.  E.  624. 

1  Foss  v.  Hildreth,  10  Allen,  76.     See 
ante,  pp.  607,  608. 

2  State  v.  Lehre,  2  Brev.  446,  4  Am. 
Dec.  596. 

8  Charge  of  Judge  Belts  to  the  jury  in 
King  v.  Root,  4  Wend.  121 :  "  Should  the 
scope  of  proofs  and  circumstances  lead 
you  to  believe  the  defendants  had  no 


CH.  XII.]  LIBERTY   OF   SPEECH   AND   OF   THE   PRESS. 


657 


not  be  true  in  any  case  where  the  matter  published  was  not  fit  to 
be  spread  before  the  public,  whether  true  or  false.  It  must  be 
held,  we  think,  that  where  the  defendant  justifies  in  a  criminal 
prosecution,  the  burden  is  upon  him  to  prove,  not  only  the  truth 
of  the  charge,  but  also  the  "  good  motives  and  justifiable  ends  "  of 
the  publication.  These  might  appear  from  the  very  character 
of  the  publication  itself,  if  it  was  true ;  as  where  it  exhibited  the 
misconduct  or  unfituess  of  a  candidate  for  public  office ;  but 
where  it  related  to  a  person  in  private  life,  and  who  was  himself 
taking  no  such  action  as  should  put  his  character  in  issue  before 
the  public,  some  further  showing  would  generally  be  requisite 
after  the  truth  had  been  proved.1 

good  end  in  contemplation,  that  they  again,  Was  it  you  ?  Was  it  you  ?  "  On 
were  instigated  to  these  charges  solely  the  trial  the  defendant  introduced  evi- 
to  avenge  personal  and  political  resent-  dence  to  prove,  and  contended  that  he 
ments  against  the  plaintiff,  still,  if  they  did  prove,  all  the  facts  alleged  in  his  pub- 
have  satisfactorily  shown  the  charges  to  lication.  The  court  charged  the  jury 
be  true,  they  must  be  acquitted  of  all  lia-  that  the  burden  was  upon  the  defendant 
bility  to  damages  in  a  private  action  on  to  show  that  the  matter  charged  to  be 
account  of  the  publication.  Indeed,  if  libellous  was  published  with  good  mo- 
good  motives  and  justifiable  ends  must  tives  and  for  justifiable  ends;  that  mal- 
be  shown,  they  might  well  be  implied  ice  is  the  wilful  doing  of  an  unlawful  act, 
from  the  establishment  of  the  truth  of  a  and  does  not  necessarily  imply  personal 
charge,  for  the  like  reason  that  malice  is  ill-will  towards  the  person  libelled.  The 
inferred  from  its  falsity."  Malice,  it  is  defendant  excepted  to  the  ruling  of  the 
said  by  Abbott,  Ch.  J.,  is  alleged  in  the  court  as  applied  to  the  facts  proved,  con- 
declaration  "  rather  to  exclude  the  suppo-  tending  that,  having  proved  the  truth  of 
sition  that  the  publication  may  have  been  all  the  facts  alleged  in  the  libel,  and  the 
made  on  some  innocent  occasion  than  for  publication  being  in  reference  to  an  ille- 
any  other  purpose."  Duncan  v.  Thwaites,  gal  traffic,  a  public  nuisance,  the  jury 
3  B.  &  C.  556,  585.  See  Moore  v.  Stephen-  should  have  been  instructed  that  it  was 


son, 27  Conn.  14. 


incumbent  on  the  government   to  show 


1  In  Commonwealth  v.  Bonner,  9  Met.  that  defendant's  motives  were  malicious, 
410,  the  defendant  was  indicted  for  a  in  the  popular  sense  of  the  word,  as  re- 
libel  on  one  Oliver  Brown,  in  the  fol-  spects  said  Brown.  By  the  court,  Shaw, 
lowing  words :  "  However,  there  were  a  Ch.  J. :  "  The  court  are  of  opinion  that 
few  who,  according  to  the  old  toper's  the  charge  of  the  judge  of  the  Common 
dictionary,  were  drunk ;  yea,  in  all  con-  Pleas  was  strictly  correct.  If  the  pub- 
science,  drunk  as  a  drunken  man;  and  lication  be  libellous,  that  is, be  such  as  to 
who  and  which  of  you  desperadoes  of  bring  the  person  libelled  into  hatred,  con- 
the  town  got  them  so  ?  Was  it  you  tempt,  and  ridicule  amongst  the  people, 
whose  groggery  was  open,  and  the  rat  malice  is  presumed  from  the  injurious 
soup  measured  out  at  your  bar  to  drunk-  act.  But  by  Rev.  Stat.  c.  133,  §  6,  '  in 
ards,  while  a  daughter  lay  a  corpse  in  every  prosecution  for  writing  or  publish- 
your  house,  and  even  on  the  day  she  was  ing  a  libel,  the  defendant  may  give  in 
laid  in  her  cold  and  silent  grave,  a  victim  evidence,  in  his  defence  upon  the  trial, 
of  God's  chastening  rod  upon  your  guilty  the  truth  of  the  matter  contained  in  the 
drunkard-manufacturing  head?  Was  it  publication  charged  as  libellous:  pro- 
you  who  refused  to  close  your  drunkery  vided,  that  such  evidence  shall  not  be 
on  the  day  that  your  aged  father  was  deemed  a  sufficient  justification,  unless 
laid  in  the  narrow  house  appointed  for  it  shall  be  further  made  to  appear,  on 
all  the  living,  and  which  must  ere  long  the  trial,  that  the  matter  charged  to  be 
receive  your  recreant  carcass  ?  We  ask  libellous  was  published  with  good  rao- 

42 


658 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XII. 


tives  and  for  justifiable  ends.'  Nothing 
can  be  more  explicit.  The  judge,  there- 
fore, was  right  in  directing  the  jury  that, 
after  the  publication  had  been  shown  to 
have  been  made  by  the  defendant,  and 
to  be  libellous  and  malicious,  the  burden 
was  on  the  defendant,  not  only  to  prove 
the  truth  of  the  matter  charged  as  libel- 
lous, but  likewise  that  it  was  published 
with  good  motives  and  for  justifiable 
ends.  We  are  also  satisfied  that  the 
judge  was  right  in  his  description  or 
definition  of  legal  malice,  that  it  is  not 
malice  in  its  popular  sense ;  viz.,  that  of 
hatred  and  ill-will  to  the  party  libelled, 
but  an  act  done  wilfully,  unlawfully,  and 
in  violation  of  the  just  rights  of  another." 
And  yet  it  would  seem  as  if,  conceding 
the  facts  published  to  be  true,  the  jury 
ought  to  have  found  the  occasion  a  proper 
one  for  correcting  such  indecent  conduct 
by  public  exposure.  See  further  on  this 
subject,  Regina  v.  Newman,  1  El.  &  Bl. 
268  and  558;  s.  c.  18  Eng.  L.  &  Eq.  113; 
Barthelemy  v.  People,  2  Hill,  248 ;  State 


v.  White,  7  Ired.  180 ;  State  v.  Burnham, 
9  N.  H.  34;  Cole  v.  Wilson,  18  B.  Monr. 
212  ;  Hagan  v.  Hendry,  18  Md.  177 ;  Brad- 
ley v.  Heath,  12  Pick.  163,  22  Am.  Dec. 
418 ;  Snyder  v.  Fulton,  34  Md.  128,  6  Am. 
Rep.  614;  Commonwealth  v.  Snelling,  15 
Pick.  337.  The  fact  that  the  publication 
is  copied  from  another  source  is  clearly 
no  protection,  if  it  is  not  true  in  fact. 
Regina  v.  Newman,  ubi  sup.  Compare 
Saunders  v.  Mills,  6  Bing.  213  ;  Creevy  v. 
Carr,  7  C.  &  P.  64;  Sullings  v.  Shake- 
speare, 46  Mich.  408,  9  N.  W.  451. 
Neither  are  the  motives  cr  good  char- 
acter of  the  defendant,  if  he  has  pub- 
lished libellous  matter  which  is  false. 
Barthelemy  v.  People,  2  Hill,  248;  Com- 
monwealth v.  Snelling,  15  Pick.  337 ; 
Wilson  v.  Noonan,  27  Wis.  598.  Where 
the  truth  is  relied  upon  as  a  defence,  the 
charge  should  appear  to  be  true  as  made. 
Whittemore  v.  Weiss,  33  Mich.  348; 
Palmer  v.  Smith,  21  Minn.  419.  [For  an 
article  on  this  general  subject  of  Liberty 
of  the  Press,  see  34  Am.  L.  Rev.  321.] 


CH.  XIII.]  OF  RELIGIOUS   LIBERTY.  659 


CHAPTER   XIII. 

OP   RELIGIOUS   LIBERTY. 

A  CAREFUL  examination  of  the  American  constitutions  will 
disclose  the  fact  that  nothing  is  more  fully  set  forth  or  more 
plainly  expressed  than  the  determination  of  their  authors  to  pre- 
serve and  perpetuate  religious  liberty,  and  to  guard  against  the 
slightest  approach  towards  the  establishment  of  an  inequality  in 
the  civil  and  political  rights  of  citizens,  which  shall  have  for  its 
basis  only  their  differences  of  religious  belief.  The  American 
people  came  to  the  work  of  framing  their  fundamental  laws,  after 
centuries  of  religious  oppression  and  persecution,  sometimes  by 
one  party  or  sect  and  sometimes  by  another,  had  taught  them  the 
utter  futility  of  all  attempts  to  propagate  religious  opinions  by 
the  rewards,  penalties,  or  terrors  of  human  laws.  They  could 
not  fail  to  perceive,  also,  that  a  union  of  Church  and  State,  like 
that  which  existed  in  England,  if  not  wholly  impracticable  in 
America,  was  certainly  opposed  to  the  spirit  of  our  institutions, 
and  that  any  domineering  of  one  sect  over  another  was  repressing 
to  the  energies  of  the  people,  and  must  necessarily  tend  to  dis- 
content and  disorder.  Whatever,  therefore,  may  have  been  their 
individual  sentiments  upon  religious  questions,  or  upon  the  pro- 
priety of  the  State  assuming  supervision  and  control  of  religious 
affairs  under  other  circumstances,  the  general  voice  has  been, 
that  persons  of  every  religious  persuasion  should  be  made  equal 
before  the  law,  and  that  questions  of  religious  belief  and  reli- 
gious worship  should  be  questions  between  each  individual  man 
and  his  Maker.  Of  these  questions  human  tribunals,  so  long  as 
the  public  order  is  not  disturbed,  are  not  to  take  cognizance,  except 
as  the  individual,  by  his  voluntary  action  in  associating  himself 
with  a  religious  organization,  may  have  conferred  upon  such 
organization  a  jurisdiction  over  him  in  ecclesiastical  matters.1 

1  The  religious  societies  which  exist  in  tion  of  attendants  upon  religious  worship, 

America  are   mere   voluntary   societies,  with  power  in  the  corporation   to   hold 

having  little  resemblance  to  those  which  real  and  personal  estate  for  the  purposes 

constitute  a  part  of  the  machinery  of  gov-  of  their  organization,  but  not  for  other 

ernment  in  England.     They  are  for  the  purposes.     Such  a  society  is  "a  volun- 

most  part  formed    under   general  laws,  tary  association  of  individuals  or  families, 

which   permit  the   voluntary  incorpora-  united  for  the  purpose  of  having  a  com- 


660 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIII. 


These  constitutions,  therefore,  have  not  established  religious  tol- 
eration merely,  but  religious  equality-;   in  that  particular  being 


nion  place  of  worship,  and  to  provide  a 
proper  teacher  to  instruct  them  in  relig- 
ious doctrines  and  duties,  and  to  adminis- 
ter the  ordinances  of  baptism,  &c.  Al- 
though a  church  or  body  of  professing 
Christians  is  almost  uniformly  connected 
with  such  a  society  or  congregation,  the 
members  of  tlie  church  have  no  other  or 
greater  rights  than  any  other  members 
of  the  society  who  statedly  attend  with 
them  for  the  purposes  of  divine  worship. 
Over  the  church,  as  such,  the  legal  or 
temporal  tribunals  of  the  State  do  not 
profess  to  have  any  jurisdiction  what- 
ever, except  so  far  as  is  necessary  to 
protect  the  civil  rights  of  others,  and  to 
preserve  the  public  peace.  All  questions 
relating  to  the  faith  and  practice  of  the 
church  and  its  members  belong  to  the 
church  judicatories,  to  which  they  have 
voluntarily  subjected  themselves.  But, 
as  a  general  principle,  those  ecclesiastical 
judicatories  cannot  interfere  with  the 
temporal  concerns  of  the  congregation  or 
society  with  which  the  church  or  the 
members  thereof  are  connected."  Wai- 
worth,  Chancellor,  in  Baptist  Church  v. 
Wetherell,  3  Paige,  296,  301,  24  Am. 
Dec.  223.  See  Ferraria  v.  Vasconcellos, 
31  111.  25 ;  Lawyer  v.  Cipperly,  7  Paige, 
281 ;  Shannon  v.  Frost,  3  B.  Monr.  253; 
German,  &c.  Cong.  v.  Pressler,  17  La. 
Ann.  127 ;  Sohier  v.  Trinity  Church,  109 
Mass.  1 ;  Calkins  v.  Cheney,  92  111.  463. 
Equity  will  not  determine  questions  of 
faith,  doctrine,  and  schism  unless  neces- 
sarily involved  in  the  enforcement  of 
ascertained  trusts.  Fadness  v.  Braun- 
borg,  73  Wis.  257,  41  N.  W.  84.  Such  a 
corporation  is  not  an  ecclesiastical,  but 
merely  a  private  civil  corporation,  the 
members  of  the  society  being  the  corpo- 
rators, and  the  trustees  the  managing 
officers,  with  such  powers  as  the  statute 
confers,  and  the  ordinary  discretionary 
powers  of  officers  in  civil  corporations. 
Robertson  v.  Bullions,  11  N.  Y.  243; 
Miller  v.  Gable,  2  Denio,  492.  Compare 
Watson  v.  Jones,  13  Wall.  679.  The 
church  connected  with  the  society,  if  any 
there  be,  is  not  recognized  in  the  law  as 
a  distinct  entity ;  the  corporators  in  the 
society  are  not  necessarily  members 
thereof,  and  the  society  may  change  its 


government,  faith,  form  of  worship,  dis- 
cipline, and  ecclesiastical  relations  at  will, 
subject  only  to  the  restraint  imposed  by 
their  articles  of  association,  and  to  the 
general  laws  of  the  State.  Keyser  v. 
Stansifer,  6  Ohio,  363 ;  Robertson  v. 
Bullions,  11  N.  Y.  243  ;  Parish  of  Bellport 
v.  looker,  29  Barb.  256,  21  N.  Y.  267; 
Burrel  v.  Associated  Reform  Church,  44 
Barb.  282;  O'Hara  v.  Stack,  90  Pa.  St. 
477;  Warner  v.  Bowdoin  Sq.  Bapt.  Soc. ; 
148  Mass.  400,  19  N.  E.  403.  In  New 
Hampshire  the  signers  of  the  articles  of 
association  and  not  the  pew-owners  are  the 
corporators.  Trinitarian  Cong.  Soc.  ». 
Union  Cong.  Soc.,  61  N.  H.  384.  See 
also  Holt  v.  Downs,  »8  N.  H.  170.  An 
action  will  not  lie  against  an  incorporated 
ecclesiastical  society  for  the  wrongful 
expulsion  of  a  nit'inber  by  the  church, 
Hard  in  v.  Baptist  Church,  51  Mich.  137, 
16  N.  W.  403 ;  Sale  v.  First  Baptist  Cl>., 
62  Iowa,  26,  17  N.  W.  143.  The  courts 
of  the  State  have  no  general  jurisdiction 
and  control  over  the  officers  of  such  cor- 
porations in  respect  to  the  performance 
of  their  official  duties ;  but  as  in  respect 
to  the  property  which  they  hold  for  the 
corporation  they  stand  in  position  of 
trustees,  the  courts  may  exercise  the  same 
supervision  as  in  other  cases  of  trust. 
Ferraria  v.  Vasconcellos,  31  111.  25;  Smith 
v.  Nelson,  18  Vt.  511 ;  Watson  v.  Avery,  2 
Bush,  332;  Watson  v.  Jones,  13  Wall. 
679;  Hale  v.  Everett,  53  N.  H.  9;  Box- 
well  v.  Affleck,  79  Va.  402;  First  Ref. 
Pres.  Ch.  v.  Bowden,  14  Abb.  N.  C.  356. 
Where  a  bishop  holds  property  in  trust, 
upon  his  insolvency,  courts  will  prevent 
the  diversion  of  the  property  to  his  credi- 
tors. Mannix  v.  Purcell,  46  Ohio  St.  102, 
19  N.  E.  572.  But  the  courts  will  inter- 
fere where  abuse  of  trust  is  alleged,  only 
in  clear  cases,  especially  if  the  abuse 
alleged  be  a  departure  from  the  tenets  of 
the  founders  of  a  charity.  Happy  v.  Mor- 
ton, 33  111.  398.  See  Hale  v.  Everett,  53 
N.  H.  9.  It  is  competent  to  form  such 
societies  on  the  basis  of  a  community  of 
property.  Scribner  v.  Rapp,  5  Watts,  311, 
30  Am.  Dec.  327  ;  Gass  v.  Wilhite,  2  Dana, 
170,  26  Am.  Dec.  446  ;  Waite  o.  Merrill,  4 
Me.  102,  16  Am.  Dec.  238.  The  articles 
of  association  will  determine  who  may 


CH.  XIII.] 


OF   EELIGIOUS  LIBERTY. 


661 


far  in  advance  not  only  of  the  mother  country,  but  also  of  much 
of  the  colonial  legislation,  which,  though  more  liberal  than  that 


vote  when  the  State  law  does  not  pre- 
scribe qualifications.  State  v.  Crowell, 
9  N.  J.  391.  Should  there  be  a  disruption 
of  the  society,  the  title  to  the  property 
will  remain  witli  that  part  of  it  which  is 
acting  in  harmony  with  its  own  law  ;  se- 
ceders  will  be  entitled  to  no  part  of  it. 
McGinnis  v.  Watson,  41  Pa.  St.  9  ;  M.  E. 
Church  v.  Wood,  5  Ohio,  283;  Keyser  v. 
Stansifer,  6  Ohio,  363  ;  Shannon  v.  Frost, 
3  B.  Monr.  253 ;  Gibson  v.  Armstrong,  7 
B.  Monr.  481 ;  Hadden  v.  Chorn,  8  B. 
Monr.  70;  Ferraria  v.  Vasconcellos,  23 
111.  456 ;  Fernstler  v.  Siebert,  114  Pa.  St. 
196,  6  Atl.  165 ;  Dressen  v.  Brameier,  56 
Iowa,  756,  9  N.  W.  193.  And  this  even 
though  there  may  have  been  a  change  in 
doctrine  on  the  part  of  the  controlling 
majority.  Keyser  i».  Stansifer,  6  Ohio, 
363.  See  Petty  r.  Tooker,  21  N.  Y.  267  ; 
Horton  v.  Baptist  Church,  34  Vt.  309; 
Eggleston  v.  Doolittle,  33  Conn.  396 ; 
Miller  v.  English,  21  N.  J.  317  ;  Nice-oils 
v.  Kugg,  47  111.  47 ;  Kinkead  r.  McKee, 
9  Bush,  535;  Baker  v.  Ducker,  79  Cal. 
365,  21  Pac.  764.  Whichever  body  the 
ecclesiastical  authorities  recognize  as  the 
church,  whether  it  contains  a  majority  of 
members  or  not,  is  entitled  to  the  prop- 
erty. Gaff  v.  Greer,  88  Ind.  122;  White 
Lick  Meeting  v.  White  Lick  Meeting,  89 
Ind.  136.  Peculiar  rights  sometimes 
arise  on  a  division  of  a  society  ;  as  to 
which  we  can  only  refer  to  Reformed 
Church  r.  Schoolcraft,  65  N.  Y.  134  ;  Kin- 
kead i'.  McKee,  9  Bush,  535;  Niccolls  v. 
Rugg,  47  III.  47;  Smith  v.  Swormstedt, 
16  How.  288;  Henry  v.  Deitrich,  84  Pa. 
St.  286.  The  administration  of  church 
rules  or  discipline  the  courts  of  the  State 
do  not  interfere  with,  unless  civil  rights 
become  involved,  and  then  only  for  the 
protection  of  such  rights.  Hendrickson 
v.  Decow,  1  N.  J.  Eq.  577  ;  Harmon  v. 
Dreher,  Speers  Eq.  87 ;  Dieffendorf  v. 
Ref.  Cal.  Church,  20  Johns.  12;  Wilson 
».  Johns  Island  Church,  2  Rich  Eq.  192  ; 
Den  r.  Bolton,  12  N.  J.  206;  Baptist 
Church  v.  Wetlierell,  3  Paige,  801  ;  Ger- 
man Reformed  Church  v.  Seibert,  3  Pa. 
St.  282;  State  v.  Farris,  45  Mo.  183; 
McGinnis  v.  Watson,  41  Pa.  St.  9;  Wat- 
son v.  Jones,  13  Wall.  679 ;  Chase  r. 
Cheney,  58  111.  509 ;  Calkins  v.  Cheney,  92 


111.  463;  Gartin  v.  Penick,  5  Bush,  110; 
Lucas  v.  Case,  9  Bush,  297 ;  People  ;;. 
German,  &c.  Church,  53  N.  Y.  103 ;  Gros- 
venor  t>.  United  Society,  118  Mass.  78; 
State  v.  Hebrew  Congregation,  30  La. 
Ann.  205.  33  Am.  Rep.  217;  State  v. 
Bibb  St.  Ch.,  84  Ala.  23,4  So.  40  ;  Living- 
ston v.  Rector,  &c.,  45  N.  J.  L.  230; 
Richardson  v.  Union  Cong.  Soc.,  58  N.  H. 
187  ;  Matter  of  First  Pres.  Soc.,  106  N.  Y. 
251,  12  N.  E.  626;  Fadness  v.  Braunborg, 
73  Wis.  257,  41  N.  W.  84.  Decision  of 
church  tribunal  as  to  the  election  of  a 
deacon  is  conclusive.  Atty.-Gen.  v.  Geer- 
lings,  55  Midi.  562,  22  N.  W.  89.  But 
trustees  may  be  prevented  by  the  courts 
from  continuing  to  employ  a  minister  who 
has  been  deposed  :  Isliam  v.  Fullager,  14 
Abb.  N.  C.  363;  see  Hatchett  t;.  Mt. 
Pleasant  Ch.,  46  Ark.  291 ;  from  closing 
a  church  building  :  Isliam  v.  Trustees,  63 
How.  Pr.  465;  and  may  be  compelled  to 
open  it  to  a  regularly  assigned  pastor. 
People  v.  Conley,  42  Hun,  98;  Whitecar 
v.  Michenor,  37  N.  J.  Eq.  6.  In  a  congre- 
gationally  governed  church  a  minority  of 
officers  may  be  enjoined  from  putting  in 
an  organ  against  the  wish  of  the  majority 
of  the  officers  and  members  :  Hackney  i>. 
Vawter,  39  Kan.  615,  18  Pac.  699;  and  a 
minority  of  members  from  excluding  the 
majority  from  using  the  church.  Bates 
v.  Houston,  66  Ga.  198.  But  an  excom- 
munication will  not  be  allowed  to  affect 
civil  rights.  Fitzgerald  v.  Robinson,  112 
Mass.  371.  As  to  the  nature  and  effect 
of  the  contract  between  the  society  and 
the  minister,  see  Avery  v.  Tyringham,  3 
Mass.  160,  3  Am.  Dec.  105,  and  note  ; 
Perry  v.  Wheeler,  12  Bush,  541  ;  East 
Norway  Lake  Ch.  v.  Froislie,  37  Minn. 
447,  35  N.  W.  260;  Downs  r.  Bowdoin 
Sq.  Bapt.  Soc.,  149  Mass.  135,  21  N.  E. 
291 ;  West  v.  First  Pres.  Ch.,  41  Minn. 
94,  42  N.  W.  922.  Under  New  York 
statute  unless  a  minister's  salary  is  fixed 
in  a  certain  way,  the  church  is  not  liable. 
Landers  r.  Frank  St.  M.  E.  Ch.,  97  N.  Y. 
119.  The  civil  courts  may  intervene  as 
to  a  breach  of  contract  for  salary.  Bird 
v.  St.  Mark's  Church,  62  Iowa,  667,  17 
N.  W.  747.  As  to  what  is  extra  vires  for 
such  a  society,  see  Harriman  v.  Baptist 
Church,  63  Ga.  186,  36  Am.  Rep.  117. 


662 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIII. 


of  other  civilized  countries,   nevertheless   exhibited   features  of 
discrimination  based  upon  religious  beliefs  or  professions.1 

Considerable  differences  will  appear  in  the  provisions  in  the 
State  constitutions  on  the  general  subject  of  the  present  chapter ; 
some  of  them  being  confined  to  declarations  and  prohibitions 
whose  purpose  is  to  secure  the  most  perfect  equality  before  the 
law  of  all  shades  of  religious  belief,  while  some  exhibit  a  jealousy 
of  ecclesiastical  authority  by  making  persons  who  exercise  the 
functions  of  clergyman,  priest,  or  teacher  of  any  religious  per- 
suasion, society,  or  sect,  ineligible  to  civil  office  ;2  and  still  others 
show  some  traces  of  the  old  notion,  that  truth  and  a  sense  of  duty 
do  not  consort  with  scepticism  in  religion.3  There  are  excep- 


1  For  the  distinction  between  religious 
toleration  and  religious  equality,  see 
Bloom  v.  Richards,  2  Ohio  St.  389 ;  Hale 
v.  Everett,  53  N.  H.  1.  And  see  Madison's 
views,  in  his  Life  by  Rives,  Vol.  l,p.  140. 
It  was  not  easy,  two  centuries  ago,  to 
make  men  educated  in  the  ideas  of  those 
days  understand  how  there  could  be  com- 
plete religious  liberty,  and  at  the  same 
time  order  and  due  subordination  to  au- 
thority in  the  State.  "  Coleridge  said 
that  toleration  was  impossible  until  in- 
difference made  it  worthless."  Lowell, 
"  Among  my  Books,"  336.  Roger  Wil- 
liams explained  and  defended  his  own 
views,  and  illustrated  the  subject  thus : 
"  There  goes  many  a  ship  to  sea,  with 
many  hundred  souls  in  one  ship,  whose 
weal  and  woe  is  common,  and  is  a  true 
picture  of  a  commonwealth,  or  human 
combination  or  society.  It  hath  fallen 
out  sometimes  that  both  Papists  and  Pro- 
testants, Jews  and  Turks,  may  be  em- 
barked in  one  ship;  upon  which  supposal 
I  affirm  that  all  the  liberty  of  conscience 
I  ever  pleaded  for  turns  upon  these  two 
hinges  :  that  none  of  the  Papists,  Protes- 
tants, Jews,  or  Turks  be.  forced  to  come 
to  the  ship's  prayers  or  worship  if  they 
practise  any.  I  further  add  that  I  never 
denied  that,  notwithstanding  this  liberty, 
the  commander  of  this  ship  ought  to  com- 
mand the  ship's  course,  yea,  and  also 
command  that  justice,  peace,  and  sobriety 
be  kept  and  practised,  both  among  the 
seamen  and  all  the  passengers.  If  any  of 
the  seamen  refuse  to  perform  their  ser- 
vice, or  passengers  to  pay  their  freight ; 
if  any  refuse  to  help,  in  person  or  purse, 
towards  the  common  charges  or  defence  ; 
if  any  refuse  to  obey  the  common  laws 


and  orders  of  the  ship,  concerning  their 
common  peace  and  preservation  ;  if  any 
shall  mutiny  and  rise  up  against  their 
commanders  and  officers ;  if  any  should 
preach  or  write  that  there  ought  to  be  no 
commanders  or  officers,  because  all  are 
equal  in  Christ,  therefore  no  masters  nor 
officers.no  lawsnororders.no  corrections 
nor  punishments  ;  I  say  I  never  denied 
but  in  such  cases,  whatever  is  pretended, 
the  commander  or  commanders  may 
judge,  resist,  compel,  and  punish  such 
transgressors  according  to  their  deserts 
and  merits."  Arnold's  History  of  Rhode 
Island,  Vol.  I.  p.  254,  citing  Knowles, 
279,  280.  There  is  nothing  in  the  first 
amendment  to  the  federal  Constitution 
which  can  give  protection  to  those  who 
practise  what  is  forbidden  by  the  statute 
as  criminal,  e.g.  bigamy,  —  on  the  pre- 
tence that  their  religion  requires  or  sanc- 
tions it.  Reynolds  v.  United  States,  98 
U.  S.  145. 

2  There   are  provisions  to  this   effect, 
more  or  less  broad,  in  the  Constitutions 
of  Tennessee,  Delaware,  Maryland,  and 
Kentucky. 

3  The   Constitution   of  Pennsylvania 
provides  "  that  no  person  who  acknowl- 
edges the  being  of   God,  and   a  future 
state  of  rewards  and  punishments,  shall, 
on  account  of  his  religious  sentiments,  be 
disqualified  to  hold  any  office  or  place  of 
trust  or  profit  under  this  Commonwealth." 
Art.  1,  §  4.  —  The  Constitution  of  North 
Carolina  :  "  The  following  classes  of  per- 
sons shall  be  disqualified  for  office  :  First: 
All  persons  who  shall  deny  the  existence 
of   Almighty   God,"   &c.   Art.   6,  §  5  — 
The     Constitutions   of    Mississippi   and 
South  Carolina  :  "  No  person  who  denies 


CH.  XIII.] 


OF   RELIGIOUS   LIBERTY. 


663 


tional  clauses,  however,  though  not  many  in  number ;  and  it  is 
believed  that,  where  they  exist,  they  are  not  often  made  use  of  to 
deprive  any  person  of  the  civil  or  political  rights  or  privileges 
which  are  placed  by  law  within  the  reach  of  his  fellows. 

Those  things  which  are  not  lawful  under  any  of  the  American 
constitutions  may  be  stated  thus :  — 

1.  Any  law  respecting  an  establishment  of  religion.  The  legis- 
latures have  not  been  left  at  liberty  to  effect  a  union  of  Church 
and  State,  or  to  establish  preferences  by  law  in  favor  of  any  one 
religious  persuasion  or  mode  of  worship.  There  is  not  complete 
religious  liberty  where  any  one  sect  is  favored  by  the  State  and 
given  an  advantage  by  law  over  other  sects.1  Whatever  estab- 


the  existence  of  the  Supreme  Being  shall 
hold  any  office  under  this  Constitution." 

—  The  Constitution  of  Tennessee  :  "  No 
person  who  denies  the  being  of  a  God, 
or  a  future  state  of  rewards  and  punish- 
ments, shall  hold  any  office  in  the  civil 
department  of  this  State."  —  On  the  other 
hand,  the  Constitutions  of  Georgia,  Kan- 
sas, Virginia,  West  Virginia,  Maine,  Del- 
aware, Indiana,  Iowa,  Oregon,  Ohio,  New 
Jersey,  Nebraska,   Minnesota,  Arkansas, 
Texas,  Alabama,  Missouri,  Rhode  Island, 
Nevada,  and  Wisconsin  expressly  forbid 
religious  tests  as  a  qualification  for  office 
or  public  trust.     Very  inconsistently  the 
Constitutions  of  Mississippi  and  Tennes- 
see  contain    a   similar    prohibition.      In 
the  Constitutions  of  Alabama,  Colorado, 
Georgia,  Illinois,  Iowa,  Kentucky,  Michi- 
gan, New  Jersey,  Rhode  Island,  and  West 
Virginia,  it  is   provided   that  no  person 
shall  be  denied  any  civil  or  political  right, 
privilege,  or  capacity  on  account  of  his 
religious  opinions.  —  The  Constitution  of 
Maryland  provides  "  that  no  religious  test 
ought  ever  to  be  required  as  a  qualifica- 
tion for  any  office  of  trust  or  profit  in 
this   State,  other   than  a  declaration  of 
belief  in  the  existence  of  God ;  nor  shall 
the  legislature  prescribe  any  other  oath  of 
office  than  the  oath  prescribed  by  this  con- 
stitution."   Declaration  of  Rights,  Art.  37. 

—  The  Constitution  of  Illinois  provides 
that  "the  free  exercise  and  enjoyment  of 
religious  profession  and  worship  without 
discrimination   shall  forever  be  guaran- 
teed ;  and  no  person  shall  be  denied  any 
civil  or  political  right,  privilege,  or  ca- 
pacity, on  account  of  his  religious  opin- 
ions ;  but  the  liberty  of  conscience  hereby 
secured  shall  not  be  construed  to  dispense 


with  oaths  or  affirmations,  excuse  acts 
of  licentiousness,  or  justify  practices  in- 
consistent with  the  peace  or  safety  of  the 
State.  No  person  shall  be  required  to 
attend  or  support  any  ministry  or  place 
of  worship  against  his  consent,  nor  shall 
any  preference  be  given  by  law  to  any 
religious  denomination  or  mode  of  wor- 
ship." Art.  2,  §  3. — The  Constitutions 
of  California,  Colorado,  Connecticut,  Flor- 
ida, Georgia,  Illinois,  Maryland,  Minne- 
sota, Mississippi,  Missouri,  Nevada,  New 
York,  and  South  Carolina  contain  pro- 
visions that  liberty  of  conscience  is  not 
to  justify  licentiousness  or  practices  incon- 
sistent with  the  peace  and  moral  safety 
of  society. 

1  A  city  ordinance  is  void  which  gives 
to  one  sect  a  privilege  denied  to  others. 
Shreveport  v.  Levy,  26  La.  Ann.  671.  It 
is  not  unconstitutional  to  permit  a  school- 
house  to  be  made  use  of  for  religious 
purposes  when  it  is  not  wanted  for 
schools.  Nichols  v.  School  Directors,  93 
111.61,  34  Am.  Rep.  160;  Davis  v.  Boget, 
60  Iowa,  11.  But  in  Missouri  it  seems 
the  school  directors  have  no  authority  to 
permit  such  use.  Dorlin  v.  Shearer,  67 
Mo.  301.  Under  the  Illinois  Constitution 
of  1848  the  legislature  had  no  authority 
to  take  a  private  school-house,  erected 
under  the  provisions  of  a  will  as  a  school- 
house  and  place  of  worship,  and  constitute 
it  a  school  district,  and  provide  for  the 
election  of  trustees,  and  invest  them  with 
taxing  power  for  the  support  of  a  school 
therein.  People  v.  McAdams,  82  111.  356. 
But  the  basement  of  a  church  may  be 
used  for  a  school  and  teachers  of  one  sect 
employed.  And  if  religious  instruction 
is  given  daily,  though  not  required  by 


664  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIII. 

lishes  a  distinction  against  one  class  or  sect  is,  to  the  extent  to 
which  the  distinction  operates  unfavorably,  a  persecution  ;  and  if 
based  on  religious  grounds,  a  religious  persecution.  The  extent 
of  the  discrimination  is  not  material  to  the  principle  ;  it  is  enough 
that  it  creates  an  inequality  of  right  or  privilege. 

2.  Compulsory  support,  by  taxation  or  otherwise,  of  religious 
instruction.     Not  only  is  no  one  denomination  to  be  favored  at 
the  expense  of  the  rest,  but  all  support  of  religious  instruction 
must  be  entirely  voluntary.     It  is  not  within  the  sphere  of  gov- 
ernment to  coerce  it.1 

3.  Compulsory  attendance  upon   religious  worship.     Whoever 
is  not  lead  by  choice  or  a  sense  of  duty  to  attend  upon  the  ordi- 
nances of  religion  is  not  to  be  compelled  to  do  so  by  the  State. 
It  is  the  province  of  the  State  to  enforce,  so  far  as  it  may  be 
found   practicable,  the  obligations  and  duties  which  the  citizen 
may  be  under  or  may  owe  to  his  fellow-citizens  or  to  society  ;  but 
those  which  spring  from  the  relations  between  himself  and  his 
Maker  are  to  be  enforced  by  the  admonitions  of  the  conscience, 
and  not  by  the  penalties  of  human  laws.      Indeed,  as  all  real 
worship  must  essentially  and  necessarily  consist  in  the  free-will 
offering  of  adoration  and  gratitude  by  the  creature  to  the  Creator, 
human  laws  are  obviously  inadequate  to  incite  or  compel  those 
internal  and  voluntary  emotions  which  shall  induce  it,  and  human 
penalties  at  most  could  only  enforce  the  observance  of  idle  cere- 
monies, which,  when  unwillingly  performed,  are  alike  valueless  to 
the  participants  and  devoid  of  all  the  elements  of  true  worship. 

the  authorities,  a  taxpayer  cannot  have  but  failed,  though  at  the  same  time  the 
equitable  relief.  Millard  v.  Board  of  acceptance  of  the  Protestant  religion  as 
Education,  121  111.  297,  10  N.  E.  669.  a  test  for  office  was  abolished,  and  the 
QA  municipal  corporation  cannot  hold  as  application  of  moneys  raised  by  taxation 
trustee  real  estate  devoted  to  religious  to  the  support  of  denominational  schools 
uses.  Maysville  v.  Wood,  102  Ky.  263,  was  prohibited.  [[But  to  appropriate 
43  S.  W.  403,  39  L.  R.  A.  93.]  moneys  to  a  hospital  in  payment  for 
1  We  must  exempt  from  this  the  State  treatment  and  cure  of  poor  persons  under 
of  New  Hampshire,  whose  constitution  a  contract  for  such  treatment  is  not  to 
permits  the  legislature  to  authorize  "  the  appropriate  moneys  in  support  of  a  reli- 
several  towns,  parishes,  bodies  corporate,  gious  society,  even  though  all  the  in- 
or  religious  societies  within  this  State  to  corporators  of  the  hospital  are  of  one 
make  adequate  provisions,  at  their  own  faith,  the  hospital  corporation  being  en- 
expense,  for  the  support  and  maintenance  tirely  independent  of  all  church  or  reli- 
ef public  Protestant  teachers  of  piety,  re-  gious  organizations,  and  being  open  to 
ligion,  and  morality;"  but  not  to  tax  persons  of  all  faiths  or  no  faith.  Bradfield 
those  of  other  sects  or  denominations  for  v.  Roberts,  175  U.  S.  291,  20  Sup.  Ct.  Rep. 
their  support.  Part  1,  Art.  6.  As  to  121.  Subventions  cannot  be  made  to 
meaning  of  Protestant,  see  Hale  v.  Ever-  sectarian  schools  to  aid  them  in  even 
ett,  53,  N.  H.  1.  The  attempt  to  amend  purely  secular  instruction.  Synod  of 
the  above  provision  by  striking  out  the  Dakota  v.  State,  2  S.  I").  366,  50  N.  W. 
word  "Protestant"  was  made  in  187t>,  632,  14  L.  R.  A.  418,  and  note.] 


CH.  XIII.] 


OF   RELIGIOUS   LIBERTY. 


665 


4.  Restraints  upon  the  free  exercise  of  religion  according  to 
the  dictates  of  the  conscience.     No  external  authority  is  to  place 
itself  between  the  finite  being  and  the  Infinite  when  the  former 
is  seeking  to  render   the   homage    that  is  due,  and    in  a  mode 
which  commends  itself  to  his  conscience  and  judgment  as  being 
suitable  for  him  to  render,  and  acceptable  to  its  object.1 

5.  Restraints    upon   the   expression    of  religious  belief.     An 
earnest  believer  usually  regards  it  as  his  duty  to  propagate  his 
opinions,  and  to  bring  others  to  his  views.     To  deprive  him  of 
this  right  is  to  take  from  him  the  power  to  perform  what  he 
considers  a  most  sacred  obligation. 

These  are  the  prohibitions  which  in  some  form  of  words  are  to 
be  found  in  the  American  constitutions,  and  which  secure  free- 
dom of  conscience  and  of  religious  worship.2  No  man  in  religious 


1  This    guaranty   does    not    prevent 
adopting  reasonable  rules  for  the  use  of 
streets,  and   forbidding  playing  therein 
on  an  instrument,  though  it  be  done  as 
an   act  of  worship.      Com.   v.  Plaisted, 
148   Mass.   374,  19  N.  E.  224;   State  v. 
White,  64  N.  H.  48,  5  All.  828. 

2  This  whole   subject  was  considered 
very  largely  in  the  case  of  Minor  v.  The 
Board    of   Education,   in    the    Superior 
Court  of  Cincinnati,  involving  the  right 
of  the  school  board  of  that  city  to  exclude 
the  reading  of  the  Bible  from  the  public 
schools.     The  case  was  reported  and  pub- 
lished by  Robert  Clarke  &  Co.,  Cincinnati, 
under  the  title,  "  The  Bible  in  the  Public 
Schools,"  1870.     The  point  of   the  case 
may  be  briefly  stated.     The  constitution 
of  the  State,  after  various  provisions  for 
the  protection  of  religious  liberty,  con- 
tained this  clause :  "  Religion,  morality, 
and  knowledge,  however,  being  essential 
to  good  government,  it  shall  be  the  duty 
of  the  General  Assembly  to  pass  suitable 
laws  to  protect  every  religious  denomina- 
tion in   the  peaceable   enjoyment  of  its 
own  mode  of  public  worship,  and  to  en- 
courage schools  and  the  means  of  instruc- 
tion."    There  being  no  legislation  on  the 
subject,  except   such   as  conferred  large 
discretionary  power  on  the  Board  of  Edu- 
cation in    the   management   of  schools, 
that  body  passed  a  resolution,  "  that  re- 
ligious  instruction   and   the   reading    of 
religious  books,  including  the  Holy  Bible, 
are  prohibited  in  the  Common  Schools  of 
Cincinnati ;  it  being  the  true  object  and 
intent  of  this  rule  to  allow  the  children  of 


the  parents  of  all  sects  and  opinions,  in 
matters  of  faith  and  worship,  to  enjoy 
alike  the  benefit  of  the  Common  School 
fund."  Certain  taxpayers  and  citizens 
of  said  city,  on  the  pretence  that  this  ac- 
tion was  against  public  policy  and  mo- 
rality, and  in  violation  of  the  spirit  and 
intent  of  the  provision  in  the  constitution 
which  has  been  quoted,  filed  their  com- 
plaint in  the  Superior  Court,  praying 
that  the  board  be  enjoined  from  enforcing 
said  resolution.  The  Superior  Court 
made  an  order  granting  the  prayer  of  the 
complaint ;  but  the  Supreme  Court,  on 
appeal,  reversed  it,  holding  that  the  pro- 
vision in  the  constitution  requiring  the 
passage  of  suitable  laws  to  encourage 
morality  and  religion  was  one  addressed 
solely  to  the  judgment  and  discretion  of 
the  legislative  department ;  and  that,  in 
the  absence  of  any  legislation  on  the  sub- 
ject, the  Board  of  Education  could  not  be 
compelled  to  permit  the  reading  of  the 
Bible  in  the  schools.  Board  of  Educa- 
tion v.  Minor,  23  Ohio  St.  211.  On  the 
other  hand,  it  has  been  decided  that  the 
school  authorities,  in  their  discretion,  may 
compel  the  reading  of  the  Bible  in  schools 
by  pupils,  even  though  it  be  against  the 
objection  and  protest  of  their  parents. 
Donahoe  v  Richards,  38  Me.  376  ;  Spiller 
v.  Woburn,  12  Allen,  127.  [The  Consti- 
tution of  Iowa,  Article  1,  Sec.  3,  bill  of 
rights,  provides  :  "  The  general  assembly 
shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free 
exercise  thereof ;  nor  shall  any  person  be 
compelled  to  attend  any  plnce  of  worship, 


666 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIII. 


matters  is  to  be  subjected  to  the  censorship  of  the  State  or  of  any 

pay  tithes,  taxes,  or  other  rates  for  build- 
ing or  repairing  places  of  worship  or  the 
maintenance  of  any  minister  or  ministry." 

A  statute  of  the  State  provided,  "  The 
Bible  shall  not  be  excluded  from  any 
school  or  institution  in  this  State,  nor  shall 
any  pupil  be  required  to  read  it,  contrary 
to  the  wishes  of  his  parent  or  guardian." 

In  Moore  v.  Monroe,  64  Iowa  367,  20 
N.  W.  475,  the  State  Supreme  Court  was 
called  upon  to  pass  upon  the  constitution- 
ality of  the  statute,  and  of  the  practice  on 
the  part  of  a  teacher  of  occupying  a  few 
minutes  each  morning  in  reading  selec- 
tions from  the  Bible,  in  repeating  the 
Lord's  Prayer,  and  singing  religious  songs. 
The  court,  adopting  the  view  of  the 
complainant,  that  such  practice  was  "  wor- 
ship," within  the  meaning  of  that  term 
as  used  in  the  constitution,  yet  that  such 
practice  did  not  constitute  the  school- 
room a  "  place  of  worship,"  and  the  logic 
of  the  opinion  would  require  the  conclu- 
sion that  the  teacher  was  not  a  "  minis- 
ter "  within  the  meaning  of  that  term  as 
used  in  the  constitution.  The  view  of  the 
court  being  that  the  object  of  the  pro- 
vision was  accomplished  by  a  construction 
which  would  prevent  the  burdening  of 
the  taxpayer,  for  the  building  or  repair- 
ing of  "  any  place  designed  to  be  used 
distinctively  as  a  place  of  worship,"  and 
that  the  casual  use  of  a  public  building 
as  a  place  for  offering  prayer,  or  doing*, 
other  acts  of  religious  worship,  was  not 
within  the  prohibition  of  the  constitution. 

This  case  in  Iowa  was  followed,  six 
years  later,  1899,  by  State  v.  District 
Board,  76  Wis.  177,  44  N.  W.967,  7  L.  R. 
A.  330,  20  Am.  St.  41.  The  Constitution 
of  Wisconsin  contained  these  provisions  : 
"The  right  of  every  man  to  worship  Al- 
mighty God  according  to  the  dictates  of 
his  own  conscience  shall  never  be  in- 
fringed ;  nor  shall  any  man  be  com- 
pelled to  attend,  erect,  or  support  any 
place  of  worship ;  .  .  .  nor  shall  any 
control  of  or  interference  with  the  rights 
of  conscience  be  permitted,  or  any  pref- 
erence be  given  by  law  to  any  religious 
establishments  or  modes  of  worship," 
Const.  Art.  1,  Sec.  18;  and,  "The  legis- 
lature shall  provide  by  law  for  the  estab- 
lishments of  district  schools,  which  shall 
be  as  nearly  uniform  as  practicable  :  and 
such  schools  shall  be  free  and  without 


charge  for  tuition,  to  all  children  between 
the  ages  of  four  and  twenty  years;  and 
no  sectarian  instruction  shall  be  allowed 
therein."  Const.  Art.  x.  Sec.  3.  These 
provisions  were  construed  in  a  case  in 
which  it  appeared  that  the  teacher  of  one 
of  the  district  schools  in  the  State  was  in 
the  habit,  daily,  of  reading  in  the  school 
some  portion  of  the  King  James  version 
of  the  Bible,  without  comment  and  with- 
out requiring  pupils  who  did  not  care  to 
be  present  to  attend  while  it  was  being 
done.  It  was  held  that  the  stated  read- 
ing of  the  Bible  constituted  the  school- 
room for  the  time  a  place  of  worship,  and 
against  this  the  taxpayer  had  a  right  to 
object.  Also  that  the  use  of  any  version 
of  the  Bible  as  a  text-book,  and  the  stated 
readings  thereof  in  the  public  schools, 
though  unaccompanied  by  any  comment, 
"  was  sectarian  instruction  "  within  the 
meaning  of  that  phrase  as  used  in  the 
constitution. 

In  1898  the  Supreme  Court  of  Michi- 
gan was  called  upon  to  consider  the  effect 
of  the  constitutional  provisions  of  that 
State  in  a  case  in  which  it  appeared  that 
a  teacher  practised  reading,  during  fifteen 
minutes  preceding  the  close  of  school 
each  day,  from  a  book  entitled  "  Read- 
ings from  the  Bible,"  largely  made  up  of 
extracts  from  the  Bible.  No  comments 
were  made  on  the  matter  read,  and  pupils 
not  desiring  to  attend  were  excused.  The 
constitutional  provisions  considered  were  : 
"  The  legislature  shall  pass  no  law  .  .  . 
to  compel  any  person  to  attend,  erect,  or 
support  any  place  of  religious  worship, 
or  to  pay  tithes,  taxes,  or  other  rates  for 
the  support  of  any  minister  of  the  gospel 
or  teacher  of  religion."  Const.  Art.  4, 
Sec.  39;  and,  "  No  money  shall  be  appro- 
priated or  drawn  from  the  treasury  for 
the  benefit  of  any  religious  sect  or  society, 
theological  or  religious  seminary,  nor 
shall  property  belonging  to  the  State  be 
appropriated  for  any  such  purposes." 
Const.  Art.  4,  Sec.  40 ;  and,  "  The  legisla- 
ture shall  not  diminish  or  enlarge  the 
civil  or  political  rights,  privileges,  and 
capacities  of  any  person  on  account  of 
his  opinion  or  belief  concerning  matters 
of  religion."  Const.  Art.  4,  Sec.  41.  It 
was  held,  such  use  of  such  a  book  did 
not  violate  any  of  the  provisions  referred 
to  ;  that  it  did  not  constitute  the  school- 


CH.  XIII.] 


OF   EELIGIOUS   LIBERTY. 


667 


public  authority  ;  and  the  State  is  not  to   inquire  into  or  take 


room  a  "place  of  religious  worship,"  nor 
was  the  teacher,  a  "  teacher  of  religion  "; 
that  it  did  not  violate  any  "  civil  or  polit- 
ical rights,"  nor  did  it  involve  the  "  ap- 
propriation" of  any  money,  or  property 
of  the  State  "for  the  benefit  of  any 
religious  sect,  society  or  theological,  or 
religious  seminary."  Pfeiffer  v.  Bd.  of 
Education,  118  Mich.  560,  77  N.  W.  250, 
42  L.  R.  A.  536. 

In  1902,  in  the  case  of  State  v.  Scheve, 
—  Neb. —,91  N.  W.  846,  the  provisions 
of  the  Constitution  of  Nebraska  were 
construed.  Sec.  4  of  Art.  1  provides, 
among  other  things,  that,  "  No  person 
shall  be  compelled  to  attend,  erect,  or 
support  any  place  of  worship  against  his 
consent,  and  no  preference  shall  be  given 
by  law  to  any  religious  society,  nor 
shall  any  interference  with  the  rights  of 
conscience  be  permitted."  Sec.  11  of 
Art.  8  provides  that  "  no  sectarian  in- 
struction shall  be  allowed  in  any  school 
or  institution  supported  in  whole  or  in 
part  by  the  public  funds  set  apart  for 
educational  purposes."  Held,  that  exer- 
cises by  a  teacher  in  a  public  school,  in 
a  school  building,  in  school  hours,  and  in 
the  presence  of  the  pupils,  consisting  of 
the  reading  of  passages  from  the  Bible, 
and  in  the  singing  of  songs  and  hymns, 
and  offering  prayer  to  the  Diety  in  ac- 
cordance with  the  doctrines,  beliefs,  cus- 
toms, or  usages  of  sectarian  churches  or 
religious  organizations  is  forbidden  by  the 
constitution.  On  rehearing,  the  court 
uses  the  following  language :  "  The  deci- 
sion (referring  to  the  one  just  noted)  does 
not,  however,  go  to  the  extent  of  entirely 
excluding  the  Bible  from  the  public 
schools.  It  goes  only  to  the  extent  of 
denying  the  right  to  use  it  for  the  pur- 
pose of  imparting  sectarian  instruction. 
The  pith  of  the  opinion  is  in  the  syllabus, 
which  declares  that  'exercises  by  a 
teacher  in  a  public  school  in  a  school 
building,  in  school  hours,  and  in  the 
presence  of  the  pupils,  consisting  of  the 
reading  of  passages  from  the  Bible,  and  in 
the  singing  of  songs  and  hymns,  and 
offering  prayer  to  the  Deity,  in  accord- 
ance with  the  doctrines,  beliefs,  customs, 
or  usages  of  sectarian  churches  or  relig- 
ious organizations,  are  forbidden  by  the 
constitution  of  this  State.'  Certainly  the 
Iliad  may  be  read  in  the  schools  without 


inculcating  a  belief  in  the  Olympic  divin- 
ities, and  the  Koran  may  be  read  without 
teaching  the  Moslem  faith.  Why  may 
not  the  Bible  also  be  read  without  indoc- 
trinating children  in  the  creed  or  dogma 
of  any  sect  1  Its  contents  are  largely 
historical  and  moral.  Its  language  is  un- 
equalled in  purity  and  elegance.  Its 
style  has  never  been  surpassed.  Among 
the  classics  of  our  literature  it  stands  pre- 
eminent. It  has  been  suggested  that  the 
English  Bible  is,  in  a  special  and  limited 
sense,  a  sectarian  book.  To  be  sure, 
there  are,  according  to  the  Catholic 
claim,  vital  points  of  difference  with 
respect  to  faith  and  morals  between  it 
and  the  Douay  version.  In  a  Pennsyl- 
vania case  cited  by  counsel  for  respon- 
dents, the  author  of  the  opinion  says  that 
he  noteil  over  50  points  of  difference  be- 
tween the  two  versions,  —  some  of  them 
important,  and  others  trivial.  These  dif- 
ferences constitute  the  basis  of  some  of 
the  peculiarities  of  faith  and  practice 
that  distinguish  Catholicism  from  Prot- 
estantism, and  make  the  adherents  of 
each  a  distinct  Christian  sect.  But  the 
fact  that  the  King  James  translation  may 
be  used  to  inculcate  sectarian  doctrines 
affords  no  presumption  that  it  will  be  so 
used.  The  law  does  not  forbid  the  use 
of  the  Bible  in  either  version  in  the 
public  schools.  It  is  not  proscribed  either 
by  the  constitution  or  the  statutes,  and 
the  courts  have  no  right  to  declare  its  use 
to  be  unlawful,  because  it  is  possible  or 
probable  that  those  who  are  privileged  to 
use  it  will  misuse  the  privilege  by  at- 
tempting to  propagate  their  own  peculiar 
theological  or  ecclesiastical  views  and 
opinions.  The  point  where  the  courts 
may  rightfully  intervene,  and  where  they 
should  intervene  without  hesitation,  is 
where  legitimate  use  has  degenerated 
into  abuse,  —  where  a  teacher  employed 
to  give  secular  instruction  has  violated 
the  constitution  by  becoming  a  sectarian 
propagandist.  That  sectarian  instruction 
may  be  given  by  the  frequent  reading, 
without  note  or  comment,  of  judiciously 
selected  passages,  is,  of  course,  obvious. 
A  modern  philosopher  —  perhaps  the 
greatest  —  has  said  that  persistent  iter- 
ation is  the  most  effective  means  of 
forcing  alien  conceptions  upon  reluctant 
minds.  Whether  it  is  prudent  or  politic 


668 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIII. 


notice  of  religious  belief,  when  the  citizen  performs  his  duty  to 
the  State  and  to  his  fellows,  and  is  guilty  of  no  breach  of  public 
morals  or  public  decorum.1 

But  while  thus  careful  to  establish,  protect,  and  defend  reli- 
gious freedom  and  equality,  the  American  constitutions  contain 
no  provisions  which  prohibit  the  authorities  from  such  solemn 
recognition  of  a  superintending  Providence  in  public  transactions 


to  permit  Bible  reading  in  the  public 
schools  is  a  question  for  the  school  au- 
thorities to  determine,  but  whether  the 
practice  of  Bible  reading  has  taken  the 
form  of  sectarian  instruction  in  a  partic- 
ular case  is  a  question  for  the  courts  to 
determine  upon  evidence.  It  cannot  be 
presumed  that  the  law  has  been  violated. 
The  alleged  violation  must  in  every 
instance  be  established  by  competent 
proof.  The  value  of  the  common  schools 
as  disseminators  of  knowledge  and  social 
levelers  is  well  understood  and  justly 
appreciated,  and  there  is  little  likelihood 
that  the  people  will  ever  permit  their 
usefulness  to  be  impaired  by  sectarian 
controversies.  When  we  consider  that 
this  is  the  first  case  of  its  kind  ever 
presented  to  this  court  for  decision, 
we  feel  assured  that  neither  teachers  nor 
school  boards  have  been  much  inclined  to 
bring  discord  into  the  schools  for  the 
chance  of  securing  by  indirection  a  slight 
sectarian  advantage.  But  if  the  fact 
were  otherwise,  it  could  not  in  any  way 
affect  our  conclusion.  The  section  of 
the  constitution  which  provides  that '  no 
sectarian  instruction  shall  be  allowed  in 
any  school  or  institution  supported,  in 
whole  or  in  part,  by  public  funds  set 
apart  for  educational  purposes,'  cannot, 
under  any  canon  of  instruction  with 
which  we  are  acquainted,  be  held  to  mean 
that  neither  the  Bible,  nor  any  part  of  it, 
from  Genesis  to  the  Revelation,  may  be 
read  in  the  educational  institutions  fos- 
tered by  the  State.  We  do  not  wish  to 
be  understood  as  either  countenancing  or 
discountenancing  the  reading  of  the  Bible 
in  the  public  schools.  Even  where  it  is 
an  irritant  element,  the  question  whether 
its  legitimate  use  shall  be  continued  or 
discontinued  is  an  administrative,  and 
not  a  judicial  question.  It  belongs  to 
the  school  authorities,  not  to  the  courts."] 
1  Congress  is  forbidden,  by  the  first 
amendment  to  the  Constitution  of  the 


United  States,  from  making  any  law  re- 
specting an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof. 
Mr.  Story  says  of  this  provision :  "  It 
was  under  a  solemn  consciousness  of  the 
dangers  from  ecclesiastical  ambition,  the 
bigotry  of  spiritual  pride,  and  the  intoler- 
ance of  sects,  exemplified  in  our  domestic, 
as  well  as  in  foreign  annals,  that  it  was 
deemed  advisable  to  exclude  from  the 
national  government  all  power  to  act  up- 
on the  subject.  The  situation,  too,  of  the 
different  States  equally  proclaimed  the 
policy  as  well  as  the  necessity  of  such 
an  exclusion.  In  some  of  the  States, 
Episcopalians  constituted  the  predom- 
inant sect ;  in  others,  Presbyterians  ;  in 
others,  Congregationalists ;  in  others, 
Quakers ;  and  in  others  again  there  was 
a  close  numerical  rivalry  among  contend- 
ing sects.  It  was  impossible  that  there 
should  not  arise  perpetual  strife  and  per- 
petual jealousy  on  the  subject  of  ecclesi- 
astical ascendancy,  if  the  national  govern- 
ment were  left  free  to  create  a  religious 
establishment.  The  only  security  was  in 
extirpating  the  power.  But  this  alone 
would  have  been  an  imperfect  security,  if 
it  had  not  been  followed  up  by  a  declara- 
tion of  the  right  of  the  free  exercise  of 
religion,  and  a  prohibition  (as  we  have 
seen)  of  all  religious  tests.  Thus,  the 
whole  power  over  the  subject  of  religion 
is  left  exclusively  to  the  State  govern- 
ments, to  be  acted  upon  according  to 
their  own  sense  of  justice  and  the  State 
constitutions  ;  and  the  Catholic  and  Prot- 
estant, the  Calvinist  and  the  Arminian, 
the  Jew  and  the  infidel,  may  sit  down  at 
the  common  table  of  the  national  coun- 
cils, without  any  inquisition  into  their 
faith  or  mode  of  worship."  Story  on  the 
Constitution,  §  1879 ;  1  Tuck.  Bl.  Com. 
App.  296.  For  an  examination  of  this 
amendment,  see  Reynolds  v.  United 
States,  98  U.  S.  145. 


CH.  XIII.]  OF   RELIGIOUS  LIBERTY.  G69 

and  exercises  as  the  general  religious  sentiment  of  mankind  in- 
spires, and  as  seems  meet  and  proper  in  finite  and  dependent 
beings.  Whatever  may  be  the  shades  of  religious  belief,  all  must 
acknowledge  the  fitness  of  recognizing  in  important  human  affairs 
the  superintending  care  and  control  of  the  great  Governor  of  the 
Universe,  and  of  acknowledging  with  thanksgiving  His  boundless 
Savors,  of  bowing  in  contrition  when  visited  with  the  penalties  of 
His  broken  laws.  No  principle  of  constitutional  law  is  violated 
when  thanksgiving  or  fast  days  are  appointed  ;  when  chaplains  are 
designated  for  the  army  and  navy  ;  when  legislative  sessions  are 
opened  with  prayer  or  the  reading  of  the  Scriptures,  or  when  reli- 
gious teaching  is  encouraged  by  a  general  exemption  of  the  houses 
of  religious  worship  from  taxation  for  the  support  of  State  gov- 
ernment. Undoubtedly  the  spirit  of  the  constitution  will  require, 
in  all  these  cases,  that  care  be  taken  to  avoid  discrimination  in 
favor  of  or  against  any  one  religious  denomination  or  sect ;  but 
the  power  to  do  any  of  these  things  does  not  become  unconstitu- 
tional simply  because  of  its  susceptibility  to  abuse.1  This  public 
recognition  of  religious  worship,  however,  is  not  based  entirely, 
perhaps  not  even  mainly  ,.upon  a  sense  of  what  is  due  to  the  Su- 
preme Being  himself  as  the  author  of  all  good  and  of  all  law  ;  but 
the  same  reasons  of  State  policy  which  induce  the  government  to 
aid  institutions  of  charity  and  seminaries  of  instruction,  will  incline 
it  also  to  foster  religious  worship  and  religious  institutions,  as  con- 
servators of  the  public  morals,  and  valuable,  if  not  indispensable 
assistants  in  the  preservation  of  the  public  order. 

Nor,  while  recognizing  a  superintending  Providence,  are  we 
always  precluded  from  recognizing  also,  in  the  rules  prescribed 
for  the  conduct  of  the  citizen,  the  notorious  fact  that  the  prevail- 
ing religion  in  the  States  is  Christian.  Some  acts  would  be  offen- 
sive to  public  sentiment  in  a  Christian  community,  and  would  tend 
to  public  disorder,  which  in  a  Mahometan  or  Pagan  country  might 
be  passed  by  without  notice,  or  even  be  regarded  as  meritorious  ; 
just  as  some  things  would  be  considered  indecent,  and  worthy  of 
reprobation  and  punishment  as  such,  in  one  state  of  society,  which 
in  another  would  be  in  accord  with  the  prevailing  customs,  and 
therefore  defended  and  protected  by  the  laws.  The  criminal 
laws  of  every  country  are  shaped  in  greater  or  less  degree  by  the 
prevailing  public  sentiment  as  to  what  is  right,  proper,  and  decor- 
ous, or  the  reverse  ;  and  they  punish  those  acts  as  crimes  which 
disturb  the  peace  and  order,  or  tend  to  shock  the  moral  sense  or 
sense  of  propriety  and  decency,  of  the  community.  The  moral 
sense  is  largely  regulated  and  controlled  by  the  religious  belief ; 

1  See  Trustees  First  M.  E.  Ch.  v.  Atlanta,  76  Ga.  181. 


670  CONSTITUTIONAL  LIMITATIONS.  [oil.  XIII. 

and  therefore  it  is  that  those  things  which,  estimated  by  a  Chris- 
tian standard,  are  profane  and  blasphemous,  are  properly  pun- 
ished as  crimes  against  society,  since  they  are  offensive  in  the 
highest  degree  to  the  general  public  sense,  and  have  a  direct  ten- 
dency to  undermine  the  moral  support  of  the  laws,  and  to  corrupt 
the  community. 

It  is  frequently  said  that  Christianity  is  a  part  of  the  law  of 
the  land.  In  a  certain  sense  and  for  certain  purposes  this  is 
true.  The  best  features  of  the  common  law,  and  especially  those 
which  regard  the  family  and  social  relations  ;  which  compel  the 
parent  to  support  the  child,  the  husband  to  support  the  wife  ; 
which  make  the  marriage-tie  permanent  and  forbid  polygamy,  — 
if  not  derived  from,  have  at  least  been  improved  and  strengthened 
by  the  prevailing  religion  and  the  teachings  of  its  sacred  Book. 
But  the  law  does  not  attempt  to  enforce  the  precepts  of  Chris- 
tianity on  the  ground  of  their  sacred  character  or  divine  origin. 
Some  of  those  precepts,  though  we  may  admit  their  continual  and 
universal  obligation,  we  must  nevertheless  recognize  as  being 
incapable  of  enforcement  by  human  laws.  That  standard  of 
morality  which  requires  one  to  love  IMS  neighbor  as  himself  we 
must  admit  is  too  elevated  to  be  accepted  by  human  tribunals  as 
the  proper  test  by  which  to  judge  the  conduct  of  the  citizen  ;  and 
one  could  hardly  be  held  responsible  to  the  criminal  laws  if  in 
goodness  of  heart  and  spontaneous  charity  he  fell  something  short 
of  the  Good  Samaritan.  The  precepts  of  Christianity,  moreover, 
afi'ect  the  heart,  and  address  themselves  to  the  conscience  :  while 
the  laws  of  the  State  can  regard  the  outward  conduct  only ;  and 
for  these  several  reasons  Christianity  is  not  a  part  of  the  law  of 
the  land  in  any  sense  which  entitles  the  courts  to  take  notice  of 
and  base  their  judgments  upon  it,  except  so  far  as  they  can  find 
that  its  precepts  and  principles  have  been  incorporated  in  and 
made  a  component  part  of  the  positive  law  of  the  State.1 

Mr.  Justice  Story  has  said  in  the  Girard  Will  case  that,  al- 
though Christianity  is  a  part  of  the  common  law  of  the  State,  it 
is  only  so  in  this  qualified  sense,  that  its  divine  origin  and  truth 
are  admitted,  and  therefore  it  is  not  to  be  maliciously  and  openly 
reviled  and  blasphemed  against,  to  the  annoyance  of  believers  or 
to  the  injury  of  the  public.2  It  may  be  doubted,  however,  if  the 

1  Andrews  v.  Bible  Society,  4  Sandf.  also  by  Dr.  S.  T.  Spear  in  his  book  enti- 
156,  182 ;  Ayres  v.  Methodist  Church,  3  tied  "  Religion  and  the  State." 
Sandf.  351 ;  State  ».  Chandler,  2  Harr.  2  Vidal  v.  Girard's  Ex'rs,  2  How.  127, 
553;  Bloom  v.  Richards,  2  Ohio  St.  387;  198.  Mr.  Webster's  argument  that  Chris- 
Board  of  Education  v.  Minor,  23  Ohio  St.  tianity  is  a  part  of  the  law  of  Pennsylvania 
210.  The  subject  is  largely  considered  in  is  given  in  6  Webster's  Works,  p.  175.  FJAn 
Hale  v.  Everett,  53  N.  H.  1,  201  et  set}.,  and  indictment  for  blasphemy  and  profane 


CH.  XIII.]  OF   RELIGIOUS   LIBERTY.  671 

punishment  of  blasphemy  is  based  necessarily  upon  an  admission 
of  the  divine  origin  or  truth  of  the  Christian  religion,  or  incapable 
of  being  otherwise  justified. 

Blasphemy  has  been  defined  as  consisting  in  speaking  evil  of 
the  Deity,  with  an  impious  purpose  to  derogate  from  the  divine 
majesty,  and  to  alienate  the  minds  of  others  from  the  love  and 
reverence  of  God.  It  is  purposely  using  words  concerning  the 
Supreme  Being  calculated  and  designed  to  impair  and  destroy 
the  reverence,  respect,  and  confidence  due  to  him,  as  the  intelli- 
gent Creator,  Governor,  and  Judge  of  the  world.  It  embraces 
the  idea  of  detraction  as  regards  the  character  and  attributes  of 
God,  as  calumny  usually  carries  the  same  idea  when  applied  to  an 
individual.  It  is  a  wilful  and  malicious  attempt  to  lessen  men's 
reverence  of  God,  by  denying  his  existence  or  his  attributes  as  an 
intelligent  Creator,  Governor,  and  Judge  of  men,  and  to  prevent 
their  having  confidence  in  him  as  such.1  Contumelious  reproaches 
and  profane  ridicule  of  Christ  or  of  the  Holy  Scriptures  have  the 
same  evil  effect  in  sapping  the  foundations  of  society  and  of 
public  order,  and  are  classed  under  the  same  head.2 

In  an  early  case  where  a  prosecution  for  blasphemy  came  before 
Lord  Hale,  he  is  reported  to  have  said :  "  Such  kind  of  wicked, 
blasphemous  words  are  not  only  an  offence  to  God  and  religion, 
but  a  crime  against  the  laws,  State,  and  government,  and  there- 
fore punishable  in  the  Court  of  King's  Bench.  For  to  say  reli- 
gion is  a  cheat,  is  to  subvert  all  those  obligations  whereby  civil 
society  is  preserved;  that  Christianity  is  a  part  of  the  laws  of 
England,  and  to  reproach  the  Christian  religion  is  to  speak  in 
subversion  of  the  law."  3  Eminent  judges  in  this  country  have 
adopted  this  language,  and  applied  it  to  prosecutions  for  blas- 
phemy, where  the  charge  consisted  in  malicious  ridicule  of  the 
Author  and  Founder  of  the  Christian  religion.  The  early  cases 
in  New  York  and  Massachusetts 4  are  particularly  marked  by 

swearing  is  defective  unless  it  charges  Aid.  161 ;  Cowan  v.  Milbourn,  Law  R.  2 

that  the  words  were  uttered  in  the  pres-  Exch.  230. 

ence  of  other  persona  and  in  their  hearing.  8  The   King  v.  Taylor,   3   Keb.   607, 

Com.  v.  Linn,  158  Pa.  St.  22,  27  Atl.  843,  Vent.  293.     See  also  The  King  v.  Wool- 

22  L.  R.  A.  353,  and  note  on  blasphemy  ston,  2  Stra.  834,  Fitzg.  64,  Raym.  162,  in 

and  profanity  as  crimes.]  which  the   defendant  was   convicted   of 

1  Shaw,  Ch.  J.,  in  Commonwealth  v.  publishing  libels,  ridiculing  the  miracles 
Kneeland,  20  Pick.  206,  213.  of    Christ,    his    life    and    conversation. 

2  People  v.  Ruggles,  8  Johns.  289,  5  Lord  Ch.  J.  Raymond  in  that  case  says : 
Am.  Dec.  335;  Commonwealth  v.  Knee-  "I  would  have  it  taken  notice  of,  that 
land,  20  Pick.  206 ;  Updegraph  v.  Com-  we  do  not  meddle  with  the  difference  of 
monwealth,   11    S.   &   R.   394;    State  v.  opinion,  and  that  we  interfere  only  where 
Chandler,  2  Harr.  553;  Rex  v.  Wadding-  the  root  of  Christianity  is  struck  at." 
ton,  1  B.  &  C.  26 ;  Rex  v.  Carlile,  3  B.  &  *  People  v.  Ruggles,  8  Johns.  289,  5 


672  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIII. 

clearness  and  precision  on  this  point,  and  Mr.  Justice  Clayton,  of 
Delaware,  has  also  adopted  and  followed  the  ruling  of  Lord  Chief 
Justice  Hale,  with  such  explanations  of  the  true  basis  and  justifi- 
cation of  these  prosecutions  as  to  give  us  a  clear  understanding 
of  the  maxim  that  Christianity  is  a  part  of  the  law  of  the  land, 
as  understood  and  applied  by  the  courts  in  these  cases.1  Taken 
with  the  explanation  given,  there  is  nothing  in  the  maxim  of 
which  the  believer  in  any  creed,  or  the  disbeliever  of  all,  can 
justly  complain.  The  language  which  the  Christian  regards  as 
blasphemous,  no  man  in  sound  mind  can  feel  under  a  sense  of 
duty  to  make  use  of  under  any  circumstances,  and  no  person  is 
therefore  deprived  of  a  right  when  he  is  prohibited,  under 
penalties,  from  uttering  it. 

But  it  does  not  follow, 'because  blasphemy  is  punishable  as  a 
crime,  that  therefore  one  is  not  at  liberty  to  dispute  and  argue 
against  the  truth  of  the  Christian  religion,  or  of  any  accepted 
dogma.  Its  "divine  origin  and  truth"  are  not  so  far  admitted 
in  the  law  as  to  preclude  their  being  controverted.  To  forbid  dis- 
cussion on  this  subject,  except  by  the  various  sects  of  believers, 
would  be  to  abridge  the  liberty  of  speech  and  of  the  press  in  a 
point  which,  with  many,  would  be  regarded  as  most  important  of 
all.  Blasphemy  implies  something  more  than  a  denial  of  any  of 
the  truths  of  religion,  even  of  the  highest  and  most  vital.  A  bad 
motive  must  exist ;  there  must  be  a  wilful  and  malicious  attempt 
to  lessen  men's  reverence  for  the  Deity,  or  for  the  accepted  reli- 
gion. But  outside  of  such  wilful  and  malicious  attempt,  there  is 
a  broad  field  for  candid  investigation  and  discussion,  which  is  as 
much  open  to  the  Jew  and  the  Mahometan  as  to  the  professors  of 

Am.  Dec.  335 ;  Commonwealth  v.  Knee-  clared ;  because,  in  the  judgment  of  our 
land,  20  Pick.  206.  See  also  Zeisweiss  v.  English  ancestors  and  their  judicial  tri- 
James,  63  Pa.  St.  465,  471 ;  McGinnis  v.  bunals,  he  who  reviled,  subverted,  or 
Watson,  41  Pa.  St.  9,  14.  ridiculed  Christianity,  did  an  act  which 
1  State  v.  Chandler,  2  Harr.  553.  The  struck  at  the  foundation  of  our  civil 
case  is  very  full,  clear,  and  instructive,  society,  and  tended  by  its  necessary  con- 
and  cites  all  the  English  and  American  sequences  to  disturb  that  common  peace 
authorities.  The  conclusion  at  which  it  of  the  land  of  which  (as  Lord  Coke  had 
arrives  is,  that  "Christianity  was  never  reported)  the  common  law  was  the  pre- 
considered  a  part  of  the  common  law,  so  server.  The  common  law  .  .  .  adapted 
far  as  that  for  a  violation  of  its  injunc-  itself  to  the  religion  of  the  country  just 
tions  independent  of  the  established  laws  so  far  as  was  necessary  for  the  peace  and 
of  man,  and  without  the  sanction  of  any  safety  of  civil  institutions ;  but  it  took 
positive  act  of  Parliament  made  to  en-  cognizance  of  offences  against  God  only, 
force  those  injunctions,  any  man  could  be  when,  by  their  inevitable  effects,  they  be- 
drawn  to  answer  in  a  common-law  court,  came  offences  against  man,  and  his  tern- 
It  was  a  part  of  the  common  law,  '  so  far  poral  security."  See  also  what  is  said 
that  any  person  reviling,  subverting,  or  on  this  subject  by  Duer,  J.,  in  Andrew  v. 
ridiculing  it,  might  be  prosecuted  at  Bible  Society,  4  Sandf.  156,  182. 
common  law/  as  Lord  Mansfield  has  de- 


Oil.  XIII.] 


OF   EELIGIOUS   LIBERTY. 


673 


the  Christian  faith.  "  No  author  or  printer  who  fairly  and  con- 
scientiously promulgates  the  opinions  with  whose  truths  he  is  im- 
pressed, for  the  benefit  of  others,  is  answerable  as  a  criminal.  A 
malicious  and  mischievous  intention  is,  in  such  a  case,  the  broad 
boundary  between  right  and  wrong;  it  is  to  be  collected  from  the 
offensive  levity,  scurrilous  and  opprobrious  language,  and  other 
circumstances,  whether  the  act  of  the  party  was  malicious." l 
Legal  blasphemy  implies  that  the  words  were  uttered  in  a  wanton 
manner,  "  with  a  wicked  and  malicious  disposition,  and  not  in  a 
serious  discussion  upon  any  controverted  point  in  religion."2 
The  courts  have  always  been  careful,  in  administering  the  law, 
to  say  that  they  did  not  intend  to  include  in  blasphemy  disputes 
between  learned  men  upon  particular  controverted  points.3  The 
constitutional  provisions  for  the  protection  of  religious  liberty  not 
only  include  within  their  protecting  power  all  sentiments  and  pro- 
fessions concerning  or  upon  the  subject  of  religion,  but  they  guar- 
antee to  every  one  a  perfect  right  to  form  and  to  promulgate  such 
opinions  and  doctrines  upon  religious  matters,  and  in  relation  to 
the  existence,  power,  attributes,  and  providence  of  a  Supreme 
Being  as  to  himself  shall  seem  reasonable  and  correct.  In  doing 
this  he  acts  under  an  awful  responsibility,  but  it  is  not  to  any 
human  tribunal.4 


1  Updegraph  v.  Commonwealth,  11  S. 
&  R.  394.    In  Ayres  v.  Metliodist  Church, 
3  Sandf.  351,  377,  Duer,  J.,  in  speaking  of 
"  pious  uses,"  says  :  "  If  the  Presbyterian 
and  the  Baptist,  the  Methodist  and  the 
Protestant   Episcopalian,   must  each  be 
allowed  to  devote  the  entire  income  of 
his  real  and  personal  estate,  forever,  to 
the  support  of  missions,  or  the  spreading 
of  the  Bible,  so  must  the  Roman  Catholic 
his  to  the  endowment  of  a  monastery,  or 
the  founding  of  a  perpetual  mass  for  the 
safety  of  his  soul ;  the  Jew  his   to   the 
translation  and  publication  of  the  Mishna 
or  the  Talmud,  and  the  Mahometan  (if 
in  that  colludes  gentium  to  which  this  city 
[New  York],  like  ancient  Rome,  seems  to 
be  doomed,  such  shall  be  among  us),  the 
Mahometan  his  to  the  assistance  or  relief 
of  the  annual  pilgrims  to  Mecca." 

2  People  v.  Ruggles,  8  Johns.  289,  293, 
6  Am.  Dec.  335,  per  Kent,  Ch.  J. 

3  Rex   v.  Woolston,  Stra.  834,  Fitzg. 
64;  People  v.  Ruggles,  8  Johns.  289,  6 
Am.  Dec.  335,  per  Kent,  Ch.  J. 

4  Per  Shaw,  Ch.  J.,  in  Commonwealth 
K.  Kneeland,  20  Pick.  206,  234.     The  lan- 
guage of  the  courts  has  perhaps  not  al- 


ways been  as  guarded  as  it  should  have 
been  on  this  subject.  In  The  King  v. 
Waddington,  1  B.  &  C.  26,  the  defendant 
was  on  trial  for  blasphemous  libel,  in  say- 
ing that  Jesus  Christ  was  an  impostor, 
and  a  murderer  in  principle.  One  of  the 
jurors  asked  the  Lord  Chief  Justice  (Ab- 
bott)  whether  a  work  which  denied  the  di- 
vinity of  the  Saviour  was  a  libel.  The 
Lord  Chief  Justice  replied  that  "  a  work 
speaking  of  Jesus  Christ  in  the  language 
used  in  the  publication  in  question  was  a 
libel,  Christianity  being  a  part  of  the  law 
of  the  land."  This  was  doubtless  true,  as 
the  wrong  motive  was  apparent;  but  it 
did  not  answer  the  juror's  question.  On 
motion  for  a  new  trial,  the  remarks  of 
Best,  J.,  are  open  to  a  construction  which 
answers  the  question  in  the  affirmative: 
"  My  Lord  Chief  Justice  reports  to  us 
that  he  told  the  jury  that  it  was  an  in- 
dictable offence  to  speak  of  Jesus  Christ 
in  the  manner  that  he  is  spoken  of  in  the 
publication  for  which  this  defendant  is 
indicted.  It  cannot  admit  of  the  least 
doubt  that  this  direction  was  correct. 
The  53  Geo.  III.  c.  160,  has  made  noalterr 
ation  in  the  common  law  relative  to  libel. 


674 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIII. 


Other  forms  of  profanity,  besides  that  of  blasphemy,  are  also 
made  punishable  by  statutes  in  the  several  States.  The  cases 
these  statutes  take  notice  of  are  of  a  character  no  one  can  justify, 
and  their  punishment  involves  no  question  of  religious  liberty. 
The  right  to  use  profane  and  indecent  language  is  recognized  by 
no  religious  creed,  and  the  practice  is  reprobated  by  right-thinking 
men  of  every  nation  and  every  religious  belief.  The  statutes  for 
the  punishment  of  public  profanity  require  no  further  justification 
than  the  natural  impulses  of  every  man  who  believes  in  a  Supreme 
Being  and  recognizes  his  right  to  the  reverence  of  his  creatures. 

The  laws  against  the  desecration  of  the  Christian  Sabbath  by 
labor  or  sports  are  not  so  readily  defensible  by  arguments  the 


If,  previous  to  the  passing  of  that  statute, 
it  would  have  been  a  libel  to  deny,  in  any 
printed  book,  the  divinity  of  the  second 
person  in  the  Trinity,  the  same  publica- 
tion would  be  a  libel  now.  The  53  Geo.  III. 
c.  160,  as  its  title  expresses,  is  an  act  to 
relieve  persons  who  impugn  the  doctrine 
of  the  Trinity  from  certain  penalties.  If 
we  look  at  the  body  of  the  act  to  see 
from  what  penalties  such  persons  are  re- 
lieved, we  find  that  they  are  the  penal- 
ties from  which  the  1  W.  &  M.  Sess.  1, 
c.  18,  exempted  all  Protestant  dissenters, 
except  such  as  denied  the  Trinity,  and 
the  penalties  or  disabilities  which  the  9  & 
10  W.  III.  imposed  on  those  who  denied 
the  Trinity.  The  1  W.  &  M.  Sess.  1, 
c.  18,  is,  as  it  has  been  usually  called,  an 
act  of  toleration,  or  one  which  allows  dis- 
senters to  worship  God  in  the  mode  that 
is  agreeable  to  their  religions  opinions, 
and  exempts  them  from  punishment  for 
non-attendance  at  the  Established  Church 
and  non-conformity  to  its  rites.  The  leg- 
islature, in  passing  that  act,  only  thought 
of  easing  the  consciences  of  dissenters, 
and  not  of  allowing  them  to  attempt  to 
weaken  the  faith  of  the  members  of  the 
church.  The  9  &  10  W.  III.  was  to  give 
security  to  the  government  by  rendering 
men  incapable  of  office,  who  entertained 
opinions  hostile  to  the  established  reli- 
gion. The  only  penalty  imposed  by  that 
statute  is  exclusion  from  office,  and  that 
penalty  is  incurred  by  any  manifesta- 
tions of  the  dangerous  opinion,  without 
proof  of  intention  in  the  person  entertain- 
ing it,  either  to  induce  others  to  be  of  that 
opinion,  or  in  any  manner  to  disturb  per- 
sons of  a  different  persuasion.  This  stat- 
ute rested  on  the  principle  of  the  test 


laws,  and  did  not  interfere  with  the  com- 
mon law  relative  to  blasphemous  libels. 
It  is  not  necessary  for  me  to  say  whether 
it  be  libellous  to  argue  from  the  Scrip- 
tures against  the  divinity  of  Christ;  that 
is  not  what  the  defendant  professes  to 
do;  he  argues  against  the  divinity  of 
Christ  by  denying  the  truth  of  the  Scrip- 
tures. A  work  containing  such  argu- 
ments, published  maliciously  (which  the 
jury  in  this  case  have  found),  is  by  the 
common  law  a  libel,  and  the  legislature  has 
never  altered  this  law,  nor  can  it  ever  do  so 
while  the  Christian  religion  is  considered 
the  basis  of  that  law."  It  is  a  little  diffi- 
cult, perhaps,  to  determine  precisely  how 
far  this  opinion  was  designed  to  go  in 
holding  that  the  law  forbids  the  public 
denial  of  the  truth  of  the  Scriptures. 
That  arguments  against  it,  made  in  good 
faith  by  those  who  do  not  accept  it,  are 
legitimate  and  rightful,  we  think  there  is 
no  doubt;  and  the  learned  judge  doubt- 
less meant  to  admit  as  much  when  he 
required  a  malicious  publication  as  an  in- 
gredient in  the  offence.  However,  when 
we  are  considering  what  is  the  common 
law  of  England  and  of  this  country  as  re- 
gards offences  against  God  and  religion, 
the  existence  of  a  State  Church  in  that 
country  and  the  effect  of  its  recognition 
upon  the  law  are  circumstances  to  be 
kept  constantly  in  view. 

In  People  v.  Porter,  2  Park.  Cr.  R.  14, 
the  defence  of  drunkenness  was  made  to 
a  prosecution  for  a  blasphemous  libel. 
Walworth,  Circuit  Judge,  presiding  at 
the  trial,  declared  the  intoxication  of  de- 
fendant, at  the  time  of  uttering  the 
words,  to  be  an  aggravation  of  the  offence 
rather  than  an  excuse. 


CH.  XIII.]  OF  RELIGIOUS   LIBERTY.  675 

force  of  which  will  be  felt  and  admitted  by  all.  It  is  no  hardship 
to  any  one  to  compel  him  to  abstain  from  public  blasphemy  or 
other  profanity,  and  none  can  complain  that  his  rights  of  con- 
science are  invaded  by  this  forced  respect  to  a  prevailing  religious 
sentiment.  But  the  Jew  who  is  forced  to  respect  the  first  day  of 
the  week,  when  his  conscience  requires  of  him  the  observance  of 
the  seventh  also,  may  plausibly  urge  that  the  law  discriminates 
against  his  religion,  and  by  forcing  him  to  keep  a  second  Sabbath 
in  each  week,  unjustly,  though  by  indirection,  punishes  him  for 
his  belief. 

The  laws  which  prohibit  ordinary  employments  on  Sunday  are 
to  be  defended,  either  on  the  same  grounds  which  justify  the 
punishment  of  profanity,  or  as  establishing  sanitary  regulations, 
based  upon  the  demonstration  of  experience  that  one  day's  rest  in 
seven  is  needful  to  recuperate  the  exhausted  energies  of  body  and 
mind.  If  sustained  on  the  first  ground,  the  view  must  be  that 
such  laws  only  require  the  proper  deference  and  regard  which 
those  not  accepting  the  common  belief  may  justly  be  required  to 
pay  to  the  public  conscience.  The  Supreme  Court  of  Pennsylvania 
have  preferred  to  defend  such  legislation  on  the  second  ground 
rather  than  the  first ; J  but  it  appears  to  us  that  if  the  benefit  to 
the  individual  is  alone  to  be  considered,  the  argument  against  the 

1  "It  intermeddles  not  with  the  nat-  d;iy  Christian,  to  command  or  even  per- 
ural  and  indefeasihle  right  of  all  men  to  suade  their  attendance  in  the  temples  of 
worship  Almighty  God  according  to  the  those  who  especially  approach  the  altar 
dictates  of  their  own  consciences  ;  it  com-  on  Sunday.  It  does  not  in  the  slightest 
pels  none  to  attend,  erect,  or  support  any  degree  infringe  upon  the  Sabbath  of  any 
place  of  worship,  or  to  maintain  any  min-  sect,  or  curtail  their  freedom  of  worship, 
istry  against  his  consent ;  it  pretends  It  detracts  not  one  hour  from  any  period 
not  to  control  or  to  interfere  with  the  of  time  they  may  feel  bound  to  devote  to 
rights  of  conscience,  and  it  establishes  no  this  object,  nor  does  it  add  a  moment 
preference  for  any  religious  establish-  beyond  what  they  may  choose  to  employ, 
ment  or  mode  of  worship.  It  treats  no  Its  sole  mission  is  to  inculcate  a  tempo- 
religious  doctrine  as  paramount  in  the  rary  weekly  cessation  from  labor,  but  it 
State  ;  it  enforces  no  unwilling  attend-  adds  not  to  this  requirement  any  religious 
ance  upon  the  celebration  of  divine  wor-  obligation."  Specht  v.  Commonwealth, 
ship.  It  says  not  to  Jew  or  Sabbatarian,  8  Pa.  St.  312,  325.  See  also  Charleston 
'  You  shall  desecrate  the  day  you  esteem  v.  Benjamin,  2  Strob.  608 ;  Bloom  v. 
as  holy,  and  keep  sacred  to  religion  that  Richards,  2  Ohio  St.  387 ;  McGatrick  v. 
we  deem  to  be  so'  It  enters  upon  no  Wason,  4  Ohio  St.  566;  Hudson  v.  Geary, 
discuvion  of  rival  claims  of  the  first  and  4  R.  I.  485  ;  Bohl  v.  State,  3  Tex.  App. 
seventh  d;iys  of  the  week,  nor  pretends  683;  Johnston  v.  Commonwealth,  22  Pa. 
to  bind  upon  the  conscience  of  any  man  St.  102  ;  Commonwealth  v.  Nesbit,  34  Pa. 
any  conclusion  upon  a  subject  which  St.  398  ;  Commonwealth  v.  Has,  122  Mass, 
each  must  decide  for  himself.  It  intrudes  40;  Commonwealth  v.  Starr,  144  Mass. 
not  into  the  domestic  circle  to  dictate  359,  UN.  E.  533;  State  v.  Bott,  31  La. 
when,  where,  or  to  what  god  its  inmates  Ann.  663,  33  Am.  Rep.  224 ;  State  r. 
shall  address  their  orisons  ;  nor  does  it  Judge,  39  La.  Ann.  132,  1  So.  437;  State 
presume  to  enter  the  synagogue  of  the  v.  Bait.  &  O.  R.  R.  Co.,  15  W.  Va.  362,  36 
Israelite,  or  the  church  of  the  Seventh-  Am.  Rep.  803. 


676  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIII. 

law  which  he  may  make  who  has  already  observed  the  seventh 
day  of  the  week,  is  unanswerable.  But  on  the  other  ground  it  is 
clear  that  these  laws  are  supportable  on  authority,  notwithstanding 
the  inconvenience  which  they  occasion  to  those  whose  religious 
sentiments  do  not  recognize  the  sacred  character  of  the  first  day 
of  the  week.1 

Whatever  deference  the  constitution  or  the  laws  may  require 
to  be  paid  in  some  cases  to  the  conscientious  scruples  or  religious 
convictions  of  the  majority,  the  general  policy  always  is,  to  avoid 
with  care  any  compulsion  which  infringes  on  the  religious  scruples 
of  any,  however  little  reason  may  seem  to  others  to  underlie  them. 
Even  in  the  important  matter  of  bearing  arms  for  the  public  de- 
fence, those  who  cannot  in  conscience  take  part  are  excused,  and 
their  proportion  of  this  great  and  sometimes  imperative  burden  is 
borne  by  the  rest  of  the  community.2 

Some  of  the  State  constitutions  have  also  done  away  with  the 
distinction  which  existed  at  the  common  law  regarding  the  admis- 
sibility  of  testimony  in  some  cases.  All  religions  were  recognized 
by  the  law  to  the  extent  of  allowing  all  persons  to  be  sworn  and 
to  give  evidence  who  believed  in  a  superintending  Providence, 
who  rewards  and  punishes,  and  that  an  oath  was  binding  on  their 
conscience.3  But  the  want  of  such  belief  rendered  the  person 

1  Commonwealth  ».   Wolf,  3  S.  &  R.  or  persuasions."    For  decisions   sustain- 

48;  Commonwealth  v.  Fisher,  17  S.  &  R.  ing  the   prohibition    of  liquor  sales  on 

160 ;  Shover  v.  State,  7  Ark.  629 ;  Scales  Sunday,  see  State  v.  Common  Pleas,  36  N. 

v.  State,  47  Ark.  476,  1  S.  W.  769;  Vogle-  J.  72,  13  Am.  Rep.  422;  State  r.  Bott, 

song  v.  State,  9  Ind.  112 ;  State  v.  Arabs,  31  La.  Ann.  663,  33  Am.  Rep.  224  ;  State 

20  Mo.  214 ;  Cincinnati  v.  Rice,  15  Ohio,  v.  Gregory,  47  Conn.  276  ;  Blahnt  v.  State, 

225  ;  Ex  parte  Koser,  60  Cal.  177  ;  Parker  34  Ark.  447  ;  and  of  dramatic  entertain- 

v.   State,  16  Lea,  478.    A  proviso  in  a  ments,   see   Menserdorff  v.    Dwyer,    69 

Sunday  law  for  the  benefit  of  observers  N.  Y.  557. 

of  Saturday  is  valid.  Johns  v.  State,  78  2  There  are  constitutional  provisions  to 
Ind.  332.  In  Simonds's  Ex'rs  v.  Gratz,  2  this  effect  more  or  less  broad  in  Alabama, 
Pen.  &  Watts,  412,  it  was  held  that  the  Arkansas,  Colorado,  Georgia,  Illinois, 
conscientious  scruples  of  a  Jew  to  appear  Indiana,  Iowa,  Kansas,  Kentucky,  Maine, 
and  attend  a  trial  of  his  cause  on  Saturday  Michigan,  Missouri,  New  Hampshire, 
were  not  sufficient  cause  for  a  contin-  New  York,  North  Carolina,  Oregon,  and 
uance.  "Butqucereof  this.  In  Frolickstein  South  Carolina,  and  statutory  provisions 
v.  Mayor  of  Mobile,  40  Ala.  725,  it  was  in  some  other  States.  In  Tennessee  "no 
held  that  a  statute  or  municipal  ordinance  citizen  shall  be  compelled  to  bear  arms, 
prohibiting  the  sale  of  goods  by  merchants  provided  he  will  pay  an  equivalent  to  be 
on  Sunday,  in  its  application  to  religious  ascertained  by  law."  Art.  1,  §  28. 
Jews  "  who  believe  that  it  is  their  reli-  3  See  upon  this  point  the  leading  case 
gious  duty  to  abstain  from  work  on  Sat-  of  Ormichund  v.  Barker,  Willes,  538,  and 
urdays,  and  to  work  on  all  the  other  six  1  Smith's  Leading  Cases,  535,  where  will 
days  of  the  week,"  was  not  violative  of  be  found  a  full  discussion  of  this  subject, 
the  article  in  the  State  constitution  which  Some  of  the  earlier  American  cases  re- 
declares  that  no  person  shall,  "  upon  any  quired  of  a  witness  that  he  should  be- 
pretence  whatsoever,  be  hurt,  molested,  lieve  in  the  existence  of  God,  and  of  a 
or  restrained  in  his  religious  sentiments  state  of  rewards  and  punishments  after 


CH.  XIII.] 


OF   RELIGIOUS   LIBERTY. 


677 


incompetent.  Wherever  the  common  law  remains  unchanged, 
it  must,  we  suppose,  be  held  no  violation  of  religious  liberty  to 
recognize  and  enforce  its  distinctions ;  but  the  tendency  is  to  do 
away  with  them  entirely,  or  to  allow  one's  unbelief  to  go  to  his 
credibility  only,  if  taken  into  account  at  all.1 


the  present  life.  See  especially  Atwood 
v.  Welton,  7  Conn.  66.  But  this  rule  did 
not  generally  obtain  ;  belief  in  a  Supreme 
Being  who  would  punish  false  swearing, 
whether  in  this  world  or  in  the  world  to 
come,  being  regarded  sufficient.  Cubbi- 
sou  v.  McCreary,  7  W.  &  S.  262 ;  Blocker 
v.  Burness,  2  Ala.  354;  Jones  v.  Harris, 
1  Strob.  160;  Shaw  v.  Moore,  4  Jones 
(N.  C.),  25 ;  Hunscom  v.  Hunscom,  15 
Mass.  184;  Brock  v.  Milligan,  10  Ohio, 
121 ;  Bennett  v.  State,  1  Swan,  411 ;  Cen- 
tral R.  R.  Co.  v.  Rockafellow,  17  111.  541 ; 
Arnold  v.  Arnold,  13  Vt.  362;  Butts  v. 
Swartwood,  2  Cow.  431 ;  Free  v.  Bucking- 
ham, 50  N.  H.  219.  But  one  who  lacked 
this  belief  was  not  sworn,  because  there 
was  no  mode  known  to  the  law  by  which 
it  was  supposed  an  oath  could  be  made 
binding  upon  his  conscience.  Arnold  v. 
Arnold,  13  Vt.  362 ;  Scott  v.  Hooper,  14 
Vt.  535 ;  Norton  v.  Ladd,  4  N.  H.  444 ; 
Cent.  R.  R.  Co.  v.  Rockafellow,  17  111. 
641. 

1  The  States  of  Iowa,  Minnesota, 
Michigan,  Oregon,  Wisconsin,  Arkansas, 
Florida,  Missouri,  California,  Indiana, 
Kansas,  Nebraska,  Nevada,  Ohio,  and 


New  York  have  constitutional  provisions 
expressly  doing  away  with  incompetency 
from  want  of  religious  belief.  Perhaps 
the  general  provisions  in  some  of  the 
other  constitutions,  declaring  complete 
equality  of  civil  rights,  privileges,  and 
capacities  are  sufficiently  broad  to  ac- 
complish the  same  purpose.  Perry's 
Case,  3  Gratt.  632.  In  Michigan  and 
Oregon  a  witness  is  not  to  be  questioned 
concerning  his  religious  belief.  See  Peo- 
ple v.  Jenness,  5  Mich.  305.  In  Georgia, 
the  code  provides  that  religious  belief 
shall  only  go  to  the  credit  of  a  witness, 
and  it  has  been  held  inadmissible  to  in- 
quire of  a  witness  whether  he  believed  in 
Christ  as  the  Saviour.  Donkle  v.  Kohn, 
44  Ga.  266.  In  Maryland,  no  one  is  in- 
competent as  a  witness  or  juror  "  provided 
he  believes  in  the  existence  of  God,  and 
that,  under  His  dispensation,  such  per- 
son will  be  held  morally  accountable  for 
his  acts,  and  be  rewarded  or  punished 
therefor,  either  in  this  world  or  the  world 
to  come."  Const.  Dec.  of  Rights,  §  36. 
In  Missouri,  an  atheist  is  competent. 
Londoner  v.  Lichtenheim,  11  Mo.  App. 
385. 


678  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 


CHAPTER   XIV. 

THE   POWER    OF   TAXATION. 

THE  power  to  impose  taxes  is  one  so  unlimited  in  force  and  so 
searching  in  extent,  that  the  courts  scarcely  venture  to  declare 
that  it  is  subject  to  any  restrictions  whatever,  except  such  as  rest 
in  the  discretion  of  the  authority  which  exercises  it.  It  reaches 
to  every  tra'de  or  occupation  ;  to  every  object  of  industry,  use,  or 
enjoyment ;  to  every  species  of  possession  ;  and  it  imposes  a  bur- 
den which,  in  case  of  failure  to  discharge  it,  may  be  followed  by 
seizure  and  sale  or  confiscation  of  property.  No  attribute  of 
sovereignty  is  more  pervading,  and  at  no  point  does  the  power 
of  the  government  affect  more  constantly  and  intimately  all  the 
relations  of  life  than  through  the  exactions  made  under  it. 

Taxes  are  denned  to  be  burdens  or  charges  imposed  by  the 
legislative  power  upon  persons  or  property,  to  raise  money  for 
public  purposes.1  The  power  to  tax  rests  upon  necessity,  and 
is  inherent  in  every  sovereignty.  The  legislature  of  every  free 
State  will  possess  it  under  the  general  grant  of  legislative  power, 
whether  particularly  specified  in  the  constitution  among  the  pow- 
ers to  be  exercised  by  it  or  riot.  No  constitutional  government 
can  exist  without  it,  and  no  arbitrary  government  without  regular 
and  steady  taxation  could  be  anything  but  an  oppressive  and 
vexatious  despotism,  since  the  only  alternative  to  taxation  would 
be  a  forced  extortion  for  the  needs  of  government  from  such  per- 
sons or  objects  as  the  men  in  power  might  select  as  victims.  Chief 
Justice  Marshall  has  said  of  this  power  :  "  The  power  of  taxing 
the  people  and  their  property  is  essential  to  the  very  existence  of 
government,  and  may  be  legitimately  exercised  on  the  objects  to 

1  Blaekwell  on  Tax  Titles,  1.     A  tax  b.  12,  c.  30.     In  its  most  enlarged  sense 

is  a  contribution  imposed  by  government  the  word"  taxes  "  embraces  all  the  regular 

on  individuals  for  the  service  of  the  State,  impositions   made    by    government   upon 

It  is  distinguished  from  a  subsidy  as  being  the  person,  property,  privileges,  occupa- 

certain  and  orderly,  which  is  shown  in  its  tions,  and  enjoyments  of  the  people  for 

derivation  from  Greek,  rafts,  ordo,  order  the    purpose   of  raising  public   revenue, 

or  arrangement.     Jacob,  Law  Die. ;  Bou-  See  Perry  v.  Washburn,  20  Cal.  318,  350 ; 

vier,  Law  Die.     "  The  revenues  of  a  State  Loan  Association  v.  Topeka,  20  Wall.  655, 

are  a  portion  that  each  subject  gives  of  664;  Van  Horn  v.  People,  46  Mich.  183, 

his  property  in  order  to  secure,  or  to  have,  9  N.  W.  246  ;  fJ7?e  Page,  60  Kan.  842,  58 

the  agreeable  enjoyment  of  the  remain-  Pac.  478,  47  L.  R.  A.  68.     See  also  note 

der."    Montesquieu,  Spirit  of  the  Laws,  to  13  L.  R.  A.  533.] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  679 

which  it  is  applicable  to  the  utmost  extent  to  which  the  govern- 
ment may  choose  to  carry  it.  The  only  security  against  the 
abuse  of  this  power  is  found  in  the  structure  of  the  government 
itself.  In  imposing  a  tax,  the  legislature  acts  upon  its  constit- 
uents. This  is,  in  general,  a  sufficient  security  against  erroneous 
and  oppressive  taxation.  The  people  of  a  State,  therefore,  give 
to  their  government  a  right  of  taxing  themselves  and  their  prop- 
erty ;  and  as  the  exigencies  of  the  government  cannot  be  limited, 
they  prescribe  no  limits  to  the  exercise  of  this  right,  resting  con- 
fidently on  the  interest  of  the  legislator,  and  on  the  influence  of 
the  constituents  over  their  representative,  to  guard  them  against 
its  abuse."1 

The  same  eminent  judge  has  said  in  another  case  :  "The  power 
of  legislation,  and  consequently  of  taxation,  operates  on  all 
persons  and  property  belonging  to  the  body  politic.  This  is  an 
original  principle,  which  has  its  foundation  in  society  itself.  It  is 
granted  by  all  for  the  benefit  of  all.  It  resides  in  the  govern- 
ment as  part  of  itself,  and  need  not  be  reserved  where  property 
of  any  description,  or  the  right  to  use  it  in  any  manner,  is  granted 
to  individuals  or  corporate  bodies.  However  absolute  the  right 
of  an  individual  may  be,  it  is  still  in  the  nature  of  that  right  that 
it  must  bear  a  portion  of  the  public  burdens,  and  that  portion 
must  be  determined  by  the  legislature.  This  vital  power  may  be 
abused;  but  the  interest,  wisdom,  and  justice  of  the  representa- 
tive body,  and  its  relations  with  its  constituents,  furnish  the  only 
security  where  there  is  no  express  contract  against  unjust  and  ex- 
cessive taxation,  as  well  as  against  unwise  legislation  generally."  2 
And  again,  the  same  judge  says,  it  is  "  unfit  for  the  judicial  de- 
partment to  inquire  what  degree  of  taxation  is  the  legitimate  use, 
and  what  degree  may  amount  to  the  abuse,  of  the  power."3  The 
like  general  views  have  been  frequently  expressed  in  other  cases.4 

The  Constitution  of  the  United  States  declares  that  "  the  Con- 
gress shall  have  power  to  levy  and  collect  taxes,  duties,  imposts, 
and  excises  to  pay  the  debts,  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States ;  but  all  duties,  imposts, 


1  McCulloch  v.  Maryland,  4  Wheat.  Sharpless    v.    Mayor,    &c.,    21    Pa.    St. 
316,  428.  147 ;  Weister  v.  Hade,  52  Pa.  St.  474 ; 

2  Providence  Bank  v.  Billings,  4  Pet.  Wingate  v.  Sluder,  6  Jones  (N.  C.),  552; 
514,  561.  Herriek  v.  Randolph,  13  Vt.  525;  Arm- 

8  McCulloch  v.  Maryland,  4  Wheat,  ington  v.  Barnet,  15  Vt.  745;  Thomas  v. 

316,  430.  See  Kirtland  v.  Hotchkiss,  100  Leland?  24  Wend.  65;  People  v.  Mayor, 

U.  S.  491 ;  Board  of  Education  v.  Me-  &c.  of  Brooklyn,  4  N.  Y.  419 ;  Portland 

Landsborough,  36  Ohio  St.  227;  State  v.  Bank  r.  Apthorp,  12  Mass.  252;  Western 

Board  of  Education,  38  Ohio  St.  3.  Union  Telegraph  Co.  v.  Mayer,  28  Ohio 

«  Kirby   v.    Shaw,    19    Pa.    St.    258 ;  St.  521. 


680  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

and  excises  shall  be  uniform  throughout  the  United  States."  l  The 
duties,  imposts,  and  excises  here  specified  are  merely  different 
kinds  of  taxes ;  the  first  two  terms  being  commonly  applied  to 
the  levies  made  by  governments  on  the  importation  and  exporta- 
tion of  commodities,  while  the  term  "  excises  "  is  applied  to  the 
taxes  laid  upon  the  manufacture,  sale,  or  consumption  of  commodi- 
ties within  the  country,  upon  licenses  to  pursue  certain  occupations, 
and  upon  corporate  privileges.  "  No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State ; " 2  but  this  provision  of  the 
Constitution  is  not  violated  by  a  requirement  /that  an  article  in- 
tended for  exportation  shall  be  stamped,  as  a  protection  against 
fraud.3  Direct  taxes,  when  la-id  by  Congress,  must  be  appor- 
tioned among  the  several  States  according  to  the  representative 
population.4  The  term  "  direct  taxes,"  as  employed  in  the  Consti- 
tution, has  a  technical  meaning,  and  embraces  capitation  and  land 
taxes  only.5  These  are  express  limitations,  imposed  by  the  Con- 
stitution upon  the  federal  power  to  tax ;  but  there  are  some  others 
which  are  implied,  (a)  and  which  under  the  complex  system  of 
American  government  have  the  effect  to  exempt  some  subjects 
otherwise  taxable  from  the  scope  and  reach,  according  to  circum- 
stances, of  either  the  federal  power  to  tax  or  the  power  of  the 
several  States.  One  of  the  implied  limitations  is  that  which  pre- 
cludes the  States  from  taxing  the  agencies  whereby  the  general 
government  performs  its  functions.  The  reason  is  that,  if  they 

1  Const.  U.  S.  Art.  1,  §  8,  cl.  1.  Springer  v.  United  States,  102  U.  S.  586. 

2  Const.  U.  S.  Art.  1,  §  9,  cl.  5.  ([Pollock  v.  Farmers'  Loan  &  T.  Co.,  158 
8  Pace  v.  Burgess,  92  U.  S.  372.               U.  S.  601,  15  Sup.  Ct.  Rep.  912,  would 

4  Const.  U.  S.  Art.  1,  §2;  Art.  1,  §  9,  seem  to  modify  tlie  statement  of  the  text 
cl.  4.  by  declaring  capitation  taxes  and   those 

5  Hylton  v.  United  States,  3  Dall.  171 ;  levied   upon    general  property,   whether 
Pacific  Ins.  Co.  v.   Soule,  7   Wall.  433;  real  or  personal  or  both,  and  the  income 
Veazie    Bank   v.   Fenno,   8   Wall.   533;  derived  therefrom,  direct  taxes.] 

(a)  £It  is  held  that  the  States  are  restricted  from  taxing  patent  rights.  People 
v.  Brooklyn  Bd.  of  Assessors,  156  N.  Y.  417,  51  N.  E.  269,  42  L.  R.  A.  290 ;  Com.  v. 
Edison  Electric  Light  Co.,  157  Pa.  529,  27  Atl.  379,  87  Am.  St.  747 ;  Com.  v.  Phila- 
delphia Co.,  157  Pa.  527,  27  Atl.  378;  Com.  v.  Westingliouse  El.  &  Mfg.  Co.,  151  Pa. 
265,  24  Atl.  1107,  1111;  Com.  v.  Westinghouse  Air  Brake  Co.,  151  Pa.  276,  24  Atl. 
1111,  1113.  See  other  cases  upon  State  taxation  of  patent  rights  in  note  to  44  L.  ed. 
U.  S.  374.  A  State  under  a  general  law  taxing  legacies  may  tax  a  bequest  to  the 
United  States,  since  the  tax  is  levied  on  the  bequest  before  it  reaches  the  United 
States.  United  States  v.  Perkins,  163  U.  S.  625,  16  Sup.  Ct.  Rep.  1073;  aff.  141 
N.  Y.  479,  36  N.  E.  505.  And  the  fact  that  a  corporation  possesses  a  franchise  from 
the  federal  government,  and  is  engaged  in  inter-state  commerce,  will  not  prevent  the 
State's  taxing  it  upon  a  franchise  from  the  State.  Central  Pac.  R.  Co.  v.  California, 
162  U.  S.  91,  16  Sup.  Ct.  Rep  766,  aff.  105  Cal.  576,  38  Pac.  905.  Copyrights  not 
taxable  by  States,  People  v.  Roberts,  159  N.  Y.  70,  53  N.  E.  685,  45  L.  R.  A.  126. 
As  to  what  lands  of  tribal  Indians  cannot  be  taxed  by  State,  see  Allen  County 
Com'rs  v.  Simons,  129  Ind.  193,  28  N.  E.  420,  13  L.  R.  A.  512.] 


<JH.  XIV.]  THE    POWER    OF   TAXATION.  681 

possessed  this  authority,  it  would  be  within  their  power  to  impose 
taxation  to  an  extent  that  might  cripple,  if  not  wholly  defeat,  the 
operations  of  the  national  authority  within  its  proper  and  consti- 
tutional sphere  of  action.  "  That  the  power  to  tax,"  says  Chief 
Justice  Marshall,  "  involves  the  power  to  destroy  ;  that  the  power 
to  destroy  may  defeat  and  render  useless  the  power  to  create  ;  that 
there  is  a  plain  repugnance  in  conferring  on  one  government  a 
power  to  control  the  constitutional  measures  of  another,  which 
other,  with  respect  to  those  very  measures,  is  declared  to  be 
supreme  over  that  which  exerts  the  control,  —  are  propositions 
not  to  be  denied."  And  referring  to  the  argument  that  confi- 
dence in  the  good  faith  of  the  State  governments  must  forbid  our 
indulging  the  anticipation  of  such  consequences,  he  adds :  "  But 
all  inconsistencies  are  to  be  reconciled  by  the  magic  of  the  word, 
—  confidence.  Taxation,  it  is  said,  does  not  necessarily  and  un- 
avoidably destroy.  To  carry  it  to  the  excess  of  destruction  would 
be  an  abuse,  to  presume  which  would  banish  that  confidence  which 
is  essential  to  all  government.  But  is  this  a  case  of  confidence  ? 
Would  the  people  of  any  one  State  trust  those  of  another  with  a 
power  to  control  the  most  insignificant  operations  of  their  State 
government?  We  know  they  would  not.  Why  then  should  we 
suppose  that  the  people  of  any  one  State  should  be  willing  to  trust 
those  of  another  with  a  power  to  control  the  operations  of  a  gov- 
ernment to  which  they  have  confided  their  most  important  and 
most  valuable  interests  ?  In  the  legislature  of  the  Union  alone 
are  all  represented.  The  legislature  of  the  Union  alone,  there- 
fore, can  be  trusted  by  the  people  with  the  power  of  controlling 
measures  which  concern  all,  in  the  confidence  that  it  will  not  be 
abused.  This,  then,  is  not  a  case  of  confidence." 1 

1  McCulloch  o.  Maryland,  4  Wheat,  tax  one  instrument  employed  by  the  gov- 
316,  431.  The  case  involved  the  right  of  ernment  in  the  execution  of  its  powers, 
the  State  of  Maryland  to  impose  taxes  they  may  tax  any  and  every  other  instru- 
upon  the  operations,  within  its  limits,  of  ment.  They  may  tax  the  mail ;  they 
the  Bank  of  the  United  States,  created  may  tax  the  mint ;  they  may  tax  patent 
by  authority  of  Congress.  "  If,"  says  rights  ;  they  may  tax  the  papers  of  the 
the  Chief  Justice,  "  we  apply  the  prin-  custom-house ;  they  may  tax  judicial 
ciple  for  which  the  State  of  Maryland  process ;  they  may  tax  all  the  means  em- 
contends  to  the  Constitution  generally,  ployed  by  the  government  to  an  excess 
we  shall  find  it  capable  of  changing  which  would  defeat  all  the  ends  of  gov- 
totally  the  character  of  that  instrument,  ernment.  This  was  not  intended  by  the 
We  shall  find  it  capable  of  arresting  all  American  people.  They  did  not  design 
the  measures  of  the  government,  and  of  to  make  their  government  dependent  on 
prostrating  it  at  the  foot  of  the  States,  the  States."  In  Veazie  Bank  v.  Fenno, 
The  American  people  have  declared  their  8  Wall.  533,  followed  and  approved  in 
Constitution,  and  the  laws  made  in  pur-  National  Bank  v.  United  States,  101  U.  S. 
suance  thereof,  to  be  supreme;  but  this  1,  it  was  held  competent  for  Congress,  in 
principle  would  transfer  the  supremacy  aid  of  the  circulation  of  the  national 
in  fact  to  the  States.  If  the  States  may  banks,  to  impose  restraints  upon  the  cir- 


682 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


It  follows  as  a  logical  result  from  this  doctrine  that  if  the  Con- 
gress of  the  Union  may  constitutionally  create  a  Bank  of  the 
United  States,  as  an  agency  of  the  national  government  in  the 
accomplishment  of  its  constitutional  purposes,  any  power  of 
the  States  to  tax  such  bank,  or  its  property,  or  the  means  of 
performing  its  functions,  unless  with  the  consent  of  the  United 
States,  is  precluded  by  necessary  implication.1  For  the  like  rea- 
sons a  State  is  prohibited  from  taxing  an  officer  of  the  general 
government  for  his  office  or  its  emoluments ;  since  such  a  tax, 
having  the  effect  to  reduce  the  compensation  for  the  services  pro- 
vided by  the  act  of  Congress,  would  to  that  extent  conflict  with 
such  act,  and  tend  to  neutralize  its  purpose.2  So  the  States  may 
not  impose  taxes  upon  the  obligations  or  evidences  of  debt  issued 
by  the  general  government  upon  the  loans  made  to  it,  unless  such 
taxation  is  permitted  by  law  of  Congress,  and  then  only  in  the 
manner  such  law  shall  prescribe,  —  any  such  tax  being  an  imped- 
iment to  the  operations  of  the  government  in  negotiating  loans, 
and,  in  greater  or  less  degree  in  proportion  to  its  magnitude,  tend- 
ing to  cripple  and  embarrass  the  national  power.3  The  tax  upon 


culation  of  the  State  banks  in  the  form 
of  taxation.  Perhaps  no  other  case  goes 
so  far  as  this,  in  holding  that  taxation 
may  be  imposed  for  other  purposes  than 
the  raising  of  revenue,  though  the  levy  of 
duties  upon  imports  with  a  view  to  inci- 
dental protection  to  domestic  manufac- 
tures is  upon  a  similar  principle.  QThe 
Federal  tax  system  is  not  subject  to  State 
registration  laws,  nor  to  State  statutes  of 
limitation.  United  States  v.  Snyder,  149 
U.  S.  210,  13  Sup.  Ct.  Rep.  846.J 

1  McCulloch  v.  Maryland,  4  Wheat. 
316 ;  Osborn  v.  United  States  Bank,  9 
Wheat.  738 ;  Dobbins  v.  Commissioners 
of  Erie  Co.,  16  Pet.  435.  [The  States 
are  prohibited  from  taxing  the  franchises 
and  intangible  property  of  national  banks. 
Owensboro  Nat'l  Bk.  v.  Owensboro,  173 
U.  S.  664,  19  Sup.  Ct.  Rep.  537 ;  Third 
Nat'l  Bk.  of  Louisville  v.  Stone,  174  U.  S. 
432,  19  Sup.  Ct.  Rep.  759.  Upon  taxing 
shares  of  national  banks  in  hands  of 
stockholders,  see  First  Nat'l  Bk.  of  Wel- 
lington v.  Chapman,  173  U.  S.  205,  19  Sup. 
Ct.  Rep.  407 ;  Merchants'  &  M.  Nat.  Bank 
v.  Pennsylvania,  167  U.  S.  461,  17  Sup. 
Ct.  Rep.  829 ;  note  to  7  L.  ed.  U.  S.  939 ; 
also  McHenry  v.  Downer,  116  Cal.  20,  47 
Pac.  779,  45  L.  R.  A.  737,  and  note  thereto 
in  L.  R.  A.  Omission  by  official  assessors 
to  assess  moneys  of  individual  citizens 


invested  in  interest-bearing  loans  and 
securities,  and  in  stocks  and  bonds,  is 
not  invalid  as  a  discrimination  against 
national  banks  whose  shares  are  assessed, 
where  the  money  invested  in  the  non- 
assessed  property  does  not  compete  with 
the  national  banks.  First  Nat.  Bk.,  &c. 
v.  Chehalis  Co.,  166  U.  S.440,  17  Sup.  Ct. 
Rep.  629,  aff.  6  Wash.  64,  32  Pac.  1051 ; 
First  Nat.  Bank  v.  Ayers,  160  U.  S.  660, 
16  Sup.  Ct.  Rep.  412,  aff.  53  Kan.  440, 
463,  36  Pac.  724.]  But  the  doctrine 
which  exempts  the  instrumentalities  of 
the  general  government  from  the  influ- 
ence of  State  taxation,  being  founded  on 
the  implied  necessity  for  the  use  of  such 
instruments  by  the  government,  such  leg- 
islation as  does  not  impair  the  usefulness 
or  capability  of  such  instruments  to  serve 
the  government  is  not  within  the  rule  of 
prohibition.  National  Bank  v.  Common- 
wealth, 9  Wall.  353;  Thompson  v.  Pacific 
R.  R.  Co.,  9  Wall.  579. 

2  Dobbins  v.  Commissioners  of  Erie 
Co.,  16  Pet.  435.  On  similar  grounds  it  is 
held  in  Canada  that  a  provincial  legisla- 
ture has  no  power  to  impose  a  tax  on  the 
official  income  of  an  officer  of  the  Domin- 
ion government.  Leprohon  v.  Ottawa, 
40  U.  C.  Rep.  486 ;  s.  c.  on  appeal,  2  Ont. 
App.  Rep.  552. 

8  Weston  v.  Charleston,  2  Pet.  449; 


CH.  XIV.] 


THE    POWEK   OF   TAXATION. 


683 


the  national  securities  is  a  tax  upon  the  exercise  of  the  power  of 
Congress  "  to  borrow  money  on  the  credit  of  the  United  States." 
The  exercise  of  this  power  is  interfered  with  to  the  extent  of  the 
tax  imposed  under  State  authority  ;  and  the  liability  of  the  certi- 
ficates of  stock  'or  other  securities  to  taxation  by  a  State,  in 
the  hands  of  individuals,  would  necessarily  affect  their  value  in 
market,  and  therefore  affect  the  free  and  unrestrained  exercise 
of  the  power.  "  If  the  right  to  impose  a  tax  exists,  it  is  a  right 
which,  in  its  nature,  acknowledges  no  limits.  It  may  be  carried 
to  any  extent  within  the  jurisdiction  of  the  State  or  corporation 
which  imposes  it,  which  the  will  of  each  State  or  corporation  may 
prescribe."  1 

If  the  States  cannot  tax  the  means  by  which  the  national  gov- 
ernment performs  its  functions,  neither,  on  the  other  hand  and 
for  the  same  reasons,  can  the  latter  tax  the  agencies  of  the  State 
governments.  "  The  same  supreme  power  which  established  the 
departments  of  the  general  government  determined  that  the  local 
governments  should  also  exist  for  their  own  purposes,  and  made 


Bank  of  Commerce  v.  New  York  City,  2 
Black,  620;  Bank  Tax  Case,  2  Wall.  200; 
Van  Allen  v.  Assessors,  3  Wall.  573; 
People  v.  Commissioners,  4  Wall.  244; 
Bradley  v.  People,  4  Wall.  459;  The 
Banks  v.The  Mayor,  7  Wall.  16  ;  Bank  v. 
Supervisors,  7  Wall.  26 ;  State  v.  Rogers, 
79  Mo.  283.  For  a  kindred  doctrine,  see 
State  v.  Jackson,  33  N.  J.  450. 

i  Weston  v.  Charleston,  2  Pet.  449, 
466 ;  Bank  of  Commerce  v.  New  York 
City,  2  Black,  620  ;  Bank  Tax  Case,  2 
Wall.  200 ;  Society  for  Savings  v.  Coite, 
6  Wall.  594.  Revenue  stamps  are  not 
taxable.  Palfrey  v.  Boston,  101  Mass. 
329.  Nor  United  States  treasury  notes. 
Montgomery  County  v.  Elston,  32  Ind. 
27.  Nor  the  premium  on  United  States 
bonds.  People  v.  Com'rs  of  Taxes,  90 
N.  Y.  63.  [[But  an  inheritance  or  suc- 
cession tax  may  be  imposed  upon  a  leg- 
acy consisting  of  United  States  bonds. 
Plummer  v.  Coler,  178  U.  S.  115,  20  Sup. 
Ct.  Rep.  829,  aff.  30  Misc.  19,  62  N.  Y. 
Supp.  1024  3  In  People  v.  United  States, 
93  111.  30,34  Am.  Rep.  155,  it  was  decided 
that  property  of  the  United  States,  held 
for  any  purpose  whatever,  was  not  sub- 
ject to  State  taxation.  Citing  McGoon 
v.  Scales,  9  Wall.  23;  Railway  Co.  v. 
Prescott,  16  Wall.  603.  Lands  within  a 
State  belonging  to  the  United  States  by 
purchase  or  failure  of  owner  to  pay  direct 


taxes  are  exempt  from  State  taxation 
while  so  owned.  Van  Brocklin  v.  Ten- 
nessee, 117  U.  S.  151,  6  Sup.  Ct.  Rep. 
670.  [Tlussman  v.  Durham,  165  U.  S. 
144,  17  Sup.  Ct.  Rep.  253.J  The  Cen- 
tral Pacific  &  Southern  Pacific  Rail- 
road Companies  derive  many  of  their 
franchises  from  the  United  States.  These 
cannot  be  taxed  by  a  State  without  the 
consent  of  Congress.  California  v.  Cen- 
tral Pacific  R.  R.  Co.,  127  U.  S.  1,  8  Sup. 
Ct.  Rep.  1073.  But  land  is  taxable  though 
the  title  is  still  in  the  United  States,  if 
the  real  owner  is  entitled  to  a  patent. 
Wis.  Centr.  Ry.  Co.  v.  Comstock,  71  Wis. 
88,  36  N.  W.  843.  [So,  too,  though  his 
right  to  patent  is  not  yet  confirmed, 
owing  to  dispute  as  to  mineral  or  non- 
mineral  character  of  lands  concerned. 
Northern  Pac.  R.  Co.  v.  Myers,  172  U.  S. 
689, 19  Sup.  Ct.  Rep.  276.]  The  property 
of  the  Western  Union  Telegraph  Co.,  a 
New  York  corporation,  lying  in  Massachu- 
setts, cannot  escape  taxation  there  as 
an  agency  of  the  federal  government, 
although  it  has  the  right  to  i:se  post  roads. 
Western  U.  Tel.  Co.  v.  Massachusetts,  125 
U.  S  530,  8  Sup.  Ct.  Rep.  961.  That  tax- 
ation cannot  be  evaded  by  turning  funds 
temporarily  into  United  States  notes  just 
before  the  time  for  assessment,  see  Shot- 
well  v.  Moore,  129  U.  S.  590,  9  Sup.  Ct. 
Rep.  362. 


684 


CONSTITUTIONAL   LIMITATIONS. 


[CH.    XIV. 


it  impossible  to  protect  the  people  in  their  common  interests 
without  them.  Each  of  these  several  agencies  is  confined  to  its 
o\vn  sphere,  and  all  are  strictly  subordinate  to  the  constitution 
which  limits  them,  and  independent  of  other  agencies,  except  as 
thereby  made  dependent.  There  is  nothing  in  the  Constitution 
[of  the  United  States]  which  can  be  made  to  admit  of  any  inter- 
ference by  Congress  with  the  secure  existence  of  any  State  authority 
within  its  lawful  bounds.  And  any  such  interference  by  the  in- 
direct means  of  taxation  is  quite  as  much  beyond  the  power  of 
the  national  legislature  as  if  the  interference  were  direct  and  ex- 
treme." l  It  has  therefore  been  held  that  the  law  of  Congress 
requiring  judicial  process  to  be  stamped  could  not  constitutionally 
be  applied  to  the  process  of  the  State  courts ;  since  otherwise 
Congress  might  impose  such  restrictions  upon  the  State  courts  as 
would  put  an  end  to  their  effective  action,  and  be  equivalent 
practically  to  abolishing  them  altogether.2  And  a  similar  ruling 
has  been  made  in  other  analogous  cases. 


i  Fifield  v.  Close,  15  Mich.  505.  "  In 
respect  to  the  reserved  powers,  the  State 
is  as  sovereign  and  independent  as  the 
general  government.  And  if  the  means 
and  instrumentalities  employed  by  that 
government  to  carry  into  operation  the 
powers  granted  to  it  are  necessarily,  and 
for  the  sake  of  self-preservation,  exempt 
from  taxation  by  the  States,  why  are  not 
those  of  the  States  depending  upon  their 
reserved  powers,  for  like  reasons,  equally 
exempt  from  federal  taxation?  Their 
unimpaired  existence  in  the  one  case  is  as 
essential  as  in  the  other.  It  is  admitted 
that  there  is  no  express  provision  in  the 
Constitution  that  prohibits  the  general 
government  from  taxing  the  means  and 
instrumentalities  of  the  States,  nor  is 
there  any  prohibiting  the  States  from 
taxing  the  means  and  instrumentalities  of 
that  government.  In  both  cases  the  ex- 
emption rests  upon  necessary  implication, 
and  is  upheld  by  the  great  law  of  self- 
preservation  ;  as  any  government,  whose 
means  employed  in  conducting  its  opera- 
tions, if  subject  to  the  control  of  another 
and  distinct  government,  can  only  exist 
at  the  mercy  of  that  government.  Of 
what  avail  are  these  means  if  another 
power  may  tax  them  at  discretion  ? " 
Per  Nelson,  J.,  in  Collector  v.  Day,  11 
Wall.  113,  124.  See  also  Ward  v.  Mary- 
land, 12  Wall.  418,  427  ;  Railroad  Co.  v. 
Peniston,  18  Wall.  5 ;  Freedman  v.  Sigel, 
10  Blatch.  327.  QA  tax  levied  by  the 


United  States  upon  legacies  and  distrib- 
utive shares  of  personal  property  is  a  tax 
upon  the  transmission  or  receipt  of  prop- 
erty and  not  upon  the  right  of  the  State 
to  regulate  the  devolution  of  property 
upon  death  of  owner.  Knowlton  v .  Moore, 
178  U.  S.  41,  20  Sup.  Ct.  Rep.  747  ;  Mur- 
dock  v.  Ward,  178  U.  S.  139,  20  Sup.  Ct. 
Rep.  775 ;  Orr  v.  Gilraan,  183  U.  S.  278, 
22  Sup.  Ct.  Rep.  213;  Magoun  v.  Illinois 
Trust  Co.,  170  U.  S.  283,  18  Sup.  Ct.  Rep. 
594.  See  United  States  v.  Owens,  100 
Fed.  Rep.  70,  upon  right  of  Federal  gov- 
ernment to  tax  bonds  of  saloon-keepers. 
Held  that  act  purporting  to  authorize 
such  tax  is  void  for  violation  of  the  prin- 
ciple against  taxation  of  the  agencies  of 
the  State. 

The  taxation  of  the  capital  stock  of  a 
corporation  owning  patents  is  a  taxation 
of  such  patents  and  invalid.  So  held  in 
People  v.  Board  of  Assessors,  156  N.  Y. 
417,  51  N.  E.  269.  Not  so  as  to  tax  levied 
on  the  shares  of  stock  as  property  of  the 
individual.  Crown  Cork  &  Seal  Co.  v. 
State,  87  Md.  687,  40  All.  1074,  67  Am. 
St.  371.] 

2  Warren  v.  Paul,  22  Ind.  276;  Jones 
v.  Estate  of  Keep,  19  Wis.  369;  Fifield 
v.  Close,  15  Mich.  505;  Union  Bank  v. 
Hill,  3  Cold.  325 ;  Smith  v.  Short,  40  Ala. 
385 ;  Moore  v.  Quirk,  105  Mass.  49,  7  Am. 
Rep.  499. 

It  has  been  repeatedly  decided  that 
the  act  of  Congress  which  provided  that 


CH,  XI\7.] 


THE    POWER    OF   TAXATION. 


685 


Strong  as  is  the  language  employed  to  characterize  the  taxing 
power  in  some  of  the  cases  which  have  considered  this  subject, 
subsequent  events  have  demonstrated  that  it  was  by  no  means 
extravagant.  An  enormous  national  debt  has  not  only  made 
imposts  necessary  which  in  some  cases  reach  several  hundred  per 
cent  of  the  original  cost  of  the  articles  upon  which  they  are  im- 
posed, but  the  systems  of  State  banking  which  were  in  force  when 
the  necessity  for  contracting  that  debt  first  arose,  have  been  liter- 
ally taxed  out  of  existence  by  burdens  avowedly  imposed  for  that 
very  purpose.1  If  taxation  is  thus  unlimited  in  its  operation  upon 
the  objects  within  its  reach,  it  cannot  be  extravagant  to  say  that 
the  agencies  of  government  are  necessarily  excepted  from  it,  since 
otherwise  its  exercise  might  altogether  destroy  the  government 
through  the  destruction  of  its  agencies.  That  which  was  pre- 
dicted as  a  possible  event  has  been  demonstrated  by  actual  facts 
to  be  within  .the  compass  of  the  power ;  and  if  considerations  of 


certain  papers  not  stamped  should  not  be 
received  in  evidence  must  be  limited  in 
its  operation  to  the  federal  courts.  Car- 
penter v.  Snelling,  97  Mass.  452 ;  Green 
v.  Hoi  way,  101  Mass.  243, 3  Am.  Rep.  339  ; 
Clemens  v.  Conrad,  19  Mich.  170;  Haight 
v.  Grist,  64  N.  C.  739  ;  Griffin  v.  Ranney, 
35  Conn.  239 ;  People  v.  Gates,  43  N.  Y. 
40 ;  Bowen  v.  Byrne,  65  111.  467  ;  Hale  v. 
Wilkinson,  21  Gratt.  75  ;  Atkins  v.  Plymp- 
ton,  44  Vt.  21 ;  Bumpass  v.  Taggart, 
26  Ark.  398,  7  Am.  Rep.  623;  Sammons  v. 
Holloway,  21  Mich.  162,  4  Am.  Rep.  465; 
Duffy  v.  Hobson,  40  Cal.  240;  Sporrer  v. 
Eifler,  1  Heisk.  633 ;  McElvain  v.  Mudd, 
44  Ala.  48,  4  Am.  Rep.  106;  Burson  v. 
Huntington,  21  Mich.  415,  4  Am.  Rep. 
497  ;  Davis  v.  Richardson,  45  Miss.  499, 
7  Am.  Rep.  732 ;  Hunter  v.  Cobb,  1  Bush, 
239  ;  Craig  v.  Dimock,  47  111.  308 ;  Moore 
v.  Moore,  47  N.  Y.  467,  7  Am.  Rep.  466. 
FJKnox  v.  Rossi,  25  Nev.  96,  67  Pac.  179, 
48  L.  R.  A.  305.  Upon  effect  of  omis- 
sion to  stamp  an  instrument  or  cancel  the 
stamp  thereon,  see  note  to  this  case  in 
L.  R.  A.  A  check  may  be  forged  and  the 
forger  punished  criminally,  even  though 
the  instrument  was  not  stamped  in  com- 
pliance with  the  law  of  Congress  relat- 
ing to  checks,  and  was  therefore  invalid. 
Thomas  v.  State,  40  Tex.  Grim.  App. 
662,  51  S.  W.  242,  46  L.  R.  A.  464, 
and  see  note  to  this  case  in  L.  R.  A. 
upon  omission  of  stamp  as  affecting 
criminal  prosecution.]  Several  of  these 
cases  have  gone  still  farther,  and  declared 


that  Congress  cannot  preclude  parties 
from  entering  into  contracts  permitted  by 
the  State  laws,  and  that  to  declare  them 
void  was  not  a  proper  penalty  for  the 
enforcement  of  tax  laws.  Congress  can- 
not make  void  a  tax  deed  issued  by  a 
State.  Sayles  v.  Davis,  22  Wis.  225. 
Nor  require  a  stamp  upon  the  official 
bonds  of  State  officers.  State  v.  Gar- 
ton,  32  Ind.  1.  Nor  tax  the  salary  of  a 
State  officer.  Collector  v.  Day,  11  Wall. 
113;  Freedman  v.  Sigel,  10  Blatch.  327. 
Nor  forbid  the  recording  of  an  unstamped 
instrument  under  the  State  laws.  Moore 
v.  Quirk,  105  Mass.  49,  7  Am.  Rep.  499. 
"  Power  to  tax  for  State  purposes  is  as 
much  an  exclusive  power  in  the  States, 
as  the  power  to  lay  and  collect  taxes 
to  pay  the  debts  and  provide  for  the  com- 
mon defence  and  general  welfare  of  the 
United  States  is  an  exclusive  power  in 
Congress."  Clifford,  J.,  Ward  v.  Mary- 
land, 12  Wall.  418,  427.  In  United  States 
v.  Railroad  Co.,  17  Wall.  322,  it  was  de- 
cided that  a  municipal  corporation  of  a 
State,  being  a  portion  of  the  sovereign 
power,  was  not  subject  to  taxation  by 
Congress  upon  its  shares  of  stock  in  a 
railroad  company.  p?or  can  the  United 
States  tax  the  income  derived  from  bonds 
issued  by  the  municipal  corporations  of 
the  States.  Pollock  v.  Farmers'  L.  &  T. 
Co.,  157  U.  S.  429,  15  Sup.  Ct.  Rep.  673.] 
1  The  constitutionality  of  this  taxation 
was  sustained  by  a  divided  court  in  Veazie 
Bank  v.  Fenno,  8  Wall.  533. 


086  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

policy  were  important,  it  might  be  added  that,  if  the  States  pos- 
sessed the  authority  to  tax  the  agencies  of  the  national  govern- 
ment, they  would  hold  within  their  hands  a  constitutional  weapon 
which  factious  and  disappointed  parties  would  be  able  to  wield 
with  terrible  effect  when  the  policy  of  the  national  government 
did  not  accord  witk  their  views ;  while,  on  the  other  hand,  if  the 
national  government  possessed  a  corresponding  power  over  the 
agencies  of  the  State  governments,  there  would  not  be  wanting  men 
who,  in  times  of  strong  party  excitement,  would  be  willing  and 
eager  to  resort  to  this  power  as  a  means  of  coercing  the  States  in 
their  legislation  upon  the  subjects  remaining  under  their  control. 
There  are  other  subjects  which  are  or  may  be  removed  from 
the  sphere  of  State  taxation  by  force  of  the  Constitution  of  the 
United  States,  or  of  the  legislation  of  Congress  under  it.  That 
instrument  declares  that  "  no  State  shall,  without  the  consent  of 
Congress,  lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection 
laws." 1  This  prohibition  has  led  to  some  difficulty  in  its  prac- 
tical application.  Imports,  as  such,  are  not  to  be  taxed  generally; 
but  it  was  not  the  purpose  of  the  Constitution  to  exclude  per- 
manently from  the  sphere  of  State  taxation  all  property  brought 
into  the  country  from  abroad ;  and  the  difficulty  encountered  has 
been  met  with  in  endeavoring  to  indicate  with  sufficient  accuracy 
for  practical  purposes  the  point  of  time  at  which  articles  imported 
cease  to  be  regarded  as  imports  within  the  meaning  of  the  pro- 
hibition. In  general  terms  it  has  been  said  that  when  the  im- 
porter has  so  acted  upon  the  thing  imported  that  it  has  become 
incorporated  and  mixed  up  with  the  mass  of  property  in  the 
country,  it  has  perhaps  lost  its  distinctive  character  as  an  import, 
and  has  become  subject  to  the  taxing  power  of  the  State;  but 
that  while  remaining  the  property  of  the  importer,  hi  his  ware- 
house, in  the  original  form  or  package  in  which  it  was  imported, 
a  tax  upon  it  is  too  plainly  a  duty  on  imports  to  escape  the  pro- 
hibition in  the  Constitution.2  And  in  the  application  of  this  rule 

1  Const.  U.  S.  art.  1,  §  10,  cl.  2.     The  Maine,  is  held  a  regulation  of  commerce, 

provision  has  no  application  to  articles  Higgins  v.  Lime,  130  Mass.  1.     A  State 

transported   merely  from   one   State   to  tax  on  alien  passengers  is  a  tax  on  com- 

another.    Brown  v.  Houston,  33  La.  Ann.  merce  though  levied  in  aid  of  an  inspec- 

813,   39  Am.  Rep.  284;   aff.   114  U.  S.  tion  law.     People  v.  Compagnie,  &c.,  107 

622,  6  Sup.  Ct.  Rep.  1091.    See  State  v.  U.  S.  60,  2  Sup.  Ct.  Rep.  87.    But  a  like 

Pittsburg,  &c.  Co.,  41   La.  Ann.  465,  6  impost  under  federal  law  is  valid.     Head 

So.  220;  L~Am.  Fertilizing  Co.  v.  Bd.  of  Money  Cases,  112  U.  S.  680,  6  Sup.  Ct. 

Agriculture,  43  Fed.  Rep.  609, 11  L.  R.  A.  Rep.  247. 

179,  and  note;  State  v.  Bixman,  162  Mo.          '2  Brown  v.  Maryland,  12  "Wheat.  419, 

1,  62  S.  W.  828.]     But  an  inspection  law  441,  per  Marshall,  Ch.  J.     [May  &  Co.  v. 

applicable  only  to  lime  manufactured  in  New  Orleans,  178  U.  S.  496,  20  Sup.  Ct. 


CH.  XIV.]  THE    POWER   OF  TAXATION.  687 

it  was  declared  that  a  State  law  which,  for  revenue  purposes, 
required  an  importer  to  take  a  license  and  pay  fifty  dollars  before 
he  should  be  permitted  to  sell  a  package  of  imported  goods,  was 
equivalent  to  laying  a  duty  upon  imports.  It  has  also  been  held 
in  another  case,  that  a  stamp  duty  imposed  by  the  legislature 
of  California  upon  bills  of  lading  for  gold  or  silver,  transported 
from  that  State  to  any  port  or  place  out  of  the  State,  was  in 
effect  a  tax  upon  exports,  and  the  law  was  consequently  void.1 

Congress  is  also  vested  with  power  to  regulate  commerce,  (a) 
This  power  is  not  so  far  exclusive  as  to  preclude  State  legislation 
on  matters  either  local  in  their  nature  or  operation,  or  intended 

Rep.  976,  aff.  51  La.  Ann.  1064,  25  So.  959.  See  what  is  said  of  this  case  in  Woodruff 
And  as  to  original  packages,  see  Postal  v.  Parham,  8  Wall.  123,  137.  And  com- 
Tel.  &  Cable  Co.  v.  Adams,  165  U.  S.  688,  pare  Jackson  Iron  Co.  v.  Auditor-General, 
15  Sup.  Ct.  Rep.  268,  360,  and  note  39  L.  32  Mich.  488.  See  also  Brumagim  v. 
ed.  U.  S.  311;  lie  Wilson,  8  Mackey,  341  Tillinghast,  18  Cal.  265;  Garrison  v. 
(D.  C.),  12  L.  R.  A.  624,  and  note;  and  Tillinghast,  18  Cal.  404;  Ex  parte  Mar- 
State  v.  Winters,  44  Kan.  723,  25  Pac.  235,  tin,  7  Nev.  140  ;  Turner  v.  State,  55  Md. 
10  L.  R.  A.  616,  and  note  ;  tax  on  imports,  240 ;  Turner  v.  Maryland,  107  U.  S.  38, 
see  note  to  11  L.  R.  A.  179.  See  also  Aus-  2  Sup.  Ct.  Rep.  44.  In  the  last  two  cases 
tin  v.  Tennessee,  179  U.  S.  343,  21  Sup.  Ct.  a  law  requiring  an  inspection  of  tobacco 
Rep.  132 ;  Re  Wilson,  10  N.  M.  32,  60  Pac.  going  out  of  the  State  is  sustained.  The 
73,  48  L.  R.  A.  417.  State  cannot  tax  im-  States  cannot  discriminate  in  taxation 
ported  tea  in  original  packages.  Siegfried  between  the  productions  of  different 
v.  Raymond,  190  111.  224,  60  N.  E.  868.]  States.  Welton  v.  Missouri,  91  U.  S. 
i  Almy  v.  California,  24  How.  169.  275 ;  Tiernan  v.  Rinker,  102  U.  S.  123. 

(a)  FJThe  business  of  life  insurance  is  not  inter-state  commerce.  N.  Y.  Life  Ins.  Co. 
v.  Cravens,  178  U.  S.  389,  20  Sup.  Ct.  Hep.  962.  Nor  is  marine  insurance,  Hooper  v. 
California,  155  U.  S.  648,  15  Sup.  Ct.  Rep.  207,  5  Inters.  Com.  Rep.  610.  Nor  is  fire 
insurance.  Phila.  Fire  Asso.  r.  New  York,  119  U.  S.  110,  7  Sup.  Ct.  Rep.  108; 
Liverpool  &  L.  L.  &  Ins.  Co.  v.  Massachusetts,  10  Wall.  566;  Paul  v.  Virginia,  8  Wall. 
168;  State  v.  Phipps,  50  Kan.  609,  31  Pac.  1097,  18  L.  R.  A.  657,  34  Am.  St.  152. 
Upon  State  taxation  and  Federal  commerce  power,  see  note  to  39  L.  ed.  U.  S.  538, 
and  another  to  38  L.  ed.  U.  S.  1041 ,  also  one  to  37  L.  ed.  U.  S.  216.  Hiring  laborers  to 
be  employed  outside  the  limits  of  the  State  where  hired  is  not  commerce.  Williams 
v.  Fears,  179  U.  S.  270,  21  Sup.  Ct.  Rep.  128,  aff.  110  Ga.  584,  35  S.  E.  699.  Nor  is 
sending  goods  outside  the  State  to  have  services  performed  upon  them  and  the  goods 
thereafter  returned.  Smith  r.  Jackson,  103  Tenn.  673,  64  S.  W.  981,  47  L.  R.  A.  416. 
Nor  is  making  contracts  for  buying  and  selling  "  futures  "  in  another  State.  Alex- 
ander v.  State,  86  Ga.  246,  12  S.  E.  408,  10  L.  R.  A.  859.  A  State  statute  requiring 
the  payment  of  a  license  tax  by  a  non-resident  soliciting  orders  for  merchandise  is 
invalid,  Brennan  v.  City  of  Titusville,  153  U.  S.  289,  14  Sup.  Ct.  Rep.  829.  But  an 
agent  of  a  foreign  corporation  engaged  in  the  purchase  of  wool  to  be  shipped  to  that 
corporation  in  another  State  is  engaged  in  inter-state  commerce.  MacNaughton  Co. 
v.  McGirl,  20  Mont.  124,  49  Pac.  651,  38  L.  R.  A.  367,  63  Am.  St.  610.  Transporta- 
tion of  lottery  tickets  from  one  State  to  another  by  an  express  company  is  inter-state 
commerce.  Champion  v.  Ames,  —  U.  S.  — ,  23  Sup.  Ct.  Rep.  321.  For  other  cases 
upon  what  constitutes  "commerce,"  see  Gibbons  v.  Ogden,  9  Wheat.  1,  and  cases  cited 
in  the  opinion  in  Champion  v.  Ames,  supra.  For  cases  sustaining  the  anti-trust  act 
of  1890  under  the  commerce  clause,  see  United  States  v.  Joint-Traffic  Assn.,  171  U.  S. 
505;  Addyston  Pipe  &  S.  Co.  r.  United  States,  175  U.  S.  211;  United  States  v.  North- 
ern Securities  Co.,  120  Fed.  Rep.  721-3 


688 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


to  be  mere  aids  to  commerce,  for  which  special  regulations  can 
more  effectually  provide ;  such  as  harbor  pilotage,  beacons,  buoys, 
the  improvement  of  navigable  waters  within  the  State,  and  the 
examination  as  to  their  fitness  of  railroad  employees,  provided 
such  legislation  does  not  conflict  with  the  regulations  made  by 
federal  law.1  Except  as  to  such  matters  the  power  of  Congress 
over  commerce  with  foreign  nations  and  among  the  several  States 
is  exclusive.  If  Congress  has  made  no  express  regulations  with 
regard  to  such  commerce,  its  inaction  is  equivalent  to  a  declara- 
tion that  it  shall  be  free.2  The  States,  therefore,  can  enforce  no 
regulations  which  make  foreign  or  inter-state  commerce  subject 
to  the  payment  of  tribute  to  them.3  Duties  of  tonnage  the  States 


1  Cooley   v.   Board    of    Wardens,   12 
How.  299;   Wilson  v.  Blackbird   Creek 
Marsh  Co.,  2  Pet.  245;  Oilman  v.  Phil- 
adelphia, 3    Wall.   713;    Ex  parte    Mc- 
Niel,  13  Wall.   236;   Henderson  v.  New 
York,  92  U.  S.  259 ;  Wilson  v.  McNamee, 
102  U.  S.  672;  Mobile   v.  Kiraball,  102 
U.  S.  691;  Escanaba  Co.  i?.  Chicago,  107 
U.  S.  678,  2  Sup.  Ct.  Rep.  185 ;  Huse  v. 
Glover,  119  U.  S.  543,  7  Sup.  Ct.  Rep. 
313 ;  Willamette  Iron  B.  Co.  v.  Hatch,  125 
U.  S.  1,  8  Sup.  Ct.  Rep.  811 ;   Smith  v. 
Alabama,  124  U.  S.  465,  8  Sup.  Ct.  Rep. 
564;  Nashville,  C.  &  St.   L.   Ry.  Co.  v. 
State,  128  U.  S.  96,  9  Sup.  Ct.  Rep.  28. 
A  statute  discriminating  as  to  pilotage 
in  favor  of   vessels  from  certain  States 
is  bad.     Spraigue  v.  Thompson,  118  U.  S. 
90,  6  Sup.  Ct.  Rep.  988.    Until  Congress 
acts,    State  quarantine   regulations    are 
valid,  and  an  examination   fee  may  be 
charged  graded  by  the  kind  of  vessel. 
Morgan's    S.    S.   Co.   v.  Louisiana,   118 
U.  S.  455,  6  Sup.  Ct.  Rep.  1114.     See 
Train   v.   Boston    Disinfecting  Co.,   144 
Mass.  623,  11  N.  E.  929.     QBut  a  State 
or  municipal    license   tax    levied    upon 
tugs  engaged  in  towing  vessels  engaged 
in  inter-state  commerce  in  the  river  and 
harbor  of  Chicago  is  bad.     Harmon   v. 
Chicago,  147  U.  S.  396,  13  Sup.  Ct.  Rep. 
306 ;  and  see  in  this  connection  note  to 
this  case  in  37  L.  ed.  U.  S.  216,  on  State 
statutes  and  regulation  of  inter-state  com- 
merce ;  also  St.  Louis  v.  Cons.  Coal  Co., 
158  Mo.  342,  59  S.  W.  103,  51  L.  R.  A. 
850.] 

2  Welton  v.  Missouri,  91  U.  S.  275; 
Brown  v.  Houston,  114  U.  S.  622,  5  Sup. 
Ct.  Rep.  1091;  Walling  ».  Michigan,  116 
U.  S.  446,  6  Sup.  Ct.  Rep.  454 ;  Robbins 


v.  Shelby  Taxing  Dist.,  120  U.  S.  489,  7 
Sup.  Ct.  Rep.  592;  Phil.  S.  S.  Co.  v. 
Pennsylvania,  122  U.  S.  326,  7  Sup.  Ct. 
Rep.  1118. 

8  In  Brown  v.  Maryland,  12  Wheat. 
419,  441,  it  was  held  that  a  license  fee  of 
fifty  dollars,  required  by  the  State  of  an 
importer  before  he  should  be  permitted 
to  sell  imported  goods,  was  unconstitu- 
tional, as  coming  directly  in  conflict  with 
the  regulations  of  Congress  over  com- 
merce. So  a  tax  on  the  amount  of  an 
auctioneer's  sales  was  held  inoperative  so 
far  as  it  applied  to  sales  of  imported 
goods  made  by  him  in  the  original  pack- 
ages for  the  importer.  Cook  v.  Pennsyl- 
vania, 97  U.  S.  566.  So  is  any  tax  which 
discriminates  against  imported  goods. 
Tiernan  v.  Rinker,  102  U.  S.  123.  After 
property  brought  from  another  State  has 
become  part  of  the  property  in  a  State,  it 
may  be  taxed  like  other  property  there : 
Brown  v.  Houston,  114  U.  S.  622,  6  Sup. 
Ct.  Rep.  1091 ;  fJPittsburg  &  S.  Coal  Co.  v. 
Bates,  15f>  U.  S.  577,  15  Sup.  Ct.  Rep. 
415;  Singer  Mfg.  Co.  v.  Wright,  97 
Ga.  114,  25  S.  E.  249,  35  L.  R.  A.  497  Q 
but  not,  if  it  is  taxed  by  reason  of  its 
being  so  brought.  Welton  v.  Missouri, 
91  U.  S.  275.  See  Phila.  S.  S.  Co.  v. 
Pennsylvania,  122  U.  S.  326,  7  Sup.  Ct. 
Rep.  1118.  A  tax  upon  receipts  from  the 
transportation  of  goods  from  one  State  to 
another  by  rail  is  bad.  Case  of  State 
Freight  Tax,  15  Wall.  232;  Fargo  v. 
Michigan,  121  U.  S.  230,  7  Sup.  Ct.  Rep. 
857.  So  is  one  upon  the  gross  receipts 
from  transportation  by  sea  between  differ- 
ent States,  or  to  and  from  foreign  coun- 
tries :  Phila.  S.  S.  Co.  v.  Pennsylvania, 
122  U.  S.  326,  7  Sup.  Ct.  Rep.  1118;  im- 


CH.  XIV.]  THE   POWER    OF   TAXATION.  689 

are  also  forbidden  to  lay.1     The  meaning  of  this  seems  to  be  that 


pairing  the  force  of  Case  of  Tax  on 
Kailway  Gross  Receipts,  15  Wall.  284; 
one  upon  gross  receipts  of  car  companies 
derived  from  inter-state  business  ;  State 
v.  Woodruff,  &c.  Co.,  114  Ind.  155,  15 
N.  E.  814.  See  Central  R.  R.  Co.  v. 
Board  of  Assessors,  49  N.  J.  L.  1,  7  All. 
306.  So  is  a  privilege  tax  upon  cars  used 
as  instruments  of  inter-state  commerce. 
Pickard  v.  Pullman,  &c.  Co.,  117  U.  S.  34, 
6  Sup.  Ct.  Rep.  635.  So  is  the  tax  upon 
the  capital  stock  of  a  foreign  ferry  corpo- 
ration engaged  in  such  commerce,  which 
lands  and  receives  passengers  and  freight 
within  the  State.  Gloucester  Ferry  Co. 
v.  Pennsylvania,  114  U.  S.  196,5  Sup.  Ct. 
Rep.  826.  So  is  one  on  all  telegraph 
messages  sent  out  of  a  State.  Telegraph 
Co.  v.  Texas,  105  U.  S.  460.  See  Ratter- 
man  v.  W.  U.  Tel.  Co.,  127  U.  S.  411, 
8  Sup.  Ct.  Rep.  1127.  A  State  may  not 
exact,  as  a  condition  of  duing  business, 
a  license  from  a  company,  a  large  part 
of  whose  business  is  the  transmission  of 
inter-state  telegrams.  Leloup  v.  Port  of 
Mobile,  127  U.  S.  640,  8  Sup.  Ct.  Rep. 
1380.  fJBut  it  may  exact  a  license  fee 
from  an  express  company  engaged  in 
inter-state  commerce  before  permitting  it 
to  do  local  business.  Osborne  v.  Florida, 
164  U.  S.  650,  17  Sup.  Ct.  Rep.  214,  aff. 
33  Fla.  162,  14  So.  588,  25  L.  It.  A.  120, 
39  Am.  St.  99,  4  Inters.  Cora.  Rep.  731. 
And  may  tax  such  company  upon  its 
gross  receipts  from  business  done  entirely 
within  the  State.  Pacific  Exp.  Co.  v.  Sei- 
bert,  142  U.  S.  339, 12  Sup.  Ct.  Rep.  250. 
Likewise  with  telegraph  companies. 
Postal  Tel.  Cable  Co.  v.  City  Council  of 
Charleston,  153  U.  S.  692, 14  Sup.  Ct.  Rep. 
1094  ;  Western  Un.  Tel.  Co.  v.  Freemont, 
39  Neb.  692,  58  N.  W.  415,  43  Neb.  499, 
61  N.  W.  724,  26  L.  R.  A.  698,  706.  See, 
in  this  connection,  Postal  Tel.  Cable  Co. 
v.  Richmond,  99  Va.  102,  37  S.  E.  789. 
^  And  a  charge  of  five  dollars  per  annum 
for  each  pole  planted  by  an  inter-state 
telegraph  company  in  a  city's  streets  is 
not  a  tax  on  inter-state  commerce,  but  a 
rental  charged  for  use  of  the  streets,  and 
is  valid.  St.  Louis  v.  W.  U.  Tel.  Co., 
148  U.  S.  92,  13  Sup.  Ct.  Rep.  485  ;  s.  c. 
aff.  149  U.  S.  465,  13  Sup.  Ct.  Rep.  990. 
Taking  orders  by  sample  and  sending 


them  to  principal  in  another  State  by 
whom  they  are  filled,  is  inter-state  com- 
merce. Re  Spain,  47  Fed.  Rep.  208,  14 
L.  11.  B.  97,  and  note  ;  Brennan  v.  Titus- 
ville,  158  U.  S.  289,  14  Sup.  Ct.  Rep. 
829,  4  Inters.  Cum.  R.  658 ;  and  see,  in 
this  connection,  Re  Houston,  47  Fed.  Rep. 
539,  14  L.  R.  A.  719 ;  Re  White,  43  Fed. 
Rep.  913,  11  L.  R.  A.  284;  McLaughlin 
v.  South  Bend,  126  Ind.  471,  26  N.  E. 
185,  10  L.  R.  A.  357  ;  French  v.  State,  — 
Tex.  Cr.  Ap.  — ,  58  S.  W.  1015, 52  L.  R.  A. 
160 ;  State  v.  Willingham,  9  Wyo.  290,  62 
Pac.  797,  52  L.  R.  A.  198.  Stockard  v. 
Morgan,  105  Tenn.  412,  58  S.  W.  1061, 
holds  that  a  merchandise  broker  repre- 
senting only  non-resident  principals  is 
subject  to  a  State  tax  on  occupation 
and  is  not  engaged  in  inter-state  com- 
merce, but  this  case  was  afterward  re- 
versed in  the  Supreme  Court  of  the 
United  States,  see  Stockard  v.  Morgan, 
185  U.  S.  27,  22  Sup.  Ct.  Rep.  576.  But 
where  the  agent  carries  the  goods  with 
him  and  sells  them,  he  is  subject  to 
the  State  law.  Emert  v.  Missouri,  156 
U.  S.  296,  15  Sup.  Ct.  Rep.  367,  aff.  103 
Mo.  241, 15  S.  W.81,  3  Inters.  Com.  Rep. 
627,  11  L.  R.  A.  219,  23  Am.  St.  874 ; 
Rash  v.  Farley,  91  Ky.  344, 15  S.  W.  862. 
Also  where  he  forwards  the  orders,  and 
the  goods  are  shipped  to  him  in  bulk,  and 
he  breaks  bulk  and  distributes  them. 
Racine  I.  Co.  v.  McCommons,  111  Ga. 
536,  36  S.  E.  866,  51  L.  R.  A.  134;  Camp 
v.  State,  — Tex.  Cr.  Ap.— ,  61  S.  W. 
401  (Feb.  13,  1901) ;  Croy  v.  Epperson, 
104  Tenn.  525,  58  S.  W.  235;  State  v. 
Caldwell,  127  N.  C.  521,  37  S.  E.  138. 
State  may  tax  the  corporate  franchise  of 
a  company  organized  under  its  laws, 
although  that  company  is  engaged  in  inter- 
state commerce.  People  v.  Wemple,  117 
N.  Y.  136,  22  N.  E.  1046,  6  L.  R.  A.  303, 
and  note.]  That  is  not  domestic  com- 
merce which  in  going  between  ports  of 
the  same  State  passes  more  than  a  marine 
league  from  shore.  Pacific  Coast  S.  S. 
Co.  v.  Board  R.  R.  Com'rs,  18  Fed.  Rep. 
10.  Compare  Com.  v.  Leliigh  Valley 
R.  R.  Co.,  129  Pa.  St.  308,  18  Atl.  126. 
£Aff.  in  Lehigh  V.  R.  Co.  v.  Pennsylvania, 
145  U.  S.  1 92, 12  Sup.  Ct.  Rep.  806,  holding 
that  the  domestic  character  of  the  com- 


Const,  of  U.  S.  art.  1,  §  10,  cl.  2. 
44 


690 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIV. 


vessels  must  not  be  taxed  as  vehicles  of  commerce,  according 


merce  between  termini  in  the  same  State 
is  not  destroyed  by  the  fact  that  in  the 
carriage  of  tlie  passengers  and  the  goods, 
a  portion  of  the  route  traversed  lies  in 
another  State,  thus  reversing  the  rule  of 
18  Fed.  Rep.  10,  above.  In  L.  V.  R.  Co. 
v.  Pa.,  above,  the  tax  was  levied  upon 
receipts,  and  an  apportionment  upon  a 
mileage  basis  of  receipts  from  domestic 
commerce,  a  portion  of  whose  route  lay 
without  the  State,  was  sustained/]  For 
further  discussion  of  this  subject,  see 
New  York  v.  Miln,  11  Pet.  102;  License 
Cases,  5  How.  504 ;  Lin  Sing  v.  Wash- 
burn,  20  Cal.  534;  Erie  Railway  Co.  v. 
New  Jersey,  81  N.  J.  531,  rev.  30  N.  J. 
473;  Pennsylvania  R.  R.  Co.  v.  Common- 
wealth, 3  Grant,  128  ;  Hinson  v.  Lott,  40 
Ala.  123 ;  Commonwealth  v.  Erie  R.  R., 
62  Pa.  St.  286;  Osborne  v.  Mobile,  44 
Ala.  493 ;  s.  c.  in  error,  16  Wall.  479 ; 
State  v.  Philadelphia,  &c.  R.  R.  Co.,  45 
Md.  361 ;  Walcott  v.  People,  17  Mich.  68. 
In  Crandall  v.  Nevada,  6  Wall.  35,  it  was 
held  that  a  State  law  imposing  a  tax  of 
one  dollar  on  each  person  leaving  the 
State  by  public  conveyance  was  not  void 
as  coming  in  conflict  with  the  control  of 
Congress  over  commerce,  though  set 
aside  on  other  grounds.  Logs  belonging 
to  a  non-resident  are  liable  to  be  taxed 
though  intended  for  transportation  to 
another  State,  and  partially  prepared  for 
it  by  being  deposited  at  the  place  of  ship- 
ment. Coe  v.  Errol,  116  U.  S.  617, 0  Sup. 
Ct.  Rep.  475.  See  Com'rs  Brown  Co.  v. 
Standard  Oil  Co.,  103  Ind.  302,  2  N.  E. 
758.  On  the  subject  of  inter-state  com- 
merce, see  further,  pp.  846,  851-859,  873, 
post.  Cooley  on  Taxation,  61-64.  QUpon 
power  of  States  over  inter-state  telegraph 
and  telephone  companies,  see  Postal  Tel. 
Cable  Co.  v,  Baltimore,  79  Md.  502,  29 
Atl.  819,  24  L.  R.  A.  161,  and  note;  and 
In  re  Pennsylvania  Telephone  Co.,  48 
N.  J.  Eq.  91,  20  Atl.  816.  Municipal 
license  tax  levied  upon  tugs  engaged  in 
towing  boats  engaged  in  inter-state  com- 
merce is  void.  Harmon  v.  Chicago,  147 
U.  S.  396,  13  Sup.  Ct.  Rep.  306,  and  see 
also  note  to  this  case  in  37  L.  ed.  U.  S. 
216,  upon  State  statutes  and  inter-state 
commerce.  Railroad  corporation  engaged 
in  iuter-state  commerce  may  send  its 
agent  into  any  State  there  to  secure  such 
commerce  to  his  principal,  and  the  State 


cannot  exact  of  him  a  license  fee  for  the 
transaction  of  such  business.  McCall  v. 
California,  136  U.  S.  104,  10  Sup.  Ct.  Rep. 
881 ;  Norfolk  &  W.  R.  Co.  v.  Pennsylvania, 
136  U.  S.  114,  394,  10  Sup.  Ct.  Rep.  958. 
Sheep  driven  through  a  State  for  purpose 
of  grazing,  as  well  as  to  reach  another 
State,  are  taxable  in  first  State,  even 
though  they  remain  but  a  short  time. 
Kelley  v.  Rhodes,  7  Wyo.  237,  51  Pac. 
593,  39  L.  R.  A.  594;  s.  c.  9  Wyo. 
352,  63  Pac.  935.  License  tax  upon 
those  engaged  in  packing  oysters  for  sale 
or  transportation  is  valid,  even  though 
oysters  are  intended  to  be  shipped  out 
of  the  State.  State  v.  Applegarth,  81 
Md.  293,  31  Atl.  961,  28  L.  R.  A.  812. 
State  may  tax  corporate  franchise  of  a 
domestic  corporation,  even  though  the 
corporation  is  organized  to  carry  on  in- 
ter-state commerce.  State  v.  Bd.  of 
Assessors,  55  N.  J.  L.  529,  26  Atl.  711, 
25  L.  R.  A.  134.  One  selling  merchandise 
that  is  in  a  foreign  State  is  engaged  in 
inter-state  commerce  and  cannot  be  com- 
pelled to  pay  a  license.  Adkins  v.  Rich- 
mond, 98  Va.  91,  34  S.  E.  967.  In 
Western  Union  T.  Co.  v.  New  Hope, — 
U.  S.  — ,  23  Sup.  Ct.  Rep.  204,  an  ordi- 
nance requiring  a  license  fee  of  $1.00  per 
pole,  and  -^2.50  per  mile  of  wire,  was  sus- 
tained though  imposed  upon  poles  and 
wires  used  in  inter-state  business.  For 
oilier  cases  upon  inter-state  commerce  and 
State's  power  of  taxation,  see  Singer  Mfg. 
Co.  v.  Wright,  97  Ga.  114,  25  S.  E.  249,  35 
L.  R.  A.  497;  Commonwealth  v.  Myers, 
92  Va.  809,  23  S.  E.  915,  31  L.  R.  A.  379; 
Carrollton  v.  Bazzette,  159  111.  284,  42 
N.  E.  837,  31  L.  R.  A.  522 ;  San  Bernar- 
dino v.  Southern  Pac.  Co.,  107  Cal.  524, 
40  Pac.  796,  29  L.  R.  A.  327  ;  South  Bond 
v.  Martin,  142  Ind.  31,  41  N.  E.  315,  29 
L.  R.  A.  531 ;  Commonwealth  v.  Harmel, 
166  Pa.  89,  30  Atl.  1036,  27  L.  R.  A.  388; 
Wind  v.  Her  &  Co.,  93  Iowa,  316,  61  N.  W. 
1001,  27  L.  R.  A.  219  ;  Leavell  v.  Western. 
U.  Tel.  Co.,  116  N.  C.  211,  21  S.  E.  391, 
27  L.  R.  A.  843  ;  State  v.  Bd.  of  Asses- 
sors, 57  N.  J.  L.  516,  31  Atl.  220,  27 
L.  R.  A.  684  ;  State  v.  Gorham,  115  N.  C. 
721,  20  S.  E.  179,  25  L.  R.  A.  810  ;  Coit 
v.  Sutton,  102  Mich.  324,  60  N.  W.  690, 
25  L.  R.  A.  819;  Georgia  Packing  Co. 
v.  Macon,  60  Fed.  Rep.  774,  4  Inters. 
Com.  Rep.  50S,  22  L.  R.  A.  775;  San 


CH.  XIV.] 


THE    POWER   OF   TAXATION. 


691 


to  capacity ; l  but  it  is  admitted  they  may  be  taxed  like  other 
property.2 


Francisco  v.  Western  U.  Tel.  Co.,  96  Cal. 
140,  31  Pac.  10,  17  L.  U.  A.  301 ;  Rother- 
mel  v.  Meyerle,  136  Pa.  250,  20  Atl.  583, 
9  L.  R.  A.  366,  and  note  ;  State  v.  Zophy, 
14  S.  D.  119,  84  N.  W.  391,  State  v.  Omaha 

6  C.  B.  R.  &  B.  Co.,  113  Iowa,  30,  84 
N.  W.  983.3 

1  Cannon   r.    New    Orleans,  20  Wall. 
677;   Huse   v.  Glover,  119  U.  S.  543,  7 
Sup.  Ct  Rep.  313.     See  Steamship  Co. »;. 
Port  Wardens,  6  Wall.  31 ;  State  Tonnage 
Tax  Cases,  12  Wall.  204 ;  Inman  Steam- 
ship Co.  v.  Tinker,  94  U.  S.  238;  Lott  v. 
Morgan,  41  Ala.  246;  Johnson  v.  Drum- 
mond,  20  Gratt.  419 ;  State  v.  Charleston, 
4  Rich.  286 ;  Johnson  i\  Ix>per,  46  N.  J.  L. 
321.     A  license  tax  upon  the  business  of 
running  a  ferry  between  two  States  is 
not  a  tonnage  tax.     Wiggins  Ferry  Co. 
v.  East  St.  Louis,  107  U.  S.  365,  2  Sup. 
Ct.  Rep.  257.   But  such  tax  upon  running 
towboats  between  New  Orleans  and  the 
Gulf  is  a  regulation  of  commerce.   Moran 
v.  New  Orleans,  112  U.  S.  69,  5  Sup.  Ct. 
Rep.  38.    Tolls  based  on  tonnage  may  be 
charged  for  the  use  of  improved  water- 
ways.     Huse  v.  Glover,  119  U.  S.  543, 

7  Sup.  Ct.  Rep.  313.     Port  dues  may  not 
be    laid    unless    services    are   rendered. 
Harbor  Com'rs  v.  Pashley,  19  S.  C.  315; 
Webb  v.  Dunn,  18  Fla.  721. 

2  See  above  cases.    Also  Peete  v.  Mor- 
gan, 19  Wall.  581;  Transportation  Co.  v. 
Wheeling,  99  U.  S.  273 ;  £N.  W.  Lumber 
Co.  v.  Chehalis  County,  24  Wash.  626,  64 
Pac.  909.]     Wharfage  charges  are   not 
forbidden  by   the   above   clause  of   the 
Constitution  :  Marshall  v.  Vicksburg,  15 
Wall.   146;   Packet   Co.   v.   Keokuk,  95 
U.  S.  80;  Packet  Co.  v.  St.  Louis,  100 
U.  S.  423 ;  Vicksburg  v.  Tobin,  100  U.  S. 
430 ;  and  they  may  be  measured  by  ton- 
nage.    Packet  Co.   v.   Catlettsburg,   105 
U.  S.  559 ;  Transportation  Co.  v.  Parkers- 
burg,  107  U.  S.  091,  2  Sup.  Ct.  Rep.  732. 
fjAs  to  inter-state  bridges,  see  Keokuk  & 
H.  Bridge  Co.  v.  Illinois,  175  U.  S.  626, 
20  Sup.  Ct.  Rep.  205.     The  State  may 
tax  the  average  number  of  refrigerator 
cars  used  within  its  borders,  even  though 
they  are  owned  outside  the  State  and  are 
engaged  in  inter-state  commerce.     Union 
Ref.  Transit  Co  v.  Lynch,  177  U.  S.  149, 
20  Sup.  Ct.  Rep.  631 ;  aff.  18  Utah  378, 


55  Pac.  639,  48  L.  R.  A.  790;  Am.  Refr. 
Transit  Co.  v.  Hall,  174  U.  S.  70,  19  Sup. 
Ct.  Rep.  599.  Upon  State  taxes  and  com- 
merce, see  notes  to  39  L.  ed.  U.  S.  538, 
24  C.  C.  A.  21,  8  C.  C.  A.  492,  13  L.  R.  A. 
686,  11  L.  R.  A.  179,  and  9  L.  R.  A.  366. 
State  may  tax  capital  employed  within 
its  limits,  even  though  part  of  the  business 
conducted  is  inter-state  commerce.  People 
v.  Roberts,  171  U.  S.  658,  19  Sup.  Ct.  Rep. 
58 ;  aff.  91  Hun,  158,  149  N.  Y.  608,  44 
N.  E.  1127.  Although  the  control  of 
navigable  waters  used  for  inter  state  com- 
merce is  in  Congress,  yet  the  State  that 
owns  the  soil  underneath  is  not  thereby 
prohibited  from  taxing  structures  erected 
thereon ;  it  may  also  delegate  this  power 
of  taxation  to  a  municipality.  Hender- 
son Bridge  Co.  v.  Henderson,  173  U.  S. 
592, 19  Sup.  Ct.  Rep.  877  ;  aff.  99  Ky.  623, 
36  S.  W.  561.  Upon  relation  between 
State  power  of  taxation  and  Federal 
control  of  commerce,  note  to  37  L.  ed. 
U.  S.  216.  In  the  taxation  of  companies 
engaged  in  inter-state  commerce,  such  as 
railway,  telegraph,  telephone,  and  express 
companies,  and  the  like,  a  State  is  not 
restricted  to  the  tangible  property  of  such 
companies  within  its  borders,  but  may 
tax  in  addition  an  equitable  proportion  of 
the  intangible  property  of  such  companies 
used  in  such  business,  even  though  the 
companies  are  chartered  by  other  States 
or  countries,  and  have  their  principal 
office  outside  the  taxing  State.  Exactly 
what  rules  shall  be  followed  in  the  valua- 
tion of  such  intangible  property,  and  its 
apportionment  among  the  various  States 
in  which  such  companies  operate,  is  not 
very  well  settled.  See  the  whole  subject 
exhaustively  discussed  in  Adams  Express 
Co.  v.  Ohio  State  Auditor,  165  U.  S.  194, 
17  Sup.  Ct.  Rep.  305 ;  s.  c.  in  61  Fed.  Rep. 
449,  470,  51  Ohio  St.  492,  37  N.  E.  945, 
64  Fed.  Rep.  9,  37  U.  S.  Ap.  378,  399,  69 
Fed.  Rep.  546,  557.  See  also  Western  U. 
Tel  Co.  r.  Taggart,  163  U.  S.  1, 16  Sup.  Ct. 
Rep.  1054  ;  aff.  141  Ind.281,  40  N.  E.  1051 ; 
Cleveland,  C.,  C.  &  St.  L.  R.  Co.  v.  Backus, 
154  U.  S  439,  14  Sup.  Ct.  Rep.  1122; 
4  Int  St.  Com.  R.  671 ;  Pittsburg,  C.,  C. 
&  St.  L.  R.  Co.  v.  Backus,  154  U.  S.  421, 
14  Sup.  Ct.  Rep.  1114;  Massachusetts  v. 
W.  U.  Tel.  Co.,  141  U.  S.  40,  11  Sup.  Ct. 


692 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIV. 


It  is  also  believed  that  that  provision  in  the  Constitution  of  the 
United  States,  which  declares  that  "  the  citizens  of  each  State 


Rep.  889;  Pullman's  Palace  Car  Co.  v. 
Pennsylvania,  141  U.  S.  18,  11  Sup.  Ct. 
Rep.  876,  3  Int.  St.  Com.  R.  595 ;  Western 
U.  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530, 
8  Sup.  Ct.  Rep.  961 ;  Henderson  Bridge 
Co.  v.  Kentucky,  166  U.  S.  150,  17  Sup. 
Ct.  Rep.  532 ;  Adams  Express  Co.  v. 
Kentucky,  166  U.  S.  171, 17  Sup.  Ct.  Rep. 
527;  and  in  particular,  see  Adams  Express 
Co.  v.  Ohio  State  Auditor,  106  U.  S.  185, 
17  Sup.  Ct.  Rep.  604,  in  which  Mr.  Justice 
Brewer,  in  delivering  the  opinion  of  the 
court  denying  a  petition  for  a  rehearing 
of  165  U.  S.  194,  lays  down  the  very 
sensible  proposition  that  "  it  is  a  cardinal 
rule  which  should  never  be  forgotten,  that 
whatever  property  is  worth  for  the  pur- 
poses of  income  and  sale,  it  is  worth  for 
the  purposes  of  taxation."  See  also 
State,  Guilbert  v.  Halliday,  58  Ohio  St. 
728,  51  N.  E.  1102,  49  L.  R,  A.  427.  The 
principle  regulating  the  relation  between 
the  taxing  power  of  the  States  and  the 
commerce  power  of  Congress,  is  stated 
by  Mr.  Chief  Justice  Fuller  in  Postal 
Telegraph  Co.  v.  Adams,  155  U.  S.  688, 
15  Sup.  Ct.  Rep.  268,  360 ;  aff.  71  Miss. 
555,  14  So.  36,  4  Inter.  Com.  R.  416,  42 
Am.  St.  476,  as  follows:  "Property  in  a 
State  belonging  to  a  corporation,  whether 
foreign  or  domestic,  engaged  in  foreign 
or  inter-state  commerce,  maybe  taxed,  or 
a  tax  imposed  on  the  corporation  on 
account  of  its  property  within  a  State, 
and  may  take  the  form  of  a  tax  for  the 
privilege  of  exercising  its  franchises  with- 
in the  State,  if  the  ascertainment  of  the 
amount  is  made  dependent  in  fact  on  the 
value  of  its  property  situated  within 
the  State  (the  exaction  therefor  not  being 
susceptible  of  exceeding  the  sum  which 
might  be  leviable  directly  thereon),  and 
if  payment  be  not  made  a  condition  pre- 
cedent to  the  right  to  carry  on  the  busi- 
ness, but  its  enforcement  left  to  the 
ordinary  means  devised  for  the  collection 
of  taxes."  This  is  reaffirmed  in  New 
York,  L.  E.  &  W.  R.  Co.  v.  Pennsylvania, 
158  U.  S.  431, 15  Sup.  Ct.  Rep.  896,  which 
sustained  a  tax  upon  tolls  received  by  a 
lessor  of  a  railroad  from  a  lessee  engaged 
in  inter-state  commerce.  See  note  upon 
State  tax  laws  and  inter-state  commerce, 
in  39  L.  ed.  U.  S.  311,  and  another  to 


38  L.  ed.  U.  S.  1041.  Two  other  very 
important  cases  upon  the  "  unit  rule  "  in 
taxation  of  properties  lying  in  two  or 
more  States,  are  Pittsburg,  C.,  C.  &  St.  L. 
R.  Co.  v.  Backus,  154  U.  S.  421,  14  Sup. 
Ct.  Rep.  1114,  and  Cleveland,  C.,  C.  &  St. 
L.  R.  Co.  v.  Backus,  154  U  S.  439, 1041, 14 
Sup.  Ct.  Rep.  1T22.  The  intangible  pro- 
perty taxable  within  the  State  may  be 
apportioned  by  the  State,  for  purposes  of 
county  taxation,  among  the  counties  into 
or  through  which  the  railway  extends. 
Columbus  S.  R.  Co.  v.  Wright,  151  U.  S. 
470,  14  Sup.  Ct.  Rep.  396,  aff.  89  Ga.  574, 
15  S.  E.  293.  See  also  Pullman's  P.  C. 
Co.  v.  Hayward,  141  U.  S.  36,  11  Sup.  Ct. 
Rep.  883.  Where  the  tangible  property 
in  the  State  consists  entirely  of  railway 
coaches  running  into  or  through  the  State, 
the  property  in  the  State  may  be  valued 
by  taking  such  fraction  of  the  total  capital 
stock  of  the  company  as  the  miles  of  road 
over  which  it  runs  its  coaches  in  the  State 
are  of  the  total  number  of  miles  of  road 
over  which  it  runs  his  coaches.  Pullman's 
P.  C.  Co.  v.  Pennsylvania,  141  U.  S.  18, 
11  Sup.  Ct.  Rep.  876.  And  a  State  may 
levy  an  excise  tax  upon  a  railroad  opera- 
ting within  its  borders,  and  such  excise 
may  be  proportioned  upon  a  graduated 
scale  to  the  gross  receipts  of  such  road 
derived  within  the  State,  such  gross 
receipts  being  determined  from  the  total 
gross  receipts  for  the  entire  system,  with- 
in and  without  the  State,  from  local, 
inter-state,  and  foreign  commerce,  by  the 
application  of  a  track  mileage  ratio. 
Maine  v.  Grand  Trunk  R.  Co.  of  Canada, 
142  U.  S.  217,  12  Sup.  Ct.  Rep.  121,  163; 
Cumberland  &  P.  R.  Co.  v.  State,  92  Md. 
668,  48  All.  503.  And  the  State  may  en- 
force the  payment  of  all  such  taxes  by 
the  imposition  of  whatever  penalties  it 
may  see  fit  to  prescribe  by  general  law. 
A  penalty  of  50  %  and  attorneys'  fees 
was  sustained  in  Western  U.  Tel.  Co.  v. 
Indiana,  165  U.  S.  304,  17  Sup.  Ct.  Rep. 
345,  aff.  146  Ind.  54,  44  N.  E.  793.  State 
cannot  require  a  foreign  corporation  to 
pay  a  license  before  engaging  in  inter-state 
commerce  within  its  borders.  Crutcher 
v.  Kentucky,  141  U.  S.  47,  11  Sup. 
Ct.  Rep.  851.  Nor  can  it  make  mandatory 
and  conclusive  any  arithmetical  rule  for 


CH.  XIV.] 


THE    POWER   OF   TAXATION. 


693 


shall  be  entitled  to  all  the  privileges  and  immunities  of  the  citi- 
zens of  the  several  States,"  1  will  preclude  any  State  from  impos- 
ing upon  the  property  which  citizens  of  other  States  may  own,  or 
the  business  which  they  may  carry  on  within  its  limits,  any  higher 
burdens  by  way  of  taxation  than  are  imposed  upon  corresponding 
property  or  business  of  its  own  citizens.  This  is  the  express 
decision  of  the  Supreme  Court  of  Alabama,2  following  in  this 
particular  the  dictum  of  an  eminent  federal  judge  at  an  early  day,3 
and  the  same  doctrine  has  been  recently  affirmed  by  the  federal 
Supreme  Court.4  As  the  States  are  forbidden  to  pass  any  laws 


the  determination  of  that  portion  of  the 
intangible  property  of  an  inter-state  busi- 
ness to  be  assessed  as  being  within  the 
State.  Such  rule  is  to  be  considered 
merely  directory  and  presumptive.  Wells, 
F.  &  Co.'s  Express  r.  Crawford  County, 
63  Ark.  576,  40  S.  W.  710,  37  L.  R.  A. 
371.  Business  of  a  foreign  railroad  com- 
pany having  only  terminal  facilities  in 
the  State  cannot  be  taxed  by  the  State. 
People  v.  Wemple,  138  N.  Y.  1,  33  N.  E. 
720,  19  L.  R.  A.  694.  The  intangible 
capital  of  steamship  companies  may  be 
distributed  among  the  States  in  proportion 
to  their  tangible  propriety.  Beaufort  Co. 
Com'rs  v.  Old  Dominion  S.  S.  Co.,  128 
N.  C.  558,  39  S.  E.  18.  Cost  of  construc- 
tion, cost  of  replacement,  connections 
with  other  roads,  and  other  commercial 
advantages,  rental  value,  net  earnings, 
and  market  value  of  stocks  and  bonds 
should  all  be  considered  in  assessing 
railroad  property.  Oregon  &  C.  R.  Co. 
v.  Jackson  County,  38  Oreg.  589,  64  Pac. 
307,  65  Pac.  369.  For  other  cases  upon 
assessment  of  railroad  property,  see  State 
i'.  Virginia  &  T.  R.  Co.,  23  Nev.  283,  46 
Pac.  723,  35  L.  R.  A.  759 ;  Detroit  City 
St.  R.  Co.  v.  Common  Council,  125  Mich. 
673,  85  N.  W.  96,  86  N.  W.  809.] 

1  Art.  4,  §  2.  A  license  tax  may  not 
be  imposed  upon  one  who  contracts  with 
or  induces  laborers  to  leave  a  State. 
Joseph  v.  Randolph,  71  Ala.  499.  fj Con- 
tra, Williams  v.  Fears,  179  U.  S.  270,  21 
Sup.  Ct.  Rep.  128,  aff.  110  Ga.  320,  35  S. 
E.  699.  A  license  tax  upon  buyers  who 
come  into  a  certain  county  to  buy  pro- 
duce therein  for  shipment  to  markets 
outside  the  county  is  not  repugnant  to 
the  equal  privileges  clause.  Rothermel 
v.  Meyerle,  136  Pa.  250,  20  Atl.  583,  9 
L.  R.  A.  366  ] 

*  Wiley  v,  Parmer,  14  Ala.  627. 


8  Washington,  J.,  in  Corfield  v.  Coryell, 
4  Wash.  C.  C.  371,  380.  And  see  Camp- 
bell v.  Morris,  3  H.  &  Mcll.  554;  Ward 
v.  Morris,  4  H.  &  McH.  340 ;  and  other 
cases  cited,  ante,  p.  37,  note.  See  also 
Oliver  v.  Washington  Mills,  11  Allen,  268, 

*  Ward  v.  Maryland,  12  Wall.  419, 
430;  Case  of  State  Tax  on  Foreign  Held 
Bonds,  15  Wall.  300.  Compare  Machine 
Co.  v.  Gage,  100  U.  S.  676.  A  State  can- 
not impose,  for  the  privilege  of  doing  busi- 
ness within  its  limits,  a  license  tax  upon 
travelling  agents  from  other  States,  offer- 
ing for  sale  or  selling  merchandise,  when 
none  is  imposed  upon  its  own  people. 
McGuire  v.  Parker,  32  La.  Ann.  832.  Or 
a  heavier  license  tax  upon  non-residents 
than  upon  residents  carrying  on  the  same 
business.  Ward  v.  Maryland,  12  Wall. 
418;  State  v.  Wiggin,  64  N.  II.  508,  15 
Atl.  128.  Nor  a  license  tax  upon  those 
dealing  in  goods,  wares,  and  merchandise 
not  the  product  of  the  State,  while  impos- 
ing none  on  similar  traders  selling  the 
products  of  the  State.  Welton  v.  Mis- 
souri, 91  U.  S.  275 ;  Walling  v.  Michigan, 
116  U.  S.  446,  6  Sup.  Ct.  Rep.  454 ;  Ex 
parte  Thomas,  71  Cal.  204.  See  GrafTty  v. 
Rushville,  107  Ind.  502,  8  N.  E.  609 ;  Mar- 
shallstown  j;.  Blum,  58  Iowa,  184, 12  N.  W. 
266;  Pacific  Junction  v.  Dyer,  64  Iowa,  38, 
19  N.  W.  862 ;  State  v.  Pratt,  59  Vt.  502, 
9  Atl.  552.  Compare  People  v.  Lyng,  74 
Mich.  579,  42  N.  W.  139  ;  rev.  in  135 
U.  S.  161,  10  Sup.  Ct.  Rep.  725.  [But  it 
may  impose  upon  such  traders  a  license 
tax,  when  it  imposes  upon  those  dealing  in 
its  own  similar  products  an  equal  tax. 
Emert  v.  Missouri,  166  U.  S.  296,  15  Sup. 
Ct.  Rep.  367,  aff.  103  Mo.  241,  15  S.  W. 
81,  3  Inters.  Com.  R.  627,  11  L.  R.  A.  219, 
23  Am.  St.  874  ;  contra,  McGraw  v.  Marion, 
98  Ky.  673,  34  S.  W.  18,  47  L.  R.  A.  593. 
That  a  license  tax  levied  upon  itinerant 


694 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


impairing  the  obligation  of  contracts,  they  are  of  course  precluded 
from  levying  any  taxes  which  would  have  that  effect.  Therefore, 
as  was  shown  in  a  previous  chapter,  if  the  State  by  any  valid 
contract  has  obligated  itself  not  to  tax  particular  property,  or  not 
to  tax  beyond  a  certain  rate,  a  tax  in  disregard  of  the  obligation 
is  void.1  It  is  also  held  that  to  tax  in  one  State  contracts  owned 
in  another  impairs  their  obligation,  even  though  they  are  made 
and  are  payable  in  the  State  imposing  the  tax,  and  are  secured 
by  mortgage  in  that  State.2 


venders  may  be  bad  as  against  non-resi- 
dents, is  no  reason  for  holding  it  void  as 
to  residents.  Brownback  v.  North  Wales, 
194  Pa.  609,  45  All.  660, 49  L.  R.  A. 
446.]  Nor  charge  vessels  loaded  with 
the  products  of  other  States  larger  fees 
for  the  use  of  the  public  wharves  than  are 
charged  vessels  loaded  with  products  of 
the  same  State.  Guy  v.  Baltimore,  100 
U.  S.  434.  See  further  Woodruff  v.  Par- 
ham,  8  Wall.  123;  Cook  v.  Pennsylvania, 
97  U.  S.  566.  "  The  negotiation  of  sales 
of  goods  which  are  in  another  State  for 
the  purpose  of  introducing  them  into  the 
State  in  which  the  negotiation  is  made  is 
inter-state  commerce,"  and  a  statute  im- 
posing a  privilege  license  upon  all  persons 
selling  by  sample  within  a  Tennessee  tax- 
ing district  is  void  as  applied  to  the 
drummer  for  an  Ohio  house,  as  interfering 
with  such  commerce,  and  this  although 
Tennessee  and  foreign  drummers  are  put 
on  the  same  footing.  Bobbins  v.  Shelby 
Taxing  District,  120  U.  S.  489,  7  Sup.  Ct. 
Rep.  692 ;  Corson  v.  Maryland,  120  U.  S. 
502,  7  Sup.  Ct.  Rep.  655;  Asher  v.  Texas, 
128  U.  S.  129,  9  Sup.  Ct.  Rep.  1 ;  State  v. 
Agee,  83  Ala.  110,  3  So.  856;  State  v. 
Bracco,  103  N.  C.  349,  9  S.  E.  404  ;  Sim- 
mons Hardware  Co.  v.  McGuire,  39  La. 
Ann.  848, 2  So.  592  ;  Fort  Scott  v.  Pelton, 
39  Kan.  764, 18  Pac.  954 ;  Ex  parte  Rosen- 
blatt, 19  Nev.  439, 14  Pac.  298.  [Brennan 
v.  Titusville,  153  U.  S.  289,  14  Sup.  Ct. 
Rep.  829;  Adkins  v.  Richmond,  98  Va.  91, 
34  S.  E.  967,  47  L.  R.  A.  583 ;  Laurens 
v.  Elmore,  65  S.  C.  477,  33  S.  E.  560, 
45  L.  R.  A.  249.]  A  license  tax  can  be 
demanded  only  in  respect  of  the  business 
of  an  express  company  carried  on  entirely 
within  the  State.  Crutcher  v.  Kentucky, 
141  U.  S.  47,  11  Sup.  Ct.  Rep.  851  rev. 
Crutcher  v.  Com.,  89  Ky.  6, 12  S.  W.  141.] 
See  also  State  v.  Richards,  32  W.  Va.  348, 
9  S.  E.  245.  [And  a  State  may  tax  resi- 


dent commission  merchants  upon  their 
commissions,  even  though  those  commis- 
sions are  earned  entirely  upon  inter-state 
commerce.  Ficklen  v.  Shelby  Taxing 
District,  145  U.  S.  1,  12  Sup.  Ct.  Rep. 
810.  And  it  may  tax  sellers  of  alcoholic 
liquors,  and  may  exempt  from  such  tax 
manufacturers  who  sell  at  the  place  of 
manufacture  in  quantities  above  a  given 
amount.  Such  exemption  does  not  dis- 
criminate against  non-resident  manufac- 
turers. Reymann  Brewing  Co.  v.  Brister, 
179  U.  S.  445,  21  Sup.  Ct.  Rep.  201.] 

1  See  ante,  p.  395,  and  cases  cited  in 
note. 

2  State  Tax  on  Foreign  Held  Bonds, 
15  Wall.  300;  Street  Railroad  Co.  v.  Mor- 
row, 87  Tenn.  406,  11   S.  W.  348.     See 
also    Mayor    of    Baltimore    v.    Hussey, 
67  Md.  112,  9  Atl.  19;  Railroad  Co.  v. 
Com'rs,  91  N.   C.  454;  Railroad  Co.  v. 
Jackson,  7  Wall.  262  ;  Oliver  v.  Washing- 
ton Mills,  11  Allen,  268.     The  stock  of  a 
foreign  corporation  is  not  taxable,  though 
its  property  is  used  within  the  State  by 
its  licensees.     Com.  v.  Amer.  Bell  Tel. 
Co.,  129  Pa.  St.  217, 18  Atl.  122;  People  v. 
Amer.  Bell  Tel.  Co.,  117  N.  Y.  241,  22  N. 
E.  1057.     Compare  Catlin  v.  Hull,  21  Vt. 
152;  Jenkins  v.  Charleston,  5  S.  C.  393; 
Mumford  v.  Sewall,  11  Oreg.  67,  4  Pac. 
585.     A  State  may  tax  its  citizen  upon 
the  public  debt  of  another  State  held  by 
him,  though  exempt  from  taxes  in  such 
State.     Bonaparte  v.  Tax  Court,  104  U.  S. 
592.     A  foreign  corporation  having  a  rail- 
road and  doing  business  in  a  State,  may, 
as  a  condition  of  doing  business,  be  re- 
quired, like  a  domestic  corporation,  to 
collect  a  tax  upon  its  loans  held  by  resi- 
dents of  the  State.     Com.  v.  New  York, 
L.  E.  &  W.  R.  R.  Co.,  129  Pa.  St.  463, 
8  Atl.  412.     [The  estate  of  a  bankrupt  in 
the  hands  of  hia  assignee  may  be  taxed 
by  the  State  and  county  till  distribution. 


CH.  XIV.] 


THE   POWER   OF  TAXATION. 


695 


Having  thus  indicated  the  extent  of  the  taxing  power,1  it  is 
necessary  to  add  that  certain  elements  are  essential  in  all  taxation, 
and  that  it  will  not  follow  as  of  course,  because  the  power  is  so 
vast,  that  everything  which  may  be  done  under  pretence  of  its  ex- 
ercise will  leave  the  citizen  without  redress,  even  though  there 
be  no  conflict  with  express  constitutional  inhibitions.  Everything 
that  may  be  done  under  the  name  of  taxation  is  not  necessarily 
a  tax ;  and  it  may  happen  that  an  oppressive  burden  imposed  by 
the  government,  when  it  comes  to  be  carefully  scrutinized,  will 
prove,  instead  of  a  tax,  to  be  an  unlawful  confiscation  of  prop- 
erty, unwarranted  by  any  principle  of  constitutional  government. 

Re  Sims,  118  Fed.  Rep.  356.  But  where 
moneys  are  loaned  by  a  creditor  residing 
in  one  State  to  a  debtor  residing  in 
another,  the  loan  being  effected  through 
the  intervention  of  an  agent  resident  in 
the  latter,  the  creditor  is  taxahle  in  the 
latter  State  in  respect  of  moneys  so 
loaned,  particularly  if  the  moneys,  as 
they  fall  due  and  are  paid,  are  reloaned  in 
that  State.  Bristol  v.  Washington  Co., 
177  U.  S.  133,  20  Sup.  Ct.  Rep.  585.  To 
substantially  the  same  effect  is  New 
Orleans  v.  Stempel,  175  U.  S.  309,  20  Sup. 
Ct.  Rep.  110,  although  here  the  notes  and 
other  evidences  of  debt  were  left  in  the 
hands  of  the  agent  in  Louisiana.  See 
many  cases  cited  in  a  note  on  "  Situs  for 
taxation  of  debts  evidenced  by  notes  or 
mortgages  held  by  agent  residing  in  dif- 
ferent State  from  principal  "  appended  to 
the  Stempel  Case  in  44  L.  ed.  U.  S.  174. 
These  cases,  taken  in  connnection  with 
King  r.  Cross,  175  U.  S.  396,  20  Sup.  Ct. 
Rep.  131,  and  Chicago,  R.  I.  &  P.  R.  Co. 
v.  Sturm,  174  U.  S.  710,  19  Sup.  Ct.  Rep. 
797,  show  a  decided  tendency  to  disregard 
the  rule  mobilia  personam  sequuntur,  so  far 
at  least  as  taxation  and  attachment  are 
concerned.  And  see  in  this  connection 
Savings  and  Loan  Society  v.  Multnomah 
County,  169  U.  S.  421,  18  Sup.  Ct.  Rep. 
392,  where  the  right  of  a  State  to  tax  the 
interest  of  a  non-resident  mortgagee  in 
lands  within  its  boundaries  is  upheld,  and 
the  case  of  State  Tax  on  Foreign  Held 
Bonds,  15  Wall.  300,  distinguished,  and 
sundry  dicta  in  it  disapproved.] 

1  A  State  may,  if  it  see  fit,  tax  the 
property  owned,  held,  and  used  by  itself 
or  its  municipalities  for  public  purposes ; 
but  this  would  so  obviously  be  unwise  and 
impolitic  that  the  intent  to  do  so  is  never 
assumed,  but  public  property  is  always, 


by  implication  of  law,  exempt  from  the 
operation  of  the  general  terms  of  tax 
laws.  People  t*.  Salomon,  51  111.  37 ; 
Trustees  of  Industrial  University  v. 
Champaign  Co.,  76  111.  184;  Directors 
of  Poor  v.  School  Directors,  42  Pa.  St. 
21 ;  People  v.  Austin,  47  Cal.  353 ;  People 
v.  Doe,  30  Cal.  220 ;  Wayland  v.  County 
Com'rs,  4  Gray,  500;  Worcester  Co.  v. 
Worcester,  116  Mass.  193;  State  v.  Gaff- 
ney,  34  N.  J.  133;  Camden  r.  Camden 
Village  Corp.,  77  Me.  530,  1  Atl.  689; 
Erie  Co.  v.  Erie,  113  Pa.  St.  360,  6  Atl. 
269.  But  city  water-works  may  be  taxed 
for  county  purposes.  Erie  Co.  v.  Com'rs 
Water-Works,  113  Pa.  St.  368,  6  Atl. 
138.  The  same  rule  applies  to  special 
city  assessments.  Green  v.  Hotaling,  44 
N.  J.  L.  347  ;  Polk  Co.  Savings  Bank 
v.  State,  69  Iowa,  24,  28  N.  W.  416; 
Harris  Co.  v.  Boyd,  70  Tex.  237,  7  S. 
W.  713.  But  see  contra,  Adams  Co.  v. 
Quincy,  130  111.  566,  22  N.  E.  624.  And 
the  exemption  extends  to  lands  acquired 
by  a  city  outside  its  limits  to  supply  itself 
with  water.  West  Hartford  v.  Water 
Com'rs,  44  Conn.  360;  Rochester  v.  Rush, 
80  N.  Y.  302.  So  of  a  ferry  landing  in 
Brooklyn  owned  by  New  York  City,  to 
which  the  ferry  privilege  belongs.  Peo- 
ple v.  Assessors,  111  N.  Y.  505,  19  N.  E. 
90.  See  Black  v.  Sherwood,  84  Va.  906, 
6  S.  E.  484.  But  not  so  of  land  taken 
by  a  city  in  payment  of  the  defalcation 
of  an  officer.  People  v.  Chicago,  124  111. 
636,  17  N.  E.  56.  fJPublic  property  is  in 
Louisiana  liable  to  special  assessments 
for  public  improvements.  New  Orleans 
v.  Warner,  175  U.  S.  120, 20  Sup.  Ct.  Rep. 
44.  Upon  liability  of  public  property  to 
assessment  for  public  improvements,  see 
many  cases  cited  and  discussed  in  note  to 
44  L.  ed.  U.  S.  96-3 


696  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

In  the  first  place,  taxation  having  for  its  only  legitimate  object 
the  raising  of  money  for  public  purposes  (a)  and  the  proper  needs 

(a)  [[Appropriation  of  money  for  the  expenses  of  a  school  controlled  by  a  private 
corporation  in  consideration  of  the  gratuitous  instruction  of  common  school-teachers 
is  for  a  public  purpose,  and  it  is  not  an  assumption  of  debts  of  a  private  corporation 
or  a  loan  to  it.  Boehm  v.  Hertz,  182  111.  154,  64  N.  E.  973,  48  L.  R.  A.  575.  Pur- 
chase  of  rights  necessary  to  the  beautification  of  public  parks  is  a  public  purpose. 
Knowlton  v.  Williams,  174  Mass.  476,  55  N.  E.  77,  47  L.  R.  A.  314.  So  is  erection 
of  a  bridge  for  highway  and  railway  purposes,  even  though  bridge  is  property  of  a 
private  corporation  authorized  to  collect  tolls  for  its  use.  Pritchard  v.  Magoun,  109 
Iowa,  364,  80  N.  \V.  512,  46  L.  R.  A.  381.  To  aid  in  the  building  of  a  railroad  is  a 
public  purpose.  Folsom  v.  Township  Ninety  Six,  159  U.  S.  (511,  16  Sup.  Ct.  Rep. 
174,  and  cases  therein  cited.  Contra,  People  v.  Tp.  Bd.  of  Salem,  20  Mich.  452.  So, 
possibly,  to  pension  those  dependent  upon  an  officer  dying  in  office.  Opinion  of  Jus- 
tices, 175  Mass.  599,  57  N.  E.  675,  49  L.  R.  A.  564.  An  enterprise  may  be  public, 
even  though  it  is  controlled  by  a  private  corporation  for  profit.  Ryan  v.  L.  &  N. 
Terminal  Co.,  102  Tenn.  Ill,  50  S.  W.  744,  45  L.  R.  A.  303.  See  also  Phoenix  Fire 
As.  Co.  v.  Montgomery  Fire  Dept.,  117  Ala.  631,  23  So.  843,  42  L.  R.  A.  468.  Main- 
tenance of  a  State  university  established  by  constitutional  authority  is  a  public 
purpose,  but  the  creation  of  free  scholarships  and  allowances  for  needy  students, 
even  though  appointments  to  them  are  made  upon  public  competitive  examina- 
tions, is  not.  State  v.  Switzler,  143  Mo.  287,  45  S.  W.  245,  40  L.  R.  A.  280,  65  Am. 
St.  653.  To  make  a  county  exhibit  at  the  Omaha  exposition  in  1898,  was  held  a 
public  purpose  in  State  v.  Cornell,  53  Neb.  556,  74  N.  W.  59,  39  L.  R.  A.  513.  Erec- 
tion of  electric-lighting  plant  to  furnish  light  to  citizens  as  well  as  to  municipality  is. 
Mitchell  v.  Negaunee,  113  Mich.  359,  71  N.  W.  646,  38  L.  R.  A.  157,  67  Am.  St.  468; 
Jacksonville  El.  L.  Co.  v.  Jacksonville,  36  Fla.  229,  18  So.  677,  30  L.  R.  A.  540,  51  Am. 
St.  24 ;  Opinion  of  Justices,  150  Mass.  592,  24  N.  E.  1084,  8  L.  R.  A.  487,  and  note ; 
Middleton  v.  St.  Augustine,  42  Fla.  287, 39  So.  421  (Nov.  3,  1900);  contra,  Mauldin 
v.  Greenville,  33  S.  C.  1,  11  S.  E.  434,  8  L.  R.  A.  291.  Construction  of  an  under- 
ground street  railway  is.  Sun  P.  &  P.  Assn.  v.  New  York,  152  N.  Y.  257,  46  N.  E. 
499,  37  L.  R.  A.  788.  Treatment  of  habitual  drunkards  at  a  private  institution  is  not. 
Wis.  Keeley  Inst.  Co.  v.  Milwaukee  County,  95  Wis.  153,  70  N.  W.  68, 36  L.  R.  A.  55; 
contra,  Re  House,  23  Col.  87,  46  Pac.  117,  33  L.  R.  A.  832 ;  Baltimore  v.  Keeley  Insti- 
tute, 81  Md.  106,  31  All.  437,  27  L.  R.  A.  646.  To  make  an  exhibit  of  county  re- 
sources at  an  exposition  is.  Shelby  County  v.  Tennessee  C.  Exp.  Co.,  96  Tenn.  653, 
36  S.  W.  694,  33  L.  R.  A.  717.  So  to  construct  a  subway  beneath  city  streets,  which 
when  completed  is  to  be  leased  to  a  street  railway  company.  Prince  v.  Crocker, 
166  Mass.  347,  44  N.  E.  446,  32  L.  R.  A.  610.  To  provide  bounties  for  killing  coyotes. 
Ingram  v.  Colgan,  106  Cal.  113,  120,  38  Pac.  315,  39  Pac.  437,  28  L.  R.  A.  187,  46 
Am.  St.  221.  Moneys  for  benefit  of  an  insolvent  railroad  company  with  provision 
that  resident  creditors  shall  first  be  paid  out  of  proceeds  cannot  be  raised  by  taxa- 
tion. Baltimore  &  E.  S.  R.  Co.  v.  Spring,  80  Md.  510,  31  All.  208,  27  L.  R.  A.  72. 
But  medical  treatment  and  care  of  poor  persons  may  be  provided  at  public  expense 
in  time  of  epidemic.  Thomas  v.  Mason,  39  W.  Va.  626,  20  S.  E.  680,  26  L.  R.  A. 
727,  and  note.  A  municipal  electric  plant  to  supply  electricity  for  municipal  pur- 
poses, even  though  electricity  is  to  be  supplied  also  to  private  consumers,  provided  rea- 
sonable rates  be  charged,  may  be  erected  at  public  cost.  Linn  v.  Chambersburg,  160 
Pa.  511,  28  Atl.  842,  25  L.  R.  A.  217  ;  Crawfordsville  v.  Braden,  130  Ind.  149,  28  N.  K. 
849,  14  L.  R.  A.  268,  and  note,  30  Am.  St.  214.  To  make  State  exhibit  at  World's 
Columbian  Exposition  is.  Norman  v.  Kentucky  Bd.  of  Managers,  93  Ky.  537,  20 
S.  W.  901,  18  L.  R.  A.  556;  Daggett  v.  Colgan,  92  Cal.  63,  28  Pac.  61;  14  L.  R.  A. 
474,  and  note  on  public  purposes,  27  Am.  St.  95.  Purchase  of  fuel  and  distribution 
and  sale  thereof  to  inhabitants  is  not  a  public  service.  Opinion  of  Justices,  155  Mass. 
598,  30  N.  E.  1142,  15  L.  R.  A.  809;  In  re  Municipal  Fuel  Plants,  —  Mass.  — ,  66 
N.  E.  25  (1903).  Public  moneys  cannot  be  applied  toward  part  payment  of  tuition 
of  pupils  attending  private  academies.  Underwood  v.  Wood,  93  Ky.  177,  19  S.  W. 


CH.  XIV.]  THE   POWER   OF   TAXATION.  697 

of  government,  the  exaction  of  moneys  from  the  citizens  for  other 
purposes  is  not  a  proper  exercise  of  this  power,  and  must  there- 
fore be  unauthorized.  In  this  place,  however,  we  do  not  use  the 
word  public  in  any  narrow  and  restricted  sense,  nor  do  we  mean 
to  be  understood  that  whenever  the  legislature  shall  overstep  the 
legitimate  bounds  of  their  authority,  the  case  will  be  such  that 
the  courts  can  interfere  to  arrest  their  action.  There  are  many 
cases  of  unconstitutional  action  by  the  representatives  of  the 
people  which  can  be  reached  only  through  the  ballot-box  ;  and 
there  are  other  cases  where  the  line  of  distinction  between  that 
which  is  allowable  and  that  which  is  not  is  so  faint  and  shadowy 
that  the  decision  of  the  legislature  must  be  accepted  as  final,  even 
though  the  judicial  opinion  might  be  different.  But  there  are 
still  other  cases  where  it  is  entirely  possible  for  the  legislature  so 
clearly  to  exceed  the  bounds  of  due  authority  that  we  cannot 
doubt  the  right  of  the  courts  to  interfere  and 'check  what  can 
only  be  looked  upon  as  ruthless  extortion,  provided  the  nature  of 
the  case  is  such  that  judicial  process  can  afford  relief.  An  un- 
limited power  to  make  any  and  every  thing  lawful  which  the 
legislature  might  see  fit  to  call  taxation,  would  be,  when  plainly 
stated,  an  unlimited  power  to  plunder  the  citizen.1 

1  Tyson  v.  School  Directors,  51  Pa.  v.  Vernon,  27  Iowa,  28 ;  Allen  v.  Jay,  60 
St.  9;  Morford  v.  Unger,  8  Iowa,  82;  Me.  124,  11  Am.  Rep.  185;  Ferguson 
Talbot  v.  Hudson,  16  Gray,  417  ;  Hansen  v.  Landram,  6  Bush,  230;  People  v. 

405, 15  L.  R.  A.  825,  and  note.  To  provide  bounties  for  planting  forest  trees  is  not  a 
public  purpose.  Deal  v.  Mississippi  County,  107  Mo.  464,  18  S.  W.  24, 14  L.  R.  A.  622. 
But  enlargement  of  a  private  millrace  may  be  if  it  extends  river  and  canal  navigation 
to  a  public  street.  Waterloo  W.  Mfg.  Co.  v.  Shanahan,  128  N.  Y.  345,  28  N.  E.  358, 
14  L.  R.  A.  481.  Disposal  of  sewage  is.  Re  Kingman,  153  Mass.  566,  27  N.  E.  778, 
12  L.  R.  A.  417,  and  note.  So  is  supplying  natural  gas  to  the  corporation  and  to  its 
citizens.  State  v.  Toledo,  48  Ohio  St.  112,  26  N.  E.  1061,  11  L.  R.  A.  729.  Erection 
of  a  memorial  hall  is,  but  maintenance  and  support  of  a  G.  A.  R.  post  is  not.  King- 
man v.  Brockton,  153  Mass.  255,  26  N.  E.  998,  11  L.  R.  A.  123,  and  note.  Distribut- 
ing water  power  to  private  consumers  is  not.  Re  Barre  Water  Co.,  62  Vt.  27,  20 
Atl.  109,  9  L.  R.  A.  195.  Where  the  Constitution  authorizes  counties  to  loan  their 
aid  for  the  "  necessary  support  of  the  poor,"  a  statute  "  authorizing  counties  to 
issue  bonds  to  procure  seed-grain  for  needy  farmers  resident  therein  "  is  valid. 
State  v.  Nelson  County,  1  N.  D.  88,  45  N.  W.  33,  8  L.  R.  A.  283,  and  note,  26  Am. 
St.  609.  Keeping  private  fords  clear  of  driftwood  is  a  private  purpose.  Hutton  v. 
Webb,  126  N.  C.  897,  36  S.  E.  341.  To  raise  money  to  pay  to  men  drafted  and  serving 
in  Union  Armies  in  Civil  War,  or  to  their  heirs,  specified  sums  is  a  private  purpose. 
Bush  v.  Bd.  of  Supervrs.  of  Orange  Co.,  159  N.  Y.  212,  63  N.  E.  1121,  46  L.  R.  A. 
556.  70  Am.  St.  538.  An  act  providing  for  the  raising  of  money  to  pay  a  bounty  to 
private  producers  of  beet  sugar  is  invalid.  Michigan  Sugar  Co.  v.  Auditor  Gen- 
eral, 124  Mich.  674,  83  N.  W.  625,  83  Am.  St.  364.  A  grant  of  land  by  the  city  of 
Minneapolis  to  a  private  corporation  for  use  for  an  Industrial  Exhibition  was  held 
valid  upon  the  theory  that  though  it  involved  taxation,  the  purpose  was  "  public  " 
within  the  requirement  of  the  rule.  Minneapolis  v.  Janney,  86  Minn.  Ill,  90  N.  W. 
312.  For  other  cases  on  public  purposes,  see  Skinner  v.  Henderson,  20  Fla.  121, 7  So. 
464,  8  L  R.  A.  65.] 


698  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 

It  must  always  be  conceded  that  the  proper  authority  to  deter- 
mine what  should  and  what  should  not  constitute  a  public  burden 
is  the  legislative  department  of  the  State.  This  is  not  only  true 
for  the  State  at  large,  but  it  is  true  also  in  respect  to  each  munici- 
pality or  political  division  of  the  State ;  these  inferior  corporate 
existences  having  only  such  authority  in  this  regard  as  the  legis- 
lature shall  confer  upon  them.1  And  in  determining  this  ques- 
tion, the  legislature  cannot  be  held  to  any  narrow  or  technical 
rule.  Not  only  are  certain  expenditures  absolutely  essential  to 
the  continued  existence  of  the  government  and  the  performance 
of  its  ordinary  functions,  but  as  a  matter  of  policy  it  may  some- 
times be  proper  and  wise  to  assume  other  burdens  which  rest 
entirely  on  considerations  of  honor,  gratitude,  or  charity.  The 
officers  of  government  must  be  paid,  the  laws  printed,  roads  con- 
structed, and  public  buildings  erected;  but  with  a  view  to  the 
general  well-being  of  society,  it  may  also  be  important  that  the 
children  of  the  State  should  be  educated,  the  poor  kept  from 
starvation,2  losses  in  the  public  service  indemnified,  and  incen- 
tives held  out  to  faithful  and  fearless  discharge  of  duty  in  the 
future,  by  the  payment  of  pensions  to  those  who  have  been  faith- 
ful public  servants  in  the  past.  There  will  therefore  be  necessary 
expenditures,  and  expenditures  which  rest  upon  considerations  of 
policy  only,  and,  in  regard  to  the  one  as  much  as  to  the  other,  the 
decision  of  that  department  to  which  alone  questions  of  State 
policy  are  addressed  must  be  accepted  as  conclusive. 

Township  Board  of  Salem,  20  Mich.  452;  rather  than  in  the  interest  of  the  individ- 

Washington    Avenue,   69    Pa.    St.    352,  ual.     Deering  &  Co.  v.  Peterson,  75  Minn. 

8  Am.  Rep.  255.     "  It  is  the  clear  right  118,  77  N.  W.  568  J 
of  every   citizen   to   insist    that   no    un-          *  Litchfield  v.   Vernon,  41  N.  Y.  123. 

lawful  or  unauthorized  exaction  shall  be  A  law    may   determine    absolutely   the 

made  upon  him  under  the  guise  of  taxa-  amount  of  tax  to  be  raised  for  a  local  im- 

tion.     If  any  such  illegal  encroachment  provement,and  the  property  upon  which 

is  attempted,  he  can  always  invoke  the  it  is  to  be  apportioned.     Spencer  v.  Mer- 

aid  of  the  judicial  tribunals  for  his  pro-  chant,  100  N.  Y.  585,  3  N.  E.  682;  aff. 

tection,  and  prevent  his  money  or  other  125    U.   S.   345,   8    Sup.   Ct.   Rep.  921. 

property  from  being  taken  and  appropri-  See  ante,  p.  335,  and  cases  cited  in  note 

ated  for  a  purpose  and  in  a  manner  not  1,  p.  699. 

authorized  by  the  Constitution  and  laws."         2  Taxes  cannot  be  levied  to  donate  to 

Per  Bige/oiv,  Ch.  J.,  in  Freeland  v.  Hast-  benevolent  and  charitable  societies,  which 

ings,  10  Allen,  670,  575.      See  Hooper  v.  are  controlled  by  private  individuals,  and 

Emery,  14  Me.  375;  People  v.  Sup'rs  of  over  which  the  public  authorities  have  no 

Saginaw,  26  Mich.  22;  Weismer  r.  Doug-  supervision  or  control.     So  held   in  an 

las,  64  N.  Y.  91,  21  Am.  Rep.  586.     fJA  able  opinion    in    St.   Mary's    Industrial 

statute  authorizing  the  State  to  loan  its  School  v.  Brown,  45  Md.  310.     But  a  city 

money  to  individuals  for  the  buying  of  may    be    allowed  to  pay   a  part  of  the 

seeds  in  cases  where  crops  have  failed,  is  expense   of  an   orphanage  to  which  its 

invalid  for  violating  the  principle  that  the  magistrates  may  commit  poor  children, 

functions  of  the  State  are  to  be  exercised  Shepherd's  Fold  v.  Mayor,  &c.  New  York, 

primarily  in   the  interest  of  the  public  96  N.  Y.  137. 


CH.  XIV.]  THE   POWER   OF   TAXATION.  699 

Very  strong  language  has  been  used  by  the  courts  in  some  of 
the  cases  on  this  subject.  In  a  case  where  was  questioned  the 
validity  of  the  State  law  confirming  township  action  winch  granted 
gratuities  to  persons  enlisting  in  the  military  service  of  the 
United  States,  the  Supreme  Court  of  Connecticut  assigned  the 
following  reasons  in  its  support:  — 

"In  the  first  place,  if  it  be  conceded  that  it  is  not  competent 
for  the  legislative  power  to  make  a  gift  of  the  common  property, 
or  of  a  sum  of  money  to  be  raised  by  taxation,  where  no  possible 
public  benefit,  direct  or  indirect,  can  be  derived  therefrom,  such 
exercise  of  the  legislative  power  must  be  of  an  extraordinary 
character  to  justify  the  interference  of  the  judiciary ;  and  this  is 
not  that  case. 

"  Second.  If  there  be  the  least  possibility  that  making  the 
gift  will  be  promotive  in  any  degree  of  the  public  welfare,  it  be- 
comes a  question  of  policy,  and  not  of  natural  justice,  and  the 
determination  of  the  legislature  is  conclusive.  And  such  is  this 
case.  Such  gifts  to  unfortunate  classes  of  society,  as  the  indigent 
blind,  the  deaf  and  dumb,  or  insane,  or  grants  to  particular  col- 
leges or  schools,  or  grants  of  pensions,  swords,  or  other  mementos 
for  past  services,  involving  the  general  good  indirectly  and  in 
slight  degree,  are  frequently  made  and  never  questioned. 

"  Third.  The  government  of  the  United  States  was  consti- 
tuted by  the  people  of  the  State,  although  acting  in  concert  with 
the  people  of  other  States,  and  the  general  good  of  the  people  of 
this  State  is  involved  in  the  maintenance  of  that  general  govern- 
ment. In  many  conceivable  ways  the  action  of  the  town  might 
not  only  mitigate  the  burdens  imposed  upon  a  class,  but  render 
the  service  of  that  class  more  efficient  to  the  general  government, 
and  therefore  it  must  be  presumed  that  the  legislature  found  that 
the  public  good  was  in  fact  thereby  promoted. 

"  And  fourth.  It  is  obviously  possible,  and  therefore  to  be  in- 
tended, that  the  General  Assembly  found  a  clear  equity  to  justify 
their  action."  L 

And  the  Supreme  Court  of  Wisconsin  has  said :  "  To  justify 

i  Booth  v.  Woodbury,  32  Conn.  118,  v.  Merchant,  100  N.  Y.  585,  3  N.  E.  682; 

128.     See   to   the  same   effect   Speer  v.  aff.  125  U.  S.  345,  8  Sup.  Ct.  Rep.  921. 

School  Directors  of  Blairville,  50  Pa.  St.  Compare  People  v.  Common  Council  of 

.150.     The  legislature  is    not  obliged  to  Detroit,  28  Mich.  228.     The  legislature 

consult  the  will  of  the  people  concerned  cannot  delegate  to  parties  concerned  the 

in  ordering  the  levy  of  local  assessments  authority  to  levy  taxes  for  the  benefit  of 

for  the  public  purposes  of  the  local  gov-  their  own  estates,  and  of  those  of  others 

ernment.     Cheaney  v  Hooser,  9  B.  Monr.  interested  with  them  but  not  consenting. 

330;  Slack  v.  Maysville,  &c.  R.  R.  Co.,  Scuffletown  Fence  Co.  v.  McAllister,  12 

13  B.  Monr.  1 ;  Cypress  Pond  Draining  Bush,  312. 
Co.  v.  Hooper,  2  Met.  (Ky.)  350  ;  Spencer 


700  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

the  court  in  arresting  the  proceedings  and  declaring  the  tax  void, 
the  absence  of  all  possible  public  interest  in  the  purposes  for  which 
the  funds  are  raised  must  be  clear  and  palpable  ;  so  clear  and 
palpable  as  to  be  perceptible  by  every  mind  at  the  first  blush.  .  .  . 
It  is  not  denied  that  claims  founded  in  equity  and  justice,  in  the 
largest  sense  of  those  terms,  or  in  gratitude  or  charity,  will  sup- 
port a  tax.  Such  is  the  language  of  the  authorities."  1 

But  we  think  it  is  plain,  as  has  been  said  by  the  Supreme  Court 
of  Wisconsin,  that  "  the  legislature  cannot  ...  in  the  form  of  a 
tax,  take  the  money  of  the  citizens  and  give  it  to  an  individual, 
the  public  interest  or  welfare  being  in  no  way  connected  with  the 
transaction.  The  objects  for  which  money  is  raised  by  taxation 
must  be  public,  and  such  as  subserve  the  common  interest  and 
well-being  of  the  community  required  to  contribute."2  Or,  as 
stated  by  the  Supreme  Court  of  Pennsylvania,  "  the  legislature 
has  no  constitutional  right  to  ...  lay  a  tax,  or  to  authorize  any 
municipal  corporation  to  do  it,  in  order  to  raise  funds  for  a  mere 
private  purpose.  No  such  authority  passed  to  the  assembly  by 
the  general  grant  of  the  legislative  power.  This  would  not  be 
legislation.  Taxation  is  a  mode  of  raising  revenue  for  public 
purposes.  When  it  is  prostituted  to  objects  in  no  way  connected 
with  the  public  interest  or  welfare,  it  ceases  to  be  taxation  and 
becomes  plunder.  Transferring  money  from  the  owners  of  it 
into  the  possession  of  those  who  have  no  title  to  it,  though  it  be 
done  under  the  name  and  form  of  a  tax,  is  unconstitutional  for 

1  Brodhead  ?-.  City  of  Milwaukee,  19  442;    Cole  v.  La    Grange,  113  U.   S.  1, 

Wis.  624,  652.     See  Mills  v.  Charleton,  29  5  Sup.  Ct.  Rep.  416 ;  though  it  be  under 

Wis.  411,  9   Am.    Rep.   578;    Spring  v.  pretence  of  sanitary  improvements.     Clee 

Russell,  7  Me.  273 ;    Williams  v.  School  v.  Sanders,  74  Mich.  692,  42  N.  W.  154. 

District,  33  Vt.  271.    Taxation  to  supply  Power  to   tax   in  aid  of  a  water  grist 

natural  gas  to  a  city  valid.     Fellows  i:  mill,  recognized  in  Nebraska:   Traver  v. 

Walker,  39  Fed.  Rep.  651.     It  is  not  com-  Merrick  Co.,  14  Neb.  327,  15  N.  W.  690 ; 

petent  for  a  city  to  levy  taxes  to  loan  to  contra,  in  aid  of  steam   mill,   Osborn  v. 

persons  who  have  suffered  from  a  fire.  Adams  Co.,  109  U.  S.  1,  3  Sup.  Ct.  Rep. 

Lowell  r.  Boston,  111  Mass.  454,  15  Am.  150.     Taxation  to  pay  a  subscription  to  a 

Rep.  39,  and  note,  p.  56  ;  Feldman  v.  City  private  corporation    is  not  for  a  public 

Council  of  Charleston,  23  S.  C.  57.     Or  to  purpose.     Weismer  v.  Douglas,  64  N.  Y. 

supply  farmers,  whose   crops  have  been  91,  21  Am.  Rep.  686.    A  city  cannot  be 

destroyed,  with  provisions,  and  grain  for  empowered  to  erect  a  dam,  with  the  privi- 

seed  and  feed.     State  v,  Osawkee,  14  Kan.  lege  afterwards  at  discretion  to  devote 

418.     Or   to    aid    manufacturing    enter-  it  to  either  a  public  or  private  purpose; 

prises:  Allen  v.  Jay,  60  Me.  124,  11  Am.  but    the    public    purpose    must  appear. 

Rep.  185;    Commercial  Bank  v.  Tola,  2  Attorney- General  v.  Eau  Claire,  37  Wis. 

Dili.  353;   Loan  Association  v.  Topeka,  400. 

20  Wall.  655 ;     Opinions   of  Judges,  58  ' 2  Per  Dixon,  Ch.  J.,  in  Brodhead   v. 

Me.  590 ;    Coates  v.  Campbell,  37  Minn.  Milwaukee,  19  Wis.  624,  652.     See  also 

498,  35  N.  W.  366 ;  Mather  v.  Ottawa,  114  Lunsden  v.  Cross,  10  Wis.  282  ;  Opinions 

111.  659,  8   N.   E.   216;    Parkersburg  v.  of  Judges,  58  Me.  690;   Moulton  v  Ray- 

Brown,  106  U.  S.  487,  1  Sup.  Ct.  Rep.  mond,  60  Me.  121 ;  post,  p.  704,  and  note. 


CH.  XIV.] 


THE    POWER    OF   TAXATION. 


701 


all  the  reasons  which  forbid  the  legislature  to  usurp  any  other 
power  not  granted  to  them."  l  And  by  the  same  court,  in  a  still 
later  case,  where  the  question  was  whether  the  legislature  could 
lawfully  require  a  municipality  to  refund  to  a  bounty  association 
the  sums  which  they  had  advanced  to  relieve  themselves  from  an 
impending  military  conscription,  "  such  an  enactment  would  not 
be  legislation  at  all.  It  would  be  in  the  nature  of  judicial  action, 
it  is  true,  but  wanting  the  justice  of  notice  to  parties  to  be  af- 
fected by  the  hearing,  trial,  and  all  that  gives  sanction  and  force 
to  regular  judicial  proceedings  ;  it  would  much  more  resemble 
an  imperial  rescript  than  constitutional  legislation  :  first,  in  declar- 
ing an  obligation  where  none  was  created  or  previously  existed ; 
and  next,  in  decreeing  payment,  by  directing  the  money  or  prop- 
erty of  the  people  to  be  sequestered  to  make  the  payment.  The 
legislature  can  exercise  no  such  despotic  functions."  2 


1  Per   Black,  Ch.   J.,  in   Sharpless  v. 
Mayor,   &c.,   '21    Pa.    St.   147,  168.     See 
Opin'ons  of  Judges,  58  Me.  590. 

2  Tyson  v.  School  Directors  of  Halifax, 
61  Pa  St.  922.     See  also  Grim  v.  Weisen- 
burg    School    District,    57    Pa.   St.  433. 
The   decisions   in   Miller  v.   Grandy,  13 
Mich.  540 ;  Crowell  v.  Hopkinton,  45  N. 
H.  9 ;   and   Shackford  v.  Newington,  46 
N.   H.  415,  so  far   as  they  hold   that  a 
bounty  law  is   not  to  be  held  to  cover 
moneys  before  advanced  by  an  individual 
without  any  pledge  of  the  public  credit, 
must  be  held  referable,  we  think,  to  the 
same  principle.     And  see  cases,  ante,  p. 
332,   note  3.     Compensation  for   money 
voluntarily  contributed  for  levee  purposes 
by  allowing  such  sums  as  a  credit  on  fu- 
ture levee  taxes  is  not  allowable.     Those 
incidentally   benefited    cannot    be    com- 
pelled to  refund  money  thus  spent.    Davis 
v.  Gaines,  48  Ark.  370,  3  S.  W.  184.     We 
are  aware  that  there  are  some  cases  the 
doctrine  of  which  seems  opposed  to  those 
we  have  cited,  but  perhaps  a  careful  ex- 
amination  will   enable  us  to  harmonize 
them  all.     One   of   these   is  Guilford  v. 
Supervisors  of  Chenango,  18  Barb.  615, 
and  13  N.  Y.  143.     The  facts  in  that  case 
were  as  follows  :  Cornell  and  Clark  were 
formerly  commissioners  of  highways  of 
the  town  of  Guilford,  and  as  such,  by  di- 
rection of  the  voters  of  the  town,  had  sued 
the  Butternut  and  Oxford  Turnpike  Road 
Company.   They  were  unsuccessful  in  the 
action,  and  were,  after  a  long  litigation, 
obliged  to  pay  costs.     The  town  then  re- 


fused to  reimburse  them  these  costs.  Cor- 
nell and  Clark  sued  the  town,  and,  after 
prosecuting  the  action  to  the  court  of  last 
resort,  ascertained  that  they  had  no  legal 
remedy.  They  then  applied  to  the  legis- 
lature, and  procured  an  act  authorizing 
the  question  of  payment  or  not  by  the 
town  to  be  submitted  to  the  voters  at  the 
succeeding  town  meeting.  The  voters 
decided  that  they  would  not  tax  them- 
selves for  any  such  purpose.  Another 
application  was  then  made  to  the  legisla- 
ture, which  resulted  in  a  law  authorizing 
the  county  judge  of  Chenango  County  to 
appoint  three  commissioners,  whose  duty 
it  should  be  to  hear  and  determine  the 
amount  of  costs  and  expenses  incurred  by 
Cornell  and  Clark  in  the  prosecution  and 
defence  of  the  suits  mentioned.  It  au- 
thorized the  commissioners  to  make  an 
award,  which  was  to  be  filed  with  the 
county  clerk,  and  the  board  of  super- 
visors were  then  required,  at  their  next 
annual  meeting,  to  apportion  the  amount 
of  the  award  upon  the  taxable  property 
of  the  town  of  Guilford,  and  provide  for 
its  collection  in  the  same  manner  as  other 
taxes  are  collected.  The  validity  of  this 
act  was  affirmed.  It  was  regarded  as  one 
of  those  of  which  Denio,  J.,  says,  "The 
statute  book  is  full,  perhaps  too  full,  of 
laws  awarding  damages  and  compensa- 
tion of  various  kinds  to  be  paid  by  the 
public  to  individuals  who  had  failed  to 
obtain  what  they  considered  equitably 
due  to  them  by  the  decision  of  adminis- 
trative officers  acting  under  the  provi- 


702 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


A  like  doctrine  has  been  asserted  by  the  Supreme  Court  of 
Michigan  in  a  recent  case.     That  State  is  forbidden  by  its  consti- 


sions  of  former  laws.  The  courts  have 
no  power  to  supervise  or  review  the  doings 
of  the  legislature  in  such  cases."  It  is  ap- 
parent that  there  was  a  strong  equitable 
claim  upon  the  township  in  this  case  for 
the  reimbursement  of  moneys  expended 
by  public  officers  under  the  direction  of 
their  constituents,  and  perhaps  no  prin- 
ciple of  constitutional  law  was  violated 
by  the  legislature  thus  changing  it  into  a 
legal  demand  and  compelling  its  satisfac- 
tion. Mr.  SeJgwick  criticises  this  act, 
and  says  of  it  that  it  "  may  be  called 
taxation,  but  in  truth  it  is  the  reversal 
of  a  judicial  decision."  Sedg.  on  Stat. 
and  Const.  Law,  414.  There  are  very 
many  claims,  however,  resting  in  equity, 
which  the  courts  would  be  compelled  to 
reject,  but  which  it  would  be  very  proper 
for  the  legislature  to  recognize,  and  pro- 
vide for  by  taxation.  Brewster  v.  City 
of  Syracuse,  19  N.  Y.  116.  Another  case, 
perhaps  still  stronger  than  that  of  Guil- 
ford  v.  The  Supervisors,  is  Thomas  v.  Le- 
land,  24  Wend.  65.  Persons  at  Utica  had 
given  bond  to  pay  the  extraordinary  ex- 
pense that  would  be  caused  to  the  State 
by  changing  the  junction  of  the  Che- 
nango  Canal  from  Whitesborough  to 
Utica,  and  the  legislature  afterwards 
passed  an  act  requiring  the  amount  to  be 
levied  by  a  tax  on  the  real  property  of 
the  city  of  Utica.  The  theory  of  this  act 
may  be  stated  thus  :  The  canal  was  a  pub- 
lic way.  The  expense  of  constructing  all 
public  ways  may  be  properly  charged  on 
the  community  especially  or  peculiarly 
benefited  by  it.  The  city  of  Utica  was 
specially  and  peculiarly  benefited  by  hav- 
ing the  canal  terminate  there  ;  and  as  the 
expense  of  construction  was  thereby  in- 
creased, it  was  proper  and  equitable  that 
the  property  to  be  benefited  should  pay 
this  difference,  instead  of  the  State  at 
large  The  act  was  sustained  by  the 
courts,  and  it  was  well  remarked  that 
the  fact  that  a  bond  had  been  before  given 
securing  the  same  money  could  not  de- 
tract from  its  validity.  Whether  this  case 
can  stand  with  some  others,  and  especially 
with  that  of  Hampshire  v.  Franklin,  16 
Mass.  76,  we  have  elsewhere  expressed  a 
doubt,  and  it  must  be  conceded  that,  for 
the  legislature  in  any  case  to  compel  a 


municipality  to  assume  a  burden,  on  the 
ground  of  local  benefit  or  local  obligation, 
against  the  will  of  the  citizens,  is  the  ex- 
ercise of  an  arbitrary  power  little  in  har- 
mony with  the  general  features  of  our 
republican  system,  and  only  to  be  justi- 
fied, if  at  all,  in  extreme  cases.  The  gen- 
eral idea  of  our  tax  system  is,  that  those 
shall  vote  the  burdens  who  are  to  pay 
them;  and  it  would  be  intolerable  that 
a  central  authority  should  have  power, 
not  only  to  tax  localities,  for  local  pur- 
poses of  a  public  character  which  they  did 
not  approve,  but  also,  if  it  so  pleased,  to 
compel  them  to  assume  and  discharge 
private  claims  not  equitably  chargeable 
upon  them.  See  the  New  York  cases 
above  referred  to  criticised  in  State  v. 
Tappan,  29  Wis.  664,  680,  9  Am.  Kep. 
622.  The  legislature  may  require  a  county 
to  pay  for  a  road  :  Wilcox  v.  Deer  Lodge 
Co.,  2  Mont.  674 ;  and  may  apportion 
to  a  township  such  part  of  the  cost  as 
the  length  of  it  in  the  township  bears 
to  its  total  length.  Mahoney  v.  Comry, 
103  Pa.  St.  362.  See  also  Shaw  v.  Den- 
nis, 10  111.  405.  The  cases  of  Cheaney 
v.  Hooser,  9  B.  Monr.  330  ;  Sharp's  Ex.  v. 
Dunavan,  17  B.  Monr.  223 ;  Maltus  v. 
Shields.  2  Met.  (Ky.)  553,  will  throw  some 
light  on  this  general  subject.  The  case  of 
Cypress  Pond  Draining  Co.  r.  Hooper,  2 
Met.  (Ky.)  350,  is  also  instructive.  The 
Cypress  Pond  Draining  Company  was  in- 
corporated to  drain  and  keep  drained  the 
lands  within  a  specified  boundary,  at  the 
cost  of  the  owners,  and  was  authorized 
by  the  act  to  collect  a  tax  on  each  acre, 
not  exceeding  twenty-five  cents  per  acre, 
for  that  purpose,  for  ten  years,  to  be  col- 
lected by  the  sheriff.  With  the  money 
thus  collected,  the  board  of  managers, 
six  in  number,  named  in  the  act,  was  re- 
quired to  drain  certain  creeks  and  ponds 
within  said  boundary.  The  members  of 
the  board  owned  in  the  aggregate  3,840 
acres,  the  larger  portion  of  which  was  low 
land,  subject  to  inundation,  and  of  little  or 
no  value  in  its  then  condition,  but  which 
would  be  rendered  very  valuable  by  the 
contemplated  draining.  The  corporate 
boundary  contained  14,621  acres,  owned 
by  sixty-eight  persons.  Thirty-four  of 
these,  owning  5,975  acres,  had  no  agency 


CH.  XIV.]  THE    POWER   OF   TAXATION.  703 

tution  to  engage  in  works  of  public  improvement,  except  in  the 
expenditure  of  grants  of  land  or  other  property  made  to  it  for  this 
purpose.  The  State,  with  this  prohibition  in  force,  entered  into  a 
contract  with  a  private  party  for  the  construction  by  such  party  of 
an  improvement  in  the  Muskegon  River,  for  which  the  State  was 
to  pay  the  contractor  fifty  thousand  dollars,  from  the  Internal  Im- 
provement Fund.  The  improvement  was  made,  but  the  State 
officers  declined  to  draw  warrants  for  the  amount,  on  the  ground 
that  the  fund  from  which  payment  was  to  have  been  made  was 
exhausted.  The  State  then  passed  an  act  for  the  levying  of  tolls 
upon  the  property  passing  through  the  improvement  sufficient  to 
pay  the  contract  price  within  five  years.  The  court  held  this  act 
void.  As  the  State  had  no  power  to  construct  or  pay  for  such  a 
work  from  its  general  fund,  and  could  not  constitutionally  have 
agreed  to  pay  the  contractors  from  tolls,  there  was  no  theory  on 
which  the  act  could  be  supported,  except  it  was  that  the  State 
had  misappropriated  the  Internal  Improvement  Fund,  and  there- 
fore ought  to  provide  payment  from  some  other  source.  But  if 
the  State  had  misappropriated  the  fund,  the  burden  of  reimburse- 
ment would  fall  upon  the  State  at  large ;  it  could  not  lawfully 
be  imposed  upon  a  single  town  or  district,  or  upon  the  commerce 
of  a  single  town  or  district.  The  burden  must  be  borne  by  those 
upon  whom  it  justly  rests,  and  to  recognize  in  the  State  a  power 
to  compel  some  single  district  to  assume  and  discharge  a  State 
debt  would  be  to  recognize  its  power  to  make  an  obnoxious  district 
or  an  obnoxious  class  bear  the  whole  burden  of  the  State  govern- 
ment. An  act  to  that  effect  would  not  be  taxation,  nor  would  it 
be  the  exercise  of  any  legitimate  legislative  authority.1  And  it 

in  the  passage  of  the  act,  and  no  notice  of  Anderson  v.  Hill,  54  Mich.  477,  20  N.  W. 

the  application  therefor,  gave  no  assent  549.     "  Uniformity   in   taxation   implies 

to  its  provisions,  and  a  very  small  por-  equality    in    the    burden    of   taxation." 

tionof  their  land,  if  any,  would  be  bene-  Bank  v.  Hines,  3  Ohio  St.  1,  15.     "This 

filed  or  improved  in  value  by  the  proposed  equality  in    the   burden  constitutes   the 

draining  ;  and  they  resisted  the  collection  very  substance  designed  to  be   secured 

of  the  tax.     As  to  these  owners  the  act  of  by  the  rule."     Weeks  v.  City  of  Milwau- 

incorporation  was  held  unconstitutional  kee,  10  Wis.  242,  258.     See  also  Sanborn 

and  inoperative.     See   also  the  City  of  v.  Rice,  9  Minn.  273 ;  State  v.  Haben,  22 

Covington  v.  Southgate,  15  B.  Monr.  491 ;  Wis.  660.     The  reasoning  of  these  cases 

Lovingston  v.  Wider,  53  111.  302 ;  Curtis  seems  not  to  have  been  satisfactory  to 

v.  Wiiipple,  24  Wis.  350  ;  People  v.  Flagg,  the  New  York  Court  of  Appeals,      See 

46  N.  Y.  401 ;   People  v.  Batchellor,  53  Gordon  v.  Comes,  47  N.  Y.  608,  in  which 

N.  Y.  128,  13  Am.   Rep.  480;  People  v.  an  act  was  sustained  which   authorized 

Common  Council  of  Detroit,  28  Mich.  228.  "  and  required  "  the  village  of  Brockport 

The  author  has  considered  the  subject  of  to  levy  a  tax  for  the  erection  of  a  State 

this  note  at  some  length  in  his  treatise  Normal    School   building  at  that   place. 

on  taxation,  c.  21.  No  recent  case,  we  think,  has  gone  so  far 

1  Ryerson  v.  Utley,  16  Mich.  269.    See  as  this.      Compare  State  v.  Tappan,  29 

also  People  v.  Springwells,  25  Mich.  153;  Wis.  664,  9   Am.  Rep.  622;   Mayor   of 


704  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 

may  be  said  of  such  an  act,  that,  so  far  as  it  would  operate  to 
make  those  who  would  pay  the  tolls  pay  more  than  their  propor- 
tion of  the  State  obligation,  it  was  in  effect  taking  their  property 
for  the  private  benefit  of  other  citizens  of  the  State,  and  was 
obnoxious  to  all  the  objections  against  the  appropriation  of 
private  property  for  private  purposes  which  could  exist  in  any 
other  case. 

And  the  Supreme  Court  of  Iowa  has  said :  "  If  there  be  such 
a  flagrant  and  palpable  departure  from  equity  in  the  burden  im- 
posed ;  if  it  be  imposed  for  the  benefit  of  others,  or  for  purposes 
in  which  those  objecting  have  no  interest,  and  are  therefore  not 
bound  to  contribute,  it  is  no  matter  in  what  form  the  power  is 
exercised,  —  whether  in  the  unequal  levy  of  the  tax,  or  in  the  regu- 
lation of  the  boundaries  of  the  local  government,  which  results  in 
subjecting  the  party  unjustly  to  local  taxes,  —  it  must  be  regarded 
as  coming  within  the  prohibition  of  the  constitution  designed  to 
protect  private  rights  against  aggression  however  made,  and 
whether  under  color  of  recognized  power  or  not." 1 

When,  therefore,  the  legislature  assumes  to  impose  a  pecu- 
niary burden  upon  the  citizen  in  the  form  of  a  tax,  two  questions 
/  may  always  be  raised :  First,  whether  the  purpose  of  such  burden 
may  properly  be  considered  public  on  any  of  the  grounds  above 
indicated ; 2  and  second,  if  public,  then  whether  the  burden  is 

Mobile  v.  Dargan,  45  Ala.  310;  Living-  and  only  differs  in  principle  from  Gordon 
ston  County  v.  Weider,  64  111.  427 ;  Burr  v.  Cornes,  in  that  the  one  permittfd  what 
v.  Carbondale,  76  III.  455.  "  There  can  the  other  required.  The  case  of  Marks 
be  no  doubt  that,  as  a  general  rule,  where  v.  Trustees  of  Purdue  University,  37  Ind. 
an  expenditure  is  to  be  made  for  a  pub-  155,  follows  Merrick  v.  Ainherst,  and 
lie  object,  the  execution  of  which  will  be  Burr  v.  Carbondale,  76  111.  455;  Hensley 
substantially  beneficial  to  every  portion  Township  v.  People,  84  111.  544,  and  Liv- 
of  the  Commonwealth  alike,  and  in  the  ingston  County  v.  Darlington,  101  U.  S. 
benefits  and  advantages  of  which  all  407,  are  to  the  same  effect..  Taxation 
the  people  will  equally  participate,  if  the  not  levied  according  to  the  principles 
money  is  to  be  raised  by  taxation,  the  upon  which  the  right  to  tax  is  based  is 
assessment  would  be  deemed  to  come  an  unlawful  appropriation  of  private 
within  that  class  which  is  laid  to  defray  property  to  public  uses.  City  of  Coving- 
one  of  the  general  charges  of  govern-  ton  v.  Southgate,  15  B.  Monr.  491 ;  Peo- 
ment,  and  ought  therefore  to  be  imposed  pie  v.  Township  Board  of  Salem,  20  Mich, 
as  nearly  as  possible  with  equality  upon  452;  Tide  Water  Co.  v.  Costar,  18  N.  J. 
all  persons  resident  and  estates  lying  Eq.  518;  Hammett  v.  Philadelphia,  65 
within  the  Commonwealth.  .  .  .  An  assess-  Pa.  St.  146,  3  Am.  Rep.  615. 
ment  for  such  a  purpose,  if  laid  in  any  1  Morford  v.  Unger,  8  Iowa,  82,  92. 
other  manner,  could  not  in  any  just  or  See  Durant  v.  Kauffman,34  Iowa,  194. 
proper  sense  be  regarded  as  'proper-  2  Though  the  legislature  first  decides 
tional '  within  the  meaning  of  the  Con-  that  the  use  is  public,  the  decision  is  not 
stitution."  Merrick  v.  Inhabitants  of  conclusive.  They  cannot  make  that  a 
Amherst,  12  Allen,  500,  504,  per  Bigelow,  public  purpose  which  is  not  so  in  fact. 
Ch.  J.  This  case  holds  that  local  tax-  Gove  v.  Epping,  41  N.  H.  539 ;  Crowell  v. 
ation  for  a  State  purpose  may  be  per-  Hopkinton,  45  N.  H.  9;  Freeland  v.  Hast- 
mitted  in  consideration  of  local  benefits,  ings,  10  Allen,  570 ;  Hooper  v.  Emery,  14 


CH.  XIV.]  THE    POWER   OF   TAXATION.  705 

one  which  should  properly  be  borne  by  the  district  upon  which  it 
is  imposed.  If  either  of  these  questions  is  answered  in  the  nega- 
tive, the  legislature  must  be  held  to  have  assumed  an  authority 
not  conferred  in  the  general  grant  of  legislative  power,  and 
which  is  therefore  unconstitutional  and  void.  "  The  power  of 
taxation,"  says  an  eminent  writer,  "  is  a  great  governmental  at- 
tribute, with  which  the  courts  have  very  wisely  shown  extreme 
unwillingness  to  interfere ;  but  if -abused,  the  abuse  should  share 
the  fate  of  all  other  usurpations."  1  In  the  case  of  burdens  thus 
assumed  by  the  legislature  on  behalf  of  the  State,  it  is  not  always 
that  a  speedy  and  safe  remedy  can  properly  be  afforded  in  the 
courts.  It  would  certainly  be  a  very  dangerous  exercise  of  power 
for  a  court  to  attempt  to  stay  the  collection  of  State  taxes  because 
an  illegal  demand  was  included  in  the  levy ;  and  indeed,  as  State 
taxes  are  not  usually  levied  for  the  purpose  of  satisfying  specific 
demands,  but  a  gross  sum  is  raised  which  it  is  calculated  will  be 
sufficient  for  the  wants  of  the  year,  the  question  is  not  usually  one 
of  the  unconstitutionality  of  taxation,  but  of  the  misappropriation 
of  moneys  which  have  been  raised  by  taxation.  But  if  the  State 
should  order  a  city,  township,  or  village  to  raise  money  by  taxa- 
tion to  establish  one  of  its  citizens  in  business,  or  for  any  other 
object  equally  removed  from  the  proper  sphere  of  government, 
or  should  undertake  to  impose  the  whole  burden  of  the  govern- 
ment upon  a  fraction  of  the  State,  the  usurpation  of  authority 
would  not  only  be  plain  and  palpable,  but  the  proper  remedy 
would  also  be  plain,  and  no  court  of  competent  jurisdiction  could 
feel  at  liberty  to  decline  to  enforce  the  paramount  law.2 

In  the  second  place,  it  is  of  the  very  essence  of  taxation  that  it 
be  levied  with  equality  and  uniformity,  and  to  this  end,  that  there 
should  be  some  system  of  apportionment.3  Where  the  burden  is 

Me.  375;  Allen  v.  Jay,  60  Me.  124, 11  Am.  it  is  held  that,  in  the  absence  of  any  pro- 
Rep  185  ;  Tyler  v.  Beacher,  44  Vt.  651,  8  vision  to  that  effect  in  the  federal  or  State 
Am.  Rep.  398;  Ferguson  v.  Landram,  5  constitution,  the  taxing  power  of  the  legis- 
Bush,  230;  Kelly  v.  Marshall,  69  Pa.  lature  is  not  restricted  by  any  implied 
St.  319;  People  v.  Flugg,  46  N.  Y.  401 ;  rule  of  fundamental  law  that  taxes-must 
Curtis  v.  Whipple,  24  Wis.  350;  Loan  be  equal  and  uniform.  The  court  is 
Association  v.  Topeka,  20  Wall.  655;  unanimous  upon  three  propositions  as 
[Re  Page,  60  Kan.  842,  58  Pac.  478,  expressed  by  Baldwin,  J.,  (1)  "There  is 
47  L.  II.  A.  68.]  nothing  in  the  constitution  of  Connecti- 

1  Sedgwick  on  Const,  and  Stat.  Law,  cut,  nor  in  the  14th  amendment  to  that 
414.  of  the  United   States,  which,  either  ex- 

2  Loan    Association    v.    Topeka,    20  pressly  or  by  implication,  requires  that 
"Wall.  655.     £8ee  also  Chicago  &  G.  T.  all  taxation  by  this  State  shall  be  uniform 
R.   Co.    v.    Chappell,    124    Mich.   72,   82  or   equal ;    (2)  there  is   no  fundamental 
N.  W.  809.]  principal  of  free  government  or  natural 

3  £In  State  v.  Traveller's  Ins.  Co.,  73  justice  that  all  taxation  shall  be  uniform 
Conn.  255,  47  All.  209,  57  L.  R.  A.  481,  or  equal ;  (3)  a  citizen  of  another  State 

45 


706 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


common,  there  should  be  common  contribution  to  discharge  it. 


who  participates  as  a  shareholder  in  a 
corporation  in  the  enjoyment  of  a  special 
franchise  granted  by  this  State  will)  a 
reservation  of  the  power  of  amendment 
or  repeal  at  pleasure,  is  not  deprived  of 
any  privilege  or  immunity  coming  within 
the  meaning  of  §2,  Art.  4,  of  the  Consti- 
tution of  the  United  States,  by  a  statute 
imposing  a  State  tax  of  1J  per  cent  on 
the  market  value  of  his  shares  without 
any  provision  for  deduction  of  capital  in- 
vested in  real  estate,"  though  such  deduc- 
tion is  provided  for  in  taxation  of  market 
value  of  shares  of  resident  stockholders. 
The  majority  opinion  seems  to  assert 
that  the  judicial  power  would  be  incom- 
petent to  declare  a  statute  to  be  no  law, 
though  there  were  a  fundamental  princi- 
ple of  free  government  and  natural 
justice,  that  all  taxation  should  be  uniform 
and  equal  which  was  violated  by  the 
statute.  The  judgment  in  this  case  was 
affirmed  in  the  Supreme  Court  of  the 
United  States  in  Traveller's  Ins.  Co.,  v. 
Connecticut,  185  U.  S.  364,  22  Sup.  Ct. 
Rep.  673,  upon  the  peculiar  provisions  of 
the  Connecticut  tax  laws.]  The  legis- 
lature cannot  itself  make  an  assessment 
directly  or  by  placing  a  value  on  certain 
property.  In  re  House  Bill,  9  Col.  635, 
21  Pac.  476;  Slaughter  v.  Louisville,  89 
Ky.  112,  8  S.  W.  917  ;  Ex  parte  Low, 
24"  W.  Va.  620.  QNor  can  it  classify  the 
counties,  and  arbitrarily  value  the  lands 
in  each  class.  Hawkins  v.  Mangum,  78 
Miss.  97.  28  So.  872.]  That  it  is  not 
essential  to  provide  for  the  taxation  of 
all  property,  see  Mississippi  Mills  v. 
Cook,  56  Miss.  40;  that  it  is  competent 
to  provide  for  taxing  railroad  corpora- 
tions in  a  different  way  from  individu- 
als :  State  Railroad  Tax  Cases,  92  U.  S. 
675 ;  State  Board  v.  Central  R.  R.  Co., 
48  N\  J.  L.  146,  4  Atl.  578 ;  Cincinnati, 
N.  0.  &  T.  Ry.  Co.  v.  Com.,  81  Ky. 
492;  Franklin  Co.  v.  Railroad,  12  Lea, 
521 ;  Central  la.  Ry.  Co.  v.  Board,  67 
Iowa,  199,  25  N.  W.  128.  [McHenry  v. 
Alford,  163  U.  S.  651,  18  Sup.  Ct.  Rep. 


242.  Upon  taxation  of  railroads,  see 
Cass  County  v.  Chicago,  B.  &  Q.  R.  Co., 
25  Neb.  348, 41  N.  W.  246,  2  L.  R.  A.  188, 
and  note.  A  tax  against  a  railway  com- 
pany whose  lines  are  partly  without  the 
State  levied  under  a  statute  providing  for 
an  assessment  upon  gross  receipts  in  such 
proportion  as  its  mileage  within  the 
State  bears  to  its  total  mileage,  is  valid. 
State  Treas.  v.  Auditor  General,  46  Mich. 
224,  9  N.  W.  258.  Cumberland  &  P.  Ry. 
Co.  r.  State,  92  Md.  668,  48  Atl.  503,  52 
L.  R.  A.  764.]  But  some  railroads  may 
not  be  taxed  on  gross  receipts,  while 
others  are  taxed  on  capital.  Worth  v. 
Wilmington,  &<:.  R.  R.  Co.,  89  N.  C.  291 ; 
nor  may  they  alone  be  taxed  to  raise  a 
fund  to  pay  railroad  commissioners: 
Atchison,  T.  &  S.  F.  R.  R.  Co.  v.  Howe, 
32  Kan.  737,  5  Pac.  397;  nor  may  the 
assessed  value  of  other  real  property  be 
made  the  standard  of  value  of  railroad 
property.  Williams  v.  State  Board,  51 
N.  J.  L.  512,  18  Atl.  750.  See  California 
v.  Central  Pac.  R.  R.  Co.,  127  U.  S.  1, 
8  Sup.  Ct.  Rep.  1073;  Santa  Clara  Co. 
v.  South.  Pac.  R.  R.  Co.,  118  U.  S. 
394,  6  Sup.  Ct,  Rep.  1132.  [Nor 
may  telegraph  and  telephone  lines  be 
taxed  at  a  rate  determined  by  taking 
the  average  rate  of  taxes,  general, 
municipal,  and  local,  levied  throughout 
the  State  during  the  previous  year,  and 
applying  it  to  the  entire  property  of  the 
company  in  the  State  for  the  present 
year,  Pingree  v.  Dix,  120  Mich.  95,  78 
N.  W.  1025,  44  L.  R.  A.  679.]  That 
property  may  be  classified  for  taxation, 
Coal  Run  Co.  v.  Finlen,  124  111.  666,  17 
N.  E.  11;  People  v.  Henderson,  12  Col. 
369, 21  Pac.  144 ;  Fahey  v.  State,  27  Tex. 
App.  146,  11  S.  W.  108.  Corporate  and 
individual  obligations  may  be  put  in 
different  classes.  Com.  v.  Del.  Div.  Canal 
Co.,  123  Pa.  St.  594,  16  Atl.  584.  That 
the  rule  of  uniformity  must  be  applied  to 
all  subjects  of  taxation  within  the  district 
and  class  :  Marsh  v.  Supervisors,  42  Wis. 
502  ;  Philleo  v.  Hiles,  42  Wis.  527  ;  Bureau 


1  2  Kent,  231;  Sanborn  v.  Rice,  9 
Minn.  273;  Ryerson  v.  Utley,  16  Mich. 
269;  Oliver  v.  Washington  Mills,  11  Al- 
len, 268;  Tidewater  Co.  v.  Costar,  18 
N.  J.  Eq.  518.  [[A  poll  tax  cannot  be 


levied  in  such  wise  that  those  actually 
voting  shall  be  exempt  therefrom.  Kansas 
City  v.  Whipple,  136  Mo.  475,  38  S.  W. 
295,  35  L.  R.  A.  747,  58  Am.  St.  657.] 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


707 


Taxation  is  the  equivalent  for  the  protection  which  the  govern- 
ment affords  to  the  persons  and  property  of  its  citizens ;  and  as 


Co.  v.  Railroad  Co.,  44  111.  229;  Cum- 
mings  v.  National  Bank,  101  U.  S.  153; 
that  it  is  not  competent  to  add  a  per- 
centage to  the  list  for  refusal  or  neglect 
to  make  oath  to  the  tax  list :  McCormick 
v.  Fitch,  14  Minn.  252  ;  but  see  Ex  parte 
Lynch,  16  S.  C.  32 ;  that  it  is  competent 
to  permit  a  deduction  for  debts  from  the 
assessment :  Wetmore  v.  Multnomah  Co., 
6  Oreg.  463  ;  contra,  Exchange  Bank  v. 
Hines,  3  Ohio  St.  1 ;  that  where  property 
is  required  to  be  taxed  by  value,  it  is  not 
competent  to  tax  a  corporation  on  its 
property  and  also  on  its  capital  stock : 
State  v.  Cumberland,  &c.  R.  R.  Co.,  40 
Md.  22 ;  that  a  statute  making  a  portion 
only  of  a  certain  kind  of  property  tax- 
able is  unconstitutional :  Pike  v.  State, 
6  Ark.  204 ;  that  occupation  taxes  are  no 
violation  of  the  rule  of  uniformity : 
Youngblood  v.  Sexton,  32  Mich.  406; 
Ex  parte  Robinson,  12  Nev.  263 ;  Gatlin 
v.  Tarboro,  78  N.  C.  119;  [FUetwood  v. 
Read,  21  Wash.  547,  58  Pac.  665,  47  L. 
R.  A.  205 ;]  that  foreign  insurance  com- 
panies may  be  required  to  pay  different 
taxes  from  others  :  State  v.  Lathrop,  10 
La.  Ann.  398;  Commonwealth  v.  Ger- 
mania  L.  I.  Co.,  11  Pliila.  553;  Ex  parte 
Cohn,  13  Nev.  424 ;  see  San  Francisco  v. 
Liverpool,  &c.  Co.,  74  Cal.  113,  15  Pac. 
380.  They  may  be  required  to  pay  such 
taxes  as  companies  of  the  taxing  State 
are  made  to  pay  in  the  home  States  of 
such  companies.  Home  Ins.  Co.  v. 
Swigert,  104  111.  653;  Phoenix  Ins.  Co.  v. 
Welch,  29  Kan.  672;  People  v.  Fire 
Ass.,  92  N.  Y.  311 ;  State  v.  Ins.  Co., 
115  Ind.  257,  17  N.  E.  674.  [But 
holders  of  contracts  made  with  com- 
panies not  doing  business  within  this 
State  cannot  be  subjected  to  higher  taxa- 
tion thereupon.  He  Page,  60  Kan  842, 
58  Pac.  478,  47  L.  R.  A.  68.3  Taxation 
for  roads  upon  the  citizens  only  of  a 
township  is  unequal.  Marion,  &c.  Ry. 
Co.  v.  Champlin,  37  Kan.  682,  16  Pac. 
222.  So  is  the  exemption  from  such 
taxes  of  all  property  in  incorporated 
villages.  Com'rs  v,  Owen,  7  Col.  467,  4 
Pac.  795.  But  uniformity  provisions  do 
not  apply  to  the  distribution  of  a  road 
fund.  Holton  v.  Com'rs  Mecklenburg 
Co.,  93  N.  C.  430.  And  see  Weber  v. 


Reinhard,  73  Pa.  St.  370,  13  Am.  Rep. 
747 ;  Louisville,  &c.  R.  R.  Co.  v.  State, 
25  Ind.  177;  Whitney  v.  Ragsdale,  33 
Ind.  107;  Francis  v.  Railroad  Co.,  19 
Kan.  303;  Primm  v.  Belleville,  69  111. 
142;  Wis.  Cent.  R.  R.  Co.  r.  Taylor  Co., 
52  Wis.  37,  8  N.  W.  833 ;  State  v.  Esta- 
brook,  3  Neb.  173;  Murray  r.  Lehman, 
61  Miss.  283;  Graham  v.  Com'rs  Chau- 
tauqua  Co.,  31  Kan.  473,  2  Pac.  649 ; 
Dunham  v.  Cox,  44  N.  J.  Eq.  273,  14  Atl. 
123. 

The  following  are  special  cases :  A  tax 
on  drays,  &c.,  proportioned  to  the  num- 
ber of  animals  employed  in  drawing  them, 
contravenes  the  constitutional  require- 
ment of  uniformity  in  license  taxes. 
State  v.  Endom,  23  La.  Ann.  663.  See 
New  Orleans  v.  Home  Ins.  Co.,  23  La. 
Ann.  449.  A  railroad  company  cannot  be 
taxed  according  to  the  length  of  its  road. 
State  v.  South  Car.  R.  R.  Co.,  4  S.  C.  376. 
A  tax  on  cotton  cannot  be  proportioned 
to  the  weight  regardless  of  grades.  Sims 
v.  Jackson,  22  La.  Ann.  440.  Income  is 
not  property  for  the  purposes  of  taxation. 
Waring  c.  Savannah,  60  Ga.  93.  A  col- 
lateral inheritance  tax  is  not  a  property 
tax.  Schoolfield's  Exec.  v.  Lynchburg, 
78  Va.  £66.  A  tax  on  the  franchises  of 
a  coal  company  may  be  proportioned  to 
the  coal  mined.  Kittanning  Coal  Co.  v. 
Commonwealth,  79  Pa.  St.  100.  The 
keepers  of  private  markets  may  be 
charged  a  license  tax  though  none  is  im- 
posed on  those  who  sell  in  the  public  mar- 
kets. New  Orleans  v.  Uubarry,  33  La. 
Ann.  481,  39  Am.  Rep.  273.  QAnd  taxes 
may  be  levied  upon  venders  of  merchan- 
dise, proportional  to  their  annual  gross 
receipts  from  sales,  and  such  venders  may 
be  classified  into  retail  and  wholesale 
and  dealers  at  boards  of  trade,  and  the 
rates  for  the  several  classes  may  differ. 
Knisely  v.  Cotterel,  196  Pa.  614,  46  Atl. 
861,  50  L.  R.  A.  86.  Where  the  Consti- 
tution requires  uniformity  of  rate  as  well 
as  of  valuation,  the  legislature  cannot  pro- 
vide that  pupils  outside  of  a  high-school 
district  shall  be  admitted  to  attend  the 
high-school  upon  payment  of  specified 
rates.  II.  S.  Disk  No.  137  v.  Lancaster 
Co.,  60  Neb.  147,  82  N.  W.  380,  49  L.  R. 
A.  343.  A  tax  that  is  clearly  discrimina- 


708  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

all  arc  alike  protected,  so  all  alike  should  bear  the  burden,  in 
proportion  to  the  interests  secured.  Taxes  by  the  poll  are  justly 
regarded  as  odious  and  are  seldom  resorted  to  for  the  collection 
of  revenue ;  and  when  taxes  are  levied  upon  property  there  must 
be  an  apportionment  with  reference  to  a  uniform  standard,  or 
they  degenerate  into  mere  arbitrary  exactions.1  In  this  particular 
the  State  constitutions  have  been  very  specific,  though  in  provid- 
ing for  equality  and  uniformity  they  have  done  little  more  than 
to  state  in  concise  language  a  principle  of  constitutional  law 
which,  whether  declared  or  not,  would  inhere  in  the  power  to 
tax. 

Taxes  may  assume  the  form  of  duties,  imposts,  and  excises ;  (a) 

tory  in  favor  of  particular  classes  of  tions  are  exempt.  Russell  v.  Croy,  164 
debtors  is  void.  Hamilton  v.  Wilson,  61  Mo.  69,  63  S.  W.  849.] 
Kan.  511,  59  Pac.  1069,  48  L.  R.  A.  238.  1  A  tax  on  negro  polls  and  negroes' 
The  uniformity  clause  of  the  Montana  property  alone,  to  be  applied  to  the  edu- 
Constitution  does  not  apply  to  license  cation  of  negro  children  alone,  is  bad. 
taxes  upon  occupations.  State  v.  French,  Puitt  r.  Com'rs  Gaston  Co.,  94  N.  C.  709. 
17  Mont.  54,  41  Pac.  1078,  30  L.  R.  A.  415.  [JA  tax  on  bicycles  for  the  construction 
Requirement  of  uniformity  does  not  of  bicycle  paths,  bicycles  being  within 
prevent  separate  classification  of  railroad  the  classes  of  property  subjected  to  gen- 
property  and  its  assessment  by  special  eral  taxation,  is  void  for  inequality,  and 
tribunal.  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  where  such  tax  is  assessed  regardless  of 
Worthen,  52  Ark.  529,  13  S.  W.  254,  7  valuation,  it  is  invalid  for  like  reasons. 
L.  R.  A.  374.  Holders  of  mortgages  Ellis  v.  Frazier,  38  Oreg.  462,  63  Pac.  642, 
issued  by  individuals  cannot  be  taxed  53  L.  R.  A.  454.  See,  on  general  question 
while  those  holding  mortgages  issued  by  of  uniformity  in  taxation,  Florida  C.  Ry. 
railroad  and  other  quasi-public  corpora-  Co.  v.  Reynolds,  183  U.  S.  471,  22  Sup. 

Ct.  Rep.  176-3 

(a)  £A  tax  upon  legacies  and  distributive  shares  is  not  a  tax  upon  property,  but  an 
excise  upon  the  transmission  or  receipt  of  such  legacies  and  distributive  shares,  and, 
in  the  absence  of  constitutional  prohibition,  the  rate  at  which  it  is  levied  may  be 
graduated  with  regard  both  to  the  value  of  the  share,  and  to  the  remoteness  of 
relationship  between  the  deceased  and  the  recipient  of  the  property.  Knowlton  v. 
Moore,  178  U.  S.  41,  20  Sup.  Ct.  Rep.  747 ;  State  v.  Hamlin,  86  Me.  495,  30  Atl.  76, 

25  L.  R.  A.  632,  41  Am.  St.  569;  Minot  v.  Winthrop,  162  Mass.  113,  38  N.  E.  512, 

26  L.  R.  A.  259.     Upon  taxes  on  succession  and  collateral  inheritances,  see  note  to 
Magoun  v.  Illinois  Tr.  &  Sav.  Bank,  42  L.  ed.  U.  S.  1037;  see  also  Orr  v.  Oilman, 
183^U.  S.  278,  22  Sup.  Ct.  Rep.  213;  High  v.  Coyne,  93  Fed.  Rep.  450.    Re  Romaine, 
127  N.  Y.  80,  27  N.  E.  759,  12  L.  R.  A.  401 ;  Com.  v.  Ferguson,  137  Pa.  595,  20  Atl. 
870,  10  L.  R.  A.  240;  Wallace  v.  Myers,  38  Fed.  Rep.  184,  4  L.  R.  A.  171;  Re 
Howe,  112  N.  Y.  100,  19  N.  E.  513,  2  L.  R.  A.  825,  and  notes  to  4  L.  R.  A.  171,  and 
2  L.  R.  A.  825.    Exemptions  from  a  statute  taxing  legacies  and  inheritances,  pro- 
vided they  apply  equally  to  all  persons  in  the  same  class,  do  not  deny  to  any  person 
the  equal  protection  of  the  laws,  and  it  rests  with  the  legislature  to  determine  the 
amounts  of  the  exemptions  and  the  basis  of  the  classification,  which  basis,  however, 
must  not  be  clearly  unreasonable.     Magoun  v.  Illinois  Tr.  &  Sav.  Bank,  170  U.  S. 
283,  18  Sup.  Ct.  Rep.  594.     Upon  succession  tax  upon  foreigners,  see  Rixner's  Suc- 
cession, 48  La.  Ann.  552,  19  So.  597,  32  L.  R.  A.  177,  and  note.     Graduated  inheri- 
tance tax  sustained.     Kochersperger  v.  Drake,  167  111.  122,  47  N.  E.  321,  41  L.  R.  A. 
446  ;  contra,  as  violating  rule  of  uniformity.    State  v.  Switzler,  143  Mo.  287,  45  S.  W. 
245,  40  R.  L  A.  280,  65  Am.  St.  653.     An  arbitrary  statutory  exemption  sustained  in 


CH.  XIV.] 


THE    POWER    OF   TAXATION. 


709 


and  those  collected  by  the  national  government  are  very  largely 
of  this  character.  They  may  also  assume  the  form  of  license 
fees,  for  permission  to  carry  on  particular  occupations,  or  to  enjoy 
special  franchises.1  They  may  be  specific;  such  as  are  often 


1  As  to  taxes  on  business  and  fran- 
chises, see  Cooley  on  Taxation,  c.  18. 
Offices,  posts  of  profit,  and  occupations 
are  proper  subjects  of  taxation.  Brown's 
App.,  Ill  Pa.  St.  72,  2  All.  77.  That  all 
occupations  may  be  taxed  when  no  re- 
straints are  imposed  by  the  Constitution, 
see  State  v.  Hayne,  4  Rich.  403;  Quid  v. 
Richmond,  23  Gratt.  464,  14  Am.  Rep. 
139;  Commonwealth  v.  Moore,  25  Gratt. 
951 ;  Cousins  v.  State,  60  Ala.  113,  20  Am. 
Rep.  290 ;  Stewart  v.  Potts,  49  Miss.  749 ; 
Morrill  v.  State,  38  Wis.  428,  20  Am.  Rep. 
12;  Albrecht  v.  State,  8  Tex.  App.  216, 
34  Am.  Rep.  737 ;  Young  v.  Thomas,  17 
Fla.  169,  35  Am.  Rep.  93 ;  Richmond  & 
D.  R.  R.  Co.  v.  Reidsville,  101  N.  C.  404, 
8  S.  E.  124.  Such  a  tax  may  be  based  on 
the  average  amount  of  a  merchant's 
stock.  Newton  v.  Atchison,  31  Kan. 
161,  1  Pac.  288.  See  Danville  v.  Shelton, 
76  Va.  325.  A  city  may  be  empowered 
to  impose  a  license  upon  the  business  of 
a  foreign  insurance  company,  as  well  as  a 
tax  upon  its  net  income :  St.  Joseph  v. 
Ernst,  95  Mo.  360,  8  S.  W.  558;  or  an 
occupation  tax  upon  saloons,  in  addition 
to  the  license  to  sell.  State  v.  Bennett, 
19  Neb.  191,  26  N.  W.  714.  A  privilege 
tax  on  private  carriages  in  addition  to  an 
ad  valorem  tax  is  invalid.  Livingston  v. 
Paducah,  80  Ky.  656.  An  occupation  tax 
must  not  be  so  unreasonable  as  to  be  pro- 


hibitory. Caldwell  v.  Lincoln,  19  Neb.  669, 
27  N.  W.  647.  Gee  Mankato  v.  Fowler, 
32  Minn.  364,  20  N.  W.  361;  Western 
U.  Tel.  Co.  v.  Philadelphia,  12  Atl.  144  ; 
Jackson  v.  Newman,  69  Miss.  385;  People 
v.  Russell,  49  Mich.  617,  14  N.  W.  568; 
Ex  parte  Gregory,  20  Tex.  App.  210; 
Kneeland  v.  Pittsburgh,  —  Pa.  St.  — , 
11  Atl.  657,  as  to  what  is  a  reasonable 
license,  tax,  or  fee.  But  revenue  cannot 
be  raised  in  the  form  of  license  fees  under 
an  authority  to  require  licenses  to  b« 
taken  out  for  mere  police  purposes.  Ante, 
283,  and  note ;  Burlington  v.  Bumgardner, 
42  Iowa,  673,  and  cases  cited.  As  to  when 
a  power  to  license  can  be  made  use  of  as 
a  means  of  raising  revenue,  see  Ex  parte 
Frank,  52  Cal.  b'06,  28  Am.  Rep.  642; 
Pleuler  v.  State,  11  Neb.  647,  10  N.  W. 
481;  U.  S.  Dist.  Co.  v.  Chicago,  112  111. 
19;  In  re  Guerrero,  69  Cal.  88,  10  Pac. 
261 ;  Flanagan  «.  Plainfield,  44  N.  J.  L. 
118.  Q Where  the  business  licensed  is  not 
one  of  common  right,  but  one  which  may 
be  entirely  prohibited,  tl:ere  is  no  limit  to 
the  license  fee  which  may  be  imposed. 
State  v.  Bixman,  162  Mo.  1,62  S.  W.  828.] 
It  is  no  valid  objection  to  a  tux  on 
business  that  its  operation  will  not  be 
uniform.  Youngblood  v.  Sexton,  32 
Mich.  406;  Adler  v.  Whitbeck,  44  Ohio 
St.  539,  9  N.  E.  672.  But  see  Pullman 
P.  C.  Co.  v.  State,  64  Tex.  274;  Banger's 


State  v.  Furnell,  20  Mont.  299,  61  Pac.  267,  39  L.  R.  A.  170;  but  an  arbitrary  ex- 
emption which  is  applied  only  to  those  estates  not  exceeding  it  in  amount,  while 
larger  estates  have  no  exemption  whatever,  is  void,  and  invalidates  the  entire 
statute.  State  v.  Ferris,  53  Ohio  St.  314,  41  N.  E.  579,  30  L.  R.  A,  218;  contra,  State 
r.  Alston,  94  Tenn.  674,  30  S.  W.  750,  28  L.  R.  A.  178;  Minot  v.  Winthrop,  162 
Mass.  113,  38  N.  E.  512,  26  L.  R.  A.  259.  Distinction  in  rates  may  be  made  between 
heirs  and  legatees  in  direct  and  collateral  lines,  and  between  these  and  strangers. 
Minot  v.  Winthrop,  162  Mass.  113,  38  N.  E.  512,  26  L.  R.  A.  259;  State  v.  Hamlin, 
86  Me.  495,  30  Atl.  76,  25  L.  R.  A.  632,  41  Am.  St.  569.  Contingent  estates  are 
not  subject  to  the  tax  until  they  become  vested.  Re  Estate  of  Roosevelt.  143  N.  Y. 
120,  38  N.  E.  281,  25  L.  R.  A.  695.  Real  estate  situated  outside  the  State  is  not 
subject  to  inheritance  tax,  even  after  conversion  into  money  in  the  hands  of  the 
executors.  Re  Swifts'  Estate,  137  N.  Y.  77,  32  N.  E.  1096,  18  L.  R.  A.  709.  For 
other  cases  upon  inheritance  and  succession  taxes,  see  Re  Rohan-Chabot's  Estate, 
167  N.  Y.  280,  60  N.  E.  598;  Re  Mahony's  Estate,  133  Cal.  180,  65  Pac.  389;  Union 
Trust  Co.  v.  Durfee,  125  Mich.  487,  84  N.  W.  1101 ;  Ayers  v.  Chicago  Title  &  T.  Co., 
187  111.  42,  58  N.  E.  318;  Billings  v.  People,  189  111.  472,  59  N.  E.  798;  Hooper  v. 
Bradford,  178  Mass.  95,  59  N.  E.  678.] 


710 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


levied  upon  corporations,  in  reference  to  the  amount  of  capital 
stock,  or  to  the  business  done,  or  profits  earned  by  them.  Or 
they  may  be  direct ;  upon  property,  in  proportion  to  its  value,  (a) 
or  upon  some  other  basis  of  apportionment  which  the  legislature 
shall  regard  as  just,  and  which  shall  keep  in  view  the  general 
idea  of  uniformity.  The  taxes  collected  by  the  States  are  mostly 
of  the  latter  class,  and  it  is  to  them  that  the  constitutional  prin- 
ciples we  shall  have  occasion  to  discuss  will  more  particularly 
apply. 

As  to  all  taxation  apportioned  upon  property,  there  must  be 


App.,  109  Pa.  St.  79.  It  should  operate 
uniformly  upon  each  class  taxed.  Smith 
t;.  Louisville,  9  Ky.  L.  779,  6  S.  W.  911 ; 
St.  Louis  v.  Bowler,  94  Mo.  630,  7  S.  W. 
434;  Braun  v.  Chicago,  110  111.  186. 
Further  as  to  taxes  on  occupations,  see 
Boye  v.  Girardey,  28  La.  Ann.  717; 
Hodgson  v.  New  Orleans,  21  La.  Ann. 
801 ;  New  Orleans  v.  Kaufman,  29  La. 
Ann.  283,  29  Am.  Rep.  328;  Texas  B.  & 
I.  Co.  v.  State,  42  Tex.  636. 

In  the  following  cases  license  fees 
were  held  not  to  be  taxes,  but  merely 
police  regulations :  Required  of  foreign 
corporations  doing  business  in  the  State : 
People  v.  Thurber,  13  111.  554;  Walker  v. 
Springfield,  94  111.  364.  Of  dealers  in  in- 
toxicating liquors :  Burch  v.  Savannah, 
42  Ga.  596;  Durach's  Appeal,  62  Pa.  St. 
491 ;  East  St.  Louis  v.  Wehrung,  46  111. 
392;  Lovingston  v.  Trustees,  99  111.  664; 
Baker  v.  Panola  Co.,  30  Tex.  86;  East 
St.  Louis  v.  Trustees,  102  111.  489; 
Rochester  v.  Upman,  19  Minn.  108 ;  State 
v.  Cassidy,  22  Minn.  312,21  Am.  Rep.  765; 
State  v.  Klein,  22  Minn.  328;  Pleuler  v. 
State,  11  Neb.  647,  10  N.  W.  481.  Of 
auctioneers :  Goshen  v.  Kern,  63  Ind.  468. 
Of  a  street  railway  company  :  Johnson  v. 
Philadelphia,  60  Pa.  St.  445.  But  see 
New  York  v.  Railway  Co.,  32  N.  Y.  261. 
Of  insurance  companies:  Fire  Depart- 


ment v.  Helfenstein,  16  Wis.  136.  Of 
gas  companies  for  inspection  :  Cincinnati 
Gas  Co.  v.  State,  18  Ohio  St.  237.  Of  pro- 
prietors of  theatres  :  Boston  v.  Schaffer, 
9  Pick.  415.  For  building  licenses  :  Welch 
v.  Hotchkiss,  39  Conn.  140. 

The  fee  exacted  in  granting  a  ferry 
license  is  not  a  tax,  but  is  paid  for  the 
franchise.  Chilvers  v.  People,  11  Mich. 
43.  See  Wiggins  Ferry  Co.  v.  East  St. 
Louis,  102  111.  560. 

The  exaction  of  license  fees  under  the 
police  power  is  no  violation  of  the  consti- 
tutional requirement  of  uniform  taxation. 
State  v.  Cassidy,  22  Minn.  312,  21  Am. 
Rep.  765;  Walters  v.  Duke,  31  La.  Ann. 
668.  An  act  sustained  which  imposed  a 
smaller  license  tax  on  proprietors  of  bars 
on  steamboats  than  on  those  of  bars  on 
land.  State  v.  Rolle,  30  La.  Ann.  991. 
The  exemption  from  taxation  of  the 
Louisiana  Saving  Bank  held  not  to  ex- 
clude a  city  license  tax  on  the  business. 
New  Orleans  v.  Savings  Bank,  31  La. 
Ann.  637.  An  exemption  of  all  property 
in  a  town  from  parisli  taxes  does  not  pre- 
vent the  imposition  of  a  license.  More- 
house  Parish  v.  Brigham,  41  La.  Ann. 
665,  6  So.  257.  For  instances  of  license 
fees  held  to  be  taxes  and  not  warranted 
by  statute,  see  ante,  283,  note. 


(a)  QUpon  mode  of  valuing  telephones,  &c.,  where  the  property  has  attached  to  it 
a  monopoly,  see  State  v.  Halliday,  58  Ohio  St.  728,  51  N.  E.  1102,  49  L.  R.  A.  427. 
For  a  very  full  discussion  of  the  subject  of  the  taxation  of  corporate  franchises  with 
exhaustive  citation  of  authorities,  see  57  L.  R.  A.  33,  in  the  note  to  Louisville  T.  W. 
Co.  v.  Com.,  106  Ky.  165,  49  S.  W.  1069.  See  also  South  Covington  &  C.  S.  Ry.  Co. 
v.  Bellevue,  105.Ky.  283,  49  S.  W.  23,  57  L.  R.  A.  50;  State  v.  Duluth  G.  &  W.  Co., 
76  Minn.  96,  78  N.  W.  1032,  57  L.  R.  A.  63;  Commercial  E.  L.  &  P.  Co.  v.  Judson, 
21  Wash.  49,  56  Pac.  829,  57  L.  R.  A.  78.  The  taxation  of  the  franchise  or  business 
of  corporations  doing  business  in  the  State,  with  an  exemption  of  all  corporations 
wholly  engaged  in  the  business  of  manufacturing  within  the  State,  is  constitutional. 
New  York  v.  Roberts,  171  U.  S.  658,  19  Sup.  Ct.  Rep.  58Q 


CH.  XIV.]  THE   POWER   OF   TAXATION.  711 

taxing  districts,  (a)  and  within  these  districts  the  rule  of  absolute 
uniformity  must  be  applicable.1  A  State  tax  is  to  be  apportioned 
through  the  State,  a  county  tax  through  the  county,  a  city  tax 
through  the  city  ; 2  while  in  the  case  of  local  improvements,  bene- 
fiting in  a  special  and  peculiar  manner  some  portion  of  the  State 
or  of  a  county  or  city,  it  is  competent  to  arrange  a  special  taxing 
district,  within  which  the  expense  shall  be  apportioned.  School 
districts  and  road  districts  are  also  taxing  districts  for  the  pecu- 
liar purposes  for  which  they  exist,  and  villages  may  have  special 
powers  of  taxation  distinct  from  the  townships  of  which  they 
form  a  part.  Whenever  it  is  made  a  requirement  of  the  State 
constitution  that  taxation  shall  be  upon  property  according  to 
value,  such  a  requirement  implies  an  assessment  of  valuation  by 
public  officers  at  such  regular  periods  as  shall  be  provided  by  law, 
and  a  taxation  upon  the  basis  of  sucli  assessment  until  the  period 
arrives  for  making  it  anew.3  Thus,  the  Constitutions  of  Maine 

1  If  the  proper  rule  of  uniformity  is  general  purpose.     Bromley  v.  Reynolds, 
established   by   tl^e   legislature,  but  the  2   Utah,   525.      See   State   v.  Fuller,  39 
taxing  officers  purposely  evade  it  and  as-  N.  J.  576  ;  McBean  v.  Chandler,  9  Ileisk. 
sess  unequal  taxes,  the  collection  will  be  349.     A  State  tax  must  be   apportioned 
enjoineil.     Merrill  v.  Humphrey,  24  Mich,  uniformly   through  the  State,  a   county 
170;  Lefferts  K.  Supervisors,  21  Wis.  688;  tax    through    the    county,    a    city    tax 
Mason  v.  Lancaster,  4  Bush,  406 ;  Fuller  v.  through  the  city.     East  Portland  v.  Mult- 
Gould,  20  Vt.  643 ;  Cummings  v.  National  nomah  Co.,  6  Oreg.  62 ;  Exchange  Bank 
Bank,  101  U.  S.  153,  and  cases  cited.  v.  Hines,  3  Ohio  St.  1,  15;  Tine  Grove  v. 

The   constitutional   requirement    that  Talcott,   19  Wall.  666,  675 ;  Fletcher  v. 

property  shall  be  assessed  for  taxation  Oliver,  25  Ark.  289;  Chicago,  &c.  R.  R. 

by  uniform  rules,  and  according  to  true  Co.  v.  Boone  Co.,  44  111.  240.     For  pe- 

value,  does  not  make  it  necessary  to  tax  culiar  cases,  see  State  v.  New  Orleans,  15 

all  property,  and  it  is  satisfied  by  such  La.  Ann.  354;  Kent  v.  Kentland,  62  Ind. 

regulations  as  impose  the  same  percent-  291,  30  Arn.  Rep.  182;  Com'rs  of  Ottawa 

age  of  actual  value  upon  such  property  as  Co.  v.  Nelson,  19  Kan.  234,  27  Am.  Rep. 

is  made  taxable,  in  the  township  for  town-  101;  Cleveland  v.  Heisley,  41  Ohio  St. 

ship  purposes,  in  the  county  for  county  670.    The  whole  burden  of  expense  for 

purposes,  &c.    Stratton  v.  Collins,  43  N.  J.  fire  protection,    police,    &c.,    cannot    be 

563.  imposed    upon    an    area    within  a  city. 

2  An  act  requiring  a  school-district  tax  Morgan  v.  Elizabeth,  44  N.  J.  L.  571. 
when  collected  to  be  distributed  between          3  Where  a  tax  is  to  be  assessed  by  the 
tlie   district   collecting   it  and   others   is  value   of  property,   or  in  proportion   to 
void,  as  being  in  effect  a  local  tax  for  a  benefits,   the  right  of   the   owner  to  be 

(a)  fj"lf  the  State  Constitution  does  not  prohibit,  the  legislature,  speaking  gen- 
erally, may  create  a  new  taxing  district,  determine  what  territory  shall  belong  to  sucli 
district  and  what  property  shall  be  considered  as  benefited  by  a  proposed  improve- 
ment. And  in  so  doing  it  is  not  compelled  to  give  notice  to  the  parties  resident 
within  the  territory  or  permit  a  hearing  before  itself,  one  of  its  committees,  or  any 
other  tribunal,  as  to  the  question  whether  the  property  so  included  within  the  taxing 
district  is  in  fact  benefited.  Spencer  v.  Merchant,  125  U.  S.  345,  8  Sup.  Ct.  Rep.  921 ; 
Parsons  v.  Dist.  of  Columbia,  170  U.  S.  45,  18  Sup.  Ct.  Rep.  521."  Per  Mr.  Justice 
Brewer,  in  Williams  v.  Eggleston,  170  U.  S.  304,  18  Sup.  Ct.  Rep.  617,  aff.  68  Conn. 
131,  35  All.  24,  421.  See  also  Gilson  v.  Rush  County,  128  Ind.  65,  27  N.  E.  235,  11 
L.  R.  A.  833.] 


712 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


and  Massachusetts  require  that  there  shall  be  a  valuation  of  es- 
tates within  the  Commonwealth  to  be  made  at  least  every  ten 
years  ; J  the  Constitution  of  Michigan  requires  the  annual  assess- 
ments which  are  made  by  township  officers  to  be  equalized  by  a 
State  board,  which  reviews  them  for  that  purpose  every  five 
years;2  and  the  Constitution  of  Rhode  Island  requires  the  legis- 
lature "  from  time  to  time "  to  provide  for  new  valuations  of 
property  for  the  assessment  of  taxes  in  such  manner  as  they  may 
deem  best.3  Some  other  constitutions  contain  no  provisions  upon 
this  subject ;  but  the  necessity  for  valuation  is  nevertheless  im- 
plied, though  the  mode  of  making  it,  and  the  periods  at  which  it 
shall  be  made,  are  left  to  the  legislative  discretion. 

There  are  some  kinds  of  taxes,  however,  that  are  not  usually 
assessed  according  to  the  value  of  property,  and  some  which  could 
not  be  thus  assessed.  And  there  is  probably  no  State  which  does 
not  levy  other  taxes  than  those  which  are  imposed  upon  property.4 


heard  in  some  stage  of  the  proceedings 
would  seem  to  be  clear ;  and  it  has  been 
expressly  affirmed  in  some  cases.  See 
Philadelphia  v.  Miller,  49  Pa.  St.  440 ; 
Stewart  v.  Trevor,  56  Pa.  St.  374;  But- 
ler i;.  Supervisors  of  Saginaw,  26  Mich. 
22  ;  Thomas  v.  Gain,  35  Mich.  155;  Cleg- 
horn  v.  Postlewaite,  43  111.  428;  Darling 
?•.  Gunn,  50  111.  424;  Kuntz  r.  Sumption, 
117  Ind.  1,  19  N.  E.  474;  Redwood  Co.  v. 
Winona,  &c.  Co.,  40  Minn.  512,  41  N.  W. 
465,  42  N.  W.  473 ;  Chauvin  v.  Valiton, 
8  Mont.  451,  20  Pac.  658;  QViolett  v. 
Alexandria,  92  Va.  561,  23  S.  E.  909,  31 
L.  R.  A.  382,  63  Am.  St.  825 ;]  post,  722, 
note.  The  statutes  generally  provide  for 
a  hearing  before  some  board,  either  on 
some  day  and  at  some  place  fixed  by  the 
statute,  or  after  notice  publicly  given. 
That  such  statutes  are  mandatory,  and 
an  assessment  made  in  disregard  of  them 
void,  see  Thames  Manuf.  Co.  v.  Lathrop, 
7  Conn.  550;  Philips  v.  Stevens  Point,  25 
Wis.  594  ;  Walker  v.  Chapman,  22  Ala. 
116;  Sioux  City,  &c.  R.  R.  Co.  v.  Wash- 
ington Co  ,  3  Neb.  30 ;  Leavenworth  Co. 
v.  Lang,  8  Kan.  284  ;  Griswold  v.  School 
District,  24  Mich.  262.  £Where  the  tax- 
payer is  examined  upon  his  return  at 
the  time  it  is  made,  he  cannot  claim  a 
later  hearing.  McTwiggan  v.  Hunter,  19 
R.  I.  265,  33  Atl.  5,  29  L.  R.  A.  526.] 
On  the  general  right  to  notice  in  tax 
cases,  see  the  opinion  of  Mr.  Justice  Field 
in  the  case  of  San  Mateo  County  v.  So. 
Pac.  R.  R.  Co.,  13  Fed.  Rep.  722 ;  where 


the  right  is  strongly  affirmed.  FJ"  A  no- 
tice to  all  property  holders  of  the  time  and 
place  at  wliich  the  assessment  is  to  be  made 
is  all  that '  due  process  '  requires  in  respect 
to  the  matter  of  notice  in  tax  proceed- 
ings." Per  Mr.  Justice  Brewer  in  Mer- 
chants' &  M.  Nat.  Bank  v.  Pennsylvania, 
167  U.  S.  461,  17  Sup.  Ct.  Rep.  829.  See 
also  Paulson  v.  Portland,  149  U.  S.  30, 

13  Sup.  Ct.  Rep.  750,  aff.  16  Oreg.  450,  19 
Pac.  450,  1  L.  R.  A.  673.    The  action  of 
the  assessors    after  giving    opportunity 
for  a  hearing  is  final  in  the  absence  of 
fraud  or  mistake.     Albuquerque  Nat.  Bk. 
v.  Perea,  147  U.  S.  87,  13  Sup.  Ct.  Rep. 
194.    The  assessment  is  void  if  the  notice 
of  opportunity  for  hearing  fails  to  desig- 
nate tribunal,  place,  and  time,  or  any  of 
them.     Norfolk  v.  Young,  97  Va.  728,  34 
S.  E.  886,  47  L.  R.  A.  574.     Statute,  if 
definite,  is  sufficient  notice,     Streight  v. 
Durham,  lOOkla.  361, 61  Pac.  1096.   That 
assessed   value   of    tangible    replaceable 
property  cannot  exceed  the  cost  of  repro- 
duction   or  replacement,   see   People   v, 
Clapp,  152  N.  Y.  490,  46  N.  E.  842,  39 
L.  R.  A.  237  (railroad  real  estate).] 

1  Constitution  of  Maine,  art.  9,  §  7 ; 
Constitution  of  Mass.,  Part  2,  c.  1,  §  1, 
art.  4. 

2  Constitution  of  Mich.,  art.  14,  §  13. 

8  Constitution  of  Rhode  Island,  art.  4, 
§15. 

*  See  Bright  v.  McCullouch,  27  Ind. 
223;  Quid  v.  Richmond,  23  Gratt.  464, 

14  Am.  Rep.  139  ;  Youngblood  v.  Sexton, 


CH.  XIV.]  THE    POWER   OF   TAXATION.  713 

Every  burden  which  the  State  imposes  upon  its  citizens  with  a 
view  to  a  revenue,  either  for  itself  .or  for  any  of  the  municipal 
governments,  or  for  the  support  of  the  governmental  machinery 
in  any  of  the  political  divisions,  is  levied  under  the  power  of  tax- 
ation, whether  imposed  under  the  name  of  tax,  or  under  some 
other  designation.  The  license  fees  which  are  sometimes  required 
to  be  paid  by  those  who  follow  particular  employments  are,  when 
imposed  for  purposes  of  revenue,  taxes ; 1  the  tolls  upon  persons 
or  property,  for  making  use  of  the  works  of  public  improvement 
owned  and  controlled  by  the  State,  are  a  species  of  tax ;  stamp 
duties  when  imposed  are  taxes ;  and  it  is  not  uncommon,  as  we 
have  already  stated,  to  require  that  corporations  shall  pay  a  cer- 
tain sum  annually,  assessed  according  to  the  amount  or  value  of 
their  capital  stock,  or  some  other  standard ;  this  mode  being  re- 
garded by  the  State  as  most  convenient  and  suitable  for  the  taxa- 
tion of  such  organizations.  It  is  evident,  therefore,  that  the 
express  provisions,  which  are  usual  in  State  constitutions,  that 
taxation  upon  property  shall  be  according  to  value,  do  not  include 
every  species  of  taxation ;  and  that  all  special  cases  like  those  we 
have  here  referred  to  are,  by  implication,  excepted. 

But  in  addition  to  these  cases,  there  are  others  where  taxes  are 
levied  directly  upon  property,  which  are  nevertheless  held  not 
to  be  within  the  constitutional  provisions.  Assessments  for  the 
opening,  making,  improving,  or  repairing  of  streets,  the  draining 
of  swamps,  and  the  like  local  works,  (a)  have  been  generally 

32  Mich.  406,  20  Am.  Rep.  654  ;  Albrecht  District,  4  Lea,  219.     QSuch  taxes  are  not 

v.  State,  8  Tex.  App.  216,  34  Am.  Rep-  property  taxes,  and  are  not   subject    to 

737.  the  provisions  requiring  uniformity  and 

1  See   Ould    v.   Richmond,  23   Gratt,  equality.     State   v.   Applegarth,   81  Md. 

464,   14   Am.  Rep.  139;    Wilmington  v.  293,  31  Atl.  961,  28  L.  R.  A.  812.] 
Macks,  86  N.  C.  88 ;  Lightburne  v.  Taxing 

(ri)  [JAs  to  what  are  public  improvements,  see  Re  Kingman,  153  Mass.  566, 27  N.  E. 
778,  12  L.  R.  A.  417,  and  note.  Cost  of  maintenance  of  sewers  may  be  met  by  special 
assessments,  although  cost  of  construction  has  already  been  levied  and  paid  by 
parties  assessed  for  maintenance.  Carson  v.  Brockton  Sewer  Comm'rs,  182  U.  S. 
398,  21  Sup.  Ct.  Rep.  860,  aff.  175  Mass.  242,  56  N.  E.  1,  48  L.  R.  A.  277.  That  the 
construction  of  irrigation  works  in  an  arid  region  which  will  become  fertile  under 
irrigation  is  a  public  improvement,  see  Fallbrook  Irrigation  District  v.  Bradley,  164 
U.  S.  112,  17  Sup.  Ct.  Rep.  56.  Country  highways  are  not  "local  improvements," 
and  their  cost  cannot  be  levied  upon  adjacent  lands  alone.  Sperry  v.  Flygare, 
80  Minn.  325,  83  N.  W.  177,  49  L.  R.  A.  757.  Where  the  duty  to  repair  rests  upon 
the  city,  and  it,  in  contracting  for  the  paving  of  a  street,  incorporates  in  the  contract 
a  clause  requiring  the  contractor  to  keep  the  street  in  repair  for  a  stated  period,  the 
parties  assessed  to  pay  for  paving  can  have  the  total  cost  abated  by  a  reasonable 
sum  for  probable  repairs.  They  are  liable  only  for  cost  of  construction.  Robert- 
son 17.  Omaha,  55  Neb.  718,  76  N.  W.  442,  44  L.  R.  A.  534 ;  State  v.  Trenton,  61 
N.  J.  L.  699,  40  Atl.  575,  44  L.  R.  A.  540.  Upon  power  of  city  to  bind  contractor  to 
repair  pavement  which  he  makes,  see  Portland  v.  Portland  Bit.  Paving  &  I.  Co., 


714  CONSTITUTIONAL    LIMITATIONS.  [CH.  XIV. 

made  upon  property,  with  some  reference  to  the  supposed  benefits 
which  the  property  would  receive  therefrom.  Instead,  therefore, 
of  making  the  assessment  include  all  the  property  of  the  munici- 
pal organization  in  which  the  improvement  is  made,  a  new  and 
special  taxing  district  is  created,  whose  bounds  are  confined  to 
the  limits  within  which  property  receives  a  special  and  peculiar 
benefit,  in  consequence  of  the  improvement.  Even  within  this 
district  the  assessment  is  sometimes  made  by  some  other  standard 
than  that  of  value  ;  (a)  and  it  is  evident  that  if  it  be  just  to  cre- 
ate the  taxing  district  with  reference  to  special  benefits,  it  would 

33  Oreg.  307,  52  Pac.  28,  44  L.  R.  A.  527,  and  note,  72  Am.  St.  713.  Expense  of 
maintaining  and  repairing  boulevards  and  pleasure  ways  cannot  be  met  by  special 
assessments,  as  the  work  is  not  a  local  improvement.  Crane  v.  West  Chicago  P. 
Comm'rs,  153  111.  348,  38  N.  E.  943,  26  L.  R.  A.  311.  Nor  is  that  of  sprinkling 
streets.  Chicago  v.  Blair,  149  111.  310,  36  N.  E.  829,  24  L.  R.  A.  412,  and  note, 
citing  cases  pro  and  con.  But  expense  of  sweeping  streets  may  be  specially 
assessed.  Reinken  v.  Fuehring,  130  Ind.  382,  30  N.  E.  414,  15  L.  R.  A.  624,  30 
Am.  St.  247.] 

(a)  £The  determination  of  this  standard  of  assessment  is  a  matter  for  the  discre- 
tion of  the  legislature,  and  the  judiciary  will  inquire  into  its  fitness  only  when  the 
action  of  the  legislature  is  clearly  unreasonable.  Fallbrook  Irri.  Dist.  v.  Bradley, 
164  U.  S.  112,  17  Sup.  Ct.  Rep.  56.  See  also  Norwood  v.  Baker,  172  U.  S.  269,  f(J 
Sup.  Ct.  Rep.  187;  in  which  case  it  is  held  that  the  cost  of  an  improvement,  which 
consisted  in  the  condemnation  of  property  for  a  street  and  the  opening  of  the  same, 
could  not  all  be  assessed  against  the  person  whose  property  was  so  taken,  he  being 
the  sole  abutter.  This  case  lias  been  used  as  authority  for  the  doctrine  that  there 
must  be  an  opportunity  for  particular  inquiry  for  special  benefits  in  each  case,  and 
an  assessment  made  proportionate  to  such  benefits  so  ascertained,  rather  than  an 
assessment  by  general  rule  without  an  opportunity  to  urge  special  or  peculiar  bene- 
fits to  particular  abutting  or  adjacent  property,  but  in  French  v.  Barber  Asphalt 
Paving  Co.,  181  U.  S.  324,  21  Sup.  Ct.  Rep.  625,  aff.  158  Mo.  534,  58  S.  W.  934,  the 
court  repudiates  this  construction  of  Norwood  v.  Baker,  and  holds  that  in  that  case 
at  least  such  an  assessment  was  lawful.  Vigorous  dissenting  opinions  were  rendered 
in  both  these  cases.  French  v.  Barber  Asphalt,  &c.  Co.  was  followed  by  Wight  v. 
Davidson  et  al,  181  U.  S.  371,  21  Sup.  Ct.  Rep.  616,  rev.  16  App.  D.  C.  371 ;  Town  of 
Tonawanda  et.  al.  v.  Lyon,  181  U.  S.  389,  21  Sup  Ct.  Rep.  609,  rev.  the  Circuit  Court 
of  United  States  for  Northern  Dist.  of  New  York ;  Cass  Farm  Co.  Ltd.  r.  Detroit, 

181  U.  S.  395,  21  Sup.  Ct.  Rep.  644,  645,  aff.  124  Mich.  433,  83  N.  W.  108;  Detroit 
v.  Parker,  181  U.  S.  398,  21  Sup.  Ct.  Rep.  624,  645,  rev.  103  Fed.  Rep.  357;  Farrell 
v.  West  Chicago  Park  Commissioners,  181  U.  S.  403,  21  Sup.  Ct.  Rep.  609,  645,  aff. 

182  111.  250,  55  N.  E.  325 ;  Shumate  v.  Heman,  181  U.  S.  402,  21  Sup.  Ct.  Rep. 
645,  aff.  156  Mo.  634,  57  S.  W.  559;  Wormley  v.  District  of  Columbia  and  Allen  v. 
District  of  Columbia,  reported  together  in  181  U.  S.  402,  21  Sup.  Ct.  Rep.  609, 
and  aff.  15  App.  D.  C.  58  and  70.     The  litigation  in  these  cases  seems  to  have  been 
founded  on  the  opinion  in  Norwood  v.  Baker  before  it  was  construed  in  French  v. 
Barber,  &c.  Co.     See  also  Smith  v.  Worcester,  —  Mass.  — ,  65  N.  E.  40.     A  sewer 
assessment  cannot  be  made  in  proportion  to  frontage,  regardless  of  benefits.     Dexter 
v.  Boston,  176  Mass.  247,  67  N.  E.  379,  79  Am.  St.  306.     An  assessment  for  public 
improvements  is  limited  to  the  value  of  the  improvements  to  the  property  assessed. 
Walsh  v.  Barron,  61  Ohio  St.  15,  55  N.  E.  164;  State  v.  Newark,  37  N.  J.  L.  415. 
The  question  of  the  basis  upon  which  such  assessments  shall  be  laid  is  a  legislative 
one,  subject  to  review  by  the  courts  for  unreasonableness  only.    Spencer  v.  Merchant, 
100  N.  Y.  585,  3  N.  E.  682.     See  this  case  in  125  U.  S.  345,  8  Sup.  Ct.  Rep.  921.] 


CH.  XIV.]  THE   POWER   OF   TAXATION.  715 

be  equally  just  and  proper  to  make  the  taxation  within  the  dis- 
trict have  reference  to  the  benefit  each  parcel  of  property  receives, 
rather  than  to  its  relative  value.  The  opening  or  paving  of  a 
street  may  increase  the  value  of  all  property  upon  or  near  it ;  and 
it  may  be  just  that  all  such  property  should  contribute  to  the 
expense  of  the  improvement :  but  it  by  no  means  follows  that 
each  parcel  of  the  property  will  receive  from  the  improvement  a 
benefit  in  proportion  to  the  previous  value.  One  lot  upon  the 
street  may  be  greatly  increased  in  value,  another  at  a  little  dis- 
tance may  be  but  slightly  benefited  ;  and  if  no  constitutional  pro- 
vision interferes,  there  is  consequently  abundant  reason  why  the 
tax  levied  within  the  taxing  district  should  have  reference,  not  to 
value,  but  to  benefit,  (a) 

It  has  been  objected,  however,  to  taxation  upon  this  basis,  that 
inasmuch  as  the  district  upon  which  the  burden  is  imposed  is 
compelled  to  make  the  improvement  for  the  benefit  of  the  general 
public,  it  is,  to  the  extent  of  the  tax  levied,  an  appropriation  of 
private  property  for  the  public  use ;  and  as  the  persons  taxed,  as 
a  part  of  the  public,  would  be  entitled  of  right  to  the  enjoyment 
of  the  improvement  when  made,  such  right  of  enjoyment  could 
not  be  treated  as  compensation  for  the  exaction  which  is  made  of 
them  exclusively,  and  such  exaction  would  therefore  be  opposed 
to  those  constitutional  principles  which  declare  the  inviolability 
of  private  property.  But  those  principles  have  no  reference  to 
the  taking  of  property  under  legitimate  taxation.  When  the 
Constitution  provides  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation  made  therefor,  it  has  refer- 
ence to  an  appropriation  thereof  under  the  right  of  eminent 
domain.  Taxation  and  eminent  domain  indeed  rest  substantially 
on  the  same  foundation,  as  each  implies  the  taking  of  private 
property  for  the  public  use  on  compensation  made ;  but  the  com- 
pensation is  different  in  the  two  cases.  When  taxation  takes 
money  for  the  public  use,  the  taxpayer  receives,  or  is  supposed 

(a)  fJThat  an  elevated  railway  operating  above  a  street  and  having  stairways 
leading  from  the  street  to  its  stations  may  be  benefited  by  paving  the  street,  see  Lake 
St.  El.  R.  Co.  v.  Chicago,  183  111.  75,  55  N.  E.  721,  47  L.  R.  A.  624.  But  a  right  of 
way  of  a  surface  railroad  cannot.  Detroit  G  H.  &  M.  R.  Co.  v.  Grand  Rapids,  106 
Mich.  13,  63  N.  W.  1007,  28  L.  R.  A.  793, 58  Am.  St  466  ;  Chicago,  M.  &  S.  P.  R.  Co. 
v.  Milwaukee,  89  Wis.  506,  62  N.  W.  417,  28  L.  R.  A.  249,  and  see  note  pro  and  con 
in  L.  R.  A. ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Ottumwa,  112  Iowa,  300,  83  N.  W.  1074, 
51  L.  R  A.  763;  contra,  Kuehner  n.  Freeport,  143  111.  92,  32  N.  E.  372,  17  L.  R.  A. 
774.  But  in  California  it  was  held  that  local  improvement  districts  for  the  con- 
struction of  irrigation  works  might  be  created  at  will  by  the  legislature,  that  assess- 
ments to  pay  for  such  works  might  be  levied  upon  property  according  to  its  value, 
and  that  the  question  of  benefit  was  immaterial.  Re  Bonds  Madera  Irrigation  Dis- 
trict, 92  Cal  296,  341,  28  Pac.  272,  675,  14  L.  R.  A.  755,  and  notej 


716  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

to  receive,  his  just  compensation  in  the  protection  which  govern- 
ment affords  to  life,  liberty,  and  property,  in  the  public  con- 
veniences which  it  provides,  and  in  the  increase  in  the  value  of 
possessions  which  comes  from  the  use  to  which  the  government 
applies  the  money  raised  by  the  tax ; 1  and  these  benefits  amply 
support  the  individual  burden. 

But  if  these  special  local  levies  are  taxation,  do  they  come  under 
the  general  provisions  on  the  subject  of  taxation  to  be  found  in  our 
State  constitutions  ?  The  Constitution  of  Michigan  directs  that 
"  the  legislature  shall  provide  an  uniform  rule  of  taxation,  except 
on  property  paying  specific  taxes ;  and  taxes  shall  be  levied  upon 
such  property  as  shall  be  prescribed  by  law  ;  "  2  and  again :  "  All 
assessments  hereafter  authorized  shall  be  on  property  at  its  cash 
value."3  In  the  construction  of  these  provisions  the  first  has 
been  regarded  as  confiding  to  the  discretion  of  the  legislature  the 
establishment  of  the  rule  of  uniformity  by  which  taxation  was  to  be 
imposed;  and  the  second  as  having  reference  to  the  annual  valua- 
tion of  property  for  the  purposes  of  taxation,  which  it  is  customary 
to  make  in  that  State,  and  not  to  the  actual  levy  of  a  tax.  A 
local  tax,  therefore,  levied  in  the  city  of  Detroit,  to  meet  the 
expense  of  paving  a  public  street,  and  which  was  levied,  not  in 
proportion  to  the  value  of  property,  but  according  to  an  arbitrary 
scale  of  supposed  benefit,  has  been  held  not  invalid  under  the 
constitutional  provision.4 

So  the  Constitution  of  Illinois  declares  that  "  the  General  As- 
sembly shall  provide  for  levying  a  tax  by  valuation,  so  that  every 
person  and  corporation  shall  pay  a  tax  in  proportion  to  the  value 
of  his  or  her  property  ;  such  value  to  be  ascertained  by  some 
person  or  persons  to  be  elected  or  appointed  in  such  manner  as 
the  General  Assembly  shall  direct,  and  not  otherwise," 5  &c.  The 
charter  of  the  city  of  Peoria  provided  that,  when  a  public  street 
was  opened  or  improved,  commissioners  should  be  appointed  by 
the  county  court  to  assess  upon  the  property  benefited  the  expense 
of  the  improvement  in  proportion  to  the  benefit.  This  provision 
was  held  to  be  constitutional,  on  the  ground  that  assessments  of 
this  character  were  not  such  taxation  as  was  contemplated  by 

1  People  v.  Mayor,  &c.  of  Brooklyn,         8  Art.  14,  §  12. 

4  N.  Y.  419 ;  Williams  v.  Mayor,  &c.  of         *  Williams  v.  Mayor,  &c.  of  Detroit, 

Detroit,  2  Mich.  560;    Scovill  v.  Cleve-  2  Mich.   560.     And   see   Woodbridge  v. 

land,  1  Ohio  St.  126 ;  Northern  Indiana  Detroit,  8  Mich.  274 ;  State  v.  Stout,  61 

R.  R.  Co.  v.  Connelly,  10  Ohio  St.  159;  Ind.  143;  Taylor  v.  Boyd,  63  Tex.  533; 

Washington    Avenue,   69    Pa.  St.    352,  QBauman  v.  Ross,  167  U.  S.  548,  17  Sup. 

8   Am.  Rep.  255 ;    White  v.  People,   94  Ct.  Rep.  966.] 
111.  604.  6  Art.  9,  §  2. 

2  Art.  14,  §  11. 


CH.  XIV.] 


THE    POWER    OF   TAXATION. 


717 


the  general  terms  which  the  constitution  employed.1  Like  de- 
cisions have  been  made  in  other  States  in  regard  to  similar 
assessments.2 


1  City  of  Peoria  v.  Kidder,  26  111.  351. 
See  also  Canal  Trustees  v.  Chicago,  12 
111.  403.    In   Chicago   v.  Lamed,  34  111. 
203,  it  was  decided  tliat,  while   taxation 
for  these  local  assessments  might  consti- 
tutionally be  made  in  proportion  and  to 
the   extent  of   the   benefits   received,  it 
could  not  under  the  Constitution  of  1848 
be  made  on  the  basis  of  frontage.     This 
case  was  followed  in  Wright  v.  Chicago, 
46  111.  44.     The  contrary  is  held  under 
the  Constitution  of  1870.    White  v.  People, 
94  111.  604;  Craw  v.  Tolono,  96  111.  255, 
36  Am.  Rep.  143. 

2  People  r.  Mayor,  &c.  of  Brooklyn,  4 
N.  Y.  419 ;  Matter  of  Mayor,  &c.  of  New 
York,   11  Johns.   77;    Sharp   v.   Spier,  4 
Hill,  76 ;  Livingston  v.  Mayor,  &c.  of  New 
York,  8  Wend.  85;  Matter  of  Furman  St., 
17   Wend.   649;   Louisville   v.   Hyatt,   2 
B.  Monr.  177,  36  Am.  Dec.  594;  Nichcls 
v.  Bridgeport,  23  Conn.  189;  Schenley  v. 
City  of  Alleghany,  25  Pa.  St.  128;  Wray 
v.  Pittsburg,  46  Pa.  St.  365 ;  Hammett  v. 
Philadelphia,  65  Pa.  St.  146,  3  Am.  Rep. 
615;  Washington  Avenue,  69  Pa.  St.  353, 
8  Am.  Rep.  255;  McBride  v.  Chicago,  22 
111.  574;  Chicago  u.  Larned,  ,34  111.  203; 
Murphy  v.  People,  120  111.  234,  11  N.  E. 
202;  Springfield  v.  Green,  120  111.  269,  11 
N.  E.  261 ;  City  of  Lexington  v.  McQuil- 
lan's   Heirs,   9    Dana,    513;    Burnes    v. 
Atchison,  2  Kan.  454;  Hines  v.  Leaven- 
worth.  3  Kan.  186;  St.  Joseph  v,  O'Don- 
oghue,   31    Mo.    345 ;   Egyptian     Levee 
Co.  v.  Hardin,  27  Mo.  495 ;  St.  Joseph  v. 
Anthony,  30  Mo.  537  ;  Farrar  r.  St.  Louis, 
80  Mo.  379;  Burnet   v.   Sacramento,  12 
Cal.  76 ;  Yeatraan  v.  Crandell,  11  La.  Aim. 
220;   Wallace  v.   Shelton,   14  La.   Ann. 
498;  Richardson  v.  Morgan,  16  La.  Ann. 
429;   Hill  v.   Higdon,   5   Ohio   St.  243; 
Marian  v.  Epler,  5  Ohio  St.  250 ;  Reeves 
v.  Treasurer  of  Wood  Co.,  8  Ohio  St.  333  ; 
Northern  Ind.  R.  R.  Co.  v.  Connelly,  10 
Ohio  St.   159;   Baker  v.   Cincinnati,    11 
Ohio  St.  534;  Maloy  v.  Marietta,  11  Ohio 
St.  636 ;  State  (--.  Dean,  23  N.  J.  335 ;  State 
v.  Mayor,  &c.  of  Jersey  City,  24  N.  J.  662 ; 
Bond  v.  Kenosha,  17  Wis.  284 ;  City  of 
Fairfield  v.  Ratcliff,  20  Iowa,  396;   Muni- 
cipality No.  2  v.  White,  9  La.  Ann.  447 ; 
Gumming  v.  Police  Jury,  9  La.  Ana.  503; 


Northern  Liberties  v.  St.  John's  Church, 

13  Pa.  St.  103;  McGehee  v.  Mathis,  21 
Ark.   40;    Goodrich    v.   Winchester,   &c. 
Turnpike  Co.,  26  Ind.  119;  Emery  v.  Gas 
Co,  28  Cal.  345;  Palmer  v.  Stumph,  29 
Ind.   329;   Dorgan  v.   Boston,   12   Allen, 
223;   Anderson  v.  Kerns   Draining  Co., 

14  Ind.   199;  Macon  v.  Patty,  57  Miss. 
378,  34  Am.  Rep.  451;  Cain  v.  Commis- 
sioners, 86  N.  C.  8;  Norfolk  v.  Ellis,  26 
Gratt.  224 ;  Willcins  v.  Detroit,  46  Mich. 
120,  8  N.  W.  701,  9  N.  W.  427 ;  Yasser  r. 
George,  47  Miss.  713;  Roundtree  v.  Gal- 
veston,  42  Tex.  612 ;  Richmond  &  A.  R.  R. 
Co.  v.  Lynchburg,  81  Va.  473.     For  a 
special  case,  see  Cincinnati  Gas,  &c.  Co. 
v.  State,  18  Ohio  St.  237.     In  Alabama  a 
decision  has  been  made  the  other  way. 
Tlie  constitution  provides  that  "all  taxes 
levied  on  property   in    this   State   shall 
be  assessed  in   exact  proportion  to  the 
value  of  such  property  ;  provided,  how- 
ever, that  the  General  Assembly  may  levy 
a  poll-tax  not  to  exceed  one  dollar  and 
fifty  cents  on  each  poll,  which  shall  be 
applied  exclusively  in  aid  of  the  public- 
school  fund."    This,  it  was  decided,  would 
preclude  the  levy  of  a  local  assessment 
for  the  improvement  of  a  street  by  the 
foot  front.     Mayor  of  Mobile  v.  Dargan, 
45  Ala.  310.     In  Colorado  only  improve- 
ments within  the  domain  of  the  police 
power  can  be  paid  for  by  special  assess- 
ment.   Expense  of  sewers  may  be,  but 
not  that  of  gutters  and  curbs.     Pueblo  v. 
Robinson,  12  Col.  593, 21  Pac.  899 ;  Wilson 
v.   Chilcott,   12    Col.   600,   21   Pac.   901. 
QNew  sidewalks  and  drains  necessitated 
by  a  change  in  the  established  grade  are 
for  a  public  or  municipal  purpose,  and  the 
cost  must  be  paid  out  of  the  general  fund. 
It  cannot  be  assessed  upon  owners  of  abut- 
ting property.     Mauldin  v.  Greenville,  53 
S.  C.  285,  31  S.  E.  252,  43  L.  R,  A.  101, 
mod.  s.  c.  42  S.  C.  293,  20  S.  E.  842,  27 
L.  R.  A.  284.     But  the  cost  of  watering  a 
street  may  be.     Sears  v.  Board  of  Alder- 
men, 173  Mass.  71,  53  N.  E.  138, 43  L.  R.  A. 
834.J    The  cases  of  Weeks  v.  Milwaukee, 
10  Wis.  242,  and  Lumsden  v.  Cross,  10 
Wis.  282,  recognize  the  fact  that  these 
local    burdens    are    generally    imposed 
under  the  name  of  assessments  instead  of 


718 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


But  whatever  may  be  the  basis  of  the  taxation,  the  require- 
ment that  it  shall  be  uniform  is  universal.  It  applies  as  much  to 
these  local  assessments  as  to  any  other  species  of  taxes.  The 
difference  is  only  in  the  character  of  the  uniformity,  and  in  the 
basis  on  which  it  is  established.1  But  to  render  taxation  uni- 
form in  any  case,  two  things  are  essential.  The  first  of  these 


taxes,  and  that  therefore  they  are  not 
covered  by  the  general  provisions  in  the 
constitution  of  the  State  on  the  subject 
of  taxation.  And  see  Bond  v.  Kenosha, 
17  Wis.  284;  Hale  v.  Kenosha,  29  Wis. 
693.  QAnd  the  cost  of  a  local  improve- 
ment may  not  only  be  assessed  in  pro- 
portion to  benefits,  but  the  cost  of  main- 
tenance may  also  be  so  assessed.  Carson 
v.  Sewerage  Comm'rs  of  Brockton,  175 
Mass.  242,  56  N.  E.  1,  48  L.  R.  A.  277, 
aff.  in  182  U.  S.  398,  21  Sup.  Ct.  Rep.  860. 
But  where  lands  abutting  upon  a  portion 
of  street  amounting  to  a  cul-de-sac  have 
been  assessed  for  its  construction  in  pro- 
portion to  benefits,  they  cannot  be  again 
assessed  for  the  extension  of  the  portion 
first  constructed.  Re  Orkney  Street,  194 
Pa.  425,  45  All.  314,  48  L.  R.  A.  274.  In 
Tennessee,  levee  improvements  must  be 
assessed  upon  property  in  proportion  to 
its  value.  Reelfoot  Lake  Levee  Dist. 
v.  Dawson,  97  Tenn.  161,  36  S.  W.  1041, 
34  L.  R.  A.  725.]  An  exemption  of 
church  property  from  taxation  will  not 
preclude  its  being  assessed  for  improving 
streets  in  front  of  it.  See  post,  p.  740, 
note.  L~That  exemptions  from  taxation 
do  not  exempt  from  special  assessment 
for  local  improvements,  see  Bd.  of  Im- 
provement v.  School  Dist.,  66  Ark.  354, 
19  S.  W.  969,  16  L.  R.  A.  418 ;  Zabel  v. 
Louisville  B.  0.  Home,  92  Ky.  89,  17 
S.  W.  212,  13  L.  R.  A.  668;  Atlanta  v. 
First  P.  Church,  86  Ga.  730,  13  S.  E. 
252, 12  L.  R.  A.  852,  and  note ;  Home,  &c. 
r.  Wilkinsburg,  131  Pa.  109,  18  Atl.  937, 
6  L.  R.  A.  631 ;  Adams  County  v.  Quincy, 
130  111.  666,  22  N.  E.  624,  6  L.  R.  A.  155, 
and  note ;  note  to  4  L.  R.  A.  171.] 

1  In  the  case  of  assessments  which  are 
to  be  made  on  the  basis  of  benefits,  pro- 
vision is  usually  made  for  a  hearing.  As 
to  the  right  to  this,  sec  p.  617,  note. 
(^Requirement  that  tax  upon  personal 
property  be  paid  at  time  of  assessment 
with  provision  made  for  hearing  con- 
cerning value,  &c.,  and  refund  of  excess, 
does  not  violate  uniformity  requirement. 


Tax  upon  real  estate  is  secured  by  lien, 
and  collection  may  safely  be  deferred 
longer  than  in  case  of  personal  prop- 
erty. Rode  v.  Siebe,  119  Cal.  518,  51  Pac. 
869,  39  L.  R.  A.  342.  Uniformity  clause 
does  not  apply  to  license  taxes.  State  v. 
French,  17  Mont.  54,  41  Pac.  1078,  30 
L.  R.  A.  415;  Denver  City  R.  Co.  v. 
Denver,  21  Col.  350,  41  Pac.  826,  29 
L.  R.  A.  608.  Nor  does  it  require  that 
the  mode  of  assessment  be  uniform.  Com- 
monwealth v.  Brown,  91  Va.  762,  21  S.  E. 
357,  28  L.  R.  A.  110.  But  where  prop- 
erty is  to  be  assessed  at  its  "  cash  value," 
and  property  taxes  are  required  to  be 
uniform  and  equal,  an  ordinance  levying 
an  ad  valorem  tax  upon  realty  and  a 
license  tax  upon  personalty  is  bad  in 
respect  to  the  license  tax.  Levi  v.  Louis- 
ville, 97  Ky.  394,  30  S.  W.  973,  28  L.  R.  A. 
480.  Uniformity  is  not  violated  by  a 
statute  allowing  deduction  of  debts  from 
credits.  Florer  v.  Sheridan,  137  Ind.  28, 
36  N.  E.  365,  23  L.  R.  A.  278,  and  note. 
But  it  is  violated  by  a  statute  giving  a 
State  revenue  agent  power  to  assess  at 
discretion  and  without  notice,  property 
which  has  escaped  assessment  in  prior 
years,  the  owner  being  permitted  to  be 
heard  only  in  defence  of  suit  to  collect 
taxes  upon  such  assessment.  Adams  v. 
Tonella,  70  Miss.  701,  14  So.  17,  22 
L.  R.  A.  346.  That  lack  of  uniformity 
may  arise  from  administration  in  a  par- 
tial and  oppressive  way,  see  Hoefling  v. 
San  Antonio,  85  Tex.  228,  20  S.  W.  86, 
16  L.  R.  A.  608.  An  arbitrary  tax  of  81 
per  mile  upon  railroads  is  bad.  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  v.  State,  49 
Ohio  St.  189,  30  N.  E.  435,  16  L.  R.  A. 
380.  Where  taxation  is  required  to  be 
"  ad  valorem  on  all  property  subject  to 
be  taxed,"  the  rate  must  be  uniform. 
Savannah  v.  Weed,  84  Ga.  683,  11  S.  E. 
235,  8  L.  R.  A.  270,  and  note.  For  other 
cases  on  question  of  uniformity,  see 
Wasson  v.  Wayne  Co.  Comm'rs,  49  Ohio 
St.  622,  32  N.  E.  472,  17  L.  R.  A.  795.] 


CH.  XIV.] 


THE    POWER    OF   TAXATION. 


719 


is  that  each  taxing  district  should  confine  itself  to  the  objects 
of  taxation  within  its  limits.  Otherwise  there  is,  or  may  be, 
duplicate  taxation,  and  of  course  inequality.  Assessments  upon 
real  estate  not  lying  within  the  taxing  districts  would  be  void,1 
and  assessments  for  personal  property  made  against  persons 
not  residing  in  the  district  would  also  be  void,  unless  made 
with  reference  to  the  actual  presence  of  the  property  in  such 
district.2 


1  But  sometimes  when  a  parcel  of 
real  estate  lies  partly  in  two  districts, 
authority  is  given  by  law  to  assess  the 
whole  in  one  of  these  districts,  and  the 
whole  parcel  may  then  be  considered  as 
having  been  embraced  within  the  district 
where  taxed,  by  an  enlargement  of  the 
district  bounds  to  include  it.  Saunders 
v.  Springstein,  4  Wend.  429.  It  is  as 
competent  to  provide  for  the  repairing 
of  a  street  by  special  assessment  on 
adjoining  land,  as  for  the  original  paving. 
See  Willard  v.  Presbury,  14  Wall.  67(i; 
Gurnee  v.  Chicago,  40  III.  165;  Bradley 
v.  MeAtee,  7  Bush,  607;  Sheley  v.  De- 
troit, 45  Midi.  431,  8N.  W.  62;  Blount 
v.  Janesville,  31  Wis.  648;  Municipality 
v.  Dunn,  10  La.  Ann.  67 ;  Jeliff  v.  New- 
ark, 49  N.  J.  L.  239,  12  Atl.  770;  Estes  v. 
Owen,  90  Mo.  113,  2  S.  W.  133.  Contra, 
Hammett  v.  Philadelphia,  65  Pa.  SFT46  ; 
Orphan  Asylum's  Appeal,  111  Pa.  St. 
135,  3  Atl.  217;  Williamsport  v.  Beck, 
128  Pa.  St.  147,  18  Att.  329.  The  ex- 
pense of  sewer  repairs  properly  payable 
by  a  city  cannot  be  imposed  on  adjoining 
owners  by  calling  tlie  work  street  im- 
provement. Clay  v.  Grand  Rapids,  60 
Mich.  451,  27  N.  W.  696.  [Tower  to 
impose  licenses  upon  occupations  author- 
izes a  license  tax  upon  a  non-resident 
who  carries  on  his  occupation  in  the  city. 
Petersburg  v.  Cocke,  94  Va.  244,  26  S.  E. 
676,  36  L.  II.  A.  432.  Real  estate  mort- 
gages may  be  made  taxable  at  the  situs 
of  the  realty  covered  by  them.  Detroit 
Com.  Council  v.  Rentz,  91  Mich.  78,  51 
N.  W.  787,  16  L.  R.  A.  69,  and  note 
upon  taxation  of  mortgages.  Assessment 
is  wholly  void  if  it  covers  property 
partly  within  and  partly  without  the 
disirict,  unless  the  parts  can  be  distin- 
guished. Sioux  City  B.  Co.  v.  Dakota 
County,  61  Neb.  75,  84  N.  W.  607.] 

2  People  v.  Supervisors  of  Chenango, 
11  N.  Y.  663;  Mygatt  v.  Washburn,  16 


N.  Y.  316 ;  Brown  t;.  Smith,  24  Barb.  419 ; 
Hartland  v.  Church,  47  Me.  169 ;  Lessee 
of  Hughey  v.  Horrell,  2  Ohio,  231. 
QHeld  that  under  this  principle  credits 
cannot  be  taxed  to  the  creditor  at  the 
residence  of  the  debtor.  Liverpool  &  L. 
&  G.  Ins.  Co.  v.  Bd.  of  Assessors,  51  La. 
Ann.  1028,  25  So.  970,  45  L.  R.  A.  524 ; 
but  see  in  this  connection  cases  cited  in 
note  a,  p.  696.  Moneys  and  securities 
held  in  the  State  for  investment,  rein- 
vestment, and  sale  are  taxable  against 
the  owners  where  so  held.  Buck  v. 
Miller,  147  Ind.  586,  45  N.  E.  647,  37 
L.  R.  A.  384.  And  so  are  unpaid  legacies 
and  distributive  shares  taxable  within 
the  State,  even  though  the  beneficiaries 
are  non-resident.  Schmidt  v.  Failey,  148 
Ind.  150,  47  N.  E.  326,  37  L.  It.  A.  442. 
A  vessel  engaged  in  commerce  is  taxable 
only  at  her  home  port  if  she  is  duly 
registered  there,  even  though  she  is  used 
practically  all  of  the  time  within  the 
limits  of  another  State  than  that  of  her 
home  port.  Johnson  v.  De  Bary-Baya 
M.  Line,  37  Fla.  499,  19  So.  640,  37 
L.  R.  A.  518;  upon  situs  of  ships  for 
purpose  of  taxation,  see  note  to  this  case 
in  L.  It.  A.  Water-power  is  deemed  for 
purposes  of  taxation  to  have  its  situs 
where  it  is  used.  Union  W.  P.  Co.  v. 
Auburn,  90  Me.  60,  37  Atl.  331,  37 
L.  R.  A.  651;  but  see  Amoskeag  M'fg 
Co.  v.  Concord,  66  N.  H.  662,  34  Atl.  241, 
32  L.  R.  A.  621,  holding  that  water  power 
is  appurtenant  to  lands  upon  which  it 
may  be  used.  Ice  may  be  taxed  where 
stored,  though  it  is  to  be  used  elsewhere. 
Winkley  v.  Newton,  67  N.  H.  80,  36  Atl. 
610,  85  L.  R.  A.  756.  Average  amount 
of  livestock  in  the  hands  of  cattle-dealers 
may  be  taxed,  although  brought  from 
other  States  and  usually  retained  by 
dealers  for  only  one  day.  Myers  v.  Bal- 
timore Co.  Comm'rs,  85  Md.  885,  35  Atl. 
144,  34  L.  R.  A.  30'J.  So  with  bonds  of 


720 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


Iii  Wells  v.  City  of  "Weston,1  the  Supreme  Court  of  Missouri 
deny  the  right  of  the  legislature  to  subject  property  located  in 
one  taxing  district  to  assessment  in  another,  upon  the  express 
ground  that  it  is  in  substance  the  arbitrary  taxation  of  the  prop- 
erty of  one  class  of  citizens  for  the  benefit  of  another  class.  The 
case  was  one  where  the  legislature  sought  to  subject  real  estate 
lying  outside  the  limits  of  a  city  to  taxation  for  city  purposes,  on 
the  theory  that  it  received  some  benefit  from  the  city  government, 
and  ought  to  contribute  to  its  support.  In  Kentucky2  and  Iowa3 
decisions  have  been  made  which,  while  affirming  the  same  prin- 
ciple as  the  case  above  cited,  go  still  further,  and  declare  that  it 
is  not  competent  for  the  legislature  to  increase  the  limits  of  a  city, 
in  order  to  include  therein  farming  lands,  occupied  by  the  owner 
for  agricultural  purposes,  and  not  required  for  either  streets  or 
houses,  or  other  purposes  of  a  town,  where  the  purpose  is  merely 
to  increase  the  city  revenue  by  taxation.  The  courts  admit  that 


foreign  corporation  when  kept  in  safe 
deposit  vault  within  the  State.  Re  Whit- 
ing's Estate,  150  N.  Y.  27,  44  N.  E.  715, 
34  L.  R.  A.  232.  And  with  moneys  of 
non-resident.  Re  Houdayer's  Estate,  150 
N.  Y.  37,  44  N.  E.  718,  34  L.  11.  A.  235. 
So  with  stock  of  domestic  corporation 
held  outside  of  State  by  a  non-resident, 
but  not  with  bonds.  Re  Bronson's 
Estate,  150  N.  Y.  1,  44  N.  E,  707,  34 
L.  R.  A.  238.  So  with  credits  in  hands 
of  resident  trustee  holding  legal  title. 
Detroit  v.  Lewis,  109  Mich.  155,  66 
N.  W.  958,  32  L.  R  A.  439.  Real  estate 
mortgages  owned  and  controlled  by  non- 
resident cannot  be  taxed.  Holland  v. 
Comm'rs  of  Silver  Bow  Co.,  15  Mont.  460, 
39  Pac.  675,  27  L.  R.  A.  797.  Stock  in 
trade  of  a  partnership  is  located  for 
purposes  of  taxation  in  the  city  where  it 
actually  is  for  purpose  of  sale,  without 
regard  to  residence  of  owners.  Hopkins 
v.  Baker  Bros.,  78  Md.  363,  28  All.  284, 
22  L.  R.  A.  477,  and  note  on  partnership 
property  tax.  In  Maine,  water  pipes  are 
considered  real-estate  taxable  in  the  dis- 
trict in  which  they  are  actually  situated. 
Paris  v.  Norway  Water  Co.,  85  Me.  330, 
27  Atl.  143,  21  L.  R.  A.  525;  but  in  Illi- 
nois, Iowa,  and  Wisconsin  it  is  otherwise, 
see  note  to  21  L.  R.  A.  525,  and  see  also 
Shelbyville  Water  Co.  v.  People,  140  III. 
545,  30  N.  E.  678,  16  L.  R.  A.  605;  Oska- 
loosa  Water  Co.  v.  Bd.  of  Equalization, 
81  Iowa,  407,  51  N.  W.  18, 15  L.  R.  A.  296, 


and  note;  Fond  du  Lac  Water  Co.  v. 
Fond  du  Lac,  82  Wis.  322,  52  N.  W.  439, 
16  L.  R.  A.  681.  On  situs  of  trust  prop- 
erty, see  Trustees  of  Richmond  Co.  Acad- 
emy v.  Augusta,  90  Ga.  634,  17  S.  E.  61, 
20  L.  R.  A.  151,  and  note.  As  to  where 
franchise  is  taxable,  see  Spring  Valley 
Water-works  r.  Barber,  99  Cal.  36,  33 
Pac.  735,  21  L.  R.  A.  416;  Yellow  R. 
Imp.  Co.  v.  Wood  County,  81  Wis.  554, 
51  N.  W.  1004,  17  L.  R.  A.  92,  and  note. 
Negotiable  promissory  notes  have  situs 
with  creditor.  Boyd  v.  Selma,  96  Ala. 
144,  11  So.  393,  16  L.  R.  A.  729,  and  note 
on  situs  of  notes  and  mortgages ;  Liver- 
pool &  L.  &  G.  Ins.  Co.  <>.  Bd.  of  Asses- 
sors, 44  La.  Ann.  760,  11  So.  91,  16 
L.  R.  A.  56.] 

1  22  Mo.  384.     To  the  same  effect  is 
In  re  Flatbush,  60  N.  Y.  898.     Compare 
case   of    State    Tax   on    Foreign    Held 
Bonds,  17  Wall.  300;  St.  Charles  v.  Nolle, 
61  Mo.  122,  11  Am.  Rep.  440;  People  v. 
Townsend,  56  Cal.  633;  State  Treasurer 
v.  Auditor-General,  46  Mich.  224,  9  N.  W. 
258.    The  case  of  Langhorne  v.  Robinson, 
20  Gratt.  661,  is  contra. 

2  City  of  Covington  v.  Southgate,  15 
B.  Monr.  491  ;  Arbegust  v.  Louisville,  2 
Bush,  271 ;  Swift  v.  Newport,  7  Bush,  37. 
[JBut  the  mere  fact  that  the  land  is  not 
yet  plotted  is  not  sufficient  to  exempt  it. 
Bripgs  v.  Russelville,  99  Ky.  515,  36  S.  W. 
558,  34  L.  R.  A.  193.] 

3  Morford  v.  Unger,  8  Iowa,  82. 


CH.  XIV.]  THE   POWER   OF  TAXATION.  721 

the  extension  of  the  limits  of  a  city  or  town,  so  as  to  include  its 
actual  enlargement,  as  manifested  by  houses  and  population,  is  to 
be  deemed  a  legitimate  exercise  of  the  taxing  power,  but  they 
declare  that  an  indefinite  or  unreasonable  extension,  so  as  to  em- 
brace lands  or  farms  at  a  distance  from  the  local  government, 
does  not  rest  upon  the  same  authority.  And  although  it  may  be 
a  delicate  as  well  as  a  difficult  duty  for  the  judiciary  to  interpose, 
the  court  had  no  doubt  but  strictly  there  are  limits  beyond  which 
the  legislative  discretion  cannot  go.  "It  is  not  every  case  of 
injustice  or  oppression  which  may  be  reached  ;  and  it  is  not  every 
case  which  will  authorize  a  judicial  tribunal  to  inquire  into  the 
minute  operation  of  laws  imposing  taxes,  or  defining  the  boun- 
daries of  local  jurisdictions.  The  extension  of  the  limits  of  the 
local  authority  may  in  some  cases  be  greater  than  is  necessary  to 
include  the  adjacent  population,  or  territory  laid  out  into  city 
lots,  without  a  case  being  presented  in  which  the  courts  would 
be  called  upon  to  apply  a  nice  and  exact  scrutiny  as  to  its 
practical  operation.  It  must  be  a  case  of  flagrant  injustice  and 
palpable  wrong,  amounting  to  the  taking  of  private  property  with- 
out such  compensation  in  return  as  the  taxpayer  is  at  liberty  to 
consider  a  fair  equivalent  for  the  tax."  This  decision  has  been 
subsequently  recognized  and  followed  as  authority,  in  the  last- 
named  State.1 

1  Langworthy  v.  Dubuque,  13  Iowa,  Iowa,  458;  Deeds  v.  Sanborn,  26  Iowa, 

86;  Fulton  v.  Davenport,  17  Iowa,  404;  419;  Durant  v.  Kauffman,  34  Iowa,  194. 

Buell  v .  Ball,  20  Iowa,  282.     Tliese  cases  QBut  such  exemption  does  not  cover  lands 

were  cited  and  followed  in  Bradshaw  v.  held  for  speculative  purposes   and  only 

Omaha,  1  Neb.  16.      These   cases,  how-  incidentally  or  temporarily  used  for  agri- 

ever,  do  not  hold  the  legislative  act  which  culture.    Farwell  v.   Des  Moines   Brick 

enlarges  the  city  limits  to  be  absolutely  Mfg.  Co.,  97  Iowa,  286,  66  N.  W.  176,  35 

void,  but  only  hold  that  they  will  limit  L.  R.  A.  63.     Where  the  statute  permits 

the  exercise  of  the  taxing  power  as  nearly  the  annexation  of  plotted  sections   and 

as  practicable  to  the  line  where  the  ex-  "  land   adjacent    thereto,"   the   adjacent 

tension  of   the   boundaries   ceases  to  be  land    must    be    somewhat   suburban  in 

beneficial  to  the  proprietor  in  a  municipal  character.   State  v.  Minnetonka,  57  Minn, 

point   of   view.     For  this  purpose   they  526,  59  N.  W.  972,  25  L.  R.  A.  755,  and 

enter  into  an  inquiry  of  fact,   whether  note.     But  some  allowance  may  be  made 

the  lands  in  question,  in  view  of  their  for    prospective    growth.      Ferguson   v. 

relative  position  to  the  growing  and  im-  Snohomish,  8  Wash.  668,  36  Pac.  969,  24 

proved  parts  of  the  town,  and  partaking  L.  R.  A.  795.     See  also  Vestal  v.  Little 

more  or  less  of  the  benefits  of  municipal  Rock,  54  Ark.  321,  329,  15  S.  W.  891,  16 

government,  are  proper  subjects  of  muni-  S.  W.  291,  11  L.  R.  A.  778.]     There  are 

cipal  taxation  ;   and  if  not,  they  enjoin  decisions  adverse  to  these.     See  Stiltz  «?. 

the  collection  of  such  taxes.     It  would  Indianapolis,  55  Ind.  515;  Martin  v.  Dix, 

seem  as  if  there  must  be  great  practical  52  Miss.  53,  24  Am.  Rep.  661 ;  Giboney 

difficulties  —  if  not  some  of  principle  —  v.   Cape    Girardeau,   58   Mo.    141 ;   New 

in  making  this  disposition  of  such  a  case.  Orleans   v.   Cazelear,  27  La.   Ann.  156; 

They  have  nevertheless  been  followed  re-  ^Kimball  v.  Grantsville  City,  19  Utah, 368, 

peatedly  in  Iowa.     Davis  v.  Dubuque,  20  67  Pac.  1,45  L.  R.  A.  628,  overr.  Kaysville 

46 


722 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


The  second  essential  is  that  there  should  be  uniformity  in  the 
manner  of  the  assessment,  and  approximate  equality  in  the  amount 
of  exactions  within  the  district ;  J  and  to  this  end  that  all  the 
objects  of  taxation  within  the  district  should  be  embraced.  The 
correctness  of  this  principle  will  be  conceded,  but  whether  in 
practice  it  has  been  applied  or  not,  it  may  not  always  be  easy  to 
determine. 

"  With  the  single  exception  of  specific  taxes,"  says  Christiancy, 
J.,  in  Woodbridge  v.  Detroit,2  "the  terms  'tax'  and  'assess- 
ment '  both,  I  think,  when  applied  to  property,  and  especially  to 
lands,  always  include  the  idea  of  some  ratio  or  rule  of  apportion- 
ment, so  that,  of  the  whole  sum  to  be  raised,  the  part  paid  by  one 


City  v.  Ellison,  18  Utah,  163,  55  Pac.  386 ; 
43  L.  R.  A.  81.]  Compare  Weeks  v.  Mil- 
waukee, 10  VVis.  242 ;  Kelly  v.  Pittsburgh, 
85  Pa.  St.  170;  Hewitt's  Appeal,  88  Pa. 
St.  55 ;  Stoner  v.  Flournoy,  28  La.  Ann. 
850 ;  Norris  v.  Waco,  57  Tex.  635 ;  Wash- 
burn  v.  Oshkosh,  60  Wis.  453,  19  N.  W. 
364;  EState  v.  Eidson,  76  Tex.  302,  13 
S.  W.  263,  7  L.  R.  A.  733.]  That  the  legi- 
lature  cannot  annex  to  a  village,  territory 
not  contiguous  for  the  purpose  of  increas- 
ing its  revenues,  see  Smith  v.  Sherry,  50 
Wis.  210,  6  N.  W.  561.  [The  Federal 
courts  will  not  intervene  to  correct  any 
purely  arbitrary  action  of  the  State  au- 
thorities in  respect  to  the  annexation  of 
territory  to  municipalities.  Forsyth  i;. 
Hammond,  166  U.  S.  506,  17  Sup.  Ct.  Rep. 
665.  Upon  municipal  taxation  of  rural 
lands,  see  Briggs  v.  Russellville,99Ky.515, 
36  S.  W.  558,  34  L.  R.  A.  193,  and  note. 
Legislature  cannot  annex  non-contiguous 
lands.  Denver  v.  Coulehan,  20  Col. 
471,  39  Pac.  425,  27  L.  R.  A.  751.  Upon 
power  of  legislature  to  annex  territory 
to  municipalities,  see  State  v.  Cincinnati, 
52  Ohio  St.  419,  40  N.  E.  508,  27  L.  R.  A. 
737,  and  notes ;  also  a  valuable  case, 
Vestal  v.  Little  Rock,  54  Ark.  321,  329, 
15  S.  W.  891,  16  S.  W.  291,  11  L.  R.  A. 
778,  and  note.] 

1  See  Davis  v.  Gaines,  48  Ark.  370,  3 
S.  W.  184  ;  State  v.  Dist.  Court,  33  Minn. 
235,  22  N.  W.  625;  Warren  ?;.  Chicago, 
118  111.  329,  11  N.  E.  218.  Where  an 
assessment  is  to  be  made  by  benefits, 
property  owners  have  an  absolute  right 
to  be  heard,  and  a  law  for  making  it  with- 
out provision  for  a  hearing  is  void. 
Stuart  v.  Palmer,  74  N.  Y.  183,  30  Am. 
Rep.  289;  Baltimore  v.  Scharf,  54  Md. 


499  ;  Davidson  v.  New  Orleans,  96  U.  S. 
97;  Spencer  v.  Merchant,  125  U.  S.  345, 
8  Sup.  Ct.  Rep.  921 ;  Campbell  v.  D  wig- 
gins,  83  Ind.  473 ;  Gilmore  v.  Hentig,  33 
Kan.  156,  5  Pac.  781  ;  Brown  r.  Denver, 
7  Col.  305,  3  Pac.  455;  Boorman  v.  Santa 
Barbara,  65  Cal.  313,  4  Pac.  31 ;  Gatch 
v.  Des  Moines,  63  Iowa,  718,  18  N.  W. 
310 ;  Trustees  v.  Davenport,  65  Iowa, 
633,  22  N.  W.  904 ;  [Paulsen  v.  Portland, 
149  U.  S.  30, 13  Sup.  Ct.  Rep.  750.]  See 
Waples,  Proceedings  in  Rem,  64 ;  ante, 
711,  note.  Contra,  Baltimore  v.  Johns 
Hopkins  Hosp.,  56  Md.  1 ;  Cleveland  v. 
Tripp,  13  R.  I.  50 ;  Davis  v.  Lynchburg,  84 
Va.  861, 6  S.  E.  230.  Notice  is  unnecessary 
if  only  a  mathematical  calculation  is  in- 
volved. Amery  v.  Keokuk,  72  Iowa,  701, 
30  N.  W.  780 ;  Qand  for  the  fixing  of  the 
rate  of  charge  per  1000  gallons  of  sewer- 
age discharged  into  the  city  sewer,  no 
hearing  is  necessary.  Carson  v.  Sewerage 
Comm'rs  of  Brockton,  175  Mass.  242,  56 
N.  E.  1,  48  L.  R.  A.  277,  aff.  182  U.  S. 
398,  21  Sup.  Ct.  Rep.  860.]  If  an  oppor- 
tunity for  a  hearing  is  given  at  some  step 
of  the  proceedings  it  is  enough ;  as  in 
judicial  proceedings  to  enforce  the  assess- 
ment. Hagar  c.  Reclamation  Dist,  111 
U.  S.  701,  4  Sup.  Ct.  Rep.  663;  [Taulsen 
v.  Portland,  149  U.  S.  30,  13  Sup.  Ct.  Rep. 
750,  aff.  16  Oreg.  450,  19  Pac.  450,  1 
L.  R.  A.  673.  Unless  expressly  author- 
ized, a  municipality  cannot  make  exemp* 
tions  from  taxation.  McTwiggan  v. 
Hunter,  19  R.  I.  265,  33  Atl.  5,  29  L.  R.  A. 
526.] 

2  8  Mich.  274,  301.  See  also  Chicago 
»•.  Larned,  34  III.  203;  Creote  v.  Chicago, 
56  III.  422. 


CH.  XIV.]  THE   POWER   OF    TAXATION.  723 

piece  of  property  shall  bear  some  known  relation  to,  or  be  affected 
by,  that  paid  by  another.  Thus,  if  one  hundred  dollars  are  to  be 
raised  from  tracts  A,  B,  and  C,  the  amount  paid  by  A  will  reduce 
by  so  much  that  to  be  paid  by  B  and  C ;  and  so  of  the  others. 
In  the  case  of  specific  taxes,  as  well  as  duties  and  imposts,  though 
the  amount  paid  by  one  is  not  affected  by  that  paid  by  another, 
yet  there  is  a  known  and  fixed  relation  of  one  to  the  other,  a 
uniform  rate  by  which  it  is  imposed  upon  the  whole  species  or 
class  of  property  or  persons  to  which  the  specific  tax  applies  ;  and 
this  is  so  of  duties  and  imposts,  whether  specific  or  ad  valorem. 
To  compel  individuals  to  contribute  money  or  property  to  the 
use  of  the  public,  without  reference  to  any  common  ratio,  and 
without  requiring  the  sum  paid  by  one  piece  or  kind  of  property, 
or  by  one  person,  to  bear  any  relation  whatever  to  that  paid  by 
another,  is,  it  seems  to  me,  to  lay  a  forced  contribution,  not  a 
tax,  duty,  or  impost,  within  the  sense  of  these  terms,  as  applied 
to  the  exercise  of  powers  by  any  enlightened  or  responsible 
government." 

In  the  case  of  Knowlton  v.  Supervisors  of  Rock  County,1  an 
important  and  interesting  question  arose,  involving  the  very  point 
now  under  discussion.  The  Constitution  of  Wisconsin  provides 
that  "  the  rule  of  taxation  shall  be  uniform,"  which,  if  we  are  cor- 
rect in  what  we  have  already  stated,  is  no  more  than  an  affirm- 
ance of  a  settled  principle  of  constitutional  law.  The  city  of 
Janesville  included  within  its  territorial  limits,  not  only  the  land 
embraced  within  the  recorded  plat  of  the  village  of  Janesville  and 
its  additions,  but  also  a  large  quantity  of  the  adjacent  farming  or 
agricultural  lands.  Conceiving  the  owners  of  these  lands  to  be 
greatly  and  unequally  burdened  by  taxation  for  the  support  of 
the  city  government,  the  legislature  passed  an  act  declaring  that 

1  9  Wis.  410.  A  tax  case  of  much  crimination  in  taxation  between  the 
more  than  ordinary  interest  and  impor-  property  of  natural  persons  and  railroad 
tance  is  that  of  San  Mateo  County  v.  The  corporations  was  an  unwarrantable  de- 
Southern  Pacific  R.  R.  Co.,  13  Fed.  Rep.  parture  from  the  rule  of  equality  and 
722,  Justice  Field  delivering  an  elabo-  uniformity  in  taxation ;  that  the  provi- 
rate  opinion,  in  the  conclusions  of  which  sion  which  establishes  the  discrimination 
Judge  Sawyer  concurred.  The  suit  was  is  not  due  process  of  law,  and  is  therefore 
brought  for  the  recovery  of  a  tax  assessed  opposed  to  the  fourteenth  amendment  to 
upon  the  franchises,  roadway,  road-bed,  the  Constitution  of  the  United  States, 
rails,  and  rolling-stock  of  the  defendant,  which  is  equally  effectual  to  protect 
By  the  Constitution  of  the  State  the  real  against  an  unwarranted  exercise  of  the 
estate  of  private  individuals  is  valued  for  taxing  power  as  against  any  other  un- 
taxation,  with  a  deduction  of  all  mort-  lawful  deprivation  of  property.  It  was 
gages  and  other  liens,  but  the  value  of  also  affirmed  that  the  State  has  no  power, 
the  property  of  railroads  is  to  be  assessed  by  its  constitution  or  otherwise,  to  with- 
without  any  such  deduction.  It  was  held  draw  corporations  from  the  guaranties  of 
by  these  eminent  judges  that  this  dis-  the  Federal  Constitution. 


724  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

"  in  no  case  shall  the  real  and  personal  property  within  the  terri- 
torial limits  of  said  city,  and  not  included  within  the  territorial 
limits  of  the  recorded  plat  of  the  village  of  Janesville,  or  of  any 
additions  to  said  village,  which  may  be  used,  occupied,  or  re- 
served for  agricultural  or  horticultural  purposes,  be  subject  to  an 
annual  tax  to  defray  the  current  expenses  of  said  city,  exceeding 
one-half  of  one  per  cent ;  nor  for  the  repair  and  building  of  roads 
and  bridges,  and  the  support  of  the  poor,  more  than  one-half  as 
much  on  each  dollar's  valuation  shall  be  levied  for  such  purposes 
as  on  the  property  within  such  recorded  plats,  nor  shall  the  same 
be  subject  to  any  tax  for  any  of  the  purposes  mentioned  in  §  3  of 
c.  5  of  [the  city  charter]  ;  nor  shall  the  said  farming  or  gardening 
land  be  subject  to  any  tax,  other  than  before  mentioned,  for  any 
city  purpose  whatsoever."  Under  the  charter  the  property  of  the 
city  was  liable  to  an  annual  tax  of  one  per  centum  to  defray  the 
current  expenses  of  the  city ;  and  also  an  additional  tax  of  such 
sum  as  the  common  council  might  deem  necessary  for  the  repair 
and  building  of  roads  and  bridges,  and  for  the  support  of  the 
poor.  Thus  it  will  be  perceived  that  the  legislature  within  the 
same  taxing  district,  —  if  the  whole  city  is  to  be  considered  one 
district  only,  —  undertook  to  provide  that  a  portion  of  the 
property  should  be  taxed  at  one  rate  in  proportion  to  value, 
and  another  portion  at  a  much  lower  rate ;  while  from  taxation 
for  certain  proper  local  purposes  the  latter  class  was  exempted 
altogether. 

"  It  was  contended  in  argument,"  say  the  court,  "  that  as  those 
provisions  fixed  one  uniform  rate  without  the  recorded  plats,  and 
another  within  them,  thus  taxing  all  the  property  without  alike, 
and  all  within  alike,  they  do  not  infringe  the  constitution.  In 
other  words,  that  for  the  purpose  of  taxation,  the  legislature 
have  the  right  arbitrarily  to  divide  up  and  classify  the  property 
of  the  citizens,  and,  having  done  so,  they  do  not  violate  the  con- 
stitutional rule  of  uniformity,  provided  all  the  property  within  a 
given  class  is  rated  alike. 

"  The  answer  to  this  argument  is,  that  it  creates  different  rules 
of  taxation,  to  the  number  of  which  there  is  no  limit,  except  that 
fixed  by  legislative  discretion,  while  the  constitution  establishes 
but  one  fixed,  unbending,  uniform  rule  upon  the  subject.  It  is 
believed  that  if  the  legislature  can,  by  classification,  thus  arbi- 
trarily, and  without  regard  to  value,  discriminate  in  the  same 
municipal  corporation  between  personal  and  real  property  within, 
and  personal  and  real  property  without  a  recorded  plat,  they  can 
also  by  the  same  means  discriminate  between  lands  used  for 
one  purpose  and  those  used  for  another,  such  as  lands  used  for 


CH.  XIV.]  THE   POWER  OF  TAXATION.  725 

growing  wheat  and  those  used  for  growing  corn,  or  any  other 
crop ;  meadow-lands  and  pasture-lands,  cultivated  and  unculti- 
vated lands ;  or  they  can  classify  by  the  description,  such  as  odd- 
numbered  lots  and  blocks  and  even-numbered  ones,  or  odd  and 
even-numbered  sections.  Personal  property  can  be  classified  by 
its  character,  use,  or  description,  or,  as  in  the  present  case,  by  its 
location,  and  thus  the  rules  of  taxation  may  be  multiplied  to  an 
extent  equal  in  number  to  the  different  kinds,  uses,  descriptions, 
and  locations  of  real  and  personal  property.  We  do  not  see  why 
the  system  may  not  be  carried  further,  and  the  classification  be 
made  by  the  character,  trade,  profession,  or  business  of  the  own- 
ers. For  certainly  this  rule  of  uniformity  can  as  well  be  applied 
to  such  a  classification  as  any  other,  and  thus  the  constitutional 
provision  be  saved  intact.  Such  a  construction  would  make  the 
constitution  operative  only  to  the  extent  of  prohibiting  the  legis- 
lature from  discriminating  in  favor  of  particular  individuals,  and 
would  reduce  the  people,  while  considering  so  grave  and  impor- 
tant a  proposition,  to  the  ridiculous  attitude  of  saying  to  the  legis- 
lature, '  You  shall  not  discriminate  between  single  individuals  or 
corporations ;  but  you  may  divide  the  citizens  up  into  different 
classes,  as  the  followers  of  different  trades,  professions,  or  kinds 
of  business,  or  as  the  owners  of  different  species  or  descriptions 
of  property,  and  legislate  for  one  class,  and  against  another,  as 
much  as  you  please,  provided  you  serve  all  of  the  favored  or  un- 
favored classes  alike ; '  thus  affording  a  direct  and  solemn  con- 
stitutional sanction  to  a  system  of  taxation  so  manifestly  and 
grossly  unjust  that  it  will  not  find  an  apologist  anywhere,  at  least 
outside  of  those  who  are  the  recipients  of  its  favor.  We  do  not 
believe  the  framers  of  that  instrument  intended  such  a  construc- 
tion, and  therefore  cannot  adopt  it." l 

The   principle  to  be  deduced   from  the  Iowa  and   Wisconsin 
cases,  assuming  that  they  do  not  in  any  degree  conflict,  seems  to 

1  Per  Dixon,  Ch.  J.,  9  Wis.  410,  421.  paved  with  the  Nicholson  pavement  at  the 

Besides  the  other  cases  referred  to,  see,  expense  of  the  adjoining  owners,  when 

on  tliis  same  general  subject,  Lin  Sing  v.  the  owners  of  the  larger  part  of  the  front- 

Washburn,   20  Cal.   534;    State  v.  Mer-  age  should  petition  therefor.     An  amen- 

chants'  Ins.  Co.,  12  La.  Ann.  802;  Adams  datory  act  authorized  it  as  to  a  portion  of 

o.  Somerville,  2  Head,  363;  McComb  v.  a  certain  street  without  such  a  petition; 

Bi-ll,  2  Minn.  295;   Attorney-General  v.  thus  permitting  a  special  improvement  on 

Winnebago  Lake  &  Fox  River  P.  R.  Co.,  that  street,  at  the  expense  of  the  owners 

11   Wis.   35;    Weeks  v.   Milwaukee,   10  of  adjoining  lots,  on  a  different  principle 

Wis.  242 ;  O'Kane  v.  Treat,  25  111.  557 ;  from  that  adopted  for  the  city  generally. 

Philadelphia  Association,  &c.  v.  Wood,  39  In    Howell  v.  Bristol,  8   Bush,  493,  this 

Pa.  73;  Sacramento  v.  Crocker,  16  Cal.  amendment  was  held  inconsistent  with  the 

119.     There  was  a  provision  in  the  char-  fundamental  principles  of   taxation,  and 

ter  of  Covington  that  a  street  might  be  consequently  void. 


726  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

be  this :  The  legislature  cannot  arbitrarily  include  within  the 
limits  of  a  village,  borough,  or  city,  property  and  persons  not 
properly  chargeable  with  its  burdens,  and  for  the  sole  purpose  of 
increasing  the  corporate  revenues  by  the  exaction  of  the  taxes. 
But  whenever  the  corporate  boundaries  are  established,  it  is  to  be 
understood  that  whatever  property  is  included  within  those  limits 
has  been  thus  included  by  the  legislature,  because  it  justly  be- 
longs there,  as  being  within  the  circuit  which  is  benefited  by  the 
local  government,  and  which  ought  consequently  to  contribute  to 
its  burdens.  The  legislature  cannot,  therefore,  after  having  al- 
ready, by  including  the  property  within  the  corporation,  declared 
its  opinion  that  such  property  should  contribute  to  the  local  gov- 
ernment, immediately  turn  about  and  establish  a  basis  of  taxation 
which  assumes  that  the  property  is  not  in  fact  urban  property  at 
all,  but  is  agricultural  lands,  and  should  be  assessed  accordingly. 
The  rule  of  apportionment  must  be  uniform  throughout  the  taxing 
district,  applicable  to  all  alike ;  but  the  legislature  have  no  power 
to  arrange  the  taxing  districts  arbitrarily,  and  without  reference  to 
the  great  fundamental  principle  of  taxation,  that  the  burden  must 
be  borne  by  those  upon  whom  it  justly  rests.  The  Kentucky  and 
Iowa  decisions  hold  that,  in  a  case  where  they  have  manifestly 
and  unmistakably  done  so,  the  courts  may  interfere  and  restrain 
the  imposition  of  municipal  burdens  on  property  which  does  not 
properly  belong  within  the  municipal  taxing  district  at  all.  It 
must  be  manifest,  however,  that  the  effect  of  the  decisions  in 
the  States  last  referred  to  is  to  establish  judicially  two  or  more 
districts  within  a  municipality  where  the  legislature  has  established 
one  only ;  and  as  this  is  plainly  a  legislative  function,  it  would 
seem  that  the  legislature  must  be  at  least  as  competent  to  establish 
them  directly  as  any  court  can  be  to  do  the  same  thing  indirectly. 
And  in  Missouri,  Kentucky,  and  Pennsylvania,  no  difficulty  has 
been  found  in  sustaining  legislation  which  discriminated  in  taxa- 
tion between  "  rural "  lands  and  others  within  the  same  city.1 
This  rule  of  uniformity  has  perhaps  been  found  most  difficult  of 

i  Benoist   v.  St.   Louis.   19  Mo.  179 ;  Agricultural  land  in  tracts  of  ten  acres 

Henderson    v.   Lambert,    8    Bush,    607 ;  or  more  brought   within   a  city  may  be 

Parkland  v.  Gains,  88  Ky.  562,  11  S.  W.  exempted  from  city  taxes  :  Leicht  v.  Bur- 

649;  Serrilli-.  Philadelphia,  38  Pa.  St.  355.  lington,  73   Iowa,  29,  34  N.   W.  494;    if 

And  see  Gillette  v.  Hartford,  31  Conn.  351.  brought  in  after  the  passage   of  an  act 

In  Missouri  such  land,  though  taxed  at  a  allowing   it.     Perkins   v.  Burlington,    77 

different  rate,  must  be  valued  like  other  Iowa,  553,  42  N.  W.  441.     Under  Indiana 

land.     State   v.   O'Brien,  89   Mo.  631,  1  statutes  such  land  may  not  be  taxed  for 

S.  W.  763.     In  Utah  it  is  denied  that  such  general  purposes  above  township  rates, 

land  within  the  limits,  but  outside  the  city  but    is    liable    for    special    assessments. 

as  built,  can  be  subjected  to  city  taxes.  Dickerson  v.  Franklin,  112  Ind.  178,  13 

Terr.  v.  Daniels,  6  Utah,  288,  22  Pac.  159.  N.  E.  579. 


CH.  XIV.]  THE    POWER   OF   TAXATION.  727 

application  in  regard  to  those  cases  of  taxation  which  are  com- 
monly known  under  the  head  of  assessments,  and  which  are  made 
either  for  local  improvement  and  repair,  or  to  prevent  local  causes 
resulting  in  the  destruction  of  health  or  property.  In  those  cases 
where  it  has  been  held  that  such  assessments  were  not  covered  by 
the  constitutional  provision  that  taxation  should  be  laid  upon 
property  in  proportion  to  value,  it  has,  nevertheless,  been  decided 
that  the  authority  to  make  them  must  be  referred  to  the  taxing 
power,  and  not  to  the  police  power  of  the  State,  under  which  side- 
walks have  sometimes  been  ordered  to  be  constructed.  Apportion- 
ment of  the  burden  was  therefore  essential,  though  it  need  not  be 
made  upon  property  in  proportion  to  its  value.  But  the  question 
then  arises :  What  shall  be  the  rule  of  apportionment  ?  Can  a 
street  be  ordered  graded  and  paved,  and  the  expense  assessed  ex- 
clusively upon  the  property  which,  in  the  opinion  of  the  assessors, 
shall  be  peculiarly  benefited  thereby,  in  proportion  to  such  benefit  ? 
Or  may  a  taxing  district  be  created  for  the  purpose,  and  the.  ex- 
pense assessed  in  proportion  to  the  area  of  the  lots  ?  Or  may  the 
street  be  made  a  taxing  district,  and  the  cost  levied  in  proportion 
to  the  frontage  ?  Or  may  each  lot-owner  be  required  to  grade  and 
pave  in  front  of  his  lot  ?  These  are  grave  questions,  and  they  have 
not  been  found  of  easy  solution. 

The  case  of  The  People  v.  The  Mayor,  &c.  of  Brooklyn^1  is  a 
leading  case,  holding  that  a  statute  authorizing  a  municipal  cor- 
poration to  grade  and  improve  streets,  and  to  assess  the  expense 
among  the  owners  and  occupants  of  lands  benefited  by  the  im- 
provement, in  proportion  to  the  amount  of  such  benefit,  is  a  con- 
stitutional and  valid  law.  The  court  in  that  case  concede  that 
taxation  cannot  be  laid  without  apportionment,  but  hold  that  the 
basis  of  apportionment  in  these  cases  is  left  by  the  constitution 
with  the  legislature.  The  application  of  any  one  rule  or  principle 
of  apportionment  to  all  cases  would  be  manifestly  oppressive  and 
unjust.  Taxation  is  sometimes  regulated  by  one  principle,  and 
sometimes  by  another  ;  and  very  often  it  has  been  apportioned 
without  reference  to  locality,  or  to  the  taxpayer's  ability  to  con- 
tribute, or  to  any  proportion  between  the  burden  and  the  benefit. 
"  The  excise  laws,  and  taxes  on  carriages  and  watches,  are  among 
the  many  examples  of  this  description  of  taxation.  Some  taxes 
affect  classes  of  inhabitants  only.  All  duties  on  imported  goods 
are  taxes  on  the  class  of  consumers.  The  tax  on  one  imported 
article  falls  on  a  large  class  of  consumers,  while  the  tax  on  an- 
other affects  comparatively  a  few  individuals.  The  duty  on  one 
article  consumed  by  one  class  of  inhabitants  is  twenty  per  cent  of 

1  4  N.  Y.  419,  427 ;  reversing  same  case,  6  Barb.  209. 


728  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

its  value,  while  on  another,  consumed  by  a  different  class,  it  is 
forty  per  cent.  The  duty  on  one  foreign  commodity  is  laid  for 
the  purpose  of  revenue  mainly,  without  reference  to  the  ability  of 
its  consumers  to  pay,  as  in  the  case  of  the  duty  on  salt.  The  duty 
on  another  is  laid  for  the  purpose  of  encouraging  domestic  manu- 
factures of  the  same  article,  thus  compelling  the  consumer  to  pay 
a  higher  price  to  one  man  than  he  could  otherwise  have  bought 
the  article  for  from  another.  These  discriminations  may  be  im- 
politic, and  in  some  cases  unjust;  but  if  the  power  of  taxation 
upon  importations  had  not  been  transferred  by  the  people  of  this 
State  to  the  federal  government  there  could  have  been  no  pretence 
for  declaring  them  to  be  unconstitutional  in  State  legislation. 

"  A  property  tax  for  the  general  purposes  of  the  government, 
either  of  the  State  at  large  or  of  a  county,  city,  or  other  district, 
is  regarded  as  a  just  and  equitable  tax.  The  reason  is  obvious. 
It  apportions  the  burden  according  to  the  benefit  more  nearly 
than  any  other  inflexible  rule  of  general  taxation.  A  rich  man 
derives  more  benefit  from  taxation,  in  the  protection  and  improve- 
ment of  his  property,  than  a  poor  man,  and  ought  therefore  to  pay 
more.  But  the  amount  of  each  man's  benefit  in  general  taxation 
cannot  be  ascertained  and  estimated  with  any  degree  of  certainty  ; 
and  for  that  reason  a  property  tax  is  adopted,  instead  of  an  esti- 
mate of  benefits.  In  local  taxation,  however,  for  special  pur- 
poses, the  local  benefits  may  in  many  cases  be  seen,  traced,  and 
estimated  to  a  reasonable  certainty.  At  least  this  has  been  sup- 
posed and  assumed  to  be  true  by  the  legislature,  whose  duty  it  is 
to  prescribe  the  rules  on  which  taxation  is  to  be  apportioned,  and 
whose  determination  of  this  matter,  being  within  the  scope  of  its 
lawful  power,  is  conclusive." 

The  reasoning  of  this  case  has  been  generally  accepted  as  satis- 
factory, and  followed  in  subsequent  cases.1 

1  Scoville  v.  Cleveland,  1  Ohio  St.  126  ;  Wend.  85,  22  Am.  Dec.  622 ;  Wright  v. 
Hill  v.  Higdon,  5  Ohio  St.  243 ;  Marion  v.  Boston,  9  Gush.  233 ;  Jones  v.  Boston,  104 
Epler,  5  Ohio  St.  250;  Maloy  v.  Mari-  Mass.  461 ;  Nichols  v.  Bridgeport,  23  Conn, 
etta,  11  Ohio  St.  636;  City  of  Peoria  v.  189 ;  Cone  v.  Hartford,  28  Conn.  3G3 ;  Alex- 
Kidder,  26  111.  351 ;  Reeves  v.  Treasurer  ander  e.  Baltimore,  5  Gill,  383  ;  Howard  v. 
of  Wood  Co.,  8  Ohio  St.  333;  Garrett  v.  The  Church,  18  Md.  451;  Hoyt  u.  East 
St.  Louis,  25  Mo.  505;  Unrig  v.  St.  Louis,  Saginaw,  19  Mich.  39;  Sheley  v.  Detroit, 
44  Mo.  458;  Bradley  v.  McAtee,  7  Bush,  45  Mich.  431,  8  N.  W.  52  ;  Burnett  v.  Sac- 
667,  3  Am.  Rep.  309;  Jones  v.  Boston,  ramento,  12  Gal.  76;  LaFayette  v.  Fowler, 
104  Mass.  461;  Sessions  v.  Crunkilton,  34  Ind.  140.  The  right  to  assess  by  bene- 
20  Ohio  St.  349 ;  State  v.  Fuller,  34  N.  J.  fits  has  been  denied  in  South  Carolina. 
227;  Holton  v.  Milwaukee,  31  Wis.  27;  State  v.  Charleston,  12  Rich.  702.  The 
McMasters  v.  Commonwealth,  3  Watts,  legislation  in  Ohio  on  the  subject  has  au- 
292;  Allentown  v.  Henry,  73  Pa.  St.  404 ;  thorized  the  cities  and  villages,  in  open- 
Weber  v.  Reinhard,  73  Pa.  St.  370,  13  ing  and  improving  streets,  to  assess  the 
Am.  Rep.  747;  Livingston  v.  New  York,  8  expense  either  upon  the  lots  abutting  on 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


729 


On  the  other  hand,  and  on  the  like  reasoning,  it  has  been  held 
equally  competent  to  make  the  street  a  taxing  district,  and 
assess  the  expense  of  the  improvement  upon  the  lots  in  propor- 
tion to  the  frontage.1  Here  also  is  apportionment  by  a  rule 


the  street  in  proportion  to  the  street  front, 
or  upon  the  lands  in  proportion  to  their 
assessed  value.  In  a  case  where  the 
former  mode  was  resorted  to,  and  an  as- 
sessment made  upon  property  owned  by 
the  Northern  Indiana  Railroad  Company 
for  its  corporate  purposes,  Peck,  J.,  thus 
states  and  answers  an  objection  to  the 
validity  of  the  tax  :  "  But  it  is  said  that 
assessments,  as  distinguished  from  gen- 
eral taxation,  rest  solely  upon  the  idea  of 
equivalents, —  a  compensation  proportioned 
to  the  special  benefits  derived  from  the 
improvement,  and  that,  in  the  case  at  bar, 
the  railroad  company  is  not,  and  in  the 
nature  of  things  cannot  be,  in  any  degree 
benefited  by  the  improvement.  It  is 
quite  true  that  the  right  to  impose  such 
special  taxes  is  based  upon  a  presumed 
equivalent;  but  it  by  no  means  follows 
that  there  must  be  in  fact  such  full  equiv- 
alent in  every  instance,  or  that  its  ab- 
sence will  render  the  assessment  invalid. 
The  rule  of  apportionment,  whether  by 
the  front  foot,  or  a  percentage  upon  the 
assessed  valuation,  must  be  uniform,  af- 
fecting all  the  owners  and  all  the  prop- 
erty abutting  on  the  street  alike.  One 
rule  cannot  be  applied  to  one  owner,  and 
a  different  rule  to  another  owner.  One 
could  not  be  assessed  ten  per  cent,  an- 
other five,  another  three,  and  another  left 
altogether  unassessed  because  he  was  uot 
in  fact  benefited.  It  is  manifest  that  the 
actual  benefits  resulting  from  the  im- 
provement may  be  as  various  almost  as 
the  number  of  the  owners,  and  the  uses 
to  which  the  property  may  be  applied. 
No  general  rule,  therefore,  could  be  laid 
down  which  would  do  equal  and  exact 
justice  to  all.  The  legislature  have  not 
attempted  so  vain  a  thing,  but  have  pre- 
scribed two  different  modes  in  which  the 
assessment  may  be  made,  and  left  the  city 
authorities  free  to  adopt  either.  The 
mode  adopted  by  the  council  becomes 
the  statutory  equivalent  for  the  benefits 
conferred,  although  in  fact  the  burden 
imposed  ma}'  greatly  preponderate.  In 
such  case,  if  no  fraud  intervene,  and  the 
assessment  does  not  substantially  exhaust 


the  owner's  interest  in  the  land,  his  rem- 
edy would  seem  to  be  to  procure,  by  a 
timely  appeal  to  the  city  authorities,  a 
reduction  of  the  special  assessment,  and 
its  imposition,  in  whole  or  in  part,  upon 
the  public  at  large."  Northern  Indiana 
R.  R.  Co.  v.  Connelly,  10  Ohio  St.  159, 
165.  And  see  Howell  v.  Bristol,  8  Bush, 
493 ;  [Webster  v.  Fargo,  181  U.  S.  334, 
21  Sup.  Ct.  Rep.  623,  aff.  9  N.  D.  208,  82 
N.  W.  732;  Ramsey  County  v.  Robert 
P.  Lewis  Co.,  72  Minn.  87,  75  N.  W.  108, 
63  L.  R.  A.  421.]  It  is  competent  to 
provide  for  assessing  benefits  upon  the 
owner  instead  of  the  land.  In  re  Centre 
St.,  115  Pa.  St.  247,  8  All.  56.  [CWra, 
Ivanhoe  v.  Enterprise,  29  Oreg.  245,  45 
Pac.  771,  35  L.  R.  A.  58,  and  see  also 
note  to  this  case  in  L.  R.  A.]  As  to  re- 
paving,  see  ante,  719,  note.  The  legisla- 
tive determination  that  certain  land  is 
benefited  is  conclusive.  Only  the  ques- 
tion of  apportionment  reiihains  open. 
Spencer  v.  Merchant,  125  U.  S.  345, 
8  Sup.  Ct.  Rep.  921;  Pacific  Bridge  Co. 
v.  Kirkham,  64  Cal.  519,  2  Pac.  409,. 
The  fir.ding  of  benefits  by  a  common 
council  is  conclusive  unless  palpably  un- 
just. Paulson  v.  Portland,  16  Oreg.  450, 
19  Pac.  450,  1  L.  R.  A.  G73 ;  Little  Rock 
v.  Katzenstein,  52  Ark.  107,  12  S.  W. 
198  ;  Pueblo  v.  Robinson,  12  Col.  693,  21 
Pac.  Rep.  899.  In  ordering  a  local  assess- 
ment the  common  council  may  determine 
that  the  benefits  to  property  within  the 
district  will  equal  the  cost  of  the  improve- 
ment. Cook  v.  Slocum,  27  Minn.  609,  8 
N.  W.  755.  If  a  council  has  made  an 
assessment  district,  a  jury  in  apportioning 
benefits  must  impose  some  on  each  parcel 
in  it.  Rentz  v.  Detroit,  48  Mich.  544,  12 
N.  W.  694,  911.  Contra,  Kansas  City  v. 
Baird,  98  Mo.  215,  11  S.  W.  243,  562. 
But  a  wholly  arbitrary  apportionment 
that  could  not  possibly  be  just  would  be 
void.  Thomas  v.  Gain,  35  Mich.  155.  A 
council  cannot  be  impowered  to  impose 
expense  as  it  may  "  deem  equitable  and 
just."  Barnes  v.  Dyer,  66  Vt.  419. 

i  Williams  v.   Detroit,  2  Mich.  560; 
Northern  Indiana  R.  R.  Co.  v.  Connelly, 


730 


CONSTITUTIONAL    LIMITATIONS. 


[CH.  XIV. 


which  approximates  to  what  is  just,  but  which,  like  any  other 
rule  that  can  be  applied,  is  only  an  approximation  to  absolute 


10  Ohio  St.  159 ;  Lumsden  v.  Cross,  10 
Wis.  282.  And  see  St.  Joseph  v.  O'Don- 
oghue,  31  Mo.  345;  Burnett  v.  Sacra- 
mento, 12  Cal.  76;  Scoville  v.  Cleveland, 
1  Ohio  St.  126;  Hill  v.  Higdon,  5  Ohio 
St.  243;  Ernst  v.  Kunkle,  5  Ohio  St.  520  ; 
Hines  v.  Leaven  worth,  3  Kan.  186 ; 
Magee  v.  Commonwealth,  46  Pa.  St. 
358 ;  Wray  v.  Pittsburg,  46  Pa.  St.  365 ; 
Palmer  v.  Stumph,  29  Ind.  329;  White 
v.  People,  94  III.  604;  Wilbur  v.  Spring- 
field, 123  III.  395,  14  N.  E.  871  ;  Davis  v. 
Lynchburg,  84  Va.  861,  6  S.  E.  230; 
Farrar  v.  St.  Louis,  80  Mo.  379 ;  Taylor 
v.  Boyd,  63  Tex.  533  ;  O'Reilley  v.  Kings- 
ton, 114  N.  Y.  439,  21  N.  E.  1004;  [Ra- 
leigh v.  Peace,  110  N.  C.  32, 14  S.  E.  521, 
17  L.  R.  A.  330,  and  note  on  constitu- 
tionality of  frontage  rule.  Frontage 
rule  will  not  be  sustained  where  provision 
has  not  been  made  for  a  hearing  in  which 
property  owners  may  appear  and  show 
that  such  assessment  is  not  proportional 
to  benefits.  Ulman  v.  Baltimore,  72  Md. 
587,  597,  609,  20  Atl.  141,  21  Atl.  709,  21 
Atl.  711,  11  L.  R.  A.  224,  and  note;]  al- 
though the  assessment  exceeds  the  value 
of  a  long,  shallow  strip  assessed.  Mc- 
Cormick's  Est.  v.  Harrisburg,  129  Pa.  St. 
213,  18  Atl.  126.  In  Hammett  v.  Phila- 
delphia, 65  Pa.  St.  146,  3  Am.  Rep.  615, 
while  the  cases  here  cited  are  approved, 
it  is  denied  that  a  street  already  laid  out 
and  in  good  condition  can  be  taken  and 
improved  for  a  public  drive  or  carriage- 
way at  the  expense  of  the  adjacent 
owners ;  this  not  being  an  improvement 
for  local  but  for  general  purposes.  See 
Washington  Avenue,  69  Pa.  St.  352,  8 
Am.  Rep.  255 ;  Orphan  Asylum's  Appeal, 
111  Pa.  St.  135,  3  Atl.  217;  Williamsport 
v.  Beck,  128  Pa.  St.  147, 18  Atl.  329.  But 
a  borough  may  cause  a  sidewalk  to  be 
relaid  at  the  cost  of  an  abutter.  Smith  v. 
Kingston,  120  Pa.  St.  357,  14  Atl.  170. 
[An  ordinance  requiring  abutting  prop- 
erty-owners to  remove  snow  and  ice  is 
unconstitutional.  State  v.  Tuckman,  69 
N.  H.  318,  41  Atl.  347,  42  L.  R.  A.  438; 
Gridley  v.  Bloomington,  88  111.  554  ;  Chi- 
cago v.  O'Brien,  111  111.  532.]  Compare 
Allen  r.  Drew,  44  Vt.  174  (case  of  water- 
rents)  ;  Willard  v.  Presbury,  14  Wall.  676; 
Hoyt  v.  East  Saginaw,  19  Mich.  39,  2  Am. 


Rep.  76;  La  Fayette  v.  Fowler,  34  Ind. 
140 ;  Chambers  v.  Satterlee,  40  Cal.  497  ; 
Bradley  v.  McAtee,  7  Bush,  667,  3  Am. 
Rep.  309.  In  Washington  Avenue,  69  Pa. 
St.  352,  8  Am.  Rep.  255,  it  is  denied  that 
this  principle  can  be  applied  to  the  country 
and  to  fanning  lands.  Agnew,  J.,  says  : 
"  To  apply  it  to  the  country,  or  to  farm 
lands,  would  lead  to  such  inequality  and 
injustice  as  to  deprive  it  of  all  soundness 
as  a  rule,  or  as  a  substitute  for  a  fair  and 
impartial  valuation  of  benefits  in  pur- 
suance of  law  ;  so  that  at  the  very  first 
blush  every  one  would  pronounce  it  pal- 
pably unreasonable  and  unjust."  The 
able  opinion  in  this  case  is  a  very  satis- 
factory and  very  thorough  examination 
of  the  principles  on  which  local  assess- 
ments are  supported.  The  cases  of 
Seely  v.  Pittsburg,  82  Pa.  St.  360  ;  Craig 
r.  Philadelphia,  89  Pa.  St.  265;  Philadel- 
phia v.  Rule,  93  Pa.  St.  15,  and  Scranton 
v.  Penn  Coal  Co.,  105  Pa.  St.  445,  are  in 
principle  similar.  The  rule  of  assess- 
ment by  frontage  is  not  sanctioned  in 
Arkansas  :  Peay  v.  Little  Rock,  32  Ark. 
31;  Monticello  v.  Banks,  48  Ark.  251, 
2  S.  W.  852  ;  nor  in  Tennessee.  McBean 
v.  Chandler,  9  Heisk.  349.  [Nor  will 
the  frontage  rule  be  sustained  where 
it  results  in  an  apportionment  varying 
substantially  from  the  value  of  bene- 
fits conferred  and  in  excess  thereof.  In 
Norwood  v.  Baker,  a  peculiar  state  of 
facts  showed  the  frontage  rule  in  a  most 
unfavorable  light.  B.  owned  a  parcel  of 
land  on  W.  Ave.  I.  Ave.  intersected 
W.  Ave.  at  right  angles,  but  was  inter- 
rupted for  a  space  of  300  ft.  by  B.'s  land, 
through  which  the  street  had  not  yet 
been  opened.  It  had,  however,  been 
opened  beyond  B.'s  land,  so  that  by  the 
opening  of  the  street  for  this  distance  of 
300  ft.  across  B.'s  land,  the  street  would 
be  open  throughout  its  length.  The  vil- 
lage council  of  N.  by  ordinance  provided 
for  the  appropriation  of  this  strip  through 
B.'s  land,  and  the  value  thereof  was  duly 
assessed  and  paid  to  B.  Thereupon  the 
council,  following  the  frontage  rule,  as- 
sessed upon  B.,  whose  land  was  the  only 
land  fronting  upon  the  new  portion  of 
the  street,  the  entire  cost  of  the  land  ap- 
propriated, and  in  addition  all  the  ex- 


CH.  XIV.] 


THE   POWER    OF   TAXATION. 


731 


equality.     But  if,  in  the  opinion  of  the  legislature,  it  is  the  proper 
rule  to  apply  to  any  particular  case,  the  courts  must  enforce  it. 


penses  connected  with  such  appropriation. 
As  a  matter  of  fact  the  land  of  B.  was 
probably  not  at  all  benefited  by  the  open- 
ing of  the  street  through  it,  since  all  parts 
of  it  had  had  substantially  equally  good 
street  facilities  before.  The  United  States 
Supreme  Court  sustained  an  injunction 
against  the  assessment  on  the  ground 
that  it  amounted  to  a  taking  without  due 
process.  Norwood  v.  Baker,  172  U.  S. 
269,  19  Sup.  Ct.  Rep.  187.  But  under  a 
statute  authorizing  the  entire  expense  of 
a  street  pavement  to  be  apportioned  on 
abutting  lots  according  to  the  frontage 
rule,  and  without  any  preliminary  hearing 
as  to  benefits,  the  assessment  cannot,  in 
the  absence  of  allegation  and  proofs  that 
the  resulting  assessment  is  substantially 
in  excess  of  benefits,  be  set  aside  where 
the  lots  are  of  equal  depth,  and  are  sub- 
stantially similarly  related  to  the  im- 
provement. The  statute  is  good  to  the 
extent  at  least  of  furnishing  a  prima facie 
rule  of  apportionment.  French  v.  Barber 
A.  Paving  Co.,  181  U.  8,324,  21  Sup.  Ct. 
Rep.  625,  aff.  158  Mo.  534,  58  S.  W.  934, 

54  L.  R.  A.  492.  To  same  effect  see  Farrell 
v.  W.  Chicago  Park  Comm'rs,  182111.250, 

55  N.  E.  325 ;  Cass  Farm  Co.  v.  Detroit, 
124  Mich.  433,  7  Det.  L.  N.  283,  83  N.  W. 
108;  Heman  v.  Allen,   156  Mo.  534,  57 
S.  W.  559,  all  of  which  are  sustained  in  181 
U.  S.  402,  21  Sup.  Ct.  Rep.  645,  the  Mis- 
souri case  sub  nom.  Shumate  v.  Heman ; 
see  the  vigorous  dissenting  opinion  of  Mr. 
Justice  Harlan  in  181  U.  S.  402,  21  Sup. 
Ct.  Rep.  633.     See  also  Banaz  v.  Smith, 
133  Cal.  102,  65  Pac.  309,  sustaining  the 
frontage  rule  as  a  prima  facie  rule;  also 
Ramsey  County  v.  Lewis   Co.,  82  Minn. 
402,  SON.  W.  611  (June  18, 1901),rev.same 
case,  82  Minn.  390,  85  N.  W.  207 ;  Indian- 
apolis v.  Holt,  155  Ind.  222,  57  N.  E.  966, 
988,  1100;  Baltimore  v.  Stewart,  92  Md. 
535,  48  Atl.  165 ;  Barfield  v.  Gleason,  23 
Ky.  L.  128,  63  S.  W.  964,  (sustaining  as- 
sessment proportional  to  area).   Notice  by 
publication  is  sufficient  in  street  improve- 
ment proceedings.  Wight  v.  Davidson,  181 
U.  S.  371,  21  Sup.  Ct.  Rep.  616.   And  such 
notice  may  be  by  a  minute  in  the  publi- 
cation of  the  council's  proceedings.  State 
v.   Pillsbury,   82    Minn.   359,  85   N.  W. 
175.     Upon  constitutionality  of  frontage 


rule,  see  Raleigh  v.  Peace,  110  N.  C.  32, 
14  S.  E.  521,  17  L.  R.  A.  330,  and  note; 
upon  necessity  of  special  benefit,  see  Re 
Bonds  of  Madera  Irrig.  Dist.,  92  Cal.  296, 
341,  28  Pac.  272,  675,  14  L.  R.  A.  755, 
and  note;  upon  distinction  between  taxes 
and  special  assessments,  see  Adams  Co. 
v.  Quincy,  130  111.  566,  22  N.  E.  624, 
6  L.  R.  A.  155,  and  note.  Upon  practi- 
cally unlimited  power  of  Congress  over 
special  assessments  in  District  of  Colum- 
bia, see  Parsons  v.  District  of  Columbia, 
170  U.  S.  45,  18  Sup.  Ct.  621 ;  Wight  v. 
Davidson,  181  U.  S.  371,21  Sup.  Ct.  Rep. 
616.  The  frontage  rule  is  no  longer 
valid  in  Indiana,  and  no  special  assess- 
ment can  exceed  the  benefit.  If  the  cost 
of  the  improvement  exceeds  the  amount 
of  the  special  benefits,  the  excess  must 
be  paid  out  of  the  general  fund  raised  by 
taxation.  Adams  v.  Shelbyville,  154 
Ind.  467,  57  N.  E.  114,  49  L.  R.  A.  797. 
"  Compensation  paid  to  a  landowner  for 
lands  taken  by  appropriation  proceedings 
to  open  a  street  cannot  be  assessed  back 
upon  the  lands  of  the  owner  remaining 
after  such  taking.  Neither  can  costs  and 
expenses  incurred  in  such  proceeding  be 
so  assessed."  Cincinnati,  L.  &  N.  R.  Co. 
v.  Cincinnati,  62  Ohio  St.  465,  57  N.  E. 
229,  49  L.  R.  A.  566;  Bloomington  v. 
Latham,  142  111.  462,  32  N.  E.  506,  18 
L.  R.  A.  487.  Assessment  by  the  front- 
age rule  rejected.  Assessments  must  be 
proportioned  to  benefits  and  not  in  ex- 
cess thereof.  Kersten  v.  Milwaukee,  106 
Wis.  200,  81  N.  W.  948,  1103,  48  L.  R.  A. 
851 ;  Hutcheson  v.  Storrie,  92  Tex.  685, 
51  S.  W.  848,  45  L.  R.  A.  289.  For 
other  cases  on  special  assessments,  see 
Asberry  v.  Roanoke,  91  Va.  562,  22  S.  E. 
360,  42  L.  R.  A.  636;  Weed  v.  Boston, 
172  Mass.  28,  51  N.  E.  204,  42  L.  R.  A. 
642;  Rolph  v.  Fargo,  7  N.  D.  640,  76 
N.  W.  242,  42  L.  R.  A.  646  (sustaining 
frontage  rule) ;  Detroit  v.  Chapin,  112 
Mich.  688,  71  N.  W.  149,  42  L.  R.  A.  638  ; 
Ramsey  County  v.  Lewis  Company,  72 
Minn.  87,  75  N.  W.  108,  42  L.  R.  A.  639 ; 
Violett  v.  Alexandria,  92  Va.  561,  23 
S.  E.  909,  31  L.  R.  A.  382;  Hayes  v. 
Douglas  County,  92  Wis.  429,  65  N.  W. 
482,  31  L.  R.  A.  213 ;  Denver  v.  Knowles, 
17  Col.  204,  30  Pac.  1041,  17  L.  It.  A. 


732  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

But  a  very  different  case  is  presented  when  the  legislature 
undertakes  to  provide  that  each  lot  upon  a  street  shall  pay  the 
whole  expense  of  grading  and  paving  the  street  along  its  front,  (a) 
For  while  in  such  a  case  there  would  be  something  having  the 
outward  appearance  of  apportionment,  it  requires  but  slight  ex- 
amination to  discover  that  it  is  a  deceptive  semblance  only,  and 
that  the  measure  of  equality  which  the  constitution  requires  is 
entirely  wanting.  If  every  lot-owner  is  compelled  to  construct 
the  street  in  front  of  his  lot,  his  tax  is  neither  increased  nor 
diminished  by  the  assessment  upon  his  neighbors ;  nothing  is 
divided  or  apportioned  between  him  and  them  ;  and  each  partic- 
ular lot  is  in  fact  arbitrarily  made  a  taxing  district,  and  charged 
with  the  whole  expenditure  therein  and  thus  apportionment 
avoided.  If  the  tax  were  for  grading  the  street  simply,  those 
lots  which  were  already  at  the  established  grade  would  escape 
altogether,  while  those  on  either  side,  which  chanced  to  be  above 
and  below,  must  bear  the  whole  burden,  though  no  more  bene- 
fited by  the  improvement  than  the  others.1  It  is  evident,  there- 
fore, that  a  law  for  making  assessments  on  this  basis  could  not 
have  in  view  such  distribution  of  burdens  in  proportion  to  bene- 
fits as  ought  to  be  a  cardinal  idea  in  every  tax-law.2  It  would  be 
nakedly  an  arbitrary  command  of  the  law  to  each  lot-owner  to 
construct  the  street  in  front  of  his  lot  at  his  own  expense,  accord- 
ing to  a  prescribed  standard  ;  and  a  power  to  issue  such  com- 
mand could  never  be  exercised  by  a  constitutional  government, 
unless  we  are  at  liberty  to  treat  it  as  a  police  regulation,  and 
place  the  duty  to  make  the  streets  upon  the  same  footing  as  that 
to  keep  the  sidewalk  free  from  obstruction  and  fit  for  passage. 
But  any  such  idea  is  clearly  inadmissible.3 

135  (sustaining  frontage  rule  in  absence  surface  to  the  grade  of  the  street,  which 

of  any  showing  of  unfairness) ;  Speer  v.  the  others  escape. 

Athens,  85  Ga.49,  11  S.  E.802,9  L.  R.  A.  2  The  case  of  Warren  v.  Henley,  31 

402;  Graham  v.  Chicago,  187  111.  411,  68  Iowa,  31,  is  opposed  to  the  reasoning  of 

N.  E.  393;  King  v.  City  of  Portland,  38  the  text;  but  the  learned  judge  who  de- 

Oreg.  402,  03  Pac.  2,  55  L.  R.  A.   812.  livers  the  opinion  concedes  that  he  is  un- 

Where  a  street  is  widened  upon  one  side  able  to  support  his  conclusions  on  the 

only,  the  lands  on  both  sides  of  the  street  authorities  within  his  reach, 

abut  on  the  improvement.     Cincinnati  v.  3  All  lots  in  the  district  must  be  as- 

Batsche,  52  Ohio  St.  324,  40  N.  E.  21,  27  sessed,  not  simply  those  in  front  of  which 

L.  R.  A.  536.]  work  has  been  done.     Diggins  v.  Brown, 

1  In  fact,  lots  above  and  below  an  es-  76  Cal.  318,  18  Pac.  373.     See  City  of 

tablished  grade  are  usually  less  benefited  Lexington  v.  McQuillan's  Heirs,  9  Dana, 

by  the  grading  than  the  others  ;  because  513,  and  opinions  of  Campbell  and  Chris- 

the  improvement  subjects  them  to  new  tiancy,  JJ.,  in  Woodbridge  v.  Detroit,  8 

burdens,   in  order   to  bring  the  general  Mich.  274.     The  case  of  Weeks  v.  Mil- 

(a)  QSuch  assessment  held  clearly  arbitrary  and  void  in  Davis  v.  Litchfield,  145 
111.  313,  33  N.  E.  888,  21  L.  R.  A.  563,  and  note  upon  such  assessments/] 


CH.  XIV.] 


THE   POWER   OF  TAXATION. 


733 


In  many  other  cases,  besides  the  construction,  improvement, 
and  repair  of  streets,  may  special  taxing  districts  be  created,  with 


waukee,  10  Wis.  258,  seems  to  be  contra. 
We  quote  from  the  opinion  of  the  court 
by  Paine,  J.  After  stating  the  rule  that 
uniformity  in  taxation  implies  equality 
in  the  burden,  he  proceeds :  "  The  prin- 
ciple upon  which  these  assessments  rest 
is  clearly  destructive  of  this  equality.  It 
requires  every  lot-owner  to  build  what- 
ever improvements  the  public  may  re- 
quire on  the  street  in  front  of  his  lot, 
without  reference  to  inequalities  in  the 
value  of  the  lots,  in  the  expense  of  con- 
structing the  improvements,  or  to  the 
question  whether  the  lot  is  injured  or 
benefited  by  their  construction.  Corner 
lots  are  required  to  construct  and  keep  in 
repair  three  times  as  much  as  other  lots ; 
and  yet  it  is  well  known  that  the  differ- 
ence in  value  bears  no  proportion  to  this 
difference  in  burden.  In  front  of  one  lot 
the  expense  of  building  the  street  may 
exceed  the  value  of  the  lot ;  and  its  con- 
struction may  impose  on  the  owner 
additional  expense,  to  render  his  lot  ac- 
cessible. In  front  of  another  lot  of  even 
much  greater  value,  the  expense  is  com- 
paratively slight.  These  inequalities  are 
obvious ;  and  1  have  always  thought  that 
the  principle  of  such  assessments  was 
radically  wrong.  They  have  been  very 
extensively  discussed,  and  sustained  upon 
the  ground  that  the  lot  should  pay  be- 
cause it  receives  the  benefit.  But  if  this 
be  true,  that  the  improvements  in  front 
of  a  lot  are  made  for  the  benefit  of  the  lot 
only,  then  the  right  of  the  public  to  tax 
the  owner  at  all  for  that  purpose  fails; 
because  the  public  has  no  right  to  tax  the 
citizen  to  make  him  build  improvements 
for  his  own  benefit  merely.  It  must  be 
for  a  public  purpose ;  and  it  being  once 
established  that  the  construction  of  streets 
is  a  public  purpose  that  will  justify  taxa- 
tion, I  think  it  follows,  if  the  matter  is  to 
be  settled  on  principle,  that  the  taxation 
should  be  equal  and  uniform,  and  that  to 
make  it  so  the  whole  taxable  property  of 
the  political  division  in  which  the  im- 
provement is  made  should  be  taxed  by 
a  uniform  rule  for  the  purpose  of  its 
construction. 

"  But  in  sustaining  these  assessments 
when  private  property  was  wanted  for  a 
street,  it  bas  been  said  the  State  could 


take  it,  because  the  use  of  a  street  was  a 
public  use ;  in  order  to  justify  a  resort 
to  the  power  of  taxation,  it  is  said  the 
building  of  a  street  is  a  public  purpose. 
But  then,  having  got  the  land  to  built  it 
on,  and  the  power  to  tax  by  holding  it  a 
public  purpose,  they  immediately  aban- 
don that  idea,  and  say  that  it  is  a  private 
benefit,  and  make  the  owner  of  the  lot 
build  the  whole  of  it.  1  think  this  is  the 
same  in  principle  as  it  would  be  to  say 
that  the  town  in  which  the  county  seat 
is  located  should  build  the  county  build- 
ings, or  that  the  county  where  the  capital 
is  should  construct  the  public  edifices  of 
the  State,  upon  the  ground  that,  by  being 
located  nearer,  they  derived  a  greater 
benefit  than  others.  If  the  question, 
therefore,  was,  whether  the  system  of 
assessment  could  be  sustained  upon 
principle,  I  should  have  no  hesitation 
in  deciding  it  in  the  negative.  I  fully 
agree  with  the  reasoning  of  the  Supreme 
Court  of  Louisiana  in  the  case  of  Muni- 
cipality No.  2  v.  White,  9  La.  Ann.  447, 
upon  this  point. 

"  But  the  question  is  not  whether  this 
system  is  established  upon  sound  prin- 
ciples, but  whether  the  legislature  has 
power,  under  the  constitution,  to  estab- 
lish such  a  system.  As  already  stated, 
if  the  provision  requiring  the  rule  of 
taxation  to  be  uniform  was  the  only  one 
bearing  upon  the  question,  I  should  an- 
swer this  also  in  the  negative.  But  there 
is  another  provision  which  seems  to  me 
so  important,  that  it  has  changed  the  re- 
sult to  which  I  should  otherwise  have  ar- 
rived. That  provision  is  §  3  of  art.  11, 
and  is  as  follows :  '  It  shall  be  the  duty  of 
the  legislature,  and  they  are  hereby  em- 
powered, to  provide  for  the  organization 
of  cities  and  incorporated  villages,  and 
to  restrict  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts, 
and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments  and  taxation,  and 
in  contracting  debts  by  such  municipal 
corporations." 

"  It  cannot  well  be  denied  that  if  the 
word  '  assessment,'  as  used  in  this  section, 
had  reference  to  this  established  system 
of  special  taxation  for  municipal  im- 
provements, that  then  it  is  a  clear  recog- 


-34 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIV. 


a  view  to  local  improvements.  The  cases  of  drains  to  relieve 
swamps,  marshes,  and  other  low  lands  of  their  stagnant  water, 
and  of  levees  to  prevent  lands  being  overflowed  by  rivers,  will  at 
once  suggest  themselves.  In  providing  for  such  cases,  however, 
the  legislature  exercises  another  power  besides  the  power  of  tax- 
ation. On  the  theory  that  the  drainage  is  for  the  sole  purpose  of 
benefiting  the  lands  of  individuals,  it  might  be  difficult  to  defend 
such  legislation.  But  if  the  stagnant  water  causes  or  threatens 
disease,  it  may  be  a  nuisance,  which,  under  its  power  of  police,  the 
State  would  have  authority  to  abate.  The  laws  for  this  purpose, 
so  far  as  they  have  fallen  under  our  observation,  have  proceeded 
upon  this  theory.  Nevertheless,  when  the  State  incurs  expense 
in  the  exercise  of  its  police  power  for  this  purpose,  it  may  be  proper 
to  assess  that  expense  upon  the  portion  of  the  community  specially 
and  peculiarly  benefited.  The  assessment  is  usually  made  with 
reference  to  the  benefit  to  property  ;  and  it  is  difficult  to  frame  or 


nition  of  the  existence  and  legality  of  the 
power."  And  the  court,  having  reached 
the  conclusion  that  the  word  did  have 
reference  to  such  an  established  system, 
sustained  the  assessment,  adding :  "  The 
same  effect  was  given  to  the  same  clause 
in  the  Constitution  of  Ohio,  by  the  Su- 
preme Court  of  that  State,  in  a  recent 
decision  in  the  case  of  Hill  v.  Higdon, 
6  Ohio,  N.  s.  243.  And  the  reasoning  of 
Chief  Justice  Hanney  on  the  question  I 
think  it  impossible  to  answer." 

If  the  State  of  Wisconsin  had  any  set- 
tled and  known  practice,  designated  as 
assessments,  under  which  each  lot-owner 
was  compelled  to  construct  the  streets  in 
front  of  his  lot,  then  the  constitution  as 
quoted  may  well  be  held  to  recognize 
such  practice.  In  this  view,  however,  it 
is  still  difficult  to  discover  any  "  restric- 
tion "  in  a  law  which  perpetuates  the  ar- 
bitrary and  unjust  custom,  and  which  still 
permits  the  whole  expense  of  making  the 
street  in  front  of  each  lot  to  be  imposed 
upon  it.  The  only  restriction  which  the 
law  imposes  is,  that  its  terms  exclude 
uniformity,  equality,  and  justice,  which 
surely  could  not  be  the  restriction  the 
constitution  designed.  Certainly  the 
learned  judge  shows  very  clearly  that 
such  a  law  is  unwarranted  as  a  legiti- 
mate exercise  of  the  taxing  power;  and 
as  it  cannot  be  warranted  under  any  other 
power  known  to  constitutional  govern- 
ment, the  authority  to  adopt  it  should 
not  be  found  in  doubtful  words.  The 


case  of  Hill  v.  Higdon,  referred  to,  is  dif- 
ferent. There  the  expense  of  improving 
the  street  was  assessed  upon  the  property 
abutting  on  the  street,  in  proportion  to 
the  foot  front.  The  decision  there  was, 
that  the  constitutional  provision  that 
"laws  shall  be  passed  taxing  by  a  uni- 
form rule  all  moneys,  &c.,  and  also  all 
real  and  personal  property,  according  to 
the  true  value  in  money,"  had  no  refer- 
ence to  these  local  assessments,  which 
might  still  be  made,  as  they  were  before 
the  constitution  was  adopted,  with  refer- 
ence to  the  benefits  conferred.  The  case, 
therefore,  showed  a  rule  of  apportionment 
which  was  made  applicable  throughout 
the  taxing  district,  to  wit,  along  the  street 
so  far  as  the  improvement  extended.  The 
case  of  State  v.  City  of  Portage,  12  Wis. 
562,  holds  that  a  law  authorizing  the  ex- 
pense of  an  improvement  to  be  assessed 
upon  the  abutting  lots,  in  proportion  to 
their  front  or  size,  would  not  justify  and 
sustain  city  action  which  required  the 
owner  of  each  lot  to  bear  the  expense 
of  the  improvement  in  front  of  it. 

It  has  been  often  contended  that  taxa- 
tion by  frontage  was  in  effect  a  taking  of 
property  for  the  public  use,  but  the  courts 
have  held  otherwise.  People  v.  Mayor, 
&c.  of  Brooklyn,  4  N.  Y.  419 ;  Allen  v. 
Drew,  44  Vt.  174;  Warren  v.  Henley,  31 
Iowa,  31 ;  Washington  Avenue,  69  Pa. 
St.  352,  8  Am.  Rep.  255;  White  v.  Peo- 
ple, 94  111.  604. 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


735 


to  conceive  of  any  other  rule  of  apportionment  that  would  operate 
so  justly  and  so  equally  in  these  cases.  There  may  be  difficulty 
in  the  detail ;  difficulty  in  securing  just  and  impartial  assessments; 
but  the  principle  of  such  a  law  would  not  depend  for  its  soundness 
upon  such  considerations.1 


1  See  Reeves  v.  Treasurer  of  Wood 
Co,  8  Ohio  St.  333;  Sessions  v.  Crunk- 
linton,  20  Ohio  St.  349 ;  French  v.  Kirk- 
land,  1  Paige,  117 ;  Phillips  v.  Wickham, 
1  Paige,  590;  Anderson  v.  Kerns  Co.,  14 
Ind.  199;  O'Reiley  v.  Kankakee  Co.,  32 
Ind.  1G9;  Draining  Co.  Case,  11  La.  Ann. 
338;  Hagar  v.  Supervisors  of  Yolo,  47 
Cal.  222;  Davidson  i>.  New  Orleans,  96 
U.  S.  97.  [Re  Tuthill,  163  N.  Y.  133, 
57  N.  E.  303,  49  L.  R.  A.  781.]  In  Wood- 
ruff v.  Fisher,  17  Barb.  224,  Hand,  J., 
speaking  of  one  of  these  drainage  laws, 
says:  "If  the  object  to  be  accomplished 
by  this  statute  may  be  considered  a  pub- 
lic improvement,  the  power  of  taxation 
seems  to  have  been  sustained  upon  analo- 
gous principles.  [Citing  People  ;;.  Mayor, 
&c.  of  Brooklyn,  4  N.  Y.  419 ;  Thomas  v. 
Leland,  24  Wend.  65;  and  Livingstone. 
Mayor,  &c.  of  New  York,  8  Wend.  85,  22 
Am.  Dec.  622.]  But  if  the  object  was 
merely  to  improve  the  property  of  indi- 
viduals, I  think  the  statute  would  be  void, 
although  it  provided  for  compensation. 
The  water  privileges  on  Indian  River 
cannot  be  taken  or  affected  in  any  way 
solely  for  the  private  advantage  of  oth- 
ers, however  numerous  the  beneficiaries. 
Several  statutes  have  been  passed  for 
draining  swamps,  but  it  seems  to  me  that 
the  principle  above  advanced  rests  upon 
natural  and  constitutional  law.  The  pro- 
fessed object  of  this  statute  is  to  promote 
public  health.  And  one  question  that 
arises  is,  whether  the  owners  of  large 
tracts  of  land  in  a  state  of  nature  can 
be  taxed  to  pay  the  expense  of  -draining 
them,  by  destroying  the  dams,  &c.,  of 
other  persons  away  from  the  drowned 
lands,  and  for  the  purposes  of  public 
health.  This  law  proposes  to  destroy  the 
water  power  of  certain  persons  against 
their  will,  to  drain  the  lands  of  others, 
also,  for  all  that  appears,  against  their 
will ;  and  all  at  the  expense  of  the  latter, 
for  this  public  good.  If  this  taxation  is 
illegal,  no  mode  of  compensation  is  pro- 
vided, and  all  is  illegal."  "  The  owners 
of  these  lands  could  not  be  convicted  of 


maintaining  a  public  nuisance  because 
they  did  not  drain  them;  even  though 
they  were  the  owners  of  the  lands  upon 
which  the  obstructions  are  situated.  It 
does  not  appear  by  the  act  or  the  com- 
plaint that  the  sickness  to  be  prevented 
prevails  among  inhabitants  on  the  wet 
lands,  nor  whether  these  lands  will  be 
benefited  or  injured  by  draining;  and 
certainly,  unless  they  will  be  benefited, 
it  would  seem  to  be  partial  legislation  to 
tax  a  certain  tract  of  land,  for  the  expense 
of  doing  to  it  what  did  not  improve  it, 
merely  because,  in  a  state  of  nature,  it 
may  be  productive  of  sickness.  Street 
assessments  are  put  upon  the  ground  that 
the  land  assessed  is  improved,  and  its 
value  greatly  enhanced."  The  remarks 
of  Green,  J.,  in  Williams  v.  Mayor,  &c. 
of  Detroit,  2  Mich.  660,  567,  may  be  here 
quoted:  "Every  species  of  taxation,  in 
every  mode,  is  in  theory  and  principle 
based  upon  an  idea  of  compensation,  ben- 
efit, or  advantage  to  the  person  or  prop- 
erty taxed,  either  directly  or  indirectly. 
If  the  tax  is  levied  for  the  support  of 
the  government  and  general  police  of 
the  State,  for  the  education  and  moral 
instruction  of  the  citizens,  or  the  con- 
struction of  works  of  internal  improve- 
ment, he  is  supposed  to  receive  a  just 
compensation  in  the  security  which  the 
government  affords  to  his  person  and 
property,  the  means  of  enjoying  his  pos- 
sessions, and  their  enhanced  capacity  to 
contribute  to  his  comfort  and  gratifica- 
tion, which  constitute  their  value." 

It  has  been  held  incompetent,  how- 
ever, for  a  city  which  has  itself  created 
a  nuisance  on  the  property  of  a  citizen, 
to  tax  him  for  the  expense  of  removing 
or  abating  it.  Weeks  v.  Milwaukee,  10 
Wis.  258. 

In  Egyptian  Levee  Co.  v.  Hardin,  27 
Mo.  495,  it  was  held  that  a  special  assess- 
ment for  the  purpose  of  reclaiming  a  dis- 
trict from  inundation  might  properly  be 
laid  upon  land  in  proportion  to  its  area, 
and  that  the  constitutional  provision  that 
taxation  should  be  levied  on  property  in 


736  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 

Sewers  in  cities  and  populous  districts  are  a  necessity,  not  only 
that  the  streets  may  be  kept  clean  and  in  repair,  but  to  prevent 
the  premises  of  individuals  from  becoming  nuisances.     The  ex- 
pense of  these  is  variously  assessed.     It  may  unquestionably  be 
made  by  benefits  and  by  frontage  under  proper  legislation.1     In 
certain  classes  of  cases,  it  has  been  customary  to  call  upon  the 
citizen  to  appear  in  person  and  perform  service  for  the  State,  in 
the  nature  of  police  duties.     The  burden  of  improving  and  repair- 
ing the  common  highways  of  the  country,  except  in  the  urban 
districts,  is  generally  laid  upon  the  people  in  the  form  of  an 
assessment  of  labor.     The  assessment  may  be  upon  each  citizen, 
in  proportion  to  his  property ;   or,  in  addition  to  the  property 
assessment,  there  may  be  one  also  by  the  poll.     But  though  the 
public  burden  assumes  the  form  of  labor,  it  is  still  taxation,  and 
must  therefore  be  levied  on  some  principle  of  uniformity.     But  it 
is  a  peculiar  species  of  taxation;  and  the  general  terms  "tax"  or 
"taxation,"   as  employed  in  the  State  constitutions,  would  not 
generally  be  understood  to  include  it.     It  has  been  decided  that 
the  clause  in  the  Constitution  of  Illinois,  that  "  the  mode  of  levy- 
ing a  tax  shall  be  by  valuation,  so  that  every  person  shall  pay  a 
tax  in  proportion  to  the  value  of  the  property  he  or  she  has  in 
his  or  her  possession,"  did  not  prevent  the  levy  of  poll-taxes  in 
highway  labor.     "  The  framers  of   the   constitution  intended  to 
direct  a  uniform  mode  of  taxation  on  property,  and  not  to  pro- 
proportion  to  its  valuation  did  not  pre-    Rutherford  v,  Hamilton,  97  Mo.  543,   11 
elude  this    mode    of   assessment.       The     S.  W.  249;   Stroud  i>.  Philadelphia,  61  Pa. 
same  ruling  was  made  in  Louisiana  cases.     St.  255 ;  Philadelphia  v.  Tyron,  35  Pa.  St. 
Crowley  v.  Copley,  2  La.  Ann.  329 ;  Yeat-    401 ;  Warner  v.  Grand  Haven,  30  Mich, 
man  o.  Crandall,  11  La.  Ann.  220;  Wai-    24.     It  may  be  made  according  to  the 
lace  v.  Shelton,  14  La.  Ann.  498 ;  Bishop    value  of  the  lots :  Mason  v.  Spencer,  35 
v.  Marks,  15  La.  Ann.  147;  Richardson  v.    Kan.  512, 11  Pac.  402;  Snow  v.  Fitchburg, 
Morgan,  16  La.  Ann.  429.    So  with  ref-    136  Mass.  183;  or  by  area.    Keese  r.  Den- 
erence  to  assessments  for  irrigating  arid    ver,  10  Col.  112,  15  Pac.  825.     It  would 
lands.     Turlock  Irrig.  Dist.  v.  Williams,    not  be  competent,  however,  to  make  the 
76  Cal.  360,  18  Pac.  379.     And  see  McGe-    assessment  for  a  city  sewer  by  the  area 
hee  v.  Mathis,  21  Ark.  40;  Jones  v.  Boston,    upon  both  in  and  out  lots,  as  this,  from 
104  Mass.  461 ;  Daily  v.  Swope,  47  Miss,    the  nature  of  the  case,  could  not  possibly 
367;  Alcorn  v.  Hamer,  38  Miss.  652  ;  Boro    be  equal.     Thomas  v.  Gain,  35  Mich.  155. 
v.  Phillips  Co.,  4  Dill.  216.     ^Expense  of    Street  sprinkling  may  be  paid  for  accord- 
street  sprinkling  may  be  met  by  special    ing  to  the  frontage  upon  the  street  sprin- 
assessments  on  the  benefit  rule.    Phillips    kled.     State   v.  Reis,   38  Minn    371,  38 
Academy  v.  Andover,  175  Mass.  118,  55    N.  W.  97.      [^Expense  of  maintenance  of 
N.  E  841,  48  L  R.  A.  550.]  sewers,  as  well  as  of  construction,  may  be 

1  In  England  it  is  made  by  benefits,  met  by  special  assessments  according 
In  this  country  different  methods  are  to  benefits.  Carson  v.  Brockton  Sewer 
adopted.  See  Wright  v.  Boston,  9  Cush.  Comm'rs,  182  U.  S.  398,  21  Sup.  Ct.  Rep. 
233;  Leominster  v.  Conant,  139  Mass.  384,  860,  aff.  175  Mass.  242,  56  N.  E.  1,  48 
2  N.  E.  690 ;  Cone  v.  Hartford,  28  Conn.  L.  R.  A.  277.] 
363;  St.  Louis  v.  Osiers,  36  Mo.  456; 


CH.  XIV.]  THE   POWER   OF  TAXATION.  737 

hibit  any  other  species  of  taxation,  but  to  leave  the  legislature 
the  power  to  impose  such  other  taxes  as  would  be  consonant  to 
public  justice,  and  as  the  circumstances  of  the  country  might  re- 
quire. They  probably  intended  to  prevent  the  imposition  of  an 
arbitrary  tax  on  property,  according  to  kind  and  quantity,  and 
without  reference  to  value.  The  inequality  of  that  mode  of  taxa- 
tion was  the  object  to  be  avoided.  We  cannot  believe  they 
intended  that  all  the  public  burdens  should  be  borne  by  those 
having  property  in  possession,  wholly  exempting  the  rest  of  the 
community,  who,  by  the  same  constitution,  were  made  secure  in 
the  exercise  of  the  rights  of  suffrage,  and  all  the  immunities  of 
the  citizen."  1  And  in  another  case,  where  an  assessment  of  high- 
way labor  is  compared  with  one  upon  adjacent  property  for  widen- 
ing a  street,  —  which  had  been  held  not  to  be  taxation,  as  that 
term  was  understood  in  the  constitution,  —  it  is  said:  "An 
assessment  of  labor  for  the  repair  of  roads  and  streets  is  less  like 
a  tax  than  is  such  an  assessment.  The  former  is  not  based  upon, 
nor  has  it  any  reference  to,  property  or  values  owned  by  the  per- 
son of  whom  it  is  required,  whilst  the  latter  is  based  alone  upon 
the  property  designated  by  the  law  imposing  it.  Nor  is  an  assess- 
ment a  capitation  tax,  as  that  is  a  sum  of  money  levied  upon 
each  poll.  This  rate,  on  the  contrary,  is  a  requisition  for  so 
many  days'  labor,  which  may  be  commuted  in  money.  No  doubt, 
the  number  of  days  levied,  and  the  sum  which  may  be  received 
by  commutation,  must  be  uniform  within  the  limits  of  the  dis- 
trict or  body  imposing  the  same.  This  requisition  for  labor  to 
repair  roads  is  not  a  tax,  and  hence  this  exemption  is  not  repug- 
nant to  the  constitution."  2 

It  will  be  apparent  from  what  has  already  been  said,  that  it  is 
not  essential  to  the  validity  of  taxation  that  it  be  levied  according 
to  the  rules  of  abstract  justice.3  It  is  only  essential  that  the 
legislature  keep  within  its  proper  sphere  of  action,  and  do  not 
impose  burdens  under  the  name  of  taxation  which  are  not  taxes 
in  fact ;  and  its  decision  as  to  what  is  proper,  just,  and  politic, 

1  Sawyer  v.  City  of  Alton,  4  111.  127,  adjoining  premises  irrespective  of  any  ap- 
130;  State  v.  Halifax,  4  Dev.  345;  Ame-  portionment,  and  appears  to  suppose  our 
nia  v.  Stamford,  6  Johns.  92  ;  Draining  views  rest  upon  the  injustice  of  such  a 
Go.  Case,  11  La.  Ann.  338,  372.  proceeding.    This  is  not  strictly  correct; 

2  Town   of   Pleasant  v.    Kost,  29  111.  it  may  or  may  not  be  just  in  any  particu- 
490,  494.  lar  case  ;  but  taxation  necessarily  implies 

8  Frellsen  v.  Mahan,  21  La.  Ann.  79;  apportionment,  and  even  a  just  burden 

People  v.  Whyler,  41  Cal.  351  ;  Warren  cannot  be   imposed  as  a  tax  without  it. 

v.  Henley,  31  Iowa,  31.     In  this  last  case,  QSee  a  peculiar  case  in  Baldwin  v.  Doug- 

Bec/c,  ,J.,  criticises  the  position  taken  ante,  las  County,  37  Neb.  283,  66  N.  W.  876, 

pp.  730-732,  that    the   cost  of  a  local  20  L.  R.  A.  850,  declaring  a  doubtful 

improvement  cannot  be  imposed  on  the  rule.] 

47 


738  CONSTITUTIONAL  LIMITATIONS.  [CH.  XIV. 

must  then  be  final  and  conclusive.  Absolute  equality  and  strict 
justice  are  unattainable  in  tax  proceedings.  The  legislature  must 
be  left  to  decide  for  itself  how  nearly  it  is  possible  to  approxi- 
mate so  desirable  a  result.  It  must  happen  under  any  tax  law 
that  some  property  will  be  taxed  twice,  while  other  property  will 
escape  taxation  altogether.1  Instances  will  also  occur  where  per- 
sons will  be  taxed  as  owners  of  property  which  has  ceased  to 
exist.  Any  system  adopted  for  taking  valuations  of  property 
must  fix  upon  a  certain  time  for  that  purpose,  and  a  party  be- 
comes liable  to  be  taxed  upon  what  he  possesses  at  the  time  the 
valuing  officer  calls  upon  him.  Yet  changes  of  property  from 
person  to  person  are  occurring  while  the  valuation  is  going  on, 
and  the  same  parcel  of  property  may  be  found  by  the  assessor  in 
the  hands  of  two  different  persons,  and  be  twice  assessed,  while 
another  parcel  in  the  transfer  from  hand  to  hand  fails  to  be 
assessed  at  all.  So  the  man  who  owns  property  when  the  assess- 
ment is  taken  may  have  been  deprived  of  it  by  accident  or  other 
misfortune  before  the  tax  becomes  payable  ;  but  the  tax  is  never- 
theless a  charge  against  him.  And  when  the  valuation  is  made 
but  once  in  a  series  of  years,  the  occasional  hardships  and  in- 
equalities in  consequence  of  relative  changes  in  the  value  of 
property  from  various  causes,  becomes  sometimes  very  glaring. 
Nevertheless,  no  question  of  constitutional  law  is  raised  by  these 
inequalities  and  hardships,  and  the  legislative  control  is  complete.2 

1  Duplicate   taxation   must   occasion-  nessee,  161  U.  S.  134,  16  Sup.  Ct.  Rep. 

ally  take  place,   however  carefully   the  456,  s.  c.  163  U.  S.  416,  16  Sup.  Ct.  Rep. 

law  may  have  been  framed  to  avoid  it.  1113,  where  it  is  held  that  the  language 

A  tax  cannot  be  set  aside  on  that  ground  "  Said  institution  .  .  .  shall   pay  to  the 

merely.     Augusta  Bank  c.  Augusta,  36  State  an  annual  tax  of  \  of  1  per  cent 

Me.  255.     It  is  customary  to  tax  corpora-  on  each   share  of    capital  stock,  which 

tions  on  their  capital  stock,  or  on  their  shall    be  in    lieu    of    all   other    taxes" 

property,   and   also    the   corporators  on  makes   the  shares  in   the   hands  of  the 

their  shares;  and  this  is  entirely  admis-  stockholders  non-taxable.    But  the  bank 

sible.    Farrington  r.  Tennessee,  95  U.  S.  may  be    taxed   upon    its   capital    stock 

679;    Sturges  r.  Carter,  114  U.  S.  611,  under   that    provision.      Shelby    Co.    v. 

5  Sup.  Ct.  Rep.  1014 ;  Belo  r.  Commis-  Union  &  Planters'  Bank,  161  U.  S.  149, 

sioners,  82  N.  C.  415,  33  Am.  Rep.  688 ;  16  Sup.  Ct,  Rep.  558.]     So  land  may  be 

Bradley  v.  Bander,  36  Ohio  St.  28,  38  Am.  taxed  at  its  full  value,  and  also  the  mort- 

Rep.  547 ;  Cook  v.  Burlington,  59  Iowa,  gage  upon  it.     People  v.  Board  of  Super- 

251,  13  N.  W.  113;   Lee  v.  Sturges,  46  visors,  71  Mich.  16,38  N.  W.  639.     [But 

Ohio  St.  153,  19  N.  E.  560.     The  tax  on  not  in  California.     Germania  Trust  Co. 

the  shares  may  be  collected  from  the  cor-  v.  San  Francisco,  128  Cal.  589,  61  Pac. 

poration  out  of  dividends.     Street  Rail-  178.] 

road  Co.  v.   Morrow,  87  Tenn.   406,  11  2  In  Shaw  v.  Dennis,  10  111.  405,  ob- 

S.  W.  348.     But  it  is  said  the  intent  to  jection  was  taken  to  an  assessment  made 

tax  both  stock  and  shares  must  be  clear,  for  a  local  improvement  under  a  special 

Penn.  Co.  v.  Com.,  —  Pa.  St.  — ,  15  Atl.  statute,  that  the  commissioners,  in  deter- 

456.     QAnd  see  Farrington  v.  Tennessee,  mining  who  should  be  liable  to  pay  the 

95  U.  S.  679,  and  Bk.  of  Commerce  v.  Ten-  tax,  and  the  amount  each  should  pay, 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


739 


The  legislature  must  also,  except  when  an  unbending  rule  has 
been  prescribed  for  it  by  the  constitution,  have  power  to  select 
in  its  discretion  the  subjects  of  taxation.1  The  rule  of  uniform- 
ity requires  an  apportionment  among  all  the  subjects  of  taxation 
within  the  districts;  but  it  does  not  require  that  everything 
which  the  legislature  might  make  taxable  shall  be  made  so  in 
fact.  Many  exemptions  are  usually  made  from  taxation  from 
reasons  the  cogency  of  which  is  at  once  apparent.  The  agencies 
of  the  national  government,  we  have  seen,  are  not  taxable  by  the 
States ;  and  the  agencies  and  property  of  States,  counties,  cities, 
boroughs,  towns,  and  villages  are  also  exempted  by  law,  (a)  be- 


were  to  be  governed  by  the  last  assess- 
ment of  taxable  property  in  the  county. 
It  was  insisted  that  this  was  an  unjust 
criterion,  for  a  man  might  have  disposed 
of  all  the  taxable  property  assessed  to 
him  in  the  last  assessment  before  this  tax 
was  actually  declared  by  the  commission- 
ers. The  court,  however,  regarded  the 
objection  as  more  refined  than  practical, 
and  one  that,  if  allowed,  would  at  once 
annihilate  the  power  of  taxation.  "In 
the  imposition  of  taxes,  exact  and  criti- 
cal justice  and  equality  are  absolutely 
unattainable.  If  we  attempt  it,  we  might 
have  to  divide  a  single  year's  tax  upon  a 
given  article  of  property  among  a  dozen 
different  individuals  who  owned  it  at  dif- 
ferent times  during  the  year,  and  then  be 
almost  as  far  from  the  desired  end  as 
when  we  started.  The  proposition  is 
Utopian.  The  legislature  must  adopt 
some  practical  system ;  and  there  is  no 
more  danger  of  oppression  or  injustice  in 
taking  a  former  valuation  than  in  relying 
upon  one  to  be  made  subsequently." 
And  see  People  v.  Worthington,  21  111. 
171. 

1  Wisconsin  Cent.  R.  R.  Co.  v.  Taylor 
County,  52  Wis.  37,  8  N.  W.  833 ;  Strat- 
ton  v.  Collins,  43  N.  J.  563 ;  New  Orleans 
v.  People's  Bank,  32  La.  Ann.  82 ;  New 
Orleans  v.  Fourchy,  30  La.  Ann.  pt.  1, 
910;  Gibbons  v.  Dist.  Columbia,  110  U.  S. 
401,  6  Sup.  Ct.  Rep.  427;  University  v. 
Skidmore,  87  Tenn.  155,  9  S.  W.  892. 
But  if  provision  for  certain  exemptions 
is  made  by  the  constitution,  no  others 
are  valid.  Le  Due  v.  Hastings,  39  Minn. 
110,  38  N.  W.  803.  fJBut  it  seems  that 


the  legislature  may  exempt  lands  received 
from  the  Federal  government  in  trust  to 
aid  in  the  building  of  railways  without 
regard  to  the  constitutional  provisions 
concerning  exemptions.  See  Stearns  v. 
Minnesota,  179  U.  S.  223,  21  Sup.  Ct. 
Rep.  73,  and  Duluth  &  I.  R.  R.  Co.  v.  St. 
Louis  Co.,  179  U.  S.  302,  21  Sup.  Ct.  Rep. 
124.  Held,  that  an  exemption  of  $5,000 
in  each  estate  from  the  operation  of  the 
inheritance  tax  law  is  void,  as  being  re- 
pugnant to  the  requirement  of  uniform- 
ity. Re  Cope,  191  Pa.  1,  43  Atl.  79,  45 
L.  R.  A.  316.  Where  the  Constitution 
requires  that  the  legislature  "  shall  pro- 
vide by  law  for  a  uniform  and  equal  rate 
of  assessment  and  taxation,  and  shall 
prescribe  such  regulations  as  shall  secure 
a  just  valuation,"  failure  on  the  part  of 
the  legislature  to  prescribe  such  rules  for 
any  class  of  property  (e.  g.  paid-up  and 
partly  paid-up  life  insurance  policies) 
exempts  that  class.  State  Board  of  Tax 
Commissioners  v.  Holliday,  150  Ind.  216, 
49  N.  E.  14,  42  L.  R.  A.  826.  In  Mary- 
land the  legislature  cannot  exempt  per- 
sonal property  and  improvements  upon 
lands,  leaving  the  bare  land  values  to  be 
assessed.  Wells  v.  Hyattsville  Comm'rs, 
77  Md.  125,  26  Atl.  357,  20  L.  R.  A.  89. 
Oregon  legislature  cannot  exempt  rail- 
road property  upon  condition  that  State 
troops  and  munitions  of  war  be  carried 
free.  Hogg  v.  Mackay,  23  Oreg.  339,  31 
Pac.  779,  19  L.  R.  A.  77,  and  note  upon 
power  of  exemption.  No  exemptions 
allowed  in  North  Carolina.  Redmond  v. 
Tarboro,  106  N.  C.  122,  10  S.  E.  845,  7 
L.  R.  A.  639.;] 


(a)  FjBut  in  Kentucky,  a  municipal  corporation  may  be  taxed  upon  its  franchise 
to  operate  water-works.  Newport  v.  Com.,  106  Ky.  434,  50  S.  W.  845,  46  L.  R.  A. 
518.  Public  parks  and  the  property  used  by  the  fire  department  are  public  prop- 


740 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


cause,  if  any  portion  of  the  public  expenses  was  imposed  upon  them, 
it  must  in  some  form  be  collected  from  the  citizens  before  it  can 
be  paid.  No  beneficial  object  could  therefore  be  accomplished  by 
any  such  assessment.  The  property  of  educational  and  religious 
institutions  is  also  generally  exempted  from  taxation  by  law  upon 
very  similar  considerations,  and  from  a  prevailing  belief  that  it  is 
the  policy  and  the  interest  of  the  State  to  encourage  them.1  If 


1  As  in  the  case  of  other  special  privi- 
leges, exemptions  from  taxation  are  to  be 
strictly  construed.  Trustees  of  M.  E. 
Church  v.  Ellis,  38  Ind.  3  ;  State  v.  Mills, 
34  N.  J.  177;  Nashville,  &c.  R.  R.  Co.  v. 
Hodges,  7  Lea,  663;  Railway  Co.  v. 
Philadelphia,  101  U.  S.  528;  Morris 
v.  Royal  Arch  Masons,  68  Tex.  698,  5 
S.  W.  519 ;  Yazoo  &  M.  V.  R.  R.  Co.  v. 
Thomas,  65  Miss.  553,  5  So.  108 ;  People 
v.  Davenport,  91  N.  Y.  574 ;  Common- 
wealth's Appeal,  127  Pa.  St.  435,  17  Atl. 
1094;  Third  Cong.  Soc.  v.  Springfield, 
147  Mass.  396,  18  N.  E.  68;  ante,  396  ;  and 
many  other  cases  cited  in  Cooley  on 
Taxation,  146.  [[Exemption  of  the  capital 
of  a  bank  does  not  include  property 
bought  in  on  foreclosure  of  its  stock  and 
stock-loan  mortgages.  Louisiana  v.  Bd. 
of  Assessors,  167  U.  S.  407,  17  Sup.  Ct. 
Rep.  1000 ;  Bk.  of  Commerce  v.  Tennes- 
see, 161  U.  S.  134,  16  Sup.  Ct.  Rep.  450 ; 
Shelby  Co.  v.  Union  &  Planters'  Bank,  161 
U.  S.  149, 16  Sup.  Ct.  Rep.  558.  Whether 
exemption  is  contract  or  not,  see  Tucker 
v.  Ferguson,  22  L.  ed.  U.  S.  805,  and  note. 
Exemptions  narrowly  construed.  Ford 
v.  Delta  &  Pine  Land  Co.,  164  U.  S.  662, 
17  Sup.  Ct.  Rep.  230 ;  Byram  v.  Marion 
Co.Comm'rs,  145  Ind.  240,  44  N.  E.  357, 
33  L.  R.  A.  476;  Montana  Catholic  Mis- 
sion v.  L.  &  C.  County,  13  Mont.  559,  35 
Pac.  2,  22  L.  R.  A.  684 ;  Wells  v.  Savan- 
nah, 181  U.  S.  531,  21  Sup.  Ct.  Rep.  697, 
aff.  107  Ga.  1,  32  S.  E.  669.  Exemption 
from  taxation  of  lands  granted  by  Con- 
gress until  such  lands  are  sold  by  railroad, 
extends  only  to  time  when  equitable  title 


is  conveyed,  although  legal  title  may  not 
be  given  until  long  after.  Winona  &  St. 
Peter  Land  Company  v.  Minnesota,  159 
U.  S.  526,  16  Sup.  Ct.  Rep  83.  Exemp- 
tions not  so  strictly  construed  as  to  de- 
feat their  purpose.  Brown  University 
v.  Granger,  19  R.  I.  704,  36  Atl.  720,  36 
L.  R.  A.  847.  Exemption  of  shares  of 
stock  from  taxation  exempts  the  company 
unless  the  contrary  expressly  appears. 
State  v.  Heppenheimer,  58  N.  J.  L.  633, 
34  Atl.  1001,  32  L.  R.  A.  643.  For  other 
cases  on  exemptions,  see  Commonwealth 
v.  Juniata  Coke  Co.,  157  Pa.  607,  27 
Atl.  373,  22  L.  R.  A.  232;  Com.  v. 
Pottsville  Iron  &  S.  Co.,  157  Pa.  500, 
27  Atl.  371,  22  L.  R.  A.  228;  Ramsey 
County  v.  MacAlester  College,  61  Minn. 
437,  53  N.  W.  704,  18  L.  R.  A.  278; 
Re  Prime's  Estate,  136  N.  Y.  347,  32 
N.  E.  1091,  18  L.  R.  A.  713;  State  v. 
Keokuk  &  W.  R.  Co.,  99  Mo.  30, 12  S.  W. 
290,  6  L.  R.  A.  222.]  The  local  authorities 
cannot  be  authorized  by  the  legislature 
to  make  exemptions.  Farnsworth  Co.  v. 
Lisbon,  62  Me.  451 ;  Wilson  v.  Super- 
visors of  Sutler,  47  Cal.  91 ;  State  v.  Han- 
nibal, &c.  R.  R.  Co.,  75  Mo.  208;  Austin  v. 
Gas  Co.,  69  Tex.  180,  7  S.  W.  200.  See 
Brewer  Brick  Co.  v.  Brewer,  62  Me.  62, 
16  Am.  Rep.  395;  State  v.  Hudson,  &c. 
Com'rs,  37  N.  J.  12 ;  Augusta  Factory  v. 
Augusta,  83  Ga.  734,  10  S.  E.  359.  Com- 
pare Danville  c.  Shelton,  76  Va.  325. 
But  they  may  doubtless  be  authorized  to 
decide  upon  the  facts  what  persons  or 
property  come  within  the  rules  of  exemp- 
tion prescribed  by  the  legislature.  It  lias 


erty  and  are  exempt.  Owensboro  v.  Com.,  105  Ky.  344,  49  S.  W.  320,  44  L.  R.  A. 
202.  But  property  not  used  for  public  purposes  is  not  within  the  rule.  San  Diego 
v.  Linda  Vista  Irrigation  Dist.,  108  Cal.  189,  41  Pac.  291,  35  L.  R.  A.  33.  Nor  is 
public  property  in  private  hands,  even  though  used  for  public  purposes.  State  »'. 
Cooley,  62  Minn.  183,  64  N.  W.  379,  29  L.  R.  A.  777.  Where  the  State  cannot  be 
sued,  State  property  is  necessarily  exempt  from  special  assessments.  Mt.  Vernon  v. 
People,  147  111.  359,  35  N.  E.  533,  23  L.  R.  A.  807,  and  note  on  municipal  assessment 
of  State  property.  State  university  with  appurtenant  property  is  exempt.  Auditor 
General  v.  University,  83  Mich.  467,  47  N.  W.  440,  10  L.  R.  A.  376,  and  note.] 


CH.  XIV.] 


THE   POWER    OF   TAXATION. 


741 


the  State  may  cause  taxes  to  be  levied  from  motives  of  char- 
ity or  gratitude,  so  for  the  like  reasons  it  may  exempt  the  objects 
of  charity  and  gratitude  from  taxation.1  Property  is  sometimes 
released  from  taxation  by  contract  between  the  State  and  corpo- 
rations, (a)  and  specified  occupations  are  sometimes  charged  with 


been  generally  held  that  an  exemption 
from  taxation  would  not  exempt  the 
property  from  being  assessed  for  a  local 
improvement.  Matter  of  Mayor,  &c.,  11 
Johns.  77;  Baltimore  v.  Cemetery  Co., 
7  Md.  517 ;  La  Fayette  v.  Orphan  Asylum, 
4  La.  Ann.  1  ;  Pray  v.  Northern  Liberties, 
31  Pa.  St.  69 ;  Le  Fever  v.  Detroit,  2  Mich. 
686 ;  Loekwood  v.  St.  Louis,  24  Mo.  20 ; 
Broadway  Baptist  Church  v.  Me  A  tee,  8 
Bush,  508,  8  Am.  Rep.  480  ;  Universalist 
Society  v.  Providence,  6  R.  1. 235 ;  Patter- 
son v.  Society,  &c.,  '24  N.  J.  385;  Cincinnati 
College  v.  State,  19  Ohio,  110;  Brewster 
v.  Hough,  ION.  H.  138;  Seymour  v.  Hart- 
ford, 21  Conn.  481;  Palmer  v.  Stumph, 
29  Ind.  329 ;  Peoria  v.  Kidder,  26  111.  351 ; 
Hale  v.  Kenosha,  29  Wis.  599  ;  Seamen's 
Friend  Society  v.  Boston,  116  Mass.  181 ; 
Orange,  &c.  R.  R.  Co.  v.  Alexandria,  17 
Gratt.  176;  Lima  v.  Cemetery  Ass.,  42 
Ohio  St.  128;  State  v.  Kansas  City,  89 
Mo.  34,  14  S.  W.  515 ;  Chicago  v.  Baptist 
Union,  115  111.  245,2  N.  E.  254;  QLake 
Shore  &  M.  S.  R.  Co.  v.  Grand  Rapids, 
102  Mich.  374,  60  N.  W.  767,  29  L.  R.  A. 
195 ;  Board  of  Improvement  v.  School 
Dist.,  56  Ark.  354,  19  S.  W.  969,  16  L.  R. 
A.  418;  Zabel  v.  Louisville  B.  O.  Home, 
92  Ky.  89,  17  S.  W.  212,  13  L.  R.  A.  668; 
Atlanta  v.  First  Pr.  Church,  86  Ga.  730, 
13  S.  E.  252,  12  L.  R.  A.  852,  and  note; 
Home,  &c.  v.  Wilkinsburg,  131  Pa.  109, 
18  All.  937,  6  L.  R.  A.  531;  Adams 
County  v.  Quincy,  130  111.  566,  22  N.  E. 
624,  6  L.  R.  A.  155,  and  note ;  note  to  4 
L.  R.  A.  171.]  Contra,  Trustees  M.  E. 
Ch.  v.  Atlanta,  76  Ga.  181,  and  see  Swan 
Point  Cera.  v.  Tripp,  14  R.  I.  199.  QUpon 
exemptions  and  special  assessments,  see 
III.  Cent.  R.  Co.  v.  Decatur,  126  111.  92, 
18  N.  E  315, 1  L.  R.  A.  613,  and  note,  s.  c. 
147  U.  S.  190,  13  Sup.  Ct.  Rep.  293, 
sustaining  the  rule  that  "exemption 
from  all  taxation  of  every  kind "  does 
not  exempt  from  special  assessments  for 
street  improvements.  See  also  San  Diego 
v.  Linda  Vista  Irrigation  Dist.,  108  Cal. 
189,  41  Pac.  291,  35  L.  R.  A.  33,  and  note. 


Upon  what  are  public  improvements,  see 
Re  Kingman,  153  Mass.  666,  27  N.  E.  778, 
12  L.  R.  A.  417,  and  note.  Upon  whether 
exemption  is  a  contract  or  not,  see  note 
to  22  L.  ed.  U.  S.  805;  exemption  of 
church  property,  note  to  29  L.  ed.  U.  S. 
680.  And  in  an  exemption  a  reservation 
of  limited  taxing  power  to  "  municipal 
corporations"  extends  to  municipalities 
subsequently  incorporated.  Central  R. 
&  Bkg.  Co.  v.  Wright,  164  U.  S.  327,  17 
Sup.  Ct.  Rep.  80.]  Land  held  in  trust 
for  the  State  is  exempt.  People  v. 
Trustees  of  Schools,  118  111.  52,  7  N.  E. 
262.  The  customary  constitutional  inhi- 
bition of  any  law  respecting  an  establish- 
ment of  religion,  &c.,  is  not  violated  by 
an  exemption  of  church  property  from 
taxation.  Trustees  of  Griswold  College 
v.  State,  46  Iowa,  275,  26  Am.  Rep.  138. 
QWhere  a  school  admits  pupils  of  all 
creeds,  races,  colors,  and  conditions  with- 
out discrimination,  it  is  a  public  charity, 
even  though  owned  by  a  private  corpora- 
tion, and  it  may  lawfully  be  exempted 
from  taxation.  White  r.  Smith,  189  Pa. 
222,  43  L.  R.  A.  498, 42  Atl.  125.  So  with 
college  buildings  used  exclusively  as  dor- 
mitories and  boarding  halls  for  the  accom- 
modation of  students.  Yale  University  v. 
New  Haven,  71  Conn.  316,  42  Atl.  87,  43 
L.  R.  A.  490.  Exemption  will  cover  in- 
come-producing property  if  income  is  de- 
voted solely  to  charitable  purposes,  and 
free  education  of  female  orphan  children 
is  such  purpose.  Trustees  of  Kentucky 
F.  O.  School  v.  Louisville,  100  Ky.  470, 
36  S.  W.  921,  40  L.  R.  A.  119;  contra,  on 
first  proposition,  Portland  H.  Benev.  So- 
ciety v.  Kelly,  28  Oreg.  173,  42  Pac.  3,  30 
L.  R.  A.  167 ;  American  S.  S.  Union  v. 
Taylor,  161  Pa.  307,  29  Atl.  26,  23  L.  R. 
A.  695.] 

1  But  it  is  not  competent  to  grant  ex- 
emptions from  taxation  based  on  sex  or 
age,  —  e.  g.,  widows,  maids,  and  female 
minors,  —  and  an  act  attempting  to  make 
such  exemptions  is  void.  State  t'.  In- 
dianapolis, 69  Ind.  375,  35  Am.  Rep.  22& 


(a)  Q~Upon  exemption  from  taxation,  see  note  to  22  L.  ed.  U.  S.  805.] 


742 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


specific  taxes  in  lieu  of  all  taxation  of  their  property.  A  broad 
field  is  here  opened  to  legislative  discretion.  As  matter  of  State 
policy  it  might  also  be  deemed  proper  to  make  general  exemption 
of  sufficient  of  the  tools  of  trade  or  other  means  of  support,  to 
enable  the  poor  man,  not  yet  a  pauper,  to  escape  becoming  a  pub- 
lic burden.  There  is  still  ample  room  for  apportionment  after 
all  such  exemptions  have  been  made.  The  constitutional  require- 
ment of  equality  and  uniformity  only  extends  to  such  objects  of 
taxation  as  the  legislature  shall  determine  to  be  properly  subject 
to  the  burden.1  The  power  tv  determine  the  persons  and  the 
objects  to  be  taxed  is  trusted  exclusively  to  the  legislative  de- 
partment;2 but  over  all  those  objects  the  burden  must  be  spread 
or  it  will  be  unequal  and  unlawful  as  to  such  as  are  selected  to 
make  the  payment.3 


1  States  North,  27  Mo.  464;  People 
v.  Colman,  3  Cal.  46;  Duracli's  Appeal, 
62  Pa.   St.  491;   Brewer    Brick    Co.   v. 
Brewer,   62   Me.   62,  16  Am.  Rep.   395. 
[Crafts  v.  Ray,  —  R.  I.  — ,  46  All.  1043, 
49  L.  R.  A.  004.     See  also  Maine  Water 
Co.  v.  Waterville,  93  Me.  686,  45  Atl.  830, 
49  L.  R.  A.  294Q 

2  Wilson  v.  Mayor,  &c.  of  New  York, 
4  E.  D.  Smith,  675;  Hill   v.  Higdon,   6 
Ohio  St.  243;  State  v.  Parker,  33  N.  J. 
313;  State  v.  County  Court,  19  Ark.  360. 
Classes  of  property  as  well  as  classes  of 
persons  may  be  exempted.     Butler's  Ap- 
peal, 73  Pa.  St.  448 ;  Sioux  City  v.  School 
District,  55  Iowa,  150,  7  N.  W.  488.     Not- 
withstanding a  requirement  that   "  the 
rule  of  taxation  shall  be  uniform,"  the 
legislature  may  levy  specific  State  taxes 
on  corporations,  and  exempt  them  from 
municipal    taxation.      So    held    on    the 
ground    of   stare    decisis.      Kneeland  v. 
Milwaukee,  16  Wis.  454.     See  111.  Cent. 
R.  R.  Co.  v.  McLean  Co.,  17  111.  291 ;  New 
Orleans  v.  Savings  Bank,  31  La.  Ann. 
826;   Hunsaker  v.  Wright,   30  111.   146; 
Portland  v.  Water  Co.,  67  Me.  135. 

8  In  the  case  of  Weeks  v.  Milwaukee, 
10  Wis.  242,  a  somewhat  peculiar  exemp- 
tion was  made.  It  appears  that  several 
lots  in  the  city  upon  which  a  new  hotel 
was  being  constructed,  of  the  value  of 
from  -$150,000  to  $200,000,  were  purposely 
omitted  to  be  taxed,  under  the  direction 
of  the  Common  Council,  "  in  view  of  the 
great  public  benefit  which  the  construc- 
tion of  the  hotel  would  be  to  the  city." 
Paine,  J.,  in  delivering  the  opinion  of  the 


court,  says :  "  I  have  no  doubt  this  ex- 
emption originated  in  motives  of  gener- 
osity and  public  spirit.  And  perhaps  the 
same  motives  should  induce  the  taxpay- 
ers of  the  city  to  submit  to  the  slight  in- 
crease of  the  tax  thereby  imposed  on 
each,  without  questioning  its  strict  legal- 
ity. But  they  cannot  be  compelled  to. 
No  man  is  obliged  to  be  more  generous 
than  the  law  requires,  but  each  may 
stand  strictly  upon  his  legal  rights.  That 
this  exemption  was  illegal,  was  scarcely 
contested.  I  shall  therefore  make  no 
effort  to  show  that  the  Common  Council 
had  no  authority  to  suspend  or  repeal  the 
general  law  of  the  State,  declaring  what 
property  shall  be  taxable  and  what  ex- 
empt. But  the  important  question  pre- 
sented is,  whether,  conceding  it  to  have 
been  entirely  unauthorized,  it  vitiates 
the  tax  assessed  upon  other  property. 
And  upon  this  question  I  think  the  follow- 
ing rule  is  established,  both  by  reason  and 
authority.  Omissions  of  this  character, 
arising  from  mistakes  of  fact,  erroneous 
computations,  or  errors  of  judgment  on 
the  part  of  those  to  whom  the  execution  of 
the  taxing  laws  is  entrusted,  do  not  neces- 
sarily vitiate  the  whole  tax.  But  inten- 
tional disregard  of  those  laws,  in  such 
manner  as  to  impose  illegal  taxes  on  those 
who  are  assessed,  does.  The  first  part 
of  the  rule  is  necessary  to  enable  taxes  to 
be  collected  at  all.  The  execution  of 
these  laws  is  necessarily  entrusted  to  men, 
and  men  are  fallible,  liable  to  frequent 
mistakes  of  fact  and  errors  of  judgment. 
If  such  errors,  on  the  part  of  those  who 


CH.  XIV.] 


THE    POWER   OF   TAXATION. 


743 


In  some  of  the  States  it  has  been  decided  that  the  particular 
provisions  inserted  in  their  constitutions  to  insure  uniformity  are 
so  worded  as  to  forbid  exemptions.  Thus  the  late  Constitution 
of  Illinois  provided  that  "  the  General  Assembly  shall  provide  for 
levying  a  tax  by  valuation,  so  that  every  person  and  corporation 
shall  pay  a  tax  in  proportion  to  the  value  of  his  or  her  property. "  l 
Under  this  it  was  held  that  exemption  by  the  legislature  of  per- 
sons residing  in  a  city  from  a  tax  levied  to  repair  roads  beyond 
the  city  limits,  by  township  authority,  —  the  city  being  embraced 
within  the  township  which,  for  that  purpose,  was  the  taxing  dis- 
trict,—  was  void.2  It  is  to  be  observed  of  these  cases,  however, 
that  they  would  have  fallen  within  the  general  principle  laid 
down  in  Knowlton  v.  Supervisors  of  Rock  Co.,3  and  the  legisla- 
tive acts  under  consideration  might,  if  that  case  were  followed, 
have  been  declared  void  on  general  principles,  irrespective  of  the 
peculiar  wording  of  the  constitution.  These  cases,  notwithstand- 
ing, as  well  as  others  in  Illinois,  recognize  the  power  in  the  legis- 


are  attempting  in  good  faith  to  perform 
their  duties,  should  vitiate  the  whole  tax, 
no  tax  could  ever  be  collected.  And 
therefore,  though  they  sometimes  increase 
improperly  the  burdens  of  those  paying 
taxes,  that  part  of  the  rule  which  holds 
the  tax  not  thereby  avoided  is  absolutely 
essential  to  a  continuance  of  government. 
But  it  seems  to  me  clear  that  the  other 
part  is  equally  essential  to  the  just  pro- 
tection of  the  citizen.  If  those  executing 
these  laws  may  deliberately  disregard 
them,  and  assess  the  whole  tax  upon  a 
part  only  of  those  who  are  liable  to  pay 
it,  and  have  it  still  a  legal  tax,  then  the 
laws  afford  no  protection,  and  the  citizen 
is  at  the  mercy  of  those  officers,  who,  by 
being  appointed  to  execute  the  laws,  would 
seem  to  be  thereby  placed  beyond  legal 
control.  I  know  of  no  considerations  of 
public  policy  or  necessity  that  can  justify 
carrying  the  rule  to  that  extent.  And  the 
fact  that  in  this  instance  the  disregard  of 
the  law  proceeded  from  good  motives 
ought  not  to  affect  the  decision  of  the 
question.  It  is  a  rule  of  law  that  is 
to  be  established  ;  and,  if  established 
here  because  the  motives  were  good,  it 
would  serve  as  a  precedent  where  the 
motives  were  bad,  and  the  power  usurped 
for  purposes  of  oppression,"  pp.  812-315. 
See  also  Henry  v.  Chester,  15  Vt.  460; 
State  /•.  Collector  of  Jersey  City,  24  N.  J. 
108 ;  Insurance  Co.  v.  Yard,  17  Pa.  St.  331 ; 


Williams  v.  School  District,  21  Pick.  75 ; 
Hersey  v.  Supervisors  of  Milwaukee,  16 
Wis.  185 ;  Crosby  v.  Lyon,  37  Cal.  242 ; 
Primm  v.  Belleville,  69  111.  142 ;  Adams 
v.  Beman,  10  Kan.  37;  Brewer  Brick  Co. 
v.  Brewer,  62  Me.  62,  16  Am.  Rep.  395. 
But  it  seems  that  an  omission  of  property 
from  the  tax-roll  by  the  assessor,  un- 
intentionally, through  want  of  judgment 
and  lack  of  diligence  and  business  habits, 
will  not  invalidate  the  roll.  Dean  v. 
Gleason,  16  Wis.  1 ;  liicketts  v.  Spraker, 
77  Ind.  371.  In  Scofield  v.  Watkins,  22 
III.  66,  and  Merritt  v.  Karris,  22  111.  303, 
it  appears  to  be  decided  that  even  in  the 
case  of  intentional  omissions  the  tax-roll 
would  not  be  invalidated,  but  the  parties 
injured  would  be  left  to  their  remedy 
against  the  assessor.  See  also  Dunham 
»\  Chicago,  55  111.  359;  State  v.  Maxwell, 
27  La.  Ann.  722 ;  New  Orleans  v.  Fourchy, 
30  La.  Ann.  pt.  1.  910.  Compare  Francis 
v.  Railroad  Co.,  19  Kan.  303. 

1  Art.  9,  §  2,  of  the  old  Constitution. 

2  O'Kane  v.  Treat,  25  111.  557 ;  Hun- 
saker  v.  Wright,  30   111.  146.     See  also 
Trustees  v.  McConnell,  12  111.  138  ;  Madi- 
son County  r.  People,  58  111.  456 ;  Dunham 
v.  Chicago,  55  III.  357;  Louisville,  &c.  R. 
R.  Co.  v.  State,  8  Heisk.  663,  744.     £Peo- 
ple's  Loan  &  H.  Assn.   r.  Keith,  153  111. 
609,  39  N.  E.  1077,  28  L.  R.  A.  65.] 

»  9  Wis.  410.     See  ante,  p.  723. 


744  CONSTITUTIONAL   LIMITATIONS.  [CH.  XIV. 

lature  to  commute  for  a  tax,  or  to  contract  for  its  release  for  a 
consideration.  The  Constitution  of  Ohio  provides  1  that  "  laws 
shall  be  passed  taxing  by  a  uniform  rule  all  moneys,  credits, 
investments  in  bonds,  stocks,  joint-stock  companies,  or  otherwise ; 
and  also  all  real  and  personal  property,  according  to  its  true  value 
in  money."  Under  this  section  it  was  held  not  competent  for 
the  legislature  to  provide  that  lands  within  the  limits  of  a  city 
should  not  be  taxed  for  any  city  purpose,  except  roads,  unless  the 
same  were  laid  off  into  town  lots  and  recorded  as  such,  or  into 
out-lots  not  exceeding  five  acres  each.2  Upon  this  case  we  should 
make  the  same  remark  as  upon  the  Illinois  cases  above  referred 
to.  The  Constitution  of  California  provides  that  "  all  property 
in  the  State  shall  be  taxed  in  proportion  to  its  value;"  and  this 
is  held  to  preclude  all  exemptions  of  private  property  when  taxes 
are  laid  for  either  general  or  local  purposes.3 

It  is,  moreover,  essential  to  valid  taxation  that  the  taxing  offi- 
cers be  able  to  show  legislative  authority  for  the  burden  they 
assume  to  impose  in  every  instance.  Taxes  can  only  be  voted  by 
the  people's  representatives.  They  are  in  every  instance  an  ap- 
propriation by  the  people  to  the  government,  which  the  latter  is 
to  expend  in  furnishing  the  people  protection,  security,  and  such 
facilities  for  enjoyment  as  it  properly  pertains  to  government  to 
provide.  This  principle  is  a  chief  corner-stone  of  Anglo-Saxon 
liberty ;  and  it  has  operated  not  only  as  an  important  check  on 
government,  in  preventing  extravagant  expenditures,  as  well  as 
unjust  and  tyrannical  action,  but  it  has  been  an  important  guar- 
anty of  the  right  of  private  property.  Property  is  secure  from 
the  lawless  grasp  of  the  government,  if  the  means  of  existence  of 
the  government  depend  upon  the  voluntary  grants  of  those  who 
own  the  property.  Our  ancestors  coupled  their  grants  with  de- 
mands for  the  redress  of  grievances  :  but  in  modern  times  the 
surest  protection  against  grievances  has  been  found  to  be  to  vote 
specific  taxes  for  the  specific  purposes  to  which  the  people's 
representatives  are  willing  they  shall  be  devoted  ; 4  and  the  per- 
sons exercising  the  functions  of  government  must  then  become 
petitioners  if  they  desire  money  for  other  objects.  And  then 
these  grants  are  only  made  periodically.  Only  a  few  things,  such 
as  the  salaries  of  officers,  the  interest  upon  the  public  debt,  the 
support  of  schools,  and  the  like,  are  provided  for  by  permanent 

1  Art.  12,  §  2.  8  People   v.  McCreery,   34   Cal.  432 ; 

2  Zanesville  v.  Auditor  of  Muskingum     Crosby  v.  Lyon.  37  Cal.  242 ;  People  v. 
County,  6  Ohio  St.  589.     See  also  Fields    Eddy ,"43  Cal.  331,  13  Am.  Rep.  143. 

v.  Com'rs  of  Highland  Co.,  36  Ohio  St.         *  Hoboken  v.  Phinney,  29  N.  J.  65. 
476. 


CH.  XIV.]  THE   POWER   OF  TAXATION.  745 

laws  ;  and  not  always  is  this  done.  The  government  is  depend- 
ent from  year  to  year  on  the  periodical  vote  of  supplies.  And 
this  vote  will  come  from  representatives  who  are  newly  chosen 
by  the  people,  and  who  will  be  expected  to  reflect  their  views 
regarding  the  public  expenditures.  State  taxation,  therefore,  is 
not  likely  to  be  excessive  or  onerous,  except  when  the  people,  in 
times  of  financial  ease,  excitement,  and  inflation,  have  allowed 
the  incurring  of  extravagant  debts,  the  burden  of  which  remains 
after  the  excitement  has  passed  away. 

But  it  is  as  true  of  the  political  divisions  of  the  State  as  it  is 
of  the  State  at  large,  that  legislative  authority  must  be  shown  for 
every  levy  of  taxes.1  The  power  to  levy  taxes  by  these  divisions 
comes  from  the  State.  The  State  confers  it,  and  at  the  same 
time  exercises  a  parental  supervision  by  circumscribing  it.  In- 
deed, on  general  principles,  the  power  is  circumscribed  by  the 
rule  that  the  taxation  by  the  local  authorities  can  only  be  for 
local  purposes.2  Neither  the  State  nor  the  local  body  can  authorize 
the  imposition  of  a  tax  on  the  people  of  a  county  or  town  for  an 
object  in  which  the  people  of  the  county  or  town  are  not  concerned. 
And  by  some  of  the  State  constitutions  it  is  expressly  required 
that  the  State,  in  creating  municipal  corporations,  shall  restrict 
their  power  of  taxation  over  the  subjects  within  their  control. 
These  requirements,  however,  impose  an  obligation  upon  the 
legislature  which  only  its  sense  of  duty  can  compel  it  to  perform.3 
It  is  evident  that  if  the  legislature  fail  to  enact  the  restrictive 
legislation,  the  courts  have  no  power  to  compel  such  action. 

1  State  v.  Charleston,  2  Speers,  623  ;  42  L.  ed.  U.  S.  445.]   Without  express  au- 

Columbia  v.  Guest,  3  Head,  413 ;   Bangs  thority  a  city  cannot  tax  its  own  bonds. 

v.  Snow,  1  Mass.  181 ;  Clark  v.  Daven-  Macon  v.  Jones,  67  Ga.  489.     Where  a  city 

port,  14  Iowa,  494  ;  Burlington  v.  Kellar,  has  power  to  issue  securities,  it  has  im- 

18  Iowa,  59 ;  Mays  v.  Cincinnati,  1  Ohio  plied  power  to  tax  to  meet  them,  unless 

St.  268 ;    Richmond  v.  Daniel,  14  Gratt.  there  is  a  clear  limitation  upon  its  power 

385;  Simmons  v.  Wilson,  66  N.  C.  336;  so  to  do.     Quincy  v.  Jackson,  113  U.  S. 

Lott  v.  Ross,  38  Ala.  156 ;  Lisbon  v.  Bath,  332,  5  Sup.  Ct.  Rep.  544.    And,  if  a  city  is 

21  N.  H.  319;    Daily  v.  Swope,  47  Miss,  dissolved,  the   legislature   may  tax  for 

367.     The  same   rule  applies  to  laying  like    purpose,   although    thus   it  lays  a 

special   assessments.     Augusta   v.   Mur-  higher  tax  than  it  has  the  right,  under 

pliey,  79  Ga.  101,  3  S.  E.  326;   Vaughn  ordinary  circumstances,  to  impose.    Hare 

v.  Ashland,  71  Wis.  502,  37  N.  W.  809.  v.  Kennerly,  83  Ala.  608,  3  So.  683. 
[And  all  conditions  precedent  which  may         2  Foster  o.  Kenosha,  12  Wis.  616.    See 

have  been  prescribed  by  law  for  the  levy  ante,  p.  312. 

of  special  assessments  must  be  strictly          8  In  Hill  v.  Higdon,  5  Ohio  St.  243, 

complied  with.     They  are  jurisdictional,  248,  Ranney,  J.,  says   of  this  provision : 

and  their  omission  makes  the  levy  void.  "  A  failure  to  perform  this  duty  may  be 

Ogden  City  v.  Armstrong,  168  U.  S.  224,  of  very  serious  import,  but  lays  no  foun- 

18  Sup.  Ct.  Rep.  98,  aff.  12  Utah,  476,  43  dation  for  judicial  correction."    And  see 

Pac.  119.     As  to  equitable  relief  against  Maloy  v.  Marietta,  11  Ohio  St.  636. 
illegal  taxation,  see  note  to  this  case  in 


746 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


Whether  in  any  case  a  charter  of  incorporation  could  be  held  void 
on  the  ground  that  it  conferred  unlimited  powers  of  taxation,  is  a 
question  that  could  not  well  arise,  as  a  charter  is  probably  never 
granted  which  does  not  impose  some  restrictions ;  and  where  that 
is  the  case,  it  must  be  inferred  that  those  were  all  the  restrictions 
the  legislature  deemed  important,  and  that  therefore  the  constitu- 
tional duty  of  the  legislature  has  been  performed.1 

When,  however,  it  is  said  to  be  essential  to  valid  taxation  that 


1  Tlie  Constitution  of  Ohio  requires 
the  legislature  to  provide  by  general 
laws  for  the  organization  of  cities  and  in- 
corporated villages,  and  to  restrict  their 
power  of  taxation,  assessment,  &c.  The 
general  law  authorizing  the  expense  of 
grading  and  paving  streets  to  be  assessed 
on  the  grounds  bounding  and  abutting 
on  the  street,  in  proportion  to  the  street 
front,  was  regarded  as  being  passed  in  at- 
tempted fulfilment  of  the  constitutional 
duty,  and  therefore  valid.  The  chief  re- 
striction in  the  case  was,  that  it  did  not 
authorize  assessment  in  any  other  or  dif- 
ferent mode  from  what  had  been  custom- 
ary. Northern  Indiana  R.  R.  Co.  v. 
Connelly,  10  Ohio  St.  159.  The  statute 
also  provided  that  no  improvement  or 
repair  of  a  street  or  highway,  the  cost  of 
which  was  to  be  assessed  upon  the  own- 
ers, should  be  directed  without  the  con- 
currence of  two-thirds  of  the  members 
elected  to  the  municipal  council,  or  un- 
less two-thirds  of  the  owners  to  be 
charged  should  petition  in  writing  there- 
for. In  Maloy  v.  Marietta,  11  Ohio  St. 
636,  639,  Peck,  J.,  says:  "This  may  be 
said  to  be  a  very  imperfect  protection ; 
and  in  some  cases  will  doubtless  prove  to 
be  so  ;  but  it  is  calculated  and  designed, 
by  the  unanimity  or  the  publicity  it  re- 
quires, to  prevent  any  flagrant  abuses  of 
the  power.  Such  is  plainly  its  object ; 
and  we  know  of  no  rights  conferred  upon 
courts  thus  to  interfere  with  the  exercise 
of  a  legislative  discretion  which  the  con- 
stitution has  delegated  to  the  law-making 
power."  And  see  Weeks  v.  Milwaukee, 
10  Wis.  242.  The  Constitution  of  Michi- 
gan requires  the  legislature,  in  providing 
for  the  incorporation  of  cities  and  villages, 
to  "  restrict  their  power  of  taxation,"  &c. 
The  Detroit  Metropolitan  Police  Law 
made  it  the  duty  of  the  Board  of  Police 
to  prepare  and  submit  to  the  city  con- 
troller, on  or  before  the  first  day  of  May 


in  each  year,  an  estimate  in  detail  of  the 
cost  and  expense  of  maintaining  the  police 
department.and  the  Common  Council  was 
required  to  raise  the  same  by  general  tax. 
These  provisions,  it  was  claimed,  were  in 
conflict  with  the  constitution,  because  no 
limit  was  fixed  by  them  to  the  estimate 
that  might  be  made.  In  People  v.  Ma- 
haney,  13  Mich.  481,  498,  the  court  say : 
"  Whether  this  provision  of  the  constitu- 
tion can  be  regarded  as  mandatory  in  a 
sense  that  would  make  all  charters  of 
municipal  corporation  and  acts  relating 
thereto  which  are  wanting  in  this  limita- 
tion invalid,  we  do  not  feel  called  upon  to 
decide  in  this  case,  since  it  is  clear  that  a 
limitation  upon  taxation  is  fixed  by  the 
act  before  us.  The  constitution  has  not 
prescribed  the  character  of  the  restriction 
which  shall  be  imposed,  and  from  the 
nature  of  the  case  it  was  impossible  to  do 
more  than  to  make  it  the  duty  of  the 
legislature  to  set  some  bounds  to  a  power 
so  liable  to  abuse.  A  provision  which, 
like  the  one  complained  of,  limits  the 
power  of  taxation  to  the  actual  expenses 
as  estimated  by  the  governing  board, 
after  first  limiting  the  power  of  the  board 
to  incur  expense  within  narrow  limits,  is 
as  much  a  restriction  as  if  it  confined  the 
power  to  a  certain  percentage  upon  tax- 
able property,  or  to  a  sum  proportioned 
to  the  number  of  inhabitants  in  the  city. 
Whether  the  restriction  fixed  upon  would 
as  effectually  guard  the  citizen  against 
abuse  as  any  other  which  might  have 
been  established  was  a  question  for  the 
legislative  department  of  the  govern- 
ment, and  does  not  concern  us  on  this 
inquiry."  QWhere  townships  are  mere 
adjuncts  or  branches  of  county  govern- 
ments, as  in  Missouri,  the  township  tax 
rate  is  a  part  of  the  rate  to  which  the 
county  is  limited.  State  v.  Mo.  P.  R.  Co., 
123  Mo.  72,  27  S.  W.  367,  26  L.  R.  A.  36-3 


CH.  XIV.]  THE   POWER   OF   TAXATION.  747 

there  be  legislative  authority  for  every  tax  that  is  laid,  it  is  not 
meant  that  the  legislative  department  of  the  State  must  have 
passed  upon  the  necessity  and  propriety  of  every  particular  tax ; 
but  those  who  assume  to  seize  the  property  of  the  citizen  for  the 
satisfaction  of  the  tax  must  be  able  to  show  that  that  particular 
tax  is  authorized,  either  by  general  or  special  law.  The  power 
inherent  in  the  government  to  tax  lies  dormant  until  a  constitu- 
tional law  has  been  passed  calling  it  into  action,  and  is  then 
vitalized  only  to  the  extent  provided  by  the  law.  Those,  there- 
fore, who  act  under  such  a  law  should  be  careful  to  keep  within 
its  limits,  lest  they  remove  from  their  acts  the  shield  of  its  pro- 
tection. While  we  do  not  propose  to  enter  upon  any  attempt  to 
point  out  the  various  cases  in  which  a  failure  to  obey  strictly  the 
requirements  of  the  law  will  render  the  proceedings  void,  —  in 
regard  to  which  a  diversity  of  decision  would  be  met  with,  —  we 
think  we  shall  be  safe  in  saying  that,  in  cases  of  this  description, 
which  propose  to  dispossess  the  citizen  of  his  property  against  his 
will,  not  only  will  any  excess  of  taxation  beyond  what  the  law 
allows  render  the  proceedings  void,  but  any  failure  to  comply 
with  such  requirements  of  the  law  as  are  made  for  the  protection 
of  the  owner's  interest  will  also  r.ender  them  void,  (a) 

There  are  several  reported  cases  in  which  the  taxes  levied  were 
slightly  in  excess  of  legislative  power,  and  in  which  it  was  urged 
in  support  of  the  proceedings,  that  the  law  ought  not  to  take 
notice  of  such  unimportant  matters ;  but  the  courts  have  held 
that  an  excess  of  jurisdiction  is  never  unimportant.  In  one  case 
in  Maine,  the  excess  was  eighty-seven  cents  only  in  a  tax  of 
$225.75,  but  it  was  deemed  sufficient  to  render  the  proceedings 
void.  Said  Mellen,  Ch.  J.,  delivering  the  opinion  of  the  court: 
"  It  is  contended  that  the  sum  of  eighty-seven  cents  is  such  a 
trifle  as  to  fall  within  the  range  of  the  maxim  de  minimis,  &c. ; 
but  if  not,  that  still  this  small  excess  does  not  vitiate  the  assess- 
ment. The  maxim  is  so  vague  in  itself  as  to  form  a  very  unsafe 
ground  of  proceeding  or  judging;  and  it  may  be  almost  as  diffi- 
culty to  apply  it  as  a  rule  in  pecuniary  concerns  as  to  the  interest 
which  a  witness  has  in  the  event  of  a  cause  ;  and  in  such  case  it 
cannot  apply.  Any  interest  excludes  him.  The  assessment  was 
therefore  unauthorized  and  void.  If  the  line  which  the  legisla- 
ture has  established  be  once  passed,  we  know  of  no  boundary  to 

(a)  [Ogden  City  v.  Armstrong,  168  U.  S.  224,  18  Sup.  Ct.  Rep.  98,  aff.  12  Utah, 
476,  43  Pac.  119 ;  and  see  many  cases  cited  in  note  in  42  L.  ed.  U.  S.  445.  See  Farns- 
worth  Lumber  Co.,  v.  Fairley,  —  Miss.  — ,  28  So.  569,  (April  30,  1900)  for  an  assess- 
ment held  void  for  lack  of  opportunity  to  taxpayers  to  object  to  it,  right  to  object 
being  secured  by  statute.] 


748 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XIV. 


the  discretion  of  the  assessors." J  The  same  view  has  been  taken 
by  the  Supreme  Court  of  Michigan,  by  which  the  opinion  is  ex- 
pressed that  the  maxim  de  minimis  lex  non  curat  should  be 
applied  with  great  caution  to  proceedings  of  this  character,  and 
that  the  excess  could  not  be  held  unimportant  and  overlooked 
where,  as  in  that  case,  each  dollar  of  legal  tax  was  perceptibly 
increased  thereby.2  Perhaps,  however,  a  slight  excess,  not  the 
result  of  intention,  but  of  erroneous  calculations,  may  be  over- 
looked, in  view  of  the  great  difficulty  in  making  all  such  calcula- 
tions mathematically  correct,  and  the  consequent  impolicy  of 
requiring  entire  freedom  from  all  errors.3 

What  method  shall  be  devised  for  the  collection  of  a  tax,  the 
legislature  must  determine,  subject  only  to  such  rules,  limitations, 
and  restraints  as  the  constitution  of  the  State  may  have  imposed.4 
Very  summary  methods  are  sanctioned  by  practice  and  precedent.5 


1  Huse  v.  Merriam,  2  Me.  375.     See 
Joyner  v.  School  District,  3  Gush.  567  ; 
Kemper   v.   Me  del  Ian  fl,    19   Ohio,    308; 
School  District  v.  Merrills,  12  Conn.  437  ; 
El  well  v.  Shaw,  1  Me.  339 ;  Wells  v.  Bur- 
bank,  17  N.  H.393;  Kinsworthy  v.  Mitch- 
ell, 21  Ark.  145. 

2  Case  v.  Dean,  16  Mich.  12.     And  see 
Commonwealth  v.  Savings  Bank,  5  Allen, 
428  ;  Bucknall  v.  Story,  36  Cal.  67;  Drew 
v.  Davis,  10  Vt.  506  ;  Wells  v.  Burbank, 
17  N.  H.  393 ;  Axtell  v.  Gerlach,  67  Cal. 
483,  8  Pac.  34. 

8  This  was  the  view  taken  by  the  Su- 
preme Court  of  Wisconsin  in  Kelley  v. 
Corson,  8  Wis.  182,  where  an  excess  of 
$8.61  in  a  tax  of  $6,654.57  was  held  not  to 
be  fatal ;  it  appearing  not  to  be  the  re- 
sult of  intention,  and  the  court  thinking 
that  an  accidental  error  no  greater  than 
this  ought  to  be  disregarded.  See  also 
O'Grady  v.  Barnhisel,  23  Cal.  287  ;  State 
v.  Newark,  25  N.  J.  399;  Harvard  v.  Day, 
62  Miss.  748.  In  Iowa  the  statute  re- 
quires a  sale  to  be  upheld  if  any  portion 
of  the  tax  was  legal.  See  Parker  v.  Sex- 
ton, 29  Iowa,  421.  If  a  part  of  a  tax  only 
is  illegal,  the  balance  will  be  sustained  if 
capable  of  being  distinguished.  O'Kane 
v.  Treat,  25  111.  557;  People  v.  Nichols, 
49  111.  517.  See  State  v.  Plainfield,  38 
N.  J.  L.  93.  QThat  unintentional  error 
arising  from  making  an  exemption  mis- 
takenly believed  to  be  authorized  by  law 
•will  not  vitiate,  see  McTwiggan  v.  Hunter, 
19  R.  I.  265.  33  Atl.  6,  29  L.  R.  A.  526-3 

4  The  following  methods  are  resorted 


to :  Suit  at  law ;  arrest  of  the  person 
taxed,  distress  of  goods,  and  sale  if  neces- 
sary ;  detention  of  goods,  in  the  case  of 
imports,  until  payment  is  made  ;  sale  or 
leasing  of  land  taxed;  imposition  of  pen- 
alties for  non-payment ;  forfeiture  of  prop- 
erty ;  making  payment  a  condition  pre- 
cedent to  the  exercise  of  some  legal  right, 
such  the  institution  of  a  suit,  or  voting  at 
elections,  or  to  the  carrying  on  of  a  busi- 
ness ;  requiring  stamps  on  papers,  docu- 
ments, manufactured  articles,  &c.  In 
Prentice  v.  Weston,  111  N.  Y.  460,  18 
N.  E.  720;  it  is  held  not  an  unwarrantable 
interference  with  private  property  to  for- 
bid cutting  of  timber  on  land  on  which  a 
tax  remains  unpaid,  when  the  chief  value 
of  the  land  lay  in  the  timber.  A  village 
occupation  tax  cannot  be  enforced  by 
fine  and  imprisonment.  State  v.  Green, 
27  Neb.  64,  42  N.  W.  913.  [>  case  of 
gross  under-assessment,  the  assessment 
may  be  corrected  in  manner  prescribed 
by  law,  and  the  taxes  based  on  such  cor- 
rection collected  from  the  present  owner 
of  the  property.  Weyerhauser  v.  Minne- 
sota, 176  U.  S.  550,  20  Sup.  Ct.  Rep.  485, 
aff.  72  Minn.  519,  75  N.  W.  718.  Upon 
reassessment  of  taxes,  see  note  to  6  L.  R.  A. 
802.  Lands  may  be  forfeited  to  State  for 
non  return  to  assessor,  if  statute  so  pro- 
vides. State  v.  Sponaugle,  45  W.  Va. 
415,  32  S.  E.  283,  43  L  R.  A.  727  ] 

5  See  Henderson's  Distilled  Spirits,  14 
Wall.  44  ;  Weimer  v.  Bunbury,  38  Mich. 
201  ;  Lydecker  v.  Palisade  Land  Co  ,  33 
N.  J.  Eq.  415 ;  Springer  v.  United  States, 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


749 


Wherever  a  tax  is  invalid  because. of  excess  of  authority,  or  be- 
cause the  requisites  in  tax  proceedings  which  the  law  has  pro- 
vided for  the  protection  of  the  taxpayer  are  not  complied  with, 
any  sale  of  property  based  upon  it  will  be  void  also.  The  owner 
is  not  deprived  of  his  property  by  "  the  law  of  the  land,"  if  it  is 
taken  to  satisfy  an  illegal  tax.  And  if  property  is  sold  for  the 
satisfaction  of  several  taxes,  any  one  of  which  is  unauthorized, 
or  for  any  reason  illegal,  the  sale  is  altogether  void.1  And  the 


102  U.  S.  686  ;  In  re  Hackett,  53  Vt,  354  ; 
Adler  v.  Whitbeck,  44  Ohio  St.  639,  9 
N.  E.  672 ;  ante,  505,  note,  fj Weyerhauser 
v.  Minnesota,  176  U.  S.  550,  20  Sup.  Ct. 
Rep.  485;  King  v.  Mullins,  171  U.  S. 
404,  18  Sup.  Ct.  Rep.  925.  See  notes  on 
power  of  State  to  tax,  10  L.  ed.  U.  S. 
1022;  sale  of  land  for  taxes,  4  L.  ed. 
U.  S.  518.] 

1  This  has  been  repeatedly  held.  El- 
well  ?.'.  Shaw,  1  Me.  339 ;  Lacy  ?'.  Davis, 
4  Mich.  140;  Bangs  v.  Snow,  1  Mass.  180; 
Thurston  v.  Little,  3  Mass.  42U;  Dilling- 
ham  v.  Snow,  5  Mass  647 ;  Stetson  v. 
Kempton,  13  Mass.  283;  Libby  v.  Burn- 
ham,  15  Mass.  144;  Hayden  v.  Foster,  13 
Pick.  492;  Torrey  v.  Millbury,  21  Pick. 
64;  Alvord  v.  Collin,  20  Pick.  418;  Drew 
v.  Davis,  10  Vt.  506;  Doe  v.  McQuilkin, 
8  Blackf.  335 ;  Kemper  v.  McClelland,  19 
Ohio,  308 ;  Peterson  v.  Kittredge,  65  Miss. 
33,  3  So.  65,  5  So.  824 ;  fJDever  v.  Corn- 
well,  10  N.  D.  123,  86  N.  W.  227 ;  Sheets 
v.  Paine,  10  N.  D.  103,  86  N.  W.  117; 
Nehasane  Park  Assn.  v.  Lloyd,  167  N.  Y. 
431,  60  N.  E.  741.]  This  is  upon  the 
ground  that,  the  sale  being  based  upon 
both  the  legal  and  the  illegal  tax,  it  is 
manifestly  impossible  afterwards  to  make 
the  distinction,  so  that  the  act  shall  be 
partly  a  trespass  and  partly  innocent. 
[But  see  South  worth  v.  Edmands,  152 
Mass.  203,  25  N.  E.  106,  9  L.  R.  A.  118.] 
But  when  a  party  asks  relief  in  equity 
before  a  sale  against  the  collection  of 
taxes,  a  part  of  which  are  legal,  he  will 
be  required  first  to  pay  that  part,  or  at 
least  to  so  distinguish  it  from  the  rest 
that  process  of  injunction  can  be  so 
framed  as  to  leave  the  legal  taxes  to  be 
enforced ;  and  failing  in  this,  his  bill  will 
be  dismissed.  Conway  v.  Waverley,  15 
Mich.  257 ;  Palmer  v.  Napoleon,  16  Mich. 
176;  Hersey  v.  Supervisors  of  Milwau- 
kee, 16  Wis.  185;  Bond  v.  Kenosha,  17 
Wis.  284 ;  Myrick  v.  La  Crosse,  17  Wis. 


442 ;  Roseberry  v.  Huff,  27  Ind.  12 ;  Mont- 
gomery v.  Wasem,  116  Ind.  343,  15  N.  E. 
796,  19  N.  E.  184;  Com'rs  Allegany  Co. 
v.  Union  Min.  Co.,  61  Md.  645;  Brown  v. 
School  Dist.,  12  Oreg.  345,  7  Pac.  357; 
Gage  v.  Caraher,  126  111.  447, 17  N.  E.  777. 
Compare  Solomon  v.  Oscoda,  77  Mich. 
365,  43  N.  W.  990;  [Albuquerque  Nat. 
Bank  v.  Perea,  147  U.  S.  87,  13  Sup.  Ct. 
Rep.  194;  Altgeld  v.  San  Antonio,  81 
Tex.  436,  17  S.  W.  75,  13  L.  R.  A.  383.] 

As  to  the  character  and  extent  of  the 
irregularities  which  should  defeat  the 
proceedings  for  the  collection  of  taxes, 
we  could  not  undertake  to  speak  here. 
We  think  the  statement  in  the  text,  that 
a  failure  to  comply  with  any  such  re- 
quirements of  the  law  as  are  made  for 
the  protection  of  the  owner's  interest  will 
prove  fatal  to  a  tax  sale,  will  be  found 
abundantly  sustained  by  the  authorities, 
while  many  of  the  cases  go  still  further 
in  making  irregularities  fatal.  It  appears 
to  us  that  where  the  requirement  of  the 
law  which  has  failed  of  observance  was 
one  which  had  regard  simply  to  the  due 
and  orderly  conduct  of  the  proceedings, 
or  to  the  protection  of  the  public  interest, 
as  against  the  officer,  so  that  to  the  tax- 
payer it  is  immaterial  whether  it  was 
complied  witli  or  not,  a  failure  to  comply 
ought  not  to  be  recognized  as  a  founda- 
tion for  complaint  by  him.  But  those 
safeguards  which  the  legislature  has 
thrown  around  the  estates  of  citizens  to 
protect  them  against  unequal,  unjust,  and 
extortionate  taxation,  the  courts  are  not 
at  liberty  to  do  away  with  by  declaring 
them  non-essential.  To  hold  the  require- 
ment of  the  law  in  regard  to  them  direc- 
tory only,  and  not  mandatory,  is  in  effect 
to  exercise  a  dispensing  power  over  the 
laws.  Mr.  Blackwell,  in  his  treatise  on. 
Tax  Titles,  has  collected  the  cases  on 
this  subject  industriously,  and  perhaps 
we  shall  be  pardoned  for  saying  also  with 


750 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XIV. 


general  rule  is  applicable  here,  that  where  property  is  taken  under 
statutory  authority  in  derogation  of  common  right,  every  requisite 
of  the  statute  having  a  semblance  of  benefit  to  the  owner  must  be 
complied  with,  or  the  proceeding  will  be  ineffectual.1 


a  perceptible  leaning  against  that  species 
of  conveyance.  As  illustrating  how  far 
the  courts  will  go,  in  some  cases,  to  sus- 
tain irregular  taxation,  where  officers 
have  acted  in  gooil  faith,  reference  is 
made  to  Kelley  v.  Corson,  11  Wis.  1  ;  Her- 
sey  v.  Supervisors  of  Milwaukee,  16  Wis. 
Ib5.  See  also  Mills  v.  Gleason,  11  Wis. 
470,  where  the  court  endeavors  to  lay 
down  a  general  rule  as  to  the  illegalities 
which  should  render  a  tax  roll  invalid. 
A  party  bound  to  pay  a  tax,  or  any  por- 
tion thereof,  cannot  get  title  to  the  land 
by  neglecting  payment  and  allowing  a 
sale  to  be  made  at  which  he  becomes  the 
purchaser.  MuMinn  v.  Whelan,  27  Cal. 
300.  See  Butler  v.  Porter,  13  Mich.  292 ; 
Cooley  on  Taxation,  500  et  seq.  £See 
on  sale  of  land  for  taxes,  note  to  4  L. 
ed.  U.  S.  518;  injunction  to  restrain  col- 
lection of  tax,  when  granted,  note  to  20  L. 
ed.  U.  S.  65,  and  one  to  22  L.  R.  A.  699; 
recovery  of  taxes  illegally  assessed,  note 
to  21  L.  ed.  U.  S.  63  ;  tax  as  cloud  on  title, 
Odlin  v.  Woodruff,  31  Fla.  160, 12  So.  227, 
22  L.  R.  A.  699,  and  note.  Upon  when 
taxes  illegally  assessed  can  be  recovered 
back,  see  note  to  21  L.  ed.  U.  S.  63.  Upon 
sale  of  land  for  taxes,  note  to  4  L.  ed. 
U.  S.  518.  Where  lands  are  forfeited  to 
the  State  for  non-payment  of  taxes,  and 
are  thereafter  assessed  for  taxation  in 
the  name  of  an  assumed  or  non-existent 
owner,  and  then  sold  for  non-payment  of 
taxes  based  upon  such  assessment,  the 
purchaser  gets  no  valid  title.  Rich  v. 
Braxton,  158  U.  S.  375,  15  Sup.  Ct.  Rep. 
1006.  Assessment  in  name  of  a  dead 
man  is  void.  Ty.  v.  Perea,  10  N.  M.  362, 
62  Pac.  1094;  Millaudon  v.  Gallagher,  104 
La.  713,  29  So.  307.  But  since  1890  as- 
sessment may  be  in  name  of  registered 
owner,  whether  alive  or  dead.  Owner 
must  see  that  proper  change  in  registra- 
tion is  made  when  he  comes  into  the  title. 
Geddes  v.  Cunningham,  104  La.  306,  29 
So.  138.  Where  land  is  assessed  to 
holder  of  legal  title  and  also  to  holder 
of  equitable  title,  and  latter  pays  tax 
assessed,  rale  for  non-payment  of  tax 
assessed  agiinst  former  is  void.  Boggess 


v.  Scott,  48  W.  Va.  316,  37  S.  E.  661. 
And  where  a  new  map  has  been  made, 
and  the  landowner  in  ignorance  thereof 
reports  his  lands  for  assessment  under 
the  descriptions  of  the  old  map,  giving 
the  quantities  correctly,  and  the  assessor 
assumes  that  the  lot-numbers  are  accord- 
ing to  the  new  map,  and  modifies  the 
quantities  reported  to  make  them  con- 
form to  the  new  map,  and  the  owner  in 
ignorance  of  such  modification  pays  all 
taxes  assessed  against  him,  the  sale  of 
the  plots  not  covered  by  the  assessor's 
list  is  invalid  for  mistake.  Lewis  v. 
Monson,  151  U.  S.  645,  14  Sup.  Ct.  Rep. 
424.  Sale  for  unpaid  taxes  is  void  if  at 
time  tax  was  due  owner  appeared  before 
proper  officer  and  offered  to  pay  his  tax 
and  did  pay  all  that  the  officer  stated  as 
the  amount  of  tax,  although  he  erro- 
neously understated  it.  Gould  v.  Sulli- 
van, 84  Wis.  659,  54  N.  W.  1013,  20 
L.  R.  A.  487,  and  note.  And  redemption 
is  valid  if  the  person  redeeming  pays  all 
that  the  proper  officer  states  is  due,  al- 
though the  officer  erroneously  states  the 
sum  too  small.  Hintrager  v.  Mahony,  78 
Iowa,  537,  43  N.  W.  522,  6  L.  R.  A.  50, 
and  note.  State  cannot  tax  lands  belong- 
ing to  United  States,  and  a  sale  based 
upon  tax  levied  upon  such  lands  is  void. 
Young  v.  Charnquist,  114  Iowa,  116,  86 
N.  W.  205.] 

1  See  ante,  pp.  109-114.  Also  Newell 
v.  Wheeler,  48  N.  Y.  486;  Westfall  v. 
Preston,  49  N.  Y.  349,  353 ;  Stratton  v. 
Collins,  43  N.  J.  563;  Cooley  on  Taxa- 
tion, c.  15.  [JSee  also  Ogden  City  v. 
Armstrong,  168  U.  S.  224,  18  Sup.  Ct. 
Rep.  98,  aff.  12  Utah,  476,  43  Pac.  119; 
also  extensive  note  upon  equitable  relief 
against  illegal  taxation,  42  L.  ed.  U.  S. 
445.  Thirty  days'  publication  of  notice 
of  sale  of  lands  for  taxes  is  not  insufficient 
to  constitute  due  process  of  law.  Castillo 
v.  McConnico,  168  U.  S.  674,  18  Sup. 
Ct.  Rep.  229 ;  s.  c.  47  La.  Ann.  1473,  17 
So.  868.  Necessity  of  strict  compliance, 
both  in  assessment  and  in  subsequent  pro- 
ceedings. Marx  v.  Hanthorn,  148  U.  S. 
172, 13  Sup.  Ct.  Rep.  508,  and  note  to  4  L. 


CH.  XIV.] 


THE   POWER   OF   TAXATION. 


751 


ed.  U.  S.  518;  Gage  v.  Bani,  141  U.  S. 
344,  12  Sup.  Ct.  Rep.  22 ;  Stout  v.  Mastin, 
139  U.  S.  151, 11  Sup.  Ct.  Rep.  519 ;  Mar- 
tin v.  Barbour,  140  U.  S.  634,  11  Sup.  Ct. 
Rep.  944 ;  Bird  v.  Benlisa,  142  U.  S.  664, 
12  Sup.  Ct.  Rep.  323  ;  Smith  v.  Callanan, 
103  Iowa,  218,  72  N.  W.  513,  42  L.  R.  A. 
482;  Power  v.  Bowdle,  3  N.  D.  107,  54 
N.  W.  404,  21  L.  R.  A.  328;  Budge  v. 
Grand  Forks,  1  N.  D.  309,  47  N.  W.  390, 10 
L.  R.  A.  165  ;  Dever  v.  Cornwell,  10  N.  D. 
123,  86  N.  W.  227;  Tliweatt  v.  Howard, 
68  Ark.  426,  69  S.  W.  764 ;  State  v.  Dugan, 
105  Tenn.  245,  58  S.  W.  259 ;  Condon  v. 
Galbraith,  106  Tenn.  14,  58  S.  W.  916; 
Olson  v.  Phillips,  80  Minn.  339,  83  N.  W. 
189.  Absence  of  "  $  "  before  number  in- 
tended to  show  amount  of  tax  is  fatal. 
Russell  v.  Chittenden,  123  Mich.  546,  82 


N.  W.  204;  Norris  v.  Hall,  124  Mich.  170, 
82  N.  W.  832.] 

It  should  be  stated  that  in  Iowa,  under 
legislation  favorable  to  tax  titles,  the 
courts  go  further  in  sustaining  them  than 
in  perhaps  any  other  State.  Reference  is 
made  to  the  following  cases  :  Eldridge  v. 
Keuhl,  27  Iowa,  160 ;  McCready  v.  Sex- 
ton, 29  Iowa,  356;  Hurley  v.  Powell,  31 
Iowa,  64;  Rima  v.  Cowan,  31  Iowa,  125; 
Thomas  v.  Stickle,  32  Iowa,  71 ;  Hender- 
son v.  Oliver,  32  Iowa,  512;  Bulkley  v. 
Callanan,  32  Iowa,  461 ;  Ware  v.  Little,  35 
Iowa,  234 ;  Jeffrey  v.  Brokaw,  35  Iowa, 
505;  Genther  v.  Fuller,  36  Iowa,  604; 
Leavitt  v.  Watson,  37  Iowa,  93;  Phelps 
v.  Meade,  41  Iowa,  470.  It  may  be  use- 
ful to  compare  these  cases  with  Kimball 
v.  Rosendale,  42  Wis.  407,  and  Silsbee  v. 
Stockle,  44  Mich.  561,  7  N.  W.  160,  367. 


"52  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 


CHAPTER   XV. 

THE   EMINENT   DOMAIN. 

EVERY  sovereignty  possesses  buildings,  lands,  and  other  prop- 
erty, which  it  holds  for  the  use  of  its  officers  and  agents,  to  enable 
them  to  perform  their  public  functions.  It  may  also  have  prop- 
erty from  the  rents,  issues,  and  profits,  or  perhaps  the  sale,  of 
which  it  is  expected  the  State  will  derive  a  revenue.  Such  prop- 
erty constitutes  the  ordinary  domain  of  the  State.  In  respect  to 
its  use,  enjoyment,  and  alienation,  the  same  principles  apply 
which  govern  the  management  and  control  of  like  property  of 
individuals  ;  and  the  State  is  in  fact  but  an  individual  proprietor, 
whose  title  and  rights  are  to  be  tested,  regulated,  and  governed  by 
the  same  rules  that  would  have  pertained  to  the  ownership  of  the 
same  property  by  any  of  its  citizens.  There  are  also  cases  in 
which  property  is  peculiarly  devoted  to  the  general  use  and  enjoy- 
ment of  the  individual  citizens  who  compose  the  organized  society, 
but  the  regulation  and  control  of  which  are  vested  in  the  State  by 
virtue  of  its  sovereignty.  The  State  may  be  the  proprietor  of 
this  property,  and  retain  it  for  the  common  use,  as  a  means  of 
contributing  to  the  general  health,  comfort,  or  happiness  of  the 
people  ;  but  generally  it  is  not  strictly  the  owner,  but  rather  the 
governing  and  supervisory  trustee  of  the  public  rights  in  such 
property,  vested  with  the  power  and. charged  with  the  duty  of  so 
regulating,  protecting,  and  controlling  them,  as  to  secure  to  each 
citizen  the  privilege  to  make  them  available  for  his  purposes,  so 
far  as  may  be  consistent  with  an  equal  enjoyment  by  every  other 
citizen  of  the  same  privilege.1  In  some  instances  these  rights  are 

1  In  The  Company  of  Free  Fishers,  rights  of  fishery  in  this  country,  see  Car- 
fee,  v.  Gann,  20  C.  B.  N.  s.  1,  it  was  held  son  v.  Blazer,  2  Binn.  476,  4  Am. 
that  the  ownership  of  the  Crown  in  the  Dec.  463;  Commonwealth  v.  Chapin,  5 
bed  of  navigable  waters  is  for  the  bene-  Pick.  199,  16  Am.  Dec.  386 ;  Parker 
fit  of  the  subject,  and  cannot  be  used  in  v.  Milldam  Co.,  20  Me.  353,  37  Am. 
any  such  manner  as  to  derogate  from  or  Dec.  66  ;  Parsons  v.  Clark,  76  Me.  476  ; 
interfere  with  the  right  of  navigation,  Commonwealths.  Look,  108  Mass.  462; 
which  belongs  by  law  to  all  the  subjects  Cole  v.  Eastham,  133  Mass.  65;  Packard 
of  the  realm.  And  that  consequently  the  v.  Ryder,  144  Mass.  440,  11  N.  E.  678; 
grantees  of  a  particular  portion,  who  oc-  Sloan  v.  Biemiller,  34  Ohio  St.  472  ;  Lin- 
cupied  it  for  a  fishery,  could  not  be  law-  coin  v.  Davis,  63  Mich.  376,  19  N.  W.  103 ; 
fully  authorized  to  charge  and  collect  Angell  on  Watercourses,  §  56  a,  and  cases 
anchorage  dues  from  vessels  anchoring  cited ;  Cooley  on  Torts,  388-390. 
therein.  As  regards  public  and  exclusive 


CH.  XV.]  THE  EMINENT  DOMAIN.  753 

of  such  a  nature,  or  the  circumstances  are  such,  that  the  most 
feasible  mode  of  enabling  every  citizen  to  participate  therein  may 
seem  to  be  for  the  State  to  transfer  its  control,  wholly  or  partially, 
to  individuals,  either  receiving  by  way  of  augmentation  of  the 
public  revenues  a  compensation  therefor,  or  securing  in  return  a 
release  to  the  citizens  generally  from  some  tax  or  charge  which 
would  have  rested  upon  them  in  respect  to  such  rights,  had  the 
State  retained  the  usual  control  in  its  own  hands,  and  borne  the 
incidental  burdens. 

The  rights  of  which  we  here  speak  are  considered  as  pertaining 
to  the  State  by  virtue  of  an  authority  existing  in  every  sovereignty, 
and  which  is  called  the  eminent  domain.  Some  of  these  are  com- 
plete without  any  action  on  the  part  of  the  State  ;  as  is  the  case 
with  the  rights  of  navigation  in  its  seas,  lakes,  and  public  rivers, 
the  rights  of  fishery  in  public  waters,  and  the  right  of  the  State  to 
the  precious  metals  which  may  be  mined  within  its  limits.1  Others 
only  become  complete  and  are  rendered  effectual  through  the  State 
displacing,  either  partially  or  wholly,  the  rights  of  private  owner- 
ship and  control ;  and  this  it  accomplishes  either  by  contract  with 
the  owner,  by  accepting  his  gift,  or  by  appropriating  his  property 
against  his  will  through  an  exercise  of  its  superior  authority.  Of 
these,  the  common  highway  furnishes  an  example ;  the  public  rights 
therein  being  acquired  either  by  the  grant  or  dedication  of  the 
owner  of  the  land  over  which  they  run,  or  by  a  species  of  forcible 
dispossession  when  the  public  necessity  demands  the  way,  and  the 
private  owner  will  neither  give  nor  sell  it.  All  these  rights  rest 
upon  a  principle  which  in  every  sovereignty  is  essential  to  its  ex- 
istence and  perpetuity,  and  which,  so  far  as  when  called  into  ac- 
tion it  excludes  pre-existing  individual  rights,  is  sometimes  spoken 
of  as  being  based  upon  an  implied  reservation  by  the  government 
when  its  citizens  acquire  property  from  it  or  under  its  protection,  (a) 
And  as  there  is  not  often  occasion  to  speak  of  the  eminent  domain 
except  in  reference  to  those  cases  in  which  the  government  is 
called  upon  to  appropriate  property  against  the  will  of  the  owners, 
the  right  itself  is  generally  defined  as  if  it  were  restricted  to  such 
cases,  and  is  said  to  be  that  superior  right  of  property  pertaining 
to  the  sovereignty  by  which  the  private  property  acquired  by  its 
citizens  under  its  protection  may  be  taken  or  its  use  controlled  for 

1  1  Bl.  Com.  294 ;  3  Kent,  378,  note,  carries  with  it  to  the  grantee  the  title  to 
In  California,  it  has  been  decided  that  a  all  mines.  Boggs  v.  Merced,  &c.  Co.,  14 
grant  of  public  lands  by  the  government  Cal.  279 ;  Moore  v.  Smaw,  17  Cal.  199. 

(a)  £The  right  of  eminent  domain  does  not  depend  upon  the  Constitution,  but  exists 
independent  of  it,  it  is  inherent  in  sovereignty.  Steaines  v.  Barre,  73  Vt.  281,  60  Atl. 
1086,  87  Am.  St.  721.] 

48 


754 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


the  public  benefit  without  regard  to  the  wishes  of  its  owners. 
More  accurately,  it  is  the  rightful  authority,  which  exists  in  every 
sovereignty,  to  control  and  regulate  those  rights  of  a  public  nature 
which  pertain  to  its  citizens  in  common,  and  to  appropriate  and 
control  individual  property  for  the  public  benefit,  as  the  public 
safety,  necessity,  convenience,  or  welfare  may  demand.1 

When  the  existence  of  a  particular  power  in  the  government  is 
recognized  on  the  ground  of  necessity,  no  delegation  of  the  legisla- 
tive power  by  the  people  can  be  held  to  vest  authority  in  the  de- 
partment which  holds  it  in  trust,  to  bargain  away  such  power,  or 


1  Vattel,  c.  20,  §  34;  Bynkershoek, 
lib.  2,  c.  15;  Ang.  on  Watercourses, 
§  457  ;  2  Kent,  338-340  ;  Redf.  on  Railw. 
c.  11,  §  1 ;  Waples,  Pro.  in  Rem,  §  242. 
"  The  right  which  belongs  to  the  society 
or  to  the  sovereign  of  disposing,  in  case 
of  necessity,  and  for  the  public  safety,  of 
all  the  wealth  contained  in  the  State,  is 
called  the  eminent  domain."  McKinley, 
J.,  in  Pollard's  Lessee  v.  Hagan,  3  How. 
212,  223.  "Notwithstanding  the  grant 
to  individuals,  the  eminent  domain,  the 
highest  and  most  exact  idea  of  property, 
remains  in  the  government,  or  in  the  ag- 
gregate body  of  the  people  in  their  sov- 
ereign capacity ;  and  they  have  a  right 
to  resume  the  possession  of  the  property, 
in  the  manner  directed  by  the  constitu- 
tion and  laws  of  the  State,  whenever  the 
public  interest  requires  it.  This  right  of 
resumption  may  be  exercised,  not  only 
where  the  safety,  but  also  where  the  in- 
terest, or  even  the  expediency  of  the  State 
is  concerned:  as  where  the  land  of  the 
individual  is  wanted  for  a  road,  canal,  or 
other  public  improvement."  Walworth, 
Chancellor,  in  Beekman  v.  Saratoga  & 
Schenectady  R.  R.  Co.,  3  Paige,  45,  73, 
22  Am.  Dec.  679.  The  right  is  inherent 
in  all  governments,  and  requires  no 
constitutional  provision  to  give  it  force. 
Brown  v.  Beatty,  34  Miss.  227  ;  Taylor  v. 
Porter,  4  Hill,  140 ;  Lake  Shore,  &c.  R.  R. 
Co.  v.  Chicago,  &c.,  R.  R.  Co.,  97  111. 
506,  2  Am.  &  Eng.  R.  R.  Cas.  440; 
United  States  v.  Jones,  109  U.  S.  513,  3 
Sup.  Ct.  Rep.  346.  "  Title  to  property  is 
always  held  upon  the  implied  condition 
that  it  must  be  surrendered  to  the  govern- 
ment, either  in  whole  or  in  part,  when  the 
public  necessities,  evidenced  according  to 
the  established  forms  of  law,  demand." 
Hogeboom,  J.,  in  People  v.  Mayor,  &c.  of 
New  York,  32  Barb.  102,  112.  And  see 


Hey  ward  v.  Mayor,  &c.  of  New  York,  7 
N.  Y.  314;  Water  Works  Co.  v.  Burk- 
hart,  41  Ind.  364 ;  Weir  v.  St.  Paul,  &c. 
R.  R.  Co.,  18  Minn.  155.  That  one  exer- 
cise of  the  power  of  appropriation  will  not 
preclude  others  for  the  same  purpose,  see 
Central  Branch  U.  P.  R.  R.  Co.  v.  Atchi- 
son,  &c.,  R.  R.  Co.,  26  Kan.  669,  5  A.  & 
E.  R.  R.  Cas.  397,  and  cases  in  note ;  Peck 
v.  Louisville,  &c.  Ry.  Co.,  101  Ind.  366  ; 
Dietrichs  v.  Lincoln,  &c.  R.  R.  Co.,  13 
Neb.  361,  13  N.  W.  624.  But  when  a 
bridge  company  has  once  located  its  line 
of  approach  and  begins  work,  it  cannot 
change  it  without  legislative  authority. 
Matter  of  Poughkeepsie  Bridge  Co.,  108 
N.  Y.  483,  15  N.  E.  601.  The  constitu- 
tional prohibition  against  the  taking  of 
private  property  for  public  use  without 
compensation  is  self-enforcing,  and  equity 
may  enjoin  the  damaging  of  such  prop- 
erty though  the  legislature  has  provided 
no  method  of  determining  compensation. 
Kansas  City,  St.  J.  &  C.  B.  Ry.  Co.  v. 
Terminal  Ry.  Co.,  97  Mo.  457,  10  S.  W. 
826,  3  L.  R.  A.  240;  Hickman  v.  Kansas 
City,  120  Mo.  110,  25  S.  W.  225,  22 
L.  R.  A.  658,  41  Am.  St.  684 ;  Searle  v. 
Lead,  10  S.  D.  312,  73  N.  W.  101,  39 
L.  R.  A.  345.  A  taking  under  the  police 
power  is  not  in  exercise  of  the  power 
of  eminent  domain.  State  v.  Schlemmer, 

42  La.  Ann.  1166,  8  So.  307,  10  L.  R.  A. 
135.     See  Ruch  v.  City  of  New  Orleans, 

43  La.  Ann.   275,   9   So    473;   Peart  v. 
Meeker,  45   La.    Ann.   421,  12  So.  490; 
Sweet  v.  Rechel,  37  Fed.  Rep.  323 ;  Id.  159 
U.  S.  380,  16  Sup.  Ct.   Rep.  43;  State  v. 
Griffin,  69  N.  H.  1,  39  All.  260,  41  L.  R.  A. 
177.    So  in  case  of  destruction  of  mill  and 
mill   dam  to  avoid  damage  to  highway 
and   other   property.      Aitken   v.  Wells 
River,  70  Vt.  308, 40  Atl.  829, 67  Am.  St. 
672,  41  L.  R.  A.  566-3 


CH.  XV.]  THE  EMINENT  DOMAIN.  755 

to  so  tie  up  the  hands  of  the  government  as  to  preclude  its  re- 
peated exercise,  as  often  and  under  such  circumstances  as  the 
needs  of  the  government  may  require.  For  if  this  were  otherwise, 
the  authority  to  make  laws  for  the  government  and  welfare  of  the 
State  might  be  so  exercised,  in  strict  conformity  with  its  constitu- 
tion, as  at  length  to  preclude  the  State  performing  its  ordinary  and 
essential  functions,  and  the  agent  chosen  to  govern  the  State  might 
put  an  end  to  the  State  itself.  It  must  follow  that  any  legislative 
bargain  in  restraint  of  the  complete,  continuous,  and  repeated  ex- 
ercise of  the  right  of  eminent  domain  is  unwarranted  and  void; 
and  that  provision  of  the  Constitution  of  the  United  States  which 
forbids  the  States  violating  the  obligation  of  contracts  could  not 
be  so  construed  as  to  render  valid  and  effectual  such  a  bargain, 
which  originally  was  in  excess  of  proper  authority,  (a)  Upon  this 
subject  we  shall  content  ourselves  with  referring  in  this  place  to 
what  has  been  said  in  another  connection.1 

As  under  the  peculiar  American  system  the  protection  and 
regulation  of  private  rights,  privileges,  and  immunities  in  general 
belong  to  the  State  governments,  and  those  governments  are  ex- 
pected to  make  provision  for  the  conveniences  and  necessities 
which  are  usually  provided  for  their  citizens  through  the  exer- 
cise of  the  right  of  eminent  domain,  the  right  itself,  it  would 
seem,  must  pertain  to  those  governments  also,  rather  than  to  the 
government  of  the  nation ;  and  such  has  been  the  conclusion  of 
the  authorities.  In  the  new  Territories,  however,  where  the  govern- 
ment of  the  United  States  exercises  sovereign  authority,  it  pos- 
sesses, as  incident  thereto,  the  right  of  eminent  domain,  which  it 
may  exercise  directly  or  through  the  territorial  governments; 
but  this  right  passes  from  the  nation  to  the  newly  formed  State 
whenever  the  latter  is  admitted  into  the  Union.2  So  far,  however, 

1  See  ante,  p.  396.  Federal   Government  only.    Withers   v. 

2  Pollard's   Lessee  v.  Hagan,  3  How.  Buckley,  20  How.  84.]     Although  it  has 
212 ;  Goodtitle  v.  Kibbee,  9  How.  471 ;  been  held  in  some  cases  that  the  States 
Doe  v.  Beebe,  13  How.  25;  United  States  have  authority,  under   the  eminent  do- 
v.  The  Railroad  Bridge  Co.,  6  McLean,  main,    to    appropriate    the  property   of 
617 ;    Weber   v.    Harbor   Commissioners,  individuals  in  order  to  donate  it  to  the 
18  Wall.  57 ;  Swan  ».  Williams,  2  Mich,  general    government    for    national    pur- 
427 ;  Warren  v.  St.  Paul,  &c.  R.  R.  Co.,  poses :   Reddall   v.  Bryan,  14   Md.  444 ; 
18  Minn.  384.     [Article  V.  of  the  amend-  Gilmer  v.  Lime  Point,  18  Cal.  229;  Burt 
ments  to  the  Federal  constitution  provid-  v.  Merchants'  Ins.  Co.,  106  Mass.  356,  and 
ing    among   other    things    that  private  Cummings  v.  Ash,  60  N.  H.  591 ;  ^Lancey 
property   shall   not  be  taken  for  public  v.  King  County,  15  Wash.  9,  46  Pac.  645, 
use   without  just    compensation    is    not  34  L    R.  A.  817,]  the  contrary  is  now 
applicable  to  a  taking  by  a  State  or  its  determined.      See  Trombley  v.  Auditor- 
authority,   but    is    a    limitation   on   the  General,  23   Mich.  471;   Kohl  v.  United 

(a)  CWoodmere  Cemetery  v.  Roulo,  104  Mich.  695  [599].  62  N.  W.  1010;  Lock 
Haven  Bridge  Co.  v.  Clinton  County,  157  Pa.  St.  379,  27  Atl.  726.] 


756 


CONSTITUTIONAL    LIMITATIONS. 


[CH.  XV. 


as  the  general  government  may  deem  it  important  to  appropriate 
lands  or  other  property  for  its  own  purposes,  and  to  enable  it  to 
perform  its  functions, —  as  must  sometimes  be  necessary  in  the 
case  of  forts,  light-houses,  military  posts  or  roads,  and  other  con- 
veniences and  necessities  of  government,  —  the  general  govern- 
ment may  still  exercise  the  authority,  as  well  within  the  States  as 
within  the  territory  under  its  exclusive  jurisdiction,  and  its  right 
to  do  so  may  be  supported  by  the  same  reasons  which  support  the 
right  in  any  case ;  that  is  to  say,  the  absolute  necessity  that  the 
means  in  the  government  for  performing  its  functions  and  perpetu- 
ating its  existence  should  not  be  liable  to  be  controlled  or  defeated 
by  the  want  of  consent  of  private  parties,  or  of  any  other  au- 
thority.1 

What  Property  is  subject  to  the  Right. 

Every  species  of  property  which  the  public  needs  may  require 
and  which  government  cannot  lawfully  appropriate  under  any 
other  right,  is  subject  to  be  seized  and  appropriated  under  the 
right  of  eminent  domain.2  Lands  for  the  public  ways ;  timber, 
stone,  and  gravel  with  which  to  make  or  improve  the  public 
ways ; 3  buildings  standing  in  the  way  of  contemplated  improve- 


States,  91  U.  S.  367.  Such  an  authority 
in  the  States  is  needless,  for  the  power  of 
the  general  government  is  ample  for  all 
needs.  But  a  statute  is  valid  which 
grants  to  the  United  States  the  right  to  in- 
stitute condemnation  proceedings.  Mat- 
ter of  Petition  of  United  States,  96  N.  Y. 
227.  [General  government  may  exercise 
the  eminent  domain  either  in  the  territo- 
ries or  in  the  States  for  the  execution  of 
powers  granted  to  it.  Cherokee  Nation 
v.  South  Kansas  Ry.  Co.,  135  U.  S.  641, 
10  Sup.  Ct.  Rep.  965,  33  Fed.  Rep.  900. 
The  United  States  may  exercise  the  right 
of  eminent  domain  in  the  interest  of  in- 
ter-state commerce.  Monongahela  Navi- 
gation Co.  v.  United  States,  148  U.  S.  312, 
13  Sup.  Ct.  Rep.  622 ;  in  the  District  of 
Columbia,  Shoemaker  v.  United  States, 
147  U.  S.  282,  13  Sup.  Ct.  Rep.  361 ;  for 
the  preservation  of  the  battlefield  of 
Gettysburg,  U.  S.  v.  Gettysburg  Elec.  Ry. 
Co.,  160  U.  S.  668,  16  Sup.  Ct.  Rep.  427  ; 
see  also  Luxton  v.  North  River  Bridge 
Co  ,  153  U.  S.  525,  14  Sup.  Ct.  Rep.  891.] 
1  Kohl  v.  United  States,  91  U.  S.  367; 
Trombley  v.  Auditor-General,  23  Mich. 
471  ;  Darlington  v.  United  States,  82  Pa. 
St.  382.  The  United  States  may  delegate 


to  a  State  tribunal  the  power  to  ascertain 
the  compensation  to  be  paid.  United 
States  v.  Jones,  109  U.  S.  513,  3  Sup.  Ct. 
Rep.  346. 

2  People  v.  Mayor,  &c.  of  New  York, 
32  Barb.  102;  Bailey  v.  Miltenberger,  31 
Pa.  St.  37.  [Authority  to  condemn  does 
not  authorize  condemnation  of  lands  of 
State  unless  so  expressed.  Seattle  &  M. 
Ry.  Co.  v.  State,  7  Wash.  150,  34  Pac. 
551,  38  Am.  St.  866,  22  L.  R.  A.  217-3 
Land  belonging  to,  but  not  in  actual  use 
by  a  State  university,  may  be  condemned. 
In  re  St.  Paul  &  N.  P.  Ry.  Co.,  34  Minn. 
227,  25  N.  W.  345.  [Water  from  natural 
watercourse  for  irrigation  :  McGhee  Irr. 
Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W. 
398,  967  ;  property  of  church  :  Macon  and 
A.  Ry.  Co.  v.  Riggs,  87  Ga.  158,  13  S.  E. 
312;  homestead:  Jockheck  v.  Shawnee 
Co.  Com'rs,  53  Kan.  780,  37  Pac.  621 ; 
works  and  franchise  of  a  water  company : 
Brooklyn  v.  Long  Island  Water  Supply 
Co.,  143  N.  Y.  596,  38  N.  E.  983,  26  L.  R.  A. 
270;  aff.  166  U.  S.  685,  17  Sup.  Ct.  Rep. 
718J 

8  Wheelock  v.  Young,  4  Wend.  647 ; 
Lyon  v.  Jerome,  15  Wend.  569 ;  Jerome 
v.  Ross,  7  Johns.  Ch.  315,  11  Am.  Dec. 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


757 


ments,  or  which  for  any  other  reason  it  becomes  necessary  to  take, 
remove,  or  destroy  for  the  public  good;1  streams  of  water;2  cor- 
porate franchises;3  and  generally,  it  may  be  said,  legal  and  equi- 


484;  Bliss  v.  Hosmer,  15  Ohio,  44;  Wat- 
kins  v.  Walker  Co.,  18  Tex.  685.  In 
Eldridge  v.  Smith,  34  Vt.  484,  it  was  held 
competent  for  a  railroad  company  to  ap- 
propriate lands  for  piling  the  wood  and 
lumber  used  on  the  road,  and  brought  to 
it  to  be  transported  thereon. 

i  Wells  v.  Somerset,  &c.  R.  R.  Co.,  47 
Me.  345.  So  of  a  pier.  Matter  of  Union 
Ferry  Co.,  98  N.  Y.  139.  But  the  de- 
struction of  a  private  house  during  a  fire 
to  prevent  the  spreading  of  a  conflagra- 
tion has  been  held  not  to  be  an  appropri- 
ation under  the  right  of  eminent  domain, 
but  an  exercise  of  the  police  power. 
"  The  destruction  of  this  property  was 
authorized  by  the  law  of  overruling 
necessity  ;  it  was  the  exercise  of  a  natural 
right  belonging  to  every  individual,  not 
conferred  by  law,  but  tacitly  accepted 
from  all  human  codes."  Per  Sherman, 
Senator,  in  Russell  v.  Mayor,  &c.  of  New 
York,  2  Demo,  461,  473.  See  also  So- 
rocco  v.  Geary,  3  Cal.  69;  Conwell  v. 
Emrie,  2  Ind.  35  ;  American  Print  Works 
r.  Lawrence,  21  N.  J.  248  ;  Same  v.  Same, 
23  N.  J.  9, 590 ;  McDonald  v.  Redwing,  13 
Minn.  38 ;  Field  v.  Des  Moines,  39  Iowa, 
675.  The  municipal  corporation  whose 
officers  order  the  destruction  is  not  liable 
forthe  damages  unless  expres<Iy  made  so 
by  statute.  White  v.  Charleston,  2  Hill 
(S.  C.),  571  ;  Dunbar  v.  San  Francisco,  1 
Cal.  355;  Stone  v.  Mayor,  &c.,  of  New 
York,  25  Wend.  157  ;  Taylor  v.  Plymouth, 
8  Met.  462;  Ruggles  v.  Nantucket,  11 
Cush.  433;  Keller  v.  Corpus  Christi,  50 
Tex.  614,  32  Am.  Rep.  613.  fjln  the 
exercise  of  police,  power  the  State  cannot 
authorize  the  taking  of  private  property 
without  compensation,  when  it  can  be  con- 
demned and  paid  for  under  the  power  of 
eminent  domain.  People  v.  Elk  River,  &c. 
Co.,  107  Cal.  221,  40  Pac.  531,  48  Am.  St. 
121.] 

2  Gardner  v.  Mewburg,  2  Johns.  Ch. 
162,  7  Am.  Dec.  526.  In  this  case  a 
stream  was  appropriated  in  order  to  sup- 
ply a  town  with  water.  The  appropria- 
tion might,  of  course,  be  made  for  any 
other  object  of  public  utility  ;  and  a  stream 
may  even  be  diverted  from  its  course  to 
remove  it  out  of  the  way  of  a  public  im- 


provement when  not  appropriated.  See 
Johnson  v.  Atlantic,  &c.  R.  R.  Co.,  36 
N.  H.  569;  Baltimore,  &c.  R.  R.  Co.  v. 
Magruder,  34  Md.  79,  6  Am.  Rep.  310; 
Reusch  v.  Chicago,  &c.  R.  R.  Co.,  57  Iowa, 
687,  11  N.  W.  6 47.  But  in  general,  in 
constructing  a  public  work,  it  is  the  duty 
of  those  concerned  to  avoid  diverting 
streams,  and  to  construct  the  necessary 
culverts,  bridges,  &c.,  for  that  purpose. 
March  v.  Portsmouth  &c.,  R.  R.  Co.,  19 
N.  H.  372  ;  Boughton  v.  Carter,  18  Johns. 
405;  Rowe  v.  Addison,  34  N.  H.  306; 
Proprietors,  &c.  v.  Nashua  &  Lowell  R.  R. 
Co.,  10  Cush.  388 ;  Haynes  v.  Burlington, 
38  Vt.  350.  And  see  Pettigrew  v.  Evans- 
ville,  25  Wis.  223  ;  Arimond  v.  Green  Ray 
Co.,  31  Wis.  316;  Stein  v.  Burden,  24  Ala. 
130;  Diamond  Match  Co.  v.  New  Haven, 
55  Conn.  510,  13  Atl.  409.  As  to  the 
obligation  of  a  ra  ilroad  company  to  com- 
pensate parties  whose  lands  are  flooded 
by  excavations  or  embankments  of  the 
company,  see  Brown  v.  Cayuga,  &c.  R.  R. 
Co.,  12  N.  Y.  486 ;  Norris  v.  Vt.  Cent.  R.  R. 
Co.,  28  Vt.  99.  Compare  Eaton  v.  Boston 
C.  &  M.  R.  R.  Co.,  51  N.  H.  504,  where 
it  was  decided  that  a  corporation  which 
flooded  a  man's  land  by  removing  a  natu- 
ral protection  in  the  construction  of  its 
road  was  liable  for  the  injury,  even 
though  its  road  was  constructed  with  due 
care,  with  Bellenger  v.  N.  Y.  Central  R.  R. 
'Co.,  23  N.  Y.  42  ;  Abbott  v.  Kansas  City, 
&c.  Co.,  83  Mo.  271 ;  Moss  v.  St.  Louis,  &c. 
Ry.  Co  ,  85  Mo.  86  ;  Bell  v.  Norfolk,  &c. 
R.  R.  Co.,  101  N.  C.  21,  7  S.  E.  467;  and 
other  cases  cited,  post,  pp.  782,  826. 

8  Piscataqua  Bridge  v.  New  Hampshire 
Bridge,  7  N.  H.  35  ;  Crosby  v.  Hanover, 
36  N.  H.  404;  Tuckahoe  Canal  Co.  v. 
Railroad  Co.,  11  Leigh,  42,  36  Am.  Dec. 
374  ;  Boston  Water  Power  Co.  v.  Boston 
&  Worcester  R.  R.  Co.,  23  Pick.  3GO ; 
Central  Bridge  Corporation  v.  Lowell,  4 
Gray,  474;  West  River  Bridge  v.  Dix,  6 
How.  607;  Richmond  R.  R.  Co.  v.  Louisa 
R.  R.  Co.,  13  How.  71,  per  Grier,  J. ; 
Chesapeake  &  Ohio  Canal  Co.  v.  Balti- 
more &  Ohio  R..R.  Co.,  4  Gill  &  J.  5; 
State  v.  Noyes,  47  Me.  189;  Red  River 
Bridire  Co.  v.  Clarksville,  1  Sneed,  176 ; 
Armington  v.  Barnet,  15  Vt.  745;  White 


758 


CONSTITUTIONAL    LIMITATIONS. 


[CH.  XV. 


table  rights  of  every  description  are  liable  to  be  thus  appropri- 


River  Turnpike  Co.  v.  Vermont  Central 
R.  R.  Co.,  21  Vt.   590;  Newcastle,   &c. 
R.  R.  Co.  v.  Peru  &  Indiana  R.  R.  Co.,  3 
Ind.    464;     Springfield    v.    Connecticut 
River  R.  R.  Co.,  4  Cush.  63 ;  Forward  v. 
Hampshire,  &c.  Canal  Co.,  22  Pick.  462 ; 
Commonwealth   v.  Pittsburg,  &c.    R.  R. 
Co.,  58  Pa.  St.  26 ;  He  Towanda  Bridge 
Co.,  91  Pa.  St.  216;  In  re  Twenty-Second 
St.,  102  Pa,  St.  108.    "  The  only  true  rule 
of  policy  as  well  as  of  law  is,  that  a  grant 
for  one  public  purpose  must  yield  to  an- 
other  more  urgent   and   important,  and 
this  can  be  effected  without  any  infringe- 
ment on  the  constitutional  rights  of  the 
subject.     If  in  such   cases  suitable  and 
adequate  provision  is  made  by  the  legis- 
lature  for    the    compensation   of    those 
whose  property  or  franchise  is  injured  or 
taken  away,  there  is  no  violation  of  pub- 
lic faith  or  private  right.     The  obligation 
of  the  contract  created  by  the  original 
charter    is    thereby    recognized."      Per 
Bigelow,  J.,  in  Central  Bridge  Corporation 
v.  Lowell,  4  Gray,  474,  482.     This  subject 
receives  a  very  full  and  satisfactory  ex- 
amination by  Judges  Pearson  and  Shars- 
wood,  in  Commonwealth  v.  Pennsylvania 
Canal  Co.,  06  Pa.  St.  41,  5  Am.  Rep.  329. 
In   Central  City   Horse  Railway   Co.  v. 
Fort  Clark   Horse   Railway  Co.,  87  111. 
523,  this  subject  is  somewhat  considered. 
The  question  involved  is  thus  stated  by 
the  court  :  "  Can  a  competing  lior»e  rail- 
way  company  in  an   incorporated  city 
acquire  by  compulsion  a  title  to  or  the 
joint  use  of   Qa  part  of]  the  track  and 
superstructure  of  another  like  corporation, 
and  for  the  express  purpose  of   making 
the  tracks  so  compulsorily  taken  a  portion 
of    its   own   line  1  "      This    question   is 
answered  in  the  negative,  though  at  the 
same  time  it  is  intimated  that  "  proceed- 
ings might  be  instituted,  perhaps,  to  con- 
demn the  entire  road  and  franchise,  and 
thus   pass  it  over  as  an  entirety  to  the 
competing  road."     But  as   to   this,  see 
Lake  Shore,  &c.  R.  R.  Co.  v.  Chicago,  &c. 
R.   R.   Co.,  97   III.  606;    Re   Rochester 
Water    Commissioners,   66    N.    Y.   413; 
Little  Miami,  &c.  R.  R.  Co.  v.  Dayton,  23 
Ohio  St.  510.     FJA  turnpike  way  may  be 
condemned  for  an  electric  street  railway. 
The  legislature  may  determine  when  one 
grant  must  yield  to  another.    Baltimore  & 
F.  T.  R.  v.  Baltimore  C.  &c.  R.  Co.,  81  Md. 


247,  31  All.  854.     If  the  second  use  will 
better  serve  the  public,  the  first  franchise 
may  be  condemned.    Re  City  of  Brooklyn, 
143  N.  Y.  696,  38  N.  E.  983,  26  L.  R.  A. 
270;  aff.  166  U.  S.  685,  17  Sup.  Ct.  Rep. 
718;   Trustees  of   Atlanta   University  v. 
City  of  Atlanta,  93  Ga.  468,  21  S  E.  74; 
United   States   v.  Gettysburg  E.  R.  Co., 
160  U.  S.  668,  16  Sup.  Ct.  Rep.  427.    Land 
condemned  for  one  use  cannot  be  taken 
for  a  similar  use  without  specific  author- 
ity where  the  second  use  is  inconsistent, 
or  materially   interferes  with    the  first : 
Lake  Erie  &  W.  R.  Co.  v.  Com'rs  of  Sen- 
eca Co.,  57  Fed.  Rep.  945 ;  St.  Louis,  H.  & 
K.  C.  R.  Co.  v.  Hannibal,  U.  D.  Co.,  125 
Mo.  82.  28  S.  W.  483  ;  Suburban  R.  T.  Co. 
v.  City  of  New  York,  128  N.  Y.  510,  28 
N.  E.  525,  rev.  60  Hun,  577 ;  Re  City  of 
New  York,  136  N.  Y.  253,  31  N.  E.  1*043. 
Land  of  one  railway  company  for  another 
line  of  railway  :  Butte,  A.  &  P.  R.  Co.  v. 
Montana  U.  R.  Co.,  16  Mont.  504,  41  Pac. 
232,  31  L.  R.  A.  298,  50  Am.  St.  508.     So, 
though  the  second  use  is  not  a  similar  use, 
if   it   is   inconsistent  with   the  first  use. 
Boston  &  A.  R.    Co.  v.  Cambridge,   106 
Mass.  224,44  N.  E.  140;  Cincinnati,  W.  & 
M.  R.  Co.  v.  Anderson,  139  Ind.  490,  38 
N.  E.  167,  47  Am.  St.  285 ;  Louisville  & 
N.  R.  Co.  v.  Whitely,  95  Ky.  215,  24  S. 
W.  604,  44  Am.  St.  220,  and  note ;  Minn. 
&  St.  L.  R.  Co.  v.  Minn.  W.  R.  Co.,  61 
Minn.  502,  63  N.  W.  1035 ;  Seattle  &  M. 
R.  Co.  v.  State,  7  Wash.  150,  34  Pac.  551, 
38  Am.  St.  806,  22  L.  R.  A.  217.     Land  of 
a  railway  company  for  a  grain  elevator  : 
Re  Stewart's  Application,  65  Minn.  515, 
68  N.   W.  208,  33  L.  R.  A.  427  ;  a  toll 
bridge  for   an    electric    street    railway : 
Pittsburg   &    W.  E.   P.    R.   Co.  v.  Point 
Bridge  Co.,  165  Pa.  St.  35,  30  Atl.  511,  26 
L.  R.  A.  323.      The  yards  and  tracks  of 
a  railway  company  may  be  condemned 
for  a  public  street  if  properly  authorized, 
Terra  Haute  v.  Evansville  &  T.  H.  R.  Co., 
149  Ind.  174,  46  N.  E.  77,  37  L.  R.  A.  189 ; 
Chicago,  &c.  R.  Co.  v.  Starkweather,  97 
Iowa,  159,  66  N.  W.  87,  59  Am.  St.  404.] 
Land  appropriated  by  one  railroad  com- 
pany under  the  eminent  domain,  but  not 
required  for  the  exercise  of  its  franchises 
or  the  discharge  of  its  duties,  is  liable  to 
be  taken  for  the  corporate  use  of  another 
railroad  company.     North  Carolina,  &c. 
R.  R.  Co.  v.  Carolina  Central,  &c.  R.  R. 


CH.  XV.] 


THE  EMINENT   DOMAIN. 


759 


ated.1  From  this  statement,  however,  must  be  excepted  money, 
or  that  which  in  ordinary  use  passes  as  such,  and  which  the  gov- 
ernment may  reach  by  taxation,  and  also  rights  in  action,  which 
can  only  be  available  when  made  to  produce  money ;  neither  of 
which  can  it  be  needful  to  take  under  this  power.2 

Legislative  Authority  Requisite. 

The  right  to  appropriate  private  property  to  public  uses  lies 
dormant  in  the  State,  until  legislative  action  is  had,  pointing  out 


Co.,  83  N.  C.  489.  See  Chicago,  &c.  R.  R. 
Co.  v.  Lake,  71  111.  333.  A  contract  ced- 
ing to  a  telegraph  company  the  exclusive 
right  of  operating  and  maintaining  its 
lines  over  the  right  of  way  of  a  railroad 
company  cannot  preclude  the  State  from 
authorizing  the  establishment  of  another 
telegraph  line  over  the  same  right  of  way. 
New  Orleans,  &c.  R.  R  Co.  v.  Southern, 
&c.  Telegraph  Co.,  63  Ala.  211.  The 
bridge  of  a  corporation  may  be  taken 
under  this  power  and  made  a  free  bridge. 
Re  Towanda  Bridge  Co.,  91  Pa.  St.  216. 
So  of  the  right  of  a  railroad  company 
given  under  peculiar  circumstances  to 
take  toll  on  a  highway.  Phila.  &c.  Ry. 
Co.'s  Appeal,  120  Pa.  St.  90,  13  Atl.  708. 

1  The  appurtenant  right  of  an  abutter 
to   have   a   street   open   may  be  taken : 
Rennselaer  v.  Leopold,  106  Ind.  29,  6  N.  E. 
761  ;  the  right  to  pass  over  a  private  way  : 
Buffalo,  N.  Y.  &  P.  R.  R.  Co.  v  Overton, 
35  Hun,  157 ;  the  right  to  have  a  farm- 
crossing  at  a  particular  place.     Matter  of 
N.   Y.   L.  &c.   R.   R.  Co.,  44  Hun,  194. 
QPrivate  cemetery  for  public  park,  Jn  re 
Board  of  Street  Openings,  &c.,  133  N.  Y. 
329,  31  N.  E.  102,  28  Am.  St.  640  ;  home- 
stead   for    court    house :    Jockheck   v. 
Shawnee   Co.   Com'rs,  53   Kan.  780,   37 
I'nc.   621 ;    leasehold    interest  in   lands : 
Corrigan  et  al.  v.  City  of  Chicago,  144  111, 
587,  33  N.  E.  746,  21  L.  R.  A.  212.     In 
such  case  the  exercise  of  the  right  ter- 
minates the  obligation  to  pay  rent.    Id.~\ 

2  Property  of  individuals  cannot  be 
appropriated    by   the    State   under    this 
power  for  the  mere  purpose  of  adding  to 
the  revenues  of  the  State.    Thus  it  has 
been  held  in  Ohio,  that  in  appropriating 
the  water  of  streams  for  the  purposes  of 
a  canal,  more  could  not  be  taken  than 
was  needed  for  that  object,  with  a  view 
to  raising  a  revenue  by  selling  or  leas- 


ing it.  "  The  State,  notwithstanding  the 
sovereignty  of  her  character,  can  take 
only  sufficient  water  from  private  streams 
for  the  purposes  of  the  canal.  So  far  the 
law  authorizes  the  commissioners  10  in- 
vade private  right  as  to  take  what  may 
be  necessary  for  canal  navigation,  and 
to  tliis  extent  authority  is  conferred  by 
the  constitution,  provided  a  compensation 
be  paid  to  the  owner.  The  principle  is 
founded  on  the  superior  claims  of  a  whole 
community  over  an  individual  citizen ; 
but  then  in  those  cases  only  where  pri- 
vate property  is  wanted  for  public  use,  or 
demanded  by  the  public  welfare.  We 
know  of  no  instances  in  which  it  has  or 
can  be  taken,  even  by  State  authority, 
for  the  mere  purpose  of  raising  a  revenue 
by  sal«  or  otherwise ;  and  the  exercise  of 
such  a  power  would  be  utterly  destruc- 
tive of  individual  right,  and  break  down 
all  the  distinctions  between  meum  and 
titum,  and  annihilate  them  forever  at  the 
pleasure  of  the  State."  Wood,  J.,  in 
Buckingham  ».  Smith,  10  Ohio,  288,  297. 
To  the  same  effect  is  Cooper  v.  Williams, 
6  Ohio,  392,  22  Am.  Dec.  745. 

Taking  money  under  the  right  of  emi- 
nent domain,  when  it  must  be  compen- 
sated in  money  afterwards,  could  be 
nothing  more  or  less  than  a  forced  loan, 
only  to  be  justified  as  a  last  resort  in  a 
time  of  extreme  peril,  where  neither  the 
credit  of  the  government  nor  the  power  of 
taxation  could  be  made  available.  It  is 
impossible  to  lay  down  rules  for  such  a 
case,  except  such  as  the  law  of  overruling 
necessity,  which  for  the  time  being  sets 
aside  all  the  rules  and  protections  of  pri- 
vate right,  shall  then  prescribe.  £Kays- 
ville  v.  Ellison,  18  Utah,  163,  55  Pac.  386, 
72  Am.  St.  772,  43  L.  R.  A.  81 J  See 
post,  p.  764,  note. 


760 


CONSTITUTIONAL    LIMITATIONS. 


[CH.    XV. 


the  occasions,  the  modes,  conditions,  and  agencies  for  its  appro- 
priations.1 Private  property  can  only  be  taken  pursuant  to  law ; 
but  a  legislative  act  declaring  the  necessity,  being  the  customary 
mode  in  which  that  fact  is  determined,  must  be  held  to  be  for  this 
purpose  "  the  law  of  the  land,"  and  no  further  finding  or  adjudi- 
cation can  be  essential,  unless  the  constitution  of  the  State  has 
expressly  required  it.2  When,  however,  action  is  had  for  this 
purpose,  there  must  be  kept  in  view  that  general  as  well  as  reason- 
able and  just  rule,  that,  whenever  in  pursuance  of  law  the  prop- 
erty of  an  individual  is  to  be  divested  by  proceedings  against  his 
will,  a  strict  compliance  must  be  had  with  all  the  provisions  of 
law  which  are  made  for  his  protection  and  benefit,  or  the  pro- 
ceeding will  be  ineffectual.8  Those  provisions  must  be  regarded 
as  in  the  nature  of  conditions  precedent,  which  are  not  only  to 
be  observed  and  complied  with  before  the  right  of  the  property 
owner  is  disturbed,  but  the  party  claiming  authority  under  the 


1  Barrow  v.  Page,  6  Hay w.  97 ;  Rail- 
road Co.  v.  Lake,  71  111.  333;  Allen  v. 
Jones,  47  Ind.  4!58.     QBut  see  Easthamp- 
ton   v.  Hampshire   County   Com'rs,   154 
Mass.  424,  28  N.  E.  298,  13  L.  R.  A.  157, 
where  it  is  held  that  express  authority  is 
not  necessary  to  the  taking  of  part  of  a 
schoolhouse  lot  for  a  town  way/]     It  can- 
not be  presumed    that  any   corporation 
has  authority   to  exercise   the   right  of 
eminent  domain  until  the  grant  be  shown. 
Phillips  v.  Dunkirk,  &c.  R.  R.  Co.,  78  Pa. 
St.  177  ;  Allen  v.  Jones,  47  Ind.  438.     A 
foreign  corporation,  it  is  held  in  Nebraska, 
which  may  not  acquire  real  estate,  cannot 
condemn  land  indirectly  through  a  domes- 
tic corporation.     State  v.  Scott,  22  Neb. 
628,  36  N.  W.  121 ;  Koenig  v.  Chicago, 
&c.  R.  R.  Co.,  27  Neb.  699,  43  N.  W.  423. 

2  "  Whatever  may  be  the  theoretical 
foundation  for  the  right  of  eminent  do^ 
main,  it  is  certain  that  it  attaches  as  an 
incident  to  every  sovereignty,  and  consti- 
tutes a  condition  upon  which  all  property 
is    holden.     When   the   public   necessity 
requires   it,   private   rights   to    property 
must  yield  to  this  paramount  right  of  the 
sovereign  power.     We   have   repeatedly 
held  that  the  character  of  the  work  for 
which  the  property  is  taken,  and  not  the 
means  or  agencies  employed  for  its  con- 
struction,   determines     the    question    of 
power  in  the  exercise  of  this  right.     It 
requires  no  judicial  condemnation  to  sub- 
ject private  property  to  public  uses.   Like 


the  power  to  tax,  it  resides  with  the  legis- 
lative department  to  whom  the  delegation 
is  made.  It  may  be  exercised  directly  or 
indirectly  by  that  body ;  and  it  can  only 
be  restrained  by  the  judiciary  when  its 
limits  have  been  exceeded  or  its  authority 
has  been  abused  or  perverted."  Kramer 
v.  Cleveland  &  Pittsburg  R.  R.  Co., 
5  Ohio  St.  140,  146.  The  mode  of  exer- 
cise is  left  to  the  legislative  discretion, 
when  not  restrained  by  the  constitution. 
Secombe  v.  Railroad  Co.,  23  Wall.  108. 
An  owner  is  not  entitled  to  notice  of 
meeting  of  commissioners  to  determine 
the  necessity  of  an  improvement.  Zim- 
merman v.  Canfield,  42  Ohio  St.  463. 

8  Gillinwater  v.  Mississippi,  &c.  R.  R. 
Co.,  13  111.  1;  Stanford  v.  Worn,  27  Cal. 
171;  Dalton  v.  Water  Commissioners,  49 
Cal.  223;  Stockton  v.  Whitmore,  50  Cal. 
654 ;  Supervisors  of  Doddridge  v.  Stout, 

9  W.  Va.  703;  Mitchell  v.  Illinois,  &c. 
Coal  Co.,  68  111.  286  ;  Chicago,  &c.  R.  R. 
Co.  o.  Smith,  78  III.  96  ;  Springfield,  &c. 
R.  R.  Co.  v.  Hall,  67  111.  99;  Powers's 
Appeal,  29  Mich.  504;  Kroop  v.  Forman, 
31  Mich.  144  ;  Arnold  v.  Decatur,  29  Mich. 
77 ;  Lund  v.  New  Bedford,  121  Mass.  286 ; 
Wamesit  Power  Co.  v.  Allen,  120  Mass. 
352;  Bohlman  v.  Green  Bay,  &c.  R.  R. 
Co.,  40  Wis.  157 ;  Moore  v.  Railway  Co., 
34  Wis.  173;  United  States  v.  Reed,  56 
Mo.  565;  Decatur  County  v.  Humphreys, 
47  Ga.  565 ;  Commissioners  v.  Beckwith, 

10  Kan.  603. 


CH.  XV.] 


THE  EMINENT  DOMAIN. 


761 


adverse  proceeding  must  show  affirmatively  such  compliance. 
For  example,  if  by  a  statute  prescribing  the  mode  of  exercising 
the  right  of  eminent  domain,  the  damages  to  be  assessed  in  favor 
of  the  property  owner  for  the  taking  of  his  land  are  to  be  so 
assessed  by  disinterested  freeholders  of  the  municipality,  the 
proceedings  will  be  ineffectual  unless  they  show  on  their  face  that 
the  appraisers  were  such  freeholders  and  inhabitants.1  So  if  a 
statute  only  authorizes  proceedings  in  invitum  after  an  effort 
shall  have  been  made  to  agree  with  the  owner  on  the  compensa- 
tion to  be  paid,  the  fact  of  such  effort  and  its  failure  must  appear.2 
So  if  the  statute  vests  the  title  to  lands  appropriated  in  the  State 
or  in  a  corporation  on  payment  therefor  being  made,  it  is  evident 
that,  under  the  rule  stated,  the  payment  is  a  condition  precedent 
to  the  passing  of  the  title.3  And  where  a  general  railroad  law 


1  Nichols  ».  Bridgeport,  23  Conn.  189  ; 
Judson  r.  Bridgeport,  25  Conn.  426;  Peo- 
ple v.  Brighton,  20  Mich.  67  ;  Moore  v. 
Railway  Co.,  34  Wis.  173. 

2  Reitenbaugh  v.  Chester  Valley  R.R. 
Co.,  21  Pa.  St.  100;  Ellis  v.  Pacific  R.  R. 
Co.,  51  Mo.  200;  United  States  v.  Reed, 
56  Mo.  565;  Burt  v.  Brighara,  117  Mass. 
307 ;  Oregon  Ry.  &  Nav.  Co.  v.  Oregon, 
&c.  Co.,  10  Greg.  444;  Howland  v.  School 
Hist.,  16  R.  I.  257,  15  Atl.  74;  Reed  v. 
Ohio,  &c.  Ry.  Co.,  126  111.  48,  17  N.  E. 
807  ;  Grand  Rapids  &  I.  R.  R.  Co.  v.  Wei- 
den,  70  Mich.  390,  38  N.  W.  294 ;  West 
Va.  Transportation  Co.  v.  Volcanic  Oil  & 
Coal  Co.,  6  W.  Va.  382,  it  was  held  that  if 
the  owner  appears  in  proceedings  taken 
for  the  assessment  of  damages,  and  con- 
tests the  amount  without  objecting  the 
want  of  any  such  attempt,  the  court  must 
presume  it  to  have  been  made. 

8  Stacy  v.  Vermont  Central  R.  R.  Co., 
27  Vt.  39.  By  the  section  of  the  statute 
under  which  the  land  was  appropriated, 
it  was  provided  that  when  land  or  other 
real  estate  was  taken  by  the  corporation, 
for  the  use  of  their  road,  and  the  parties 
were  unable  to  agree  upon  the  price  of 
the  land,  the  same  should  be  ascertained 
and  determined  by  the  commissioners, 
together  with  the  costs  and  charges  ac- 
cruing thereon,  and  upon  the  payment  of  the 
same,  or  by  depositing  the  amount  in  a  bank, 
as  should  be  ordered  by  the  commissioners,  the 
corporation  should  be  deemed  to  be  seized  and 
possessed  of  the  lands.  Held,  that,  until 
the  payment  was  made,  the  company  had 
no  right  to  enter  upon  the  land  to  con- 


struct the  road,  or  to  exercise  any  act  of 
ownership  over  it ;  and  that  a  court  of 
equity  would  enjoin  them  from  exercising 
any  sucli  right,  or  they  might  be  prose- 
cuted in  trespass  at  law.  This  case  fol- 
lows Baltimore  &  Susquehanna  R.  R. 
Co.  v.  Nesbit,  10  How.  395,  and  Blood- 
good  v.  Mohawk  &  Hudson  R.  R.  Co., 
18  Wend.  9,  where  the  statutory  provi- 
sions were  similar.  In  Kentucky,  pay- 
ment in  money  must  be  made  before 
entry.  Covington  Ry.  Co.  v.  Piel,  87 
Ky.  267,  8  S.  W.  449.  See  further  State 
v.  Seymour,  35  N.  J.  47  ;  Cameron  v.  Su- 
pervisors, 47  Miss.  264 ;  St.  Joseph,  &c. 
R.  R.  Co.  v.  Callender,  13  Kan.  496  ; 
Paris  v.  Mason,  37  Tex.  447 ;  People  v. 
McRoberts,  62  111.  38  ;  St.  Louis,  &c.  R.  R. 
Co.  v.  Teters,  68  111.  144;  Sherman  v. 
Milwaukee,  &c.  R.  R.  Co.,  40  Wis.  645 ; 
Bohlman  v.  Green  Bay,  &c.  R.  R.  Co.,  40 
Wis.  157;  Brady  v.  Bronson,  45  Cal.  640; 
Delphi  v.  Evans,  36  Ind.  90 ;  Eidemiller 
v.  Wyamlotte,  2  Dill.  376.  In  the  case 
in  Howard  it  is  said  :  "  It  can  hardly  be 
questioned  that  without  acceptance  by 
the  acts  and  in  the  mode  prescribed  [/.  e  , 
by  payment  of  the  damages  assessed], 
the  company  were  not  bound ;  that  if 
they  had  been  dissatisfied  with  the  esti- 
mate placed  on  the  land,  or  could  have 
procured  a  more  eligible  site  for  the 
location  of  their  road,  they  would  have 
been  at  liberty,  before  such  acceptance, 
wholly  to  renounce  the  inquisition.  The 
proprietors  of  the  land  could  have  no 
authority  to  coerce  the  company  into  its 
adoption."  Daniel,  J.,  10  How.  395,  399. 


762 


CONSTITUTIONAL  LIMITATIONS. 


[Oil.  XV. 


authorized  routes  to  be  surveyed  by  associated  persons  desirous 
of  constructing  roads,  and  provided  that  if  the  legislature,  on 
being  petitioned  for  the  purpose,  should  decide  by  law  that  a 
proposed  road  would  be  of  sufficient  utility  to  justify  its  construc- 
tion, then  the  company,  when  organized,  might  proceed  to  take 
land  for  the  way,  it  was  held  that,  until  the  route  was  approved 
by  the  legislature,  no  authority  could  be  claimed  under  the  law 
to  appropriate  laud  for  the  purpose.1  These  cases  must  suffice  as 
illustrations  of  a  general  rule,  which  indeed  would  seem  to  be  too 
plain  and  obvious  to  require  either  illustration  or  discussion.2 

So  the  powers  granted  by  such  statutes  are  not  to  be  enlarged 
by  intendment,  especially  where  they  are  being  exercised  by  a 
corporation  by  way  of  appropriation  of  land  for  its  corporate 
purposes.  "  There  is  no  rule  more  familiar  or  better  settled  than 
this :  that  grants  of  corporate  power,  being  in  derogation  of 
common  right,  are  to  be  strictly  construed ;  and  this  is  especially 
the  case  where  the  power  claimed  is  a  delegation  of  the  right  of 
eminent  domain,  one  of  the  highest  powers  of  sovereignty  per- 
taining to  the  State  itself,  and  interfering  most  seriously  and  often 
vexatiously  with  the  ordinary  rights  of  property.3  It  has  ac- 


1  Gillinwater  v.  Mississippi,  &c.  R.  R. 
Co.,  13  III.   1.     "  The   statute  says,  that 
after  a  certain  other  act  shall  have  been 
passed,  the  company  may  then  proceed  to 
take   private  property  for  the  use  of  its 
road:   that  is  equivalent  to  saying  that 
that  right  shall  not  be  exercised  without 
such  subsequent  act.     The  right  to  take 
private  property  for  public  use  is  one  of 
the  highest  prerogatives  of  the  sovereign 
power  ;  and  here  the  legislature  has,  in 
language  not  to  be  mistaken,  expressed 
its  intention  to  reserve  that  power  until 
it  could  judge  for  itself  whether  the  pro- 
posed road  would  be  of  sufficient  public 
utility  to  justify  the  use  of  this  high  pre- 
rogative.    It  did  uot  intend  to  cast  this 
power  away,  to  be  gathered  up  and  used 
by  any  who  might  chose  to  exercise  it." 
Ibid.  p.  4. 

2  See  further  the  cases  of  Atlantic  & 
Ohio   R.  R.  Co.  i'.  Sullivant,  6  Ohio  St. 
276;  Parsons  r.  Howe,  41  Me.  218;  At- 
kinson v.  Marietta  &  Cincinnati  R.  II. 
Co.,  15  Ohio  St.  21. 

8  Currier  v.  Marietta  &  Cincinnati  R.  R. 
Co.,  11  Ohio  St.  228, 231 ;  Miami  Coal  Co.  v. 
Wigton,  19  Ohio  St.  660.  See  ante,  pp.  664, 
566.  [Authority  to  construct  is  not  author- 
ity to  condemn  :  City  of  Madison  v.  Daley, 
58  Fed.  Rep.  751 ;  City  of  Tacoma  r.  State, 


4  Wash.  64,  29  Pac.  847 ;  Brunswick  & 
W.  Ry.  Co.  v.  City  of  Waycross,  94  Ga. 
102,  21  S.  E.  145 ;  Chicago  &  N.  W.  Ry. 
Co.  v.  Town  of  Cicero,  164  111.  656,  39 
N.  E.  674.  Authority  to  construct  water- 
works for  fire  protection  and  domestic  use 
is  not  authority  to  furnish  water  for 
motive  power  for  light  manufacturing, 
though  grant  of  power  contained  words 
"and  other  purposes:"  Re  Barre  Water 
Co.,  62  Vt.  27,  20  Atl.  109,  9  L.  R.  A.  195. 
The  words  "  any  railway  "  in  a  statute 
authorizing  condemnation  proceedings, 
held  not  to  include  street  railways 
operated  by  horse  power  or  electricity. 
Thomson-Houston  Elec.  Co.  v.  Simon, 
20  Oreg.  60,  25  Pac.  147,  10  L.  R.  A.  251. 
Authority  to  condemn  for  telegraph  line, 
held  to  authorize  condemnation  for  tele- 
phone line  under  New  Jersey  statute. 
State  v.  Central  New  Jersey  Telegraph 
Co.,  53  N.  J.  L.  341,  21  Atl.  460,  11  L.  R. 
A.  664 ;  San  Antonio  &  A.  P.  Ry.  Co.  v. 
S.  W.  Telph.  &  Telne.  Co.,  93  Tex.  313,  55 
S.  W.  117, 49  L.  R.  A.  459.  Oiher  illustra- 
tions of  this  rule  of  strict  construction 
may  be  found  in  the  following  cases: 
In  re  Theresa  Drainage  Dist.,  90  Wis. 
301,  63  N.  W.  288;  Bigler's  Executors  v. 
Penna.  Canal  Co.,  177  Pa.  St.  28,  36  Atl. 
112  ;  Trustees  Atlanta  University  v.  City 


CH.  XV.]  THE   EMINENT   DOMAIN.  763 

cordingly  been  held  that  where  a  railroad  company  was  authorized 
by  law  to  "  enter  upon  any  land  to  survey,  lay  down,  and  construct 
its  road,"  "  to  locate  and  construct  branch  roads,"  &c.,  to  appro- 
priate land  "  for  necessary  side  tracks,"  and  "  a  right  of  way  over 
adjacent  lands  sufficient  to  enable  such  company  to  construct  and 
repair  its  road,"  and  the  company  had  located,  and  was  engaged 
in  the  construction  of  its  main  road  along  the  north  side  of  a 
town,  it  was  not  authorized  under  this  grant  of  power  to  appro- 
priate a  temporary  right  of  way  for  a  term  of  years  along  the 
south  side  of  the  town,  to  be  used  as  a  substitute  for  the  main 
track  whilst  the  latter  was  in  process  of  construction.1  And 
substantially  the  same  strict  rule  is  applied  when  the  State  itself 
seeks  to  appropriate  private  property  ;  for  it  is  not  unreasonable 
that  the  property  owner  should  have  the  right  to  insist  that  the 
State,  which  selects  the  occasion,  and  prescribes  the  conditions 
for  the  appropriation  of  his  property,  should  confine  its  action 
strictly  within  the  limits  which  it  has  marked  out  as  sufficient. 
So  high  a  prerogative  as  that  of  divesting  one's  estate  against  his 
will  should  only  be  exercised  where  the  plain  letter  of  the  law 
permits  it,  and  under  a  careful  observance  of  the  formalities 
prescribed  for  the  owner's  protection. (a) 

The  Purpose. 

The  definition  given  of  the  right  of  eminent  domain  implies 
that  the  purpose  for  which  it  may  be  exercised  must  not  be  a 

of  Atlanta,  93  Ga.  468,  21  S.  E.  74 ;  Wilder  Co.  v.  City  of  Chicago,  138  111.  453,  28  N. 

v.  Boston  &  A.  Ry.  Co.,  161  Mass.  387,  37  E.    740 ;     Louisville    &   N.    Ry.    Co.    v. 

N.  E.  380 ;  Kansas  City,  &c.  Ry.  Co.  r.  Whitely  County  Court,  95  Ky.  215,  24 

Petty,  57  Ark.  359,  21  S.  W.  884;  Provi-  S.  W.  604,  44  Am.  St.  220;  Beaver  ».-.  City 

denee  &  W.  Ry.  Co.,  Petitioner,  17  R.  I.  of  Harrisburg,  156  Pa   St.  647,  27  Atl.  4; 

324,   21   Atl.   965  ;    Kyle   v.   Texas   and  Chicago  &  G.  W.  Ry.  Co.  v.  First  Method- 

N.  O.  Ry.  Co.,  3  Willson,  §  436 ;  Kettle  ist  Church,  42  C.   C.  A.   178,  102  Fed. 

River  Ry.   Co.    v.  Eastern    Ry.  Co.,  41  Rep.  85.] 

Minn.  461,  43  N.  W.  469,  6  L.  R.  A.  Ill;  1  Currier  v.  Marietta  &  Cincinnati 
Payne  r.  Kansas,  &c.  Ry.  Co.,  46  Fed.  R.  R.  Co.,  11  Ohio  St.  228.  And  see  Gil- 
Rep.  546 ;  Chicago  &  N.  VV.  Ry.  Co.  v.  Gait,  mer  v.  Lime  Point,  19  Cal.  47 ;  Bensley  v. 
133  III.  657,  23 ^N.  E.  425,  24  N.  E.  674;  Mountain  Lake,  &c.  Co.,  13  Cal.  806; 
Dennis,  Long  &  Co.  v.  City  of  Louisville,  98  Bruning  v.  N.  O.  Canal  &  Banking  Co., 
Ky.  (57,  32  S.  W.  271 ;  Ewing  v.  Alabama,  12  La.  Ann.  541 ;  West  Virginia  Trans- 
&c.  Ry.  Co.,  68  Miss.  551, 9  So.  295;  Cheney  portation  Co.  v.  Volcanic  Oil  &  Coal  Co., 
r.  Atlantic  City  Water  Works  Co.,  55  N.  J.  5  W.  Va.  382. 
L.  235,  26  Atl.  95;  Illinois  Central  Ry. 

(a)  ^Authority  to  condemn  cannot  be  delegated  to  a  foreign  corporation :  St. 
Louis  &  S.  F.  Ry.  Co.  v.  Foltz,  52  Fed.  Rep.  627 ;  Koenig  v.  Chicago,  B.  &Q.  R.  Co., 
27  Neb.  699,  43  N.  W.  423  ;  Trester  v.  Missouri  P.  R.  Co.,  33  Neb.  171, 49  N.  W.  1110 ; 
contra,  New.  York,  N.  H.  &  H.  R.  Co.  v.  Welsh,  143  N.  Y.  411,  38  N.  E.  378.  A 
Railway  company  cannot  pass  authority  to  condemn  to  a  manufacturing  corporation  : 
Appeal  of  Hartman  Steel  Co.,  129  Pa.  St.  551,  18  Atl.  653.] 


764 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


mere  private  purpose  ;  and  it  is  conceded  on  all  hands  that  the 
legislature  has  no  power,  in  any  case,  to  take  the  property  of  one 
individual  and  pass  it  over  to  another  without  reference  to  some 
use  to  which  it  is  to  be  applied  for  the  public  benefit.1  "  The 
right  of  eminent  domain,"  it  has  been  said,  "  does  not  imply  a 
right  in  the  sovereign  power  to  take  the  property  of  one  citizen 
and  transfer  it  to  another,  even  for  a  full  compensation,  where 
the  public  interest  will  be  in  no  way  promoted  by  such  transfer."  2 
It  seems  not  to  be  allowable,  therefore,  to  authorize  private  roads 


1  [The      constitutional      prohibition 
against    taking    private    property    for 
public   use,   operates   by   implication  to 
prohibit  the  taking  of  property  for  pri- 
vate use.    Richards  v.  Wolf,  82  Iowa,  358, 
47  N.  W.  1044,  31  Am.  St.  501 ;  Welton 
v.  Dickson,  38  Neb.  767,  57  N.  W.  559, 
41  Am.  St.  771,  22  L.  R.  A.  406.     For  a 
discussion  of   the  meaning  of  the  term 
"  public  "  as  used  in  this  connection,  see 
6i  Cent.    L.  Jour.  323.3      In  a  work  of 
this  character,  we  have   no   occasion  to 
consider  the  right  of  the  government  to 
seize  and  appropriate  to  its  own  use  the 
property  of  individuals  in  time  of  war, 
through  its  military  authorities.    That  is 
a  right  which  depends  on  the  existence 
of  hostilities,   and   the   suspension,  par- 
tially or  wholly,  of  the  civil  laws.    For 
recent  cases  in  which  it  has  been  consid- 
ered, see  Mitchell  v.  Harmony,  13  How. 
115;    Wilson  v.  Crockett,  43   Mo.   216; 
Wellman   v.    Wickerman,  44    Mo.  484; 
Yost   v.  Stout,  4   Cold.   205;   Sutton  v. 
Tiller,  6  Cold.  593;  Taylor  v.  Nashville, 
&c.  R.  R.  Co,  6  Cold.  646;  Coolidge  P. 
Guthrie,    8    Am.    Law    Reg.    N.  8.   22; 
Echols  v.  Staunton,  3  W.  Va.  574 ;  Wilson 
v.  Franklin,  63  N.  C.  259. 

2  Beekman   v.   Saratoga   &    Schenec- 
tady  R.  R.  Co.,  3  Paige,  73,  22  Am.  Dec. 
679;    Teneyck  v.   Canal   Co.,   18   N.  J. 
200,  37  Am.  Dec.  233 ;  Hepburn's  Case, 
3  Bland,  95;  Sadler  P.  Langham,  34  Ala. 
311;    Pittsburg  p.  Scott,  1  Pa.  St.  309; 
Matter  of  Albany  Street,  11  Wend.  149, 
25   Am.   Dec.  618;    Matter  of  John   & 
Cherry  Streets,  19  Wend.  659;   Cooper 
P.  Williams,  5  Ohio,  391,  24  Am.  Dec. 
299;    Buckingham   v.   Smith,   10    Ohio, 
288 ;  Reeves  v.  Treasurer  of  Wood  Co., 
8  Ohio  St.  833.     See  this  subject  con- 
sidered  on   principle   and   authority  by 
Senator  Tracy  in  Bloodgood  p.  Mohawk 
&  Hudson  R.  R.  Co.,  18  Wend.  955  et 


seq.  See  also  Embury  p.  Conner,  3  N.  Y. 
611;  Kramer  v.  Cleveland  &  Pittsburgh 
R.  R.  Co.,  5  Ohio  St.  140 ;  Pratt  P.  Brown, 
3  Wis.  603;  Concord  R.  R.  p.  Greeley, 
17  N.  H.  47 ;  N.  Y.  &  Harlaem  R.  R.  Co. 
p.  Kip,  46  N.  Y.  546,  7  Am.  Rep.  385. 
[The  closing  of  part  of  a  public  alley 
whereby  the  lands  within  the  alley  revert 
to  the  adjoining  owner,  held  not  to  be  for 
public  use.  Van  Witsen  p.  Gutman,  79 
Md.  405,  29  Atl.  608,  24  L.  R.  A.  403.  An 
act  giving  one  street  railway  the  right 
to  use  the  tracks  of  another  is  not  due 
process,  when  it  is  apparent  that  it  was 
not  a  public  benefit,  but  a  benefit  to  the 
company,  to  whom  the  grant  is  made. 
Philadelphia,  M.  &  S.  S.  R.  Co.,  Peti- 
tion of,  —  Pa,  St.  — ,  63  Atl.  191.  j  The 
power  can  only  be  exercised  to  supply 
some  existing  public  need  or  to  gain 
some  present  public  advantage ;  not  with 
a  view  to  contingent  results  dependent  on 
a  projected  speculation.  Edgewood  R.  R. 
Co.'s  Appeal,  79  Pa.  St.  257.  Nor  for  a 
mere  public  convenience ;  such  as  a  com- 
pany for  loading  and  unloading  freight 
on  and  from  steamboats  and  other  craft 
touching  at  a  river  port.  Memphis 
Freight  Co.  P.  Memphis,  4  Cold.  419. 
But  land  not  needed  at  once  may  be  con- 
demned for  extra  tracks  of  a  railroad. 
Matter  of  Staten  Island  Transit  Co.,  103 
N.  Y.  251,  8  N.  E.  648.  [Under  the  in- 
ternal improvement  clause  of  the  Con- 
stitution of  South  Carolina,  a  statute 
authorizing  condemnation  for  railway 
connecting  a  private  manufacturing  plant 
with  a  public  railway  is  valid.  Ex  parte 
Bacot,  36  S.  C.  125,  15  S.  E.  204,  16 
L.  R.  A.  586.  A  private  way  cannot  be 
authorized  on  a  public  highway  against 
an  adjoining  proprietor  who  has  a  fee  in 
the  street.  Bradley  P.  Pharr,  45  La.  Ann. 
426, 12  So.  618,  19  L.  R.  A.  647  ..• 


CH.  XV.]  THE   EMINENT  DOMAIN.  765 

to  be  laid  out  across  the  lands  of  unwilling  parties  by  an  exercise 
of  this  right.  The  easement  in  such  a  case  would  be  the  property 
of  him  for  whom  it  was  established ;  and  although  the  owner 
would  not  be  deprived  of  the  fee  in  the  land,  the  beneficial  use 
and  exclusive  enjoyment  of  his  property  would  in  greater  or  less 
degree  be  interfered  with.  Nor  would  it  be  material  to  inquire 
what  quantum  of  interest  would  pass  from  him :  it  would  be 
sufficient  that  some  interest,  the  appropriation  of  which  detracted 
from  his  right  and  authority,  and  interfered  with  his  exclusive 
possession  as  owner,  had  been  taken  against  his  will ;  and  if 
taken  for  a  purely  private  purpose,  it  would  be  unlawful.1  Nor 


i  Taylor  v.  Porter,  4  Hill,  140,  per 
Branson,  J. ;  Clark  v.  White,  2  Swan,  540 ; 
White  v.  White,  6  Barb.  474 ;  Sadler  v. 
Langham,  34  Ala.  311 ;  Pittsburg  v.  Scott, 

1  Pa.  St.  309 ;  Nesbitt  v.  Trumbo,  39  III. 
110;  Osborn  v.  Hart,  24  Wis.  89,  1  Am. 
Rep.  161 ;  Tyler  v.  Beacher,  44  Vt.  648, 
8  Am.  Rep.  398;  Bankhead  v.  Brown,  25 
Iowa,  540;   Witham  v.  Osburii,  4  Oreg. 
318,  18  Am.  Rep.  287;  Stewart  v.  Hart- 
man,  46  Ind.  331 ;  Wild  v.  Deig,  43  Ind. 
455,    13    Am.   Rep.    399;    Blackimn   ». 
Halves,   72   Ind.   615;    White   v.   Clark, 

2  Swan,  230;    Hickman's  Case,  4  Harr. 
580;    Robinson  v.  Swope,   12   Bush,  21; 
Varuer  v.  Martin,   21   W.  Va.  634.     A 
neighborhood  road  is  only  a  private  road, 
and  taking  land  for  it  would  not  be  for  a 
public  use.     Dickey  v.  Tennison,  27  Mo. 
373.     £Welton  v.  Dickson,  38  Neb.  767, 
67  N.  W.  659,  41  Am.  St.  771,  22  L.  R.  A. 
496;    Logan  v.  Stogdale,   123   Ind.  372, 
24  N.  E.  135,  8  L.  R.  A.  58,  and  note. 
Way  laid  out  on  application  of  single 
private  person,  to  be  paid  for  and  kept  in 
repair  by  him,  but  to  be  used  by  all  who 
desire  to  use  it,  is  a  public  way  for  which 
lands  may  be  condemned.    Latah  County 
v.  Peterson,  2  Idaho,  1118,  29  Pac.  1089, 
16  L.  R.  A.  81.3     But  see,  as  to  this, 
Ferris  v.  Bramble,  5  Ohio  St.  109 ;  Brock 
v.  Barnet,  57  Vt.  172 ;   Bell  .v.  Prouty,  43 
Vt.  279;  Whittingham  v.  Bowen,  22  Vt. 
317 ;  Proctor  v.  Andover,  42  N.  H.  348. 
Qlt  seems  that  a  way  essentially  private 
may  be  given  a  public  character  by  act 
of  the  legislature  because  of  incidental 
public    benefits.      Los    Angeles    Co.    v. 
Reyes,  —  Cal.  — ,  32  Pac.  233  ;  Welton  v. 
Dickson,  38  Neb.  767,  57  N.  W.  559,  41 
Am.  St.  771,  22  L.  R.  A.  496 ;  Monterey 
Co.  v.  Gushing,  83  Cal.  511,  23  Pac.  700. 


And  see  Wisconsin  Water  Co.  v.  Winans, 
85  Wis.  26,  54  N.  W.  1003,  39  Am.  St. 
813,  and  note;  Latah  Co.  v.  Peterson, 
2  Idaho,  1118,  29  Pac.  1089,  16  L.  R.  A. 
81;  Butte,  Anaconda,  &  P.  Ry.  Co.  v. 
Montana  U.  Ry.  Co.,  16  Mont.  604,  41 
Pac.  232,  31  L.  R.  A.  298.  See  Bridal 
Veil  Lumbering  Co.  v.  Johnson,  30  Oreg. 
205,  46  Pac.  790,  34  L.  R.  A.  368,  60 
Am.  St.  618.]  To  avoid  this  difficulty, 
it  is  provided  by  the  constitutions  of 
some  of  the  States  that  private  roads 
may  be  laid  out  under  proceedings  cor- 
responding to  those  for  the  establish- 
ment of  highways.  There  are  provisions 
to  that  effect  in  the  Constitutions  of 
New  York,  Georgia,  and  Michigan.  It 
is  allowable  under  the  Alabama  Consti- 
tution also.  Steele  o.  County  Com'rs, 
83  Ala.  304,  3  So.  761.  But  in  Harvey 
v.  Thomas,  10  Watts,  63,  it  was  held 
that  the  right  might  be  exercised  in 
order  to  the  establishment  of  private  ways 
from  coal  fields  to  connect  them  with  the 
public  improvements,  there  being  nothing 
in  the  constitution  forbidding  it.  See 
also  the  Pocopson  Road,  16  Pa.  St.  15; 
Sherman  v.  Bnick,  32  Cal.  241 ;  Brewer 
v.  Bowman,  9  Ga.  37  ;  Robinson  v.  Swope, 
12  Bush,  21.  But  in  Illinois  it  is  held 
expressly  that  such  a  road  cannot  be  con- 
demned. Sholl  ii.  German  Coal  Co.,  118 
111.  427,  10  N.  E.  199,  and  the  doctrine  of 
the  cases  just  cited  is  directly  opposed  to 
Young  v.  McKenzie,  3  Ga.  31 ;  Taylor  v. 
Porter,  4  Hill,  140 ;  Buffalo  &  N.  Y.  R  R. 
Co.  v.  Brainard,  9  N.  Y.  100 ;  Bradley  v. 
N.  Y.  &  N.  H.  R.  R.  Co.,  21  Conn  294; 
Reeves  v.  Treasurer  of  Wood  Co.,  8  Ohio 
St.  333,  and  many  other  cases;  though 
possibly  convenient  access  to  the  great 
coal  fields  of  the  State  might  be  held  to 


766 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


could  it  be  of  importance  that  the  public  would  receive  incidental 
benefits,  such  as  usually  spring  from  the  improvement  of  lands  or 
the  establishment  of  prosperous  private  enterprises :  the  public 
use  implies  a  possession,  occupation,  and  enjoyment  of  the  land 
by  the  public  at  large,  or  by  public  agencies ; l  and  a  due  protec- 
tion to  the  rights  of  private  property  will  preclude  the  govern- 
ment from  seizing  it  in  the  hands  of  the  owner,  and  turning  it 
over  to  another  on  vague  grounds  of  public  benefit  to  spring  from, 
the  more  profitable  use  to  which  the  latter  may  devote  it. 

We  find  ourselves  somewhat  at  sea,  however,  when  we  under- 
take to  define,  in  the  light  of  the  judicial  decisions,  what  consti- 


be  so  far  a  matter  of  general  concern  as 
to  support  an  exercise  of  the  power  on 
the  ground  of  the  public  benefit.  So  held 
as  to  a  subterranean  mining  railway.  De 
Camp  v.  Hibernia  R.  R.  Co.,  47  N.  J.  L. 
43.  In  Iowa  a  statute  authorizing  con- 
demnation of  public  ways  in  such  cases 
was  upheld  though  only  the  mine-owners 
may  have  occasion  to  use  them.  Phillips 
v.  Watson,  63  Iowa,  28,  18  N.  W.  659. 
£A  spur  track  to  serve  private  concern 
only  is  not  for  public  purpose.  Kyle 
v.  Tex.  &  N.  O.  Ry.  Co.,  3  Willson 
(Tex.  Civ.  App.),  §  436;  St.  Louis,  I. 
M.  &  S.  Ry.  Co.  v.  Petty,  57  Ark.  359, 
21  S.  W.  884.]  In  Eldridge  v.  Smith, 
34  Vt.  484,  it  was  held  that  the  manu- 
facture of  railroad  cars  was  not  so  legiti- 
mately and  necessarily  connected  with 
the  management  of  a  railroad  that  the 
company  would  be  authorized  to  appro- 
priate lands  therefor.  So,  also,  of  land 
for  the  erection  of  dwelling-houses  to  rent 
by  railroad  companies  to  their  employ- 
ees. But  under  authority  to  a  railroad 
company  to  take  land  for  constructing 
and  operating  its  road,  it  may  take  what 
is  needful  for  depot  grounds.  N.  Y.  & 
Harlaem  R.  R.  Co.  v.  Kip,  46  N.  Y.  546, 

7  Am.  Rep.  385.     Spur  tracks  in  a  city 
to  reach  mills  and  warehouses  may  be 
condemned:  Toledo  S.  &  M.  R.  R.  Co. 
v.  East  Saginaw,  &c.  Co.,  72  Mich.  206, 
40  N.  W.  436;  if  necessary  to  the  opera- 
tion of  the  road.     South  Chicago  R.  R. 
Co.  v.  Dix,  109  111.  237.    Not  if  merely 
to  increase  its  business.     Then  the  use 
is  not  public.     Chicago   &  E.  I.   R.  R. 
Co.  v.  Wiltse,  116  111.  449,  6  N.  E.  49; 
Pittsburg,  W.  &  K.  Co.  v.  Benwood  Iron 
Works,  31  W.  Va.  710,  2  L.  R.  A.  680, 

8  S.  E.  453. 


'In  the  text  we  have  stated  what  is 
unquestionably  the  result  of  the  authori- 
ties ;  though  if  the  question  were  an  open 
one  it  might  well  be  debated  whether  the 
right  to  authorize  the  appropriation  of 
the  property  of  individuals  did  not  rest 
rather  upon  grounds  of  general  public 
policy  than  upon  the  public  purpose  to 
which  it  was  proposed  to  devote  it. 
There  are  many  cases  in  which  indi- 
viduals or  private  corporations  have  been 
empowered  to  appropriate  the  property 
of  others  when  the  general  good  de- 
manded it,  though  the  purpose  was  no 
more  public  than  it  is  in  any  case  where 
benefits  are  to  flow  to  the  community 
generally  from  a  private  enterprise.  The 
case  of  appropriations  for  mill-dams,  rail- 
roads, and  drains  to  improve  lands  are 
familiar  examples.  These  appropriations 
have  been  sanctioned  under  an  applica- 
tion of  the  term  "  public  purpose,"  which 
might  also  justify  the  laying  out  of  pri- 
vate roads,  when  private  property  could 
not  otherwise  be  made  available.  Upon 
this  general  subject  the  reader  is  referred 
to  an  article  by  Hon.  J.  V.  Campbell,  in 
the  "  Bench  and  Bar,"  for  July,  1871. 

1  Per  Tracy,  Senator,  in  Bloodgood  v. 
Mohawk  &  Hudson  R.  R.  Co.,  18  Wend. 
9,  60.  A  use  is  private  so  long  as  struc- 
tures to  be  put  on  the  land  "  are  to  remain 
under  private  ownership  and  control,  and 
no  right  to  their  use  or  to  direct  their 
management  is  conferred  upon  the  pub- 
lic." Matter  of  Eureka  Bason,  &c.  Co., 
96  N.  Y.  42.  See  Belcher  Sugar  Refining 
Co.  v.  St.  Louis  Elev.  Co.,  82  Mo.  121. 
The  use  must  be  by  the  general  public  of 
a  locality,  and  not  by  particular  individ- 
uals or  estates.  McQuillen  v.  Hatton,  42 
Ohio  St.  202 ;  Ross  v.  Davis,  97  Ind.  79. 


CH.  XV.]  THE  EMINENT  DOMAIN.  767 

tutes  a  public  use.  It  has  been  said  by  a  learned  jurist  that,  "  if 
the  public  interest  can  be  in  any  way  promoted  by  the  taking  of 
private  property,  it  must  rest  in  the  wisdom  of  the  legislature  to 
determine  whether  the  benefit  to  the  public  will  be  of  sufficient 
importance  to  render  it  expedient  for  them  to  exercise  the  right 
of  eminent  domain,  and  to  authorize  an  interference  with  the 
private  rights  of  individuals  for  that  purpose.1  It  is  upon  this 
principle  that  the  legislatures  of  several  of  the  States  have  au- 
thorized the  condemnation  of  the  lands  of  individuals  for  mill 
sites,  where  from  the  nature  of  the  country  such  mill  sites  could 
not  be  obtained  for  the  accommodation  of  the  inhabitants  without 
overflowing  the  lands  thus  condemned.  Upon  the  same  principle 
of  public  benefit,  not  only  the  agents  of  the  government,  but  also 
individuals  and  corporate  bodies,  have  been  authorized  to  take 
private  property  for  the  purpose  of  making  public  highways,  turn- 
pike roads,  and  canals ;  of  erecting  and  constructing  wharves  and 
basins  ;  of  establishing  ferries ;  of  draining  swamps  and  marshes  ; 
and  of  bringing  water  to  cities  and  villages.  In  all  such  cases 
the  object  of  the  legislative  grant  of  power  is  the  public  benefit 
derived  from  the  contemplated  improvement,  whether  sucli  im- 
provement is  to  be  effected  directly  by  the  agents  of  the  govern- 
ment, or  through  the  medium  of  corporate  bodies  or  of  individual 
enterprise."  2 

1  2  Kent,  Com.  340.     [Statute  author-  Ry.  Co.  v.  Porter,  43  Minn.  527,  46  N.  W. 
izing  lands  to  be  flowed  by  raising  a  pond  75 ;  In  re  Split  Rock  Cable  Road   Co., 
for  the  culture  of  useful  fishes,  though  the  128  N.  Y.  408,  28  N.  E.  606,  aff.  58  Hun, 
object  of  the  owner  is  to  secure  his  own  351.     It  is  the  right  to  use,  rather  than 
pleasure    and    profit,    is    constitutional,  extent  of  use,  should  determine  its  char- 
Turner  v.  Nye,  154  Mass.  679,  28  N.  E.  acter,  Butte  A.  &  P.  Ry.  Co.  v.  Montana 
1048,  14  L.  R.  A.  487,  an  extreme  case.]  N.  Ry.  Co.,  16  Mont.  604,  41  Pac.  232, 

2  Walworth,  Chancellor,  in  Beekman  31  L.  R.  A.  298.    Incidental  benefit  to 
v.  Saratoga  &  Schnectady  R.  R.  Co.,  3  private    enterprise    not    destroy    public 
Paige,  45,  73, 22  Am.  Dec.  679.     And  see  character  (side  track  to  coal  mine).    St. 
Wilson  v.  Blackbird  Creek  Marsh  Co.,  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Petty,  57 
2  Pet.  245.     [As 'to  what  is  a  public  use,  Ark.  359,  21  S.  W.  884,  20  L.  R.  A.  434, 
see  Latah  County  v.  Peterson,  2  Idaho,  and  note ;  Bridal  Veil  Lumbering  Co.  v. 
1118,  29  Pac.  1089,  16  L.  R.  A.  81,  and  Johnson,  30  Oreg.  205,  46  Pac.  790,  GO 
note.     Also  note  to  Pittsburgh  W.  &  Ky.  Am.  St.  818,  34  L.  R.  A.  868.     For  water 
Ry.  Co  v.  Benwood  Iron  Wks.,  2  L.  R.  A.  works  to  serve  the  public.   State  v.  City  of 
680.     For  a  railway  is  not  for  a  public  Newark,  64  N.  J.  L.  62,  23  Atl.   129; 
use   under    all   circumstances.      Its   use  Eountze  v.  Morris  Aq  ueduct,  58  N.  J.  L. 
will   determine   whether    it    is.      Kettle  303,   33   Atl.   252.     Not  necessary  that 
River   Ry.  Co.   v.  Eastern   Ry.  Co.,  41  works  are  to  serve  all  inhabitants  of  the 
Minn.   461,  43  N.   W.   469,   6   L.  R.  A.  municipality  if  they  are  to  serve  all  in 
111 ;  Colorado  E.  Ry.  Co.  v.  Union  Pac.  a  particular  district.    Pocantico   Water 
Ry.  Co.,  41  Fed.  Rep.  293 ;  Weidenfield  Wks.  Co.  v.  Bird,  130  N.  Y.  249,  29  N.  E. 
v.   Sugar  Run   Ry.   Co.,  48    Fed.   Rep.  246.     So  as  to  condemnation  for  purposes 
615;  Farnsworth  v.  Lime  Rock  Ry.  Co.,  of  irrigation.    Board  of  Directors  of  Al- 
83  Me.  440,  22  Atl.  373 ;  Chicago  B.  &  N.  falfa  Irr.  Dist.  v.  Collins,  46  Neb.  41,  64 


768  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

It  would  not  be  entirely  safe,  however,  to  apply  with  much 
liberality  the  language  above  quoted,  that  "  where  the  public 
interest  can  be  in  any  way  promoted  by  the  taking  of  private 
property,"  the  taking  can  be  considered  for  a  public  use.  It  is 
certain  that  there  are  very  many  cases  in  which  the  property  of 
some  individual  owners  would  be  likely  to  be  better  employed  or 
occupied  to  the  advancement  of  the  public  interest  in  other  hands 
tban  in  their  own  ;  but  it  does  not  follow  from  this  circumstance 
alone  that  tbey  may  rightfully  be  dispossessed.  It  may  be  for 
the  public  benefit  that  all  the  wild  lands  of  the  State  be  improved 
and  cultivated,  all  the  low  lands  drained,  all  the  unsightly  places 
beautified,  all  dilapidated  buildings  replaced  by  new;  because  all 
these  things  tend  to  give  an  aspect  of  beauty,  thrift,  and  comfort 
to  the  country,  and  thereby  to  invite  settlement,  increase  the 
value  of  lands,  and  gratify  the  public  taste  ;  but  the  common  law 
has  never  sanctioned  an  appropriation  of  property  based  upon 
these  considerations  alone;  and  some  further  element  must 
therefore  be  involved  before  the  appropriation  can  be  regarded  as 
sanctioned  by  our  constitutions.  The  reason  of  the  case  and  the 
settled  practice  of  free  governments  must  be  our  guides  in  deter- 
mining what  is  or  is  not  to  be  regarded  a  public  use ;  and  that 
only  can  be  considered  such  where  the  government  is  supplying 
its  own  needs,  or  is  furnishing  facilities  for  its  citizens  in  regard 

N.  W.  1086 ;  Paxton  &  H.  Irr.  C.  &  L.  Atl.  740.  To  preserve  view  of  bridge  is 
Co.  v.  Farmer's  &  M.  Irr.  &  L.  Co.,  not  public  purpose :  Farist  Steel  Co.  v. 
45  Neb.  884,  64  N.  W.  343.  Not  public  City  of  Bridgeport,  60  Conn.  278,  22  Atl. 
purpose  where  water  is  to  be  furnished  to  561,  13  L.  H.  A.  590.  Use  of  lands  for 
landowners  only.  Bradley  v.  Fall  Brook  public  park  is  public  use.  Shoemaker  v. 
Irr.  Dist.,  68  Fed.  Rep.  948;  rev.  Fall-  United  States,  147  U.  S.  282,  13  Sup.  Ct. 
brook  Irrigation  District  v.  Bradley,  1154  Rep.  361.  Grain  elevator  and  warehouse 
U.  S.  112,  17  Sup.  Ct.  Rep.  56.  Drainage :  for  public  convenience  is.  In  re  Stewart's 
Pouiulstone  r.  Baldwin,  145  Ind.  139,  44  Application,  65  Minn.  515,  68  N.  W.  208, 
N.  E.  101.  Public  Parks:  United  States  33  L.  R.  A.  427.  Lands  for  union  ter- 
v.  Cooper,  20  D.  C.  104.  Lands  for  minal  station.  Ryan  v.  Louisville  &  N. 
lighthouse:  Chappel  v.  United  States,  160  T.  Co.,  102  Tenn.  Ill,  50  S.  W.  744,  45 
U.  S.  4'.>9,  16  Sup.  Ct.  Rep.  397.  Lands  L.  R.  A.  303.  Cannot  condemn  lands  for 
for  militia  encampment:  States.  Heppen-  supply  pipe  line  to  convey  water  to  city 
heimer,  54  N.  J.  L.  268,  23  Atl.  664.  until  city  has  authorized  owners  of  pipe 
Lands  for  cemetery  though  to  be  owned  line  to  supply  public  with  water.  Wis- 
by  private  persons,  if  right  of  burial  consin  Water  Co.  v.  Winans,  85  Wis.  26, 
common  to  public.  Stannard's  Corners  64  N.  W.  1003,  20  L.  R.  A.  662.  Drain- 
Rural  Cem.  Assn.,  v.  Brandes,  14  Misc.  ing  of  agricultural  lands  across  the  lands 
(N.  Y.)  270;  Farneman  v.  Mt.  Pleasant  of  others,  under  the  provisions  of  New 
Cem.  Assn.,  135  Ind.  344,  35  N.  E.  271 ;  York  statutes  and  constitution  is  a  tak- 
Matter  of  Board  of  Street  Opening,  133  ing  of  private  property  for  private  use 
N.  Y.  329,  31  N.  E.  316,  28  Am.  St.  640.  and  in  violation  of  the  fourteenth  amend- 
Condemnation  in  interest  of  public  health  ment  to  the  federal  constitution.  Peti- 
is  for  public  purpose.  Van  Reipen  v.  tion  of  Tuthill,  163  N.  Y.  133,  57  N.  E. 
City  of  Jersey  City,  58  N.  J.  L.  262,  33  303,  49  L.  R.  A.  781/] 


CH.  XV.]  THE  EMINENT  DOMAIN.  769 

to  those  matters  of  public  necessity,  convenience,  or  welfare, 
which,  on  account  of  their  peculiar  character,  and  the  difficulty  — 
perhaps  impossibility  —  of  making  provision  for  them  otherwise, 
it  is  alike  proper,  useful,  and  needful  for  the  government  to 
provide. 

Every  government  is  expected  to  make  provision  for  the  public 
ways,  and  for  this  purpose  it  may  seize  and  appropriate  lands. 
And  as  the  wants  of  traffic  and  travel  require  facilities  beyond 
those  afforded  by  the  common  highway,  over  which  any  one  may 
pass  with  his  own  vehicles,  the  government  may  establish  the 
higher  grade  of  highways,  upon  some  of  which  only  its  own 
vehicles  can  be  allowed  to  run,  while  others,  differently  con- 
structed, shall  be  open  to  use  by  all  on  payment  of  toll.  The 
common  highway  is  kept  in  repair  by  assessments  of  labor  and 
money ;  the  tolls  paid  upon  turnpikes,  or  the  fares  on  railways, 
are  the  equivalents  to  these  assessments ;  and  when  these  im- 
proved ways  are  required  by  law  to  be  kept  open  for  use  by  the 
public  impartially,  they  also  may  properly  be  called  highways, 
and  the  use  to  which  land  for  their  construction  is  put  be  denomi- 
nated a  public  use.  The  government  also  provides  court-houses 
for  the  administration  of  justice ;  buildings  for  its  seminaries  of 
instruction;1  aqueducts  to  convey  pure  and  wholesome  water 
into  large  towns ; 2  it  builds  levees  to  prevent  the  country  being 
overflowed  by  the  rising  streams;3  it  may  cause  drains  to  be 

1  Williams  v.  School  District,  33  Vt.  v.  Green  Bay  and  M.  Canal  Co.,  142  U.  S. 
271.     See   Hooper  v.   Bridgewater,   102  254,  12  Sup.  Ct.  Rep.  173.     State  cannot 
Mass.  612  ;  Longw.  Fuller,  68  Pa.  170.  condemn  to  create  water  power  for  sole 

2  Reddall  v.  Bryan,  14  Md.  444  ;  Kane  purpose  of    leasing    for    manufacturing 
v.  Baltimore,   15   Md.    240;   Gardner  v.  purposes  though  may  lease  surplus  power 
Newburg,  2  Johns.  Ch.  162,  7  Am.  Dec.  where  condemnation  primarily  for  public 
626;  Ham  v.  Salem,  100  Mass.  350;  Bur-  use,  Id,    Obstruction  to  use  of  landing  of 
den  v.  Stein,  27  Ala.  104 ;  Riche  v.  Bar  riparian  owner  incidental  to  act  of  gov- 
Harbor  Water  Co.,  75  Me.  91  ;  Olmsted  ernment  in  improving  navigation  without 
v.  Prop'rs  Morris  Aqueduct,  46  N.  J.  L.  actual  taking,  contact   with   or  flowing 
495;  Lake  Pleasanton  W.  Co.  v.  Contra  of  the  lands  does  not  give  right  to  com- 
Costa  W.  Co.,  67  Cal.  659,  8  Pac.   601.  pensation.     Gibson  v.  United  States,  166 
Where  land  was  to  be  taken  for  a  canal,  U.  S.  269,  17  Sup.  Ct.  Rep.  678.     State 
and  it  was  set  forth  that  "the  uses  for  may  authorize    condemnation   of  water 
which  said  water  is  intended  and  designed  supply   sj'stem  by   a   city    for    its    use. 
are   mining,    irrigation,    manufacturing,  Long  Island  Water  Supply  Co.  v.  City  of 
and  household  and  domestic   purposes,"  Brooklyn,  166  U.  S.  685, 17  Sup.  Ct.  Rep. 
it  was  held  a  sufficient  statement  of  pub-  718.   Fact  that  such  company  has  a  con- 
lie   uses.     Cummings  v.  Peters,  56   Cal.  tract  with  the  city  to  supply  :t  water  will 
693.     A  canal  to  bring  logs  and  water  to  not  defeat  such  condemnation  ;  a  contract 
a  city  is  for  a  public  purpose.     Dalles  may  be  condemned  like  other  property. 
Lumbering  Co.  v.  Urquhart,  16  Oreg.  57,  ld.~^ 

19  Pac.  78.  CA  taking  for  the  improve-  8  Mitlioff  v.  Carrollton,  12  La.  Ann. 
ment  of  the  navigation  of  a  river  is  for  a  185;  Cash  v.  Whitworth,  13  La.  Ann.  401; 
public  use.  Kaukauna  Water  Power  Co.  Inge  v.  Police  Jury,  14  La.  Ann.  117. 

49 


770 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


stagnant 


constructed  to  relieve  swamps  and  marshes  of  their 
water ; 1  and  other  measures  of  general  utility,  in  which  the  public 
at  large  are  interested,  and  which  require  the  appropriation  of 
private  property,  are  also  within  the  power,  where  they  fall  within 
the  reasons  underlying  the  cases  mentioned.2 


1  Anderson  v.  Kerns  Draining  Co.,  14 
Ind.  199 ;  Reeves  v.  Treasurer  of  Wood 
County,  8  Ohio  St.  333.  See  a  clear 
statement  of  the  general  principle  and  its 
necessity  in  the  last  mentioned  case.  The 
drains,  however,  which  can  be  authorized 
to  be  cut  across  the  land  of  unwilling 
parties,  or  for  which  individuals  can  be 
taxed,  must  not  be  mere  private  drains, 
but  must  have  reference  to  the  public 
health,  convenience,  or  welfare.  Reeves 
v.  Treasurer,  &c.,  supra.  And  see  People 
v.  Nearing,  27  N.  Y.  306.  QMay  con- 
demn for  drainage  to  abate  nuisance. 
Sweet  v.  Rechel,  159  U.  S.  380,  16  Sup.  Ct. 
Rep.  43.  Term  "sanitary"  does  not  in- 
dicate public  purpose.  In  re  Theresa 
Drainage  District,  90  Wis.  301,  63  N.  W. 
2^8;  and  see  Poundstone  v.  Baldwin,  145 
•  Ind.  139,  44  N.  E.  191.J  It  is  said  in  a 
New  Jersey  case  that  an  act  for  the  drain- 
age of  a  large  quantity  of  land,  which  in 
its  present  condition  is  not  only  worth- 
less for  cultivation  but  unfit  for  residence, 
and  for  an  assessment  of  the  cost  by 
benefits,  is  for  a  purpose  sufficiently  pub- 
lic to  justify  an  exercise  of  the  right  of  em- 
inent domain.  Matter  of  Drainage  of 
Lands,  35  N.  J.  497.  It  is  competent  under 
the  eminent  domain  to  appropriate  and  re- 
move a  dam  owned  by  private  parties,  in 
order  to  reclaim  a  considerable  body  of 
lands  flowed  by  means  of  it,  paying  the 
owner  of  the  dam  its  value.  Talbot  v. 
Hudson,  10  Gray,  417.  See  the  valuable 
note  to  Beekman  v.  Railroad  Co.,  22  Am. 
Dec.  686,  where  the  authorities  as  to 
what  is  a  public  use  are  collated. 

2  Such,  for  instance,  as  the  construc- 
tion of  a  public  park,  which  in  large 
cities  is  as  much  a  matter  of  public  util- 
ity as  a  railway,  or  a  supply  of  pure 
water.  See  Matter  of  Central  Park  Ex- 
tension, 16  Abb.  Pr.  Rep.  56  ;  Owners  of 
Ground  v.  Mayor,  &c.,  of  Albany,  15 
Wend.  374 ;  Brooklyn  Park  Com'rs  v. 
Armstrong,  45  N.  Y.  234,  6  Am.  Rep.  70; 
County  Court  v.  Griswold,  58  Mo.  175. 
The  legislature  may  authorize  land  to  be 
taken  by  an  exposition  company.  Rees* 


App.,  12  Atl.  427.  Or  by  a  boom  com- 
pany for  the  purposes  of  a  boom.  Pat- 
terson v.  Mississippi,  &c.,  Boom  Co.,  3 
Dill.  465.  Or  for  the  purposes  of  a  tele- 
graph line.  Turnpike  Co.  v.  News  Co., 
43  N.  J.  381 ;  New  Orleans  R.  R.  Co.  v. 
Southern  Tel.  Co.,  53  Ala.  211  ;  Pierce  v. 
Drew,  136  Mass.  75.  Or  sewers  in  cities. 
Hildreth  v.  Lowell,  11  Gray,  345.  Or 
for  a  market.  RK  Cooper,  28  Hun,  515. 
A  city  may  be  authorized  to  appropriate 
lands  in  order  to  fill  them  up, and  thereby 
abate  a  nuisance  upon  them.  Dingley  v. 
Boston,  100  Mass.  544.  But  it  may  not 
appropriate  a  wharf  to  lease  it  to  a  pri- 
vate corporation.  Belcher  Sugar  Refin- 
ing Co.  v.  St.  Louis  Elev.  Co.,  82  Mo.  121. 
A  private  corporation  may  be  empowered 
to  exercise  the  right  of  eminent  domain 
to  obtain  a  way  along  which  to  lay  pipe 
for  the  transportation  of  oil  to  a  railroad 
or  navigable  water.  West  Va.  .Trans- 
portation Co.  v.  Volcanic  Oil  &  Coal  Co., 
6  W.  Va.  382.  It  is  held  in  Evergreen 
Cemetery  v.  New  Haven,  43  Conn.  234 ; 
Edgecombe  v.  Burlington,  46  Vt.  218,  and 
Balch  v.  Commissioners.  103  Mass.  106 ; 
[JFarneman  v.  Mt.  Pleasant  Cem.  Assn., 
135  Ind.  344,  35  N.  E.  271 ;  Westfield 
Cem.  Assn.  v.  Danielson,  62  Conn.  319, 
26  Atl.  345;  Stannard's  Corners  Rural 
Cem.  Assn.  v.  Brandes,  14  Misc.  (N.  Y.) 
270.]  that  lands  may  be  appropriated 
under  this  power  for  a  cemetery  ;  but  in 
Matter  of  Deansville  Cemetery  Associa- 
tion, 66  N.  Y.  569,  it  is  decided  that  this 
cannot  be  done  for  the  exclusive  use  of  a 
private  corporation.  QBoard  of  Health 
v.  Van  Hoesen,  87  Mich.  533,  49  N.  W. 
894,  and  cases  cited.  These  cases  seem 
to  proceed  upon  the  theory  that  the  right 
of  burial  is  not  common,  but  only  at  the 
will  of  the  corporation  owning.]  Land 
may  not  be  taken  for  a  private  warehouse 
and  dock  company :  Matter  of  Eureka 
Basin,  &c.  Co.,  96  N.  Y.  42;  nor  for  a 
railroad  along  the  bottom  of  the  Niagara 
Cliffs.  Matter  of  Niagara  Falls  &  W. 
Ry.  Co.,  108  N.  Y.  375,  15  N.  E.  429. 
The  development  of  mines  has  been 


CH.  XV.]  THE   EMINENT  DOMAIN.  771 

Whether  the  power  of  eminent  domain  can  rightfully  be  exer- 
cised in  the  condemnation  of  lands  for  manufacturing  purposes 
where  the  manufactories  are  to  be  owned,  and  occupied  by  indi- 
viduals is  a  question  upon  which  the  authorities  are  at  variance. 
Saw-mills,  grist-mills,  and  various  other  manufactories  are  cer- 
tainly a  public  necessity  ;  and  while  the  country  is  new,  and  capi- 
tal not  easily  attainable  for  their  erection,  it  sometimes  seems  to  be 
essential  that  government  should  offer  large  inducements  to  par- 
ties who  will  supply  this  necessity.  Before  steam  came  into  use, 
water  was  almost  the  sole  reliance  for  motive  power  ;  and  as  reser- 
voirs were  generally  necessary  for  this  purpose,  it  would  some- 
times happen  that  the  owner  of  a  valuable  mill  site  was  unable  to 
render  it  available,  because  the  owners  of  lands  which  must  be 
flowed  to  obtain  a  reservoir  would  neither  consent  to  the  construc- 
tion of  a  dam,  nor  sell  their  lands  except  at  extravagant  and  in- 
admissible prices.  The  legislatures  in  some  of  the  States  have 
taken  the  matter  in  hand,  and  have  surmounted  the  difficulty, 
sometimes  by  authorizing  the  land  to  be  appropriated,  and  at  other 
times  by  permitting  the  erection  of  the  dam,  but  requiring  the  mill- 
owner  to  pay  annually  to  the  proprietor  of  the  land  the  damages 
caused  by  the  flowing,  to  be  assessed  in  some  impartial  mode.1 
The  reasons  for  such  statutes  have  been  growing  weaker  with  the 
introduction  of  steam  power  and  the  progress  of  improvement,  but 
their  validity  has  repeatedly  been  recognized  in  some  of  the  States, 
and  probably  the  same  courts  would  continue  still  to  recognize  it, 
notwithstanding  the  public  necessity  may  no  longer  appear  to  de- 
mand such  laws.2  The  rights  granted  by  these  laws  to  mill-owners 
are  said  by  Chief  Justice  Shaw,  of  Massachusetts,  to  be  "  granted 
for  the  better  use  of  the  water  power,  upon  considerations  of  public 
policy  and  the  general  good  ; "  3  and  in  this  view,  and  in  order  to 
render  available  a  valuable  property  which  might  otherwise  be 
made  of  little  use  by  narrow,  selfish,  and  unfriendly  conduct  on 
the  part  of  individuals,  such  laws  may  perhaps  be  sustained  on  the 
same  grounds  which  support  an'  exercise  of  the  right  of  eminent 

held  such  a  matter  of  public  interest  as         2  "  The  encouragement    of  mills   has 

would  justify  an  exercise  of  the  eminent  always  been  a  favorite  object  with  the 

domain.     Hand     Gold     Mining     Co.    v.  legislature ;  and  though  the  reasons  for  it 

Packer,  59  Ga.  419;  Dayton  Mining  Co.  may  have  ceased,  the  favor  of  the  legis- 

v.  Seawell,  11  Nev.  394.     But  see   Salt  lature     continues."     Wolcott     Woollen 

Company  v.  Brown,  7  W.  Va.  191 ;  Con-  Manufacturing   Co.    v.    Upliam,   5  Pick, 

solidated  Channel  Co.  v.  Railroad  Co.,  51  292,  294.     The  practice  in  Michigan  has 

Cal.  261  ;  Edgewood  R.  R.  Co.'s  Appeal,  been  different.     See  Ryerson  v.  Brown, 

79  Pa.  St.  257.  85  Mich.  333,  24  Am.  Rep.  564. 

1  See  Angell  on  Watercourses,  c.  12,         8  French  v.  Braintree  Manufacturing 

for  references   to   the   statutes    on  this  Co.,  23  Pick.  216,  220. 
subject. 


772 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


domain  to  protect,  drain,  and  render  valuable  the  lands  which,  by 
the  overflow  of  a  river,  might  otherwise  be  an  extensive  and 
worthless  swamp.1 


1  Action  on  the  case  for  raising  a  dam 
across  the  Merrimae  River,  by  which  a 
mill  stream  emptying  into  that  river, 
above  the  site  of  said  dam,  was  set  back 
and  overflowed,  and  a  mill  of  the  plaintiff 
situated  thereon,  and  the  mill  privilege, 
were  damaged  and  destroyed.  Demurrer 
to  the  declaration.  The  defendant  com- 
pany were  chartered  for  the  purpose  of 
constructing  a  dam  across  the  Merrimae 
River,  ami  constructing  one  or  more  locks 
and  canals,  in  connection  with  said  dam, 
to  remove  obstructions  in  said  river  by 
falls  and  rapids,  and  to  create  a  water 
power  to  be  used  for  mechanical  and 
manufacturing  purposes.  The  defend- 
ants claimed  that  they  were  justified  in 
what  they  had  done,  by  an  act  of  the  leg- 
islature exercising  the  sovereign  power 
of  the  State,  in  the  right  of  eminent  do- 
main ;  that  the  plaintiffs  property  in  the 
mill  and  mill  privilege  was  taken  and  ap- 
propriated under  this  right ;  and  that  his 
remedy  was  by  a  claim  of  damages  under 
the  act,  and  not  by  action  at  common 
law  as  for  a  wrongful  and  unwarrantable 
encroachment  upon  his  right  of  property. 
Shaw,  Ch.  J. :  "  It  is  then  contended  that 
if  this  act  was  intended  to  authorize  the 
defendant  company  to  take  the  mill  power 
and  mill  of  the  plaintiff,  it  was  void  be- 
cause it  was  not  taken  for  public  use,  and 
it  was  not  within  the  power  of  the  gov- 
ernment in  the  exercise  of  the  right  of 
eminent  domain.  This  is  the  main  ques- 
tion. In  determining  it  we  must  look  to 
the  declared  purposes  of  the  act ;  and  if 
a  public  use  is  declared,  it  will  be  so  held, 
unless  it  manifestly  appears  by  the  pro- 
visions of  the  act  that  they  can  have  no 
tendency  to  advance  and  promote  such 
public  use.  The  declared  purposes  are 
to  improve  the  navigation  of  the  Merri- 
mae River,  and  to  create  a  large  mill 
power  for  mechanical  and  manufacturing 
purposes.  In  general,  whether  a  particu- 
lar structure,  as  a  bridge,  or  a  lock,  or 
canal,  or  road,  is  for  the  public  use,  is  a 
question  for  the  legislature,  and  which 
may  be  presumed  to  have  been  correctly 
decided  by  them.  Commonwealth  v. 
Breed,  4  Pick.  460.  That  the  improve- 
ment of  the  navigation  of  a  river  is  done 


for  the  public  use  has  been  too  frequently 
decided  and  acted  upon  to  require  au- 
thorities. Anil  so  to  create  a  wholly 
artificial  navigation  by  canals.  The 
establishment  of  a  great  mill  power  for 
manufacturing  purposes,  as  an  object  of 
great  public  interest,  especially  since 
manufacturing  has  come  to  he  one  of  the 
great  public  industrial  pursuits  of  the 
Commonwealth,  seems  to  have  been  re- 
garded by  the  legislature,  and  sanctioned 
by  the  jurisprudence  of  the  Common- 
wealth, and  in  our  judgment  rightly  so, 
in  determining  what  is  a  public  use,  jus- 
tifying the  exercise  of  right  of  eminent 
domain.  See  St.  1825,  c.  148,  incorporat- 
ing the  Salem  Mill  Dam  Corporation ; 
Boston  &  Roxbury  Mill  Dam  Corpora- 
tion v.  Newman,  12  Pick.  467.  The  acts 
since  passed,  and  the  cases  since  decided 
on  this  ground,  are  very  numerous.  That 
the  erection  of  this  dam  would  have  a 
strong  and  direct  tendency  to  advance 
both  these  public  objects,  there  is  no 
doubt.  We  are  therefore  of  opinion  that 
the  powers  conferred  on  the  corporation 
by  this  act  were  so  done  within  the  scope 
of  the  authority  of  the  legislature,  and 
were  not  in  violation  of  the  Constitution 
of  the  Commonwealth."  Hazen  v.  Essex 
Company,  12  Cush.  475,  477.  See  also 
Boston  &  Roxbury  Mill  Corporation  v. 
Newman,  12  Pick.  467 ;  Fiske  v.  Framing- 
ham  Manufacturing  Co.,  12  Pick.  67 ; 
Harding  o.  Goodlett,  3  Yerg.  41,  24  Am. 
Dec.  546.  The  courts  of  Wisconsin  have 
sustained  such  laws.  Newcomer.  Smith, 
1  Chand.  71 ;  Thien  v.  Voegtlander,  3  Wis. 
461 ;  Pratt  v.  Brown,  3  Wis.  603.  But  with 
some  hesitation  in  la  ter  cases.  See  Fisher 
v.  Horricon  Co.,  10  Wis.  351 ;  Curtis  v. 
Whipple,  24  Wis.  350.  And  see  the  note 
of  Judge  Redjield  to  Allen  v.  Inhabitants 
of  Jay,  Law  Reg.,  Aug.  1873,  p.  493. 
And  those  of  Connecticut.  Olmstead 
v.  Camp,  33  Conn.  532.  And  of  Maine. 
Jordan  v.  Woodward,  40  Me.  317.  And 
of  Minnesota.  Miller  v.  Troost,  14  Minn. 
365.  And  of  Kansas.  Venard  v.  Cross, 
8  Kan.  248;  Harding  v.  Funk,  8  Kan. 
315.  And  of  Indiana.  Hankins  v.  Law- 
rence, 8  Blackf.  266.  And  they  have  been 
enforced  elsewhere  without  question. 


CH.  XV.] 


THE  EMINENT  DOMAIN. 


773 


On  the  other  hand,  it  is  said  that  the  legislature  of  New  York 
has  never  exercised  the  right  of  eminent  domain  in  favor  of  mills 
of  any  kind,  and  that  "  sites  for  steam-engines,  hotels,  churches, 
and  other  public  conveniences  might  as  well  be  taken  by  the  exer- 
cise of  this  extraordinary  power."  l  Similar  views  have  been  taken 
by  the  Supreme  Courts  of  Alabama  and  Michigan.2  It  is  quite 
possible  that,  in  any  State  in  which  this  question  would  be  entirely 
a  new  one,  and  where  it  would  not  be  embarrassed  by  long  acqui- 
escence, or  by  either  judicial  or  legislative  precedents,  it  might  be 
held  that  these  laws  are  not  sound  in  principle,  and  that  there 
is  no  such  necessity,  and  consequently  no  such  imperative  reasons 
of  public  policy,  as  would  be  essential  to  support  an  exercise  of 
the  right  of  eminent  domain.3  But  accepting  as  correct  the  de- 
cisions which  have  been  made,  it  must  be  conceded  that  the  term 
"  public  use,"  as  employed  in  the  law  of  eminent  domain,  has  a 
meaning  much  controlled  by  the  necessity,  and  somewhat  different 
from  that  which  it  bears  generally.4 


Burgess  v.  Clark,  13  Ired.  109 ;  McAfee's 
Heirs  v.  Kennedy,  1  Lit.  92;  Smith  v. 
Connelly,  1  T.  B.  Monr.  58 ;  Shackleford 
v.  Coffey,  4  J.  J.  Marsh.  40 ;  Crenshaw  v. 
Slate  River  Co.,  6  Rand.  '245;  Gammel 
r.  Potter,  6  Iowa,  548.  The  whole  subject 
was  very  fully  considered,  and  the  valid- 
ity of  such  legislation  affirmed,  in  Great 
Falls  Manuf.  Co.  ».  Fernald,  47  N.  H. 
444.  And  see  Ash  v.  Cummings,  50  N.  H. 
591.  In  Head  v.  Amoskeag  Co.,  113  U.  S. 
9,  5  Sup.  Ct.  Rep.  441,  such  an  act  was 
upheld  as  a  regulation  of  the  manner  in 
which  the  rights  of  proprietors  adjacent 
to  a  stream  may  be  enjoyed.  In  Lough- 
bridge  v.  Harris,  42  Ga.  500,  an  act  for 
the  condemnation  of  land  for  a  grist-mill 
was  held  unconstitutional,  though  the 
tolls  were  regulated,  and  discrimination 
forbidden.  In  Newell  v.  Smith,  15  Wis. 
101,  it  was  held  not  constitutional  to  au- 
thorize the  appropriation  of  the  property, 
and  leave  the  owner  no  remedy  except 
to  subsequently  recover  its  value  in  an 
action  of  trespass. 

1  Hay  v.  Cohoes  Company,  3  Barb.  47. 

»  Ryerson  v.  Brown,  35  Mich.  333,  24 
Am.  Rep.  564 ;  Saddler  v.  Langham,  34 
Ala.  3.11.  In  this  last  case,  however,  it 
was  assumed  that  lands  for  the  purposes 
of  grist-mills  which  grind  for  toll,  and  were 
required  to  serve  the  public  impartially, 
might,  under  proper  legislation,  be  taken 
under  the  right  of  eminent  domain.  The 


case  of  Loughbridge  v.  Harris,  42  Ga.  500, 
is  contra.  In  Tyler  v.  Beacher,  44  Vt. 
648,  8  Am.  Rep.  398,  it  was  held  not  com- 
petent, where  the  mills  were  subject  to  no 
such  requirement.  See  the  case,  8  Am. 
Rep.  398.  And  see  nole  by  Redjield,  Am. 
Law  Reg.,  Aug.,  1873,  p.  493. 

8  See  this  subject  in  general  discussed 
in  a  review  of  Angell  on  Watercourses,  2 
Am.  Jurist,  p.  25. 

4  In  People  v.  Township  Board  of 
Salem,  20  Mich.  452,  the  court  consider 
the  question  whether  a  use  which  is  re- 
garded as  public  for  the  purposes  of  an 
exercise  of  the  right  of  eminent  domain, 
is  necessarily  so  for  the  purposes  of  taxa- 
tion. They  say  :  "  Reasoning  by  analogy 
from  one  of  the  sovereign  powers  of  gov- 
ernment to  another  is  exceedingly  liable 
to  deceive  and  mislead.  An  object  may 
be  public  in  one  sense  and  for  one  pur- 
pose, when  in  a  general  sense  and  for 
other  purposes  it  would  be  idle  or  mis- 
leading to  apply  the  same  term.  All 
governmental  powers  exist  for  public 
purposes,  but  they  are  not  necessarily  to 
be  exercised  under  the  same  conditions 
of  public  interest.  The  sovereign  police 
power  which  the  State  possesses  is  to  be 
exercised  only  for  the  general  public  wel- 
fare, but  it  reaches  to  every  person,  to 
every  kind  of  business,  to  every  species 
of  property  within  the  Commonwealth. 
The  conduct  of  every  individual,  and  the 


774 
I 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


The  question  what  is  a  public  use  is  always  one  of  law.  (a)    Def- 
erence will  be  paid  to  the  legislative  judgment,  as  expressed  in 


use  of  all  property  and  of  all  rights  is 
regulated  by  it,  to  any  extent  found  neces- 
sary for  tlie  preservation  of  the  public 
order,  and  also  for  the  protection  of  the 
private  rights  of  one  individual  against 
encroachment  by  others.  The  sover- 
eign power  of  taxation  is  employed  in  a 
great  many  cases  where  the  power  of 
eminent  domain  might  be  made  more  im- 
mediately efficient  and  available,  if  con- 
stitutional principles  could  suffer  it  to  be 
resorted  to ;  but  each  of  these  has  its  own 
peculiar  and  appropriate  sphere,  and  the 
object  which  is  public  for  the  demands  of 
the  one  is  not  necessarily  of  a  character 
to  permit  the  exercise  of  the  other." 

"  If  we  examine  the  subject  critically, 
we  shall  find  that  the  most  important 
consideration  in  the  case  of  eminent  do- 
main is  the  necessity  of  accomplishing 
some  public  good  which  is  otherwise  im- 
practicable ;  and  we  shall  also  find  that 
the  law  does  not  so  much  regard  the 
means  as  the  need.  The  power  is  much 
nearer  akin  to  that  of  the  public  police 
than  to  that  of  taxation ;  it  goes  but  a 
step  farther,  and  that  step  is  in  the  same 
direction.  Every  man  has  an  abstract 
right  to  the  exclusive  use  of  his  own 
property  for  his  own  enjoyment  in  such 
manner  as  he  shall  choose ;  but  if  he 
should  choose  to  create  a  nuisance  upon 
it,  or  to  do  anything  which  would  pre- 
clude a  reasonable  enjoyment  of  adja- 
cent property,  the  law  would  interfere 
to  impose  restraints.  He  is  said  to  own 
his  private  lot  to  the  centre  of  the  earth, 
but  he  would  not  be  allowed  to  exca- 
vate it  indefinitely,  lest  his  neighbor's 
lot  should  disappear  in  the  excavation. 
The  abstract  right  to  make  use  of  his 
own  property  in  his  own  way  is  compelled 
to  yield  to  the  general  comfort  and  pro- 
tection of  the  community,  and  to  a  proper 
regard  to  relative  rights  in  others.  The 
situation  of  his  property  may  even  be 
such  that  he  is  compelled  to  dispose  of  it 
because  the  law  will  not  suffer  his  regu- 
lar business  to  be  carried  on  upon  it.  A 
needful  and  lawful  species  of  manufacture 


may  so  injuriously  affect  the  health  and 
comfort  of  the  vicinity  that  it  cannot  be 
tolerated  in  a  densely  settled  neighbor- 
hood, and  therefore  the  owner  of  a  lot  in 
that  neighborhood  will  not  be  allowed  to 
engage  in  that  manufacture  upon  it,  even 
though  it  be  his  regular  and  legitimate 
business.  The  butcher  in  the  vicinity  of 
whose  premises  a  village  has  grown  up 
finds  himself  compelled  to  remove  his 
business  elsewhere,  because  his  right  to 
make  use  of  his  lot  as  a  place  for  the 
slaughter  of  cattle  has  become  inconsistent 
with  the  superior  right  of  the  community 
to  the  enjoyment  of  pure  air  and  the  ac- 
companying blessings  and  comforts.  The 
owner  of  a  lot  within  the  fire  limits  of  a 
city  may  be  compelled  to  part  with  the 
property,  because  he  is  unable  to  erect  a 
brick  or  stone  structure  upon  it,  and  the 
local  regulations  will  not  permit  one  of 
wood.  Eminent  domain  only  recognizes 
and  enforces  the  superior  right  of  the 
community  against  the  selfishness  of  in- 
dividuals in  a  similar  way.  Every  branch 
of  needful  industry  has  a  right  to  exist, 
and  the  community  has  aright  to  demand 
that  it  be  permitted  to  exist;  and  if  for 
that  purpose  a  peculiar  locality  already 
in  possession  of  an  individual  is  essential, 
the  owner's  right  to  undisturbed  occu- 
pancy must  yield  to  the  superior  interest 
of  the  public.  A  railroad  cannot  go 
around  the  farm  of  every  unwilling  per- 
son, and  the  business  of  transporting 
persons  and  property  for  long  distances 
by  rail,  which  has  been  found  so  essential 
to  the  general  enjoyment  and  welfare, 
could  never  have  existed  if  it  were  in  the 
power  of  any  unwilling  person  to  stop 
the  road  at  his  boundary,  or  to  demand 
unreasonable  terms  as  a  condition  of  pass- 
ing him.  The  law  interferes  in  these 
cases,  and  regulates  the  relative  rights  of 
the  owner  and  of  the  community  with  as 
strict  regard  to  justice  and  equity  as  the 
circumstances  will  permit.  It  does  not 
deprive  the  owner  of  his  property,  but  it 
compels  him  to  dispose  of  so  much  of  it 
as  is  essential  on  equitable  terms.  While, 


(a)  QThe  question  of  whether  the  use  is  a  public  one  may  become  a  "  federal 
question  "  under  the  "  due  process  of  law  "  clause  of  the  federal  constitution.  Fall- 
brook  Irrigation  District  v.  Bradley,  164  U.  S.  112,  17  Sup.  Ct.  Rep.  66;  Missouri 
Pacific  Ry.  Co.  v.  Nebraska,  164  U.  S.  403,  17  Sup.  Ct.  Rep.  130.3 


CH.  XV.]  THE    EMINENT   DOMAIN.  775 

enactments  providing  for  an  appropriation  of  property,  but  it  will 
not  be  conclusive.1 

The  Taking  of  Property. 

Although  property  can  only  be  taken  for  a  public  use,  and  the 
legislature  must  determine  in  what  cases,  it  has  been  long  settled 
that  it  is  not  essential  the  taking  should  be  to  or  by  the  State 
itself,  if  by  any  other  agency,  in  the  opinion  of  the  legislature, 
the  use  can  be  made  equally  effectual  for  the  public  benefit. 
There  are  many  cases  in  which  the  appropriation  consists  simply 
in  throwing  the  property  open  to  use  by  such  persons  as  may  see 
frt  to  avail  themselves  of  it ;  as  in  the  case  of  common  highways 
and  public  parks.  In  these  cases  the  title  of  the  owner  is  not 
disturbed,  except  as  it  is  charged  with  this  burden  ;  and  the  State 
defends  the  easement,  not  by  virtue  of  any  title  in  the  property, 
but  by  means  of  criminal  proceedings  when  the  general  right  is 
disturbed.  But  in  other  cases  it  seems  important  to  take  the 
title;2  and  in  many  of  these  it  is  convenient,  if  not  necessary, 
that  the  taking  be,  not  by  the  State,  but  by  the  municipality  for 
which  the  use  is  specially  designed,  and  to  whose  care  and  gov- 
ernment it  will  be  confided.  When  property  is  needed  for  a  dis- 
trict school-house,  it  is  proper  that  the  district  appropriate  it ; 

therefore,  eminent  domain  establishes  no  Engleman,  106  Mo.  628,  17  S.  W.  759 ; 

industry,  it  so  regulates  the  relative  rights  Shoemaker  v.  U.    S.,  147  U.  S.  282,  13 

of  all  that  no  individual  shall  have  it  in  Sup.   Ct.  Rep.  361;  Welton  v.  Dickson, 

his  power  to  preclude  its  establishment."  38  Neb.  767,  67  N.  W.  559,  41  Am.  St. 

On  this  general  subject  see  Olmstead  v.  771,  22  L.  R.  A.  496 ;  Call  v.   Town  of 

Camp,  33  Conn.  532,  in  which  it  was  very  Wilkesboro,  115  N.  C.  337,  20  S.  E.  468 ; 

fully  and  carefully  considered.  Wulzen  v.  Board  of  Supervisors,  101  Cal. 

1  Harding  v.   Goodlett,    3   Yerg.    40,  15,  35  Pac.  353,  40  Am.  St.  17,  and  note  ; 

24  Am.  Dec.  546 ;  Bankhead  v.  Brown,  Van  Witson  v.  Gutman,  79  Md.  405,  29 

25  Iowa,  540 ;  Chicago,  &c.  R.  R.  Co.  v.  Atl.    608,   24  L.   R.   A.  403 ;    Moore  v. 
Lake,  71  111.  333;  Olmstead  o.  Camp,  33  Sanford,  151  Mass.  285,  24  N.  E.  323,  7 
Conn.  551 ;  Tyler  v.  Beacher,  44  Vt.  648 ;  L.  R.  A.  151 ;  Waterloo,  &c.  Mfg.  Co.  v. 
Matter  of  Deansville  Cemetery  Associa-  Shanahan,  128  N.  Y.  345,  28  N.  E.  358 ; 
tion,  66  N.  Y.  569,  23  Am.  Rep.  86  ;  Mat-  Bridal  Veil   Lumbering  Co.  v.  Johnson, 
ter  of  Union  Ferry  Co.,  98  N.  Y.   139;  30  Oreg.  205,   46  Pac.  790,  60  Am.  St. 
Matter  of  Niagara  Falls  &  W.  Ry.  Co.,  818.     But  see,  contra,  City  of  Pasadena 
108  N.  Y.  375,  15  N.  E.  429 ;  Loughbridge  v.  Stimson,  91  Cal.  238,  27  Pac.  604.    See 
v.  Harris,  42  Ga.  600 ;  Water  Works  Co.  extended  note,  89  Am.  St.  926J 

v.  Burkhart,  41   Ind.   364 ;    Scudder  v.         2  The  fee  is  not  to  be  taken  unless  the 

Trenton,  &c.  Co.,  1  N.  J.  Eq.  694,  23  Am.  purpose  requires   it.     New  Orleans,  &?.. 

Dec.  766  ;   Ryerson  v.  Brown,  35  Mich.  R.  R.  Co.  r.  Gay,  32  La.  Ann.  471 ;  New 

333.  24  Am.  Rep.  564 ;  Beekman  v.  Rail-  Jersey  Zinc  Co.  v.  Morris  Canal,  &c.  Co., 

road  Co.,  3  Paige,  45,  22  Am.  Dec.  679,  44  N.  J.  Eq.  398,  15  Atl.  227.     See  Hi- 

and  note  ;  McQuillen  v,  Hatton,  42  Ohio  bernia  R.  R.  Co.  v.  Camp,  47  N.  J.  L.  618. 

St.  202;   Savannah  v.  Hancock,  91  Mo.  There   are    constitutional  provisions  in 

54,  3  S.  W.  215;  In  re  St.  Paul  &  N.  P.  some  States  which  limit  the  taking  for 

Ry.   Co.,  34  Minn.  227,  25  N.   W.  345;  railroads  to  a  mere  easement. 
[TState  ex  rel.  City  of  Cape  Girardeau  r. 


776  CONSTITUTIONAL  LIMITATIONS.  [CH.  XV. 

and  it  is  strictly  in  accordance  with  the  general  theory  as  well 
as  with  the  practice  of  our  government  for  the  State  to  delegate 
to  the  district  the  exercise  of  the  power  of  eminent  domain  for 
this  special  purpose.  So  a  county  may  be  authorized  to  take  lands 
for  its  court-house  or  jail ;  a  city,  for  its  town  hall,  its  reservoirs 
of  water,  its  sewers,  and  other  public  works  of  like  importance. 
In  these  cases  no  question  of  power  arises ;  the  taking  is  by  the 
public ;  the  use  is  by  the  public ;  and  the  benefit  to  accrue  there- 
from is  shared  in  greater  or  less  degree  by  the  whole  public. 

If,  however,  it  be  constitutional  to  appropriate  lands  for  mill 
dams  or  mill  sites,  it  ought  also  to  be  constitutional  that  the 
taking  be  by  individuals  instead  of  by  the  State  or  any  of  its 
organized  political  divisions ;  since  it  is  no  part  of  the  business 
of  the  government  to  engage  in  manufacturing  operations  which 
come  in  competition  with  private  enterprise ;  and  the  cases  must 
be  very  peculiar  and  very  rare  where  a  State  or  municipal  corpo- 
ration could  be  justified  in  any  such  undertaking.  And  although 
the  practice  is  not  entirely  uniform  on  the  subject,  the  general 
sentiment  is  adverse  to  the  construction  of  railways  by  the  State, 
and  the  opinion  is  quite  prevalent,  if  not  general,  that  thoy  can 
be  better  managed,  controlled,  and  operated  for  the  public  benefit 
in  the  hands  of  individuals  than  by  State  or  municipal  officers  or 
agencies. 

And  while  there  are  unquestionably  some  objections  to  com- 
pelling a  citizen  to  surrender  his  property  to  a  corporation,  whose 
corporators,  in  receiving  it,  are  influenced  by  motives  of  private 
gain  and  emolument,  so  that  to  them  the  purpose  of  the  appropri- 
ation is  altogether  private,  yet  conceding  it  to  be  settled  that 
these  facilities  for  travel  and  commerce  are  a  public  necessity, 
if  the  legislature,  reflecting  the  public  sentiment,  decide  that  the 
general  benefit  is  better  promoted  by  their  construction  through 
individuals  or  corporations  than  by  the  State  itself,  it  would 
clearly  be  pressing  a  constitutional  maxim  to  an  absurd  extreme 
if  it  were  to  be  held  that  the  public  necessity  should  only  be  pro- 
vided for  in  the  way  which  is  least  consistent  with  the  public 
interest.  Accordingly,  on  the  principle  of  public  benefit,  not  only 
the  State  and  its  political  divisions,  but  also  individuals  and  cor- 
porate bodies,  have  been  authorized  to  take  private  property  for  the 
construction  of  works  of  public  utility,  and  when  duly  empowered 
by  the  legislature  so  to  do,  their  private  pecuniary  interest  does 
not  preclude  their  being  regarded  as  public  agencies  in  respect  to 
the  public  good  which  is  sought  to  be  accomplished.1 

1  Beekman  v.  Saratoga  &  Schenectady  Wilson  v.  Blackbird  Creek  Marsh  Co., 
R.  R.  Co.,  3  Paige,  73,  22  Am.  Dec.  679 ;  2  Pet.  245 ;  Buonaparte  v.  Camden  & 


CH.  XV.] 


THE   EMINENT  DOMAIN. 


777 


The  Necessity  for  the   Taking. 

The  authority  to  determine  in  any  case  whether  it  is  needful 
to  permit  the  exercise  of  this  power  must  rest  with  the  State 
itself ;  and  the  question  is  always  one  of  strictly  political  charac- 
ter, not  requiring  any  hearing  upon  the  facts  or  any  judicial  deter- 
mination.1 Nevertheless,  when  a  work  or  improvement  of  local 
importance  only  is  contemplated,  the  need  of  which  must  be  de- 
termined upon  a  view  of  the  facts  which  the  people  of  the  vicinity 
may  be  supposed  best  to  understand,  the  question  of  necessity  is 
generally  referred  to  some  local  tribunal,  and  it  may  even  be  sub- 
mitted to  a  jury  to  decide  upon  evidence.2  But  parties  interested 
have  no  constitutional  right  to  be  heard  upon  the  question,  unless 
the  State  constitution  clearly  and  expressly  recognizes  and  pro- 
vides for  it.  On  general  principles,  the  final  decision  rests  with 
the  legislative  department  of  the  State  ;3  and  if  the  question  is 


Amboy  R.  R.  Co.,  1  Bald.  205 ;  Bloodgood 
v.  Mohawk  &  Hudson  R.  R.  Co.,  18 
Wend.  9  ;  Lebanon  v.  Olcott,  1  N.  H.  339 ; 
Petition  of  Mount  Washington  Road  Co., 
35  N.  H  134  ;  Pratt  v.  Brown,  3  Wis.  603; 
Swan  v.  Williams,  2  Mich.  427;  Stevens 
v.  Middlesex  Canal,  12  Mass.  466;  Boston 
Mill  Dam  v.  Newman,  12  Pick.  467; 
Gilmer  v.  Lime  Point,  18  Cal.  229;  Arm- 
ington  v.  Barnet,  15  Vt.  745;  White 
River  Turnpike  v.  Central  Railroad,  21 
Vt.  590 ;  Raleigh,  &o.  R  R.  Co.  v.  Davis, 
2  Dev.  &  Bat.  451 ;  Whiteman's  Ex'r  v. 
Wilmington,  &c.  R.  R.  Co.,  2  Harr.  514; 
Bradley  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  21 
Conn.  294;  Olmstead  v.  Camp,  33  Conn. 
53-2 ;  Eaton  v.  Boston,  C.  &  M.  R.  R.  Co., 
61  N.  H.  504 ;  Moran  v.  Ross,  79  Cal.  159, 
21  Pac.  547. 

1  Varick  v.  Smith,  5  Paige  Ch.  137,  28 
Am.  Dec.  417;  Aldridge  ?;.  Railroad  Co., 
2  Stew.  &  Port.  199,  23  Am.  Dec.  307; 
QSt,  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Petty,  57 
Ark.  359,  21  S.  W.  884,  20  L.  R.  A.  434; 
Van  Witson  v.  Gutman,  79  Md.  405,  29 
Atl.    608,   24  L.    R.   A.   403;   Moore   v. 
Sanford,   151   Mass.  285,   24  N.  E.  323, 
7  L.  R.  A.  151 ;  Wisconsin  Water  Co.  v. 
Winans,  39  Am.  St.  813,  85  Wis.  26,  54 
N.  W.  1003;  Paxton  &  Hershey  Irriga- 
ting C.  &  L.  Co.  v.  Farmer's  &  M.  I.  &  L. 
Co.,  45  Neb.  884,  64  N.  W.  343,  60  Am. 
St.  585,  and  note.] 

2  Iron   R.  R.  Co.  v.  Ironton,  19  Ohio 
St    299.     The  constitutions  of  some  of 
the   States   require   the  question  of  the 


necessity  of  any  specific  appropriation  to 
be  submitted  to  a  jury;  and  this  require- 
ment cannot  be  dispensed  with.  Mans- 
field, &c.  R.  R.  Co.  v.  Clarke,  23  Mich. 
619;  Arnold  v.  Decatur,  29  Mich.  77; 
QSaginaw,  &c.  Ry.  Co.  v.  Bordner,  108 
Mich.  236,  66  N.  W.  62.  As  to  what  is 
"  necessity,"  see  City  of  Pasadena  v. 
Stimson,  91  Cal.  238,  27  Pac.  604 ;  City 
of  Santa  Cruz  v.  Enright,  95  Cal.  105,  30 
Pac.  197;  Detroit  &  S.  P.  Ry.  Co.  v. 
City  of  Detroit,  81  Mich.  562,  46  N.  W. 
12.  Future  as  well  as  present  needs  to 
be  considered.  St.  Louis  &  S.  F.  Ry.  Co. 
v.  Faltz,  52  Fed.  Rep.  627;  Kountze  v. 
Prop.  Morris  Aqueduct,  58  N.  J.  L.  303, 
33  Atl.  252,  58  N.  J.  L.  695,  34  Atl.  1099. 
Is  a  practical  question ;  Butte  A.  &  P.  Ry. 
Co.  v.  Montana  U.  Ry.  Co.,  16  Mont.  604, 
41  Pac.  232,  31  L.  R.  A.  298J 

8  United  States  v.  Harris,  1  Sum.  21, 
42;  Ford  v.  Chicago,  &c.  R.  R  Co.,  14 
Wis.  609;  People  v.  Smith,  21  N.  Y.  595; 
Water  Works  Co.  v.  Burkliart,  41  Ind. 
364 ;  Tait's  Exec.  v.  Centr.  Lunatic  As}'- 
lum,  84  Va.  271,  4  S.  E  697.  If  the  use 
is  public,  the  legislative  determination  of 
necessity  is  conclusive.  Sholl  v.  German 
Coal  Co.,  118  111.  427,  10  N.  E.  199; 
Matter  of  Union  Ferry  Co.,  98  N.  Y.  139; 
QO'Hare  v.  Chicago,  M.  &  N.  Ry.  Co  , 
139  111.  151,  28  N.  E.  923;  Barrett  v. 
Kemp,  91  Iowa,  296,  59  N.  W.  76 ;  Lynch 
v.  Forbes,  161  Mass.  302,  37  N.  E.  437,  42 
Am.  St.  402,  and  extended  note ;  City  of 
Cape  Giradeau  v.  Honck,  129  Mo.  607,  31 


778 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


referred  to  any  tribunal  for  trial,  the  reference  and  the  opportu- 
nity for  being  heard  are  matters  of  favor  and  not  of  right.  The 
State  is  not  under  any  obligation  to  make  provision  for  a  judicial 
contest  upon  that  question.  And  where  the  case  is  such  that  it  is 
proper  to  delegate  to  individuals  or  to  a  corporation  (a)  the  power 
to  appropriate  property,  it  is  also  competent  to  delegate  the 
authority  to  decide  upon  the  necessity  for  the  taking.1 


S.  VV.  933  ;  City  of  Philadelphia  v.  Ward, 
174  Pa.  St.  45,  34  Atl.  458;  Douglas  v. 
Byrnes,  59  Fed.  Rep.  29;  Joplin  Consol. 
Mining  Co.  v.  City  of  Joplin,  124  Mo.  129, 
27  8.  VV.  406;  Monongahela  Nav.  Co.  v. 
United  States,  148  U.  S.  312,  13  Sup. 
Ct.  Rep.  622 ;  but  see  contra  Stearnes  v. 
Barre,  73  Vt.  281,  50  Atl.  1086,  87  Am. 
St.  721.  See  also  note,  87  Am.  St.  734. 
The  extent  of  taking  is  a  legislative 
question.  Shoemaker  v.  United  States, 
147  U.  S.  282, 13  Sup.  Ct.  Rep.  361 ;  United 
States  ?;.  Gettysburg!!  Elec.  Ry.  Co.,  160 
U.  S.  668,  16  Sup.  Ct.  Rep.  427,  rev. 
United  States  v.  Tract  of  Land,  &c.,  67 
Fed.  Rep.  869.  Courts  will  relieve  against 
abuse  of  power  to  determine  necessity. 
Colorado  E.  Ry.  Co.  v.  W.  Pac.  Ry.  Co., 
41  Fed.  Rep.  293;  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  v.  Petty,  57  Ark.  359,  21  S.  W. 
884,  20  L.  R.  A.  434;  Creston  Water 
Wks.  Co.  v.  McGrath,  89  Iowa,  602,  56 
N.  W.  680;  Robinson  v.  Pa.  Ry.  Co.,  161 
Pa.  St.  561,  29  Atl.  268.] 

1  People  v.  Smith,  21  N.  Y.  595;  Ford 
v.  Chicago  &  N.  W.  R.  R.  Co.,  14  Wis. 
617;  Matter  of  Albany  St.,  11  Wend.  152, 
25  Am.  Dec.  619;  Lyon  v.  Jerome,  26 
Wend.  484;  Hays  v.  Risher,  32  Pa.  St. 
169 ;  North  Missouri  R.  R.  Co.  v.  Lack- 
land, 25  Mo.  515:  Same  r.  Gott,  25  Mo. 
540;  Bankhead  v.  Brown,  25  Iowa,  540; 
Contra  Costa  R.  R.  v.  Moss,  23  Cal.  323 ; 
Matter  of  Fowler,  53  N.  Y.  60;  N.  Y. 
Central,  &c  R.  R.  Co.  v.  Met.  Gas  Co.,  63 
N.  Y.  326  ;  Chicago,  &c.  R.  R.  Co.  v.  Lake, 
71  111.  333 ;  Warren  v.  St.  Paul,  &c.  R.  R. 
Co.,  18  Minn.  384;  Smeaton  v.  Martin, 
67  Wis.  364,  15  N.  W.  403 ;  State  v.  Stew- 
art, 74  Wis.  620,  43  N.  W.  947.  But  where 
a  general  power  to  condemn  is  given,  for 
example,  to  a  railroad  company,  the  ne- 
cessity for  its  exercise  in  the  taking  of 
particular  property  is  a  judicial  question. 


Matter  of  New  York  Central  R.  R.  Co.,  66 
N.  Y.  407 ;  In  re  St.  Paul,  &  N.  P.  Ry.  Co., 
34  Minn.  227,  25  N.  W.  345;  Olmsted  P. 
Prop'rs  Morris  Aqueduct,  46  N.  J.  L.  495 ; 
Tracy  v.  Elizabethtown,  &c.  R.  R  Co.,  80 
Ky.  259 ;  Spring  Valley  Water  Works  v. 
San  Mateo  Water  Works,  64  Cal.  123,  28 
Pac.  447.  In  the  case  first  above  cited,  • 
Denio,  J.,  says :  "  The  question  then  is, 
whether  the  State,  in  the  exercise  of  the 
power  to  appropriate  the  property  of  in- 
dividuals to  a  public  use,  where  the  duty 
of  judging  of  the  expediency  of  making 
the  appropriation,  in  a  class  of  cases,  is 
committed  to  public  officers,  is  obliged  to 
afford  to  the  owners  of  the  property  an  op- 
portunity to  be  heard  before  those  officers 
when  they  sit  for  the  purpose  of  making 
the  determination.  I  do  not  speak  now 
of  the  process  for  arriving  at  the  amount 
of  compensation  to  be  paid  to  the  owners, 
but  of  the  determination  whether,  under 
the  circumstances  of  a  particular  case, 
the  property  required  for  the  purpose 
shall  be  taken  or  not ;  and  I  am  of  opinion 
that  the  State  is  not  under  any  obligation 
to  make  provisions  for  a  judicial  contest 
upon  that  question.  The  only  part  of  the 
Constitution  which  refers  to  the  subject 
is  that  which  forbids  private  property  to 
be  taken  for  public  use  without  compen- 
sation, and  that  which  prescribes  the 
manner  in  which  the  compensation  shall 
be  ascertained.  It  is  not  pretended  that 
the  statute  under  consideration  violates 
either  of  these  provisions.  There  is 
therefore  no  constitutional  injunction  on 
the  point  under  consideration.  The  ne-\ 
cessity  for  appropriating  private  property  | 
for  the  use  of  the  public  or  of  the  gor-  / 
ernment  is  not  a  judicial  question.  The 
power  resides  in  the  legislature.  It  may 
be  exercised  by  means  of  a  statute  which 
shall  at  once  designate  the  property  to 


(17)  fJPn'vate  corporation  cannot  be  authorized  to  condemn  for  the  use  of  a 
municipality  or  vice  versa.  Seattle  &  Montana  Ry.  Co.  v.  State,  7  Wash.  150,  34 
Pac.  551,  38  Am.  St.  866,  22  L.  R.  A.  217.] 


CH.  XV.] 


THE  EMINENT  DOMAIN. 


779 


How  much  Property  may  be  taken. 

The  taking  of  property  must  always  be  limited  to  the  necessity 
of  the  case,  and  consequently  no  more  can  be  appropriated  in  any 
instance  than  the  proper  tribunal  shall  adjudge  to  be  needed  for 
the  particular  use  for  which  the  appropriation  is  made.  When  a 
part  only  of  a  man's  premises  is  needed  by  the  public,  the  neces- 
sity for  the  appropriation  of  that  part  will  not  justify  the  taking 
of  the  whole,  even  though  compensation  be  made  therefor.  The 
moment  the  appropriation  goes  beyond  the  necessity  of  the  case, 
it  ceases  to  be  justified  on  the  principles  which  underlie  the  right 
of  eminent  domain.1  If,  however,  the  statute  providing  for  such 


be  appropriated  and  the  purpose  of  the 
appropriation  ;  or  it  may  be  delegated  to 
public  officers,  or,  as  it  has  been  repeat- 
edly held,  to  private  corporations  estab- 
lished to  carry  on  enterprises  in  which 
the  public  are  interested.  There  is  no 
restraint  upon  the  power,  except  that  re- 
quiring compensation  to  be  made.  And 
where  the  power  is  committed  to  public 
officers,  it  is  a  subject  of  legislative  dis- 
cretion to  determine  what  prudential 
regulations  shall  be  established  to  secure 
a  discreet  and  judicious  exercise  of  the 
authority.  The  constitutional  provision 
securing  a  trial  by  jury  in  certain  cases, 
and  that  which  declares  that  no  citizen 
shall  be  deprived  of  his  property  without 
due  process  of  law,  have  no  application 
to  the  case.  The  jury  trial  can  only  be 
claimed  as  a  constitutional  right  where 
the  subject  is  judicial  in  its  character. 
The  exercise  of  the  right  of  eminent  do- 
main stands  on  the  same  ground  with  the 
power  of  taxation.  Both  are  emanations 
of  the  law-making  power.  They  are  the 
attributes  of  political  sovereignty,  for  the 
exercise  of  which  the  legislature  is  under 
no  necessity  to  address  itself  to  the  courts. 
In  imposing  a  tax,  or  in  appropriating 
the  property  of  a  citizen,  or  a  class  of 
citizens,  for  a  public  purpose,  with  a 
proper  provision  for  compensation,  the 
legislative  act  is  itself  due  process  of  law ; 
though  it  would  not  be  if  it  should  under- 
take to  appropriate  the  property  of  one 
citizen  for  the  use  of  another,  or  to  con- 
fiscate the  property  of  one  person  or  a 
class  of  persons,  or  a  particular  descrip- 
tion of  property,  upon  some  view  of  pub- 
lic policy,  where  it  could  not  be  said  to  be 
taken  for  a  public  use.  It  follows  from 


these  views  that  it  is  not  necessary  for 
the  legislature,  in  the  exercise  of  the  right 
of  eminent  domain,  either  directly,  or  in- 
directly through  public  officers  or  agents, 
to  invest  the  proceedings  witli  the  forms 
or  substance  of  judicial  process.  It  may 
allow  the  owner  to  intervene  and  partici- 
pate in  the  discussion  before  the  officer 
or  board  to  whom  the  power  is  given  of 
determining  whether  the  appropriation 
shall  be  made  in  a  particular  case,  or  it 
may  provide  that  the  officers  shall  act 
upon  their  own  views  of  propriety  and 
duty,  without  the  aid  of  a  forensic  contest. 
The  appropriation  of  the  property  is  an 
act  of  public  administration,  and  the  form 
and  manner  of  its  performance  is  such  as 
the  legislature  in  its  discretion  pre- 
scribes " 

The  fact  that  a  road  company  has  pur- 
chased a  right  of  way  across  a  man's  land 
and  bargained  with  him  to  build  it,  will 
not  preclude  its  appropriating  a  right  of 
way  over  the  same  land  on  another  line. 
Cape  Girardeau,  &c.  Road  v.  Dennis,  G7 
Mo.  438;  [^Baltimore,  &c.  Ry.  Co.  v. 
P.  W.  &  K.  Ry.  Co.,  17  W.  Va.  812,  843 ; 
Railroad  Co.  v.  Blake,  9  Rich.  228.  See 
Lynch  v.  Forbes,  101  Mass.  302,  37  N.  E. 
437,  42  Am.  St.  402.] 

1  By  a  statute  of  New  York  it  was 
enacted  that  whenever  a  part  only  of  a 
lot  or  parcel  of  land  should  be  required 
for  the  purposes  of  a  city  street,  if  the 
commissioners  for  assessing  compensa- 
tion should  deem  it  expedient  to  include 
the  whole  lot  in  the  assessment,  they 
should  have  power  so  to  do  ;  and  the  part 
not  wanted  for  the  particular  street  or 
improvement  should,  upon  the  confirma- 
tion of  the  report,  become  vested  in  the 


780 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


appropriation  is  acted  upon,  and  the  property  owner  accepts  the 
compensation  awarded  to  him  under  it,  he  will  be  precluded  by 
this  implied  assent  from  afterwards  objecting  to  the  excessive 
appropriation.1  And  where  land  is  taken  for  a  public  work,  there 
is  nothing  in  the  principle  we  have  stated  which  will  preclude  the 
appropriation  of  whatever  might  be  necessary  for  incidental  con- 
veniences :  such  as  the  workshops  or  depot  buildings  of  a  railway 
company,2  or  materials  to  be  used  in  the  construction  of  their 
road,  and  so  on.  (a)  Express  legislative  power,  however,  is 
needed  for  these  purposes ;  it  will  not  follow  that,  because  such 
things  are  convenient  to  the  accomplishment  of  the  general 
object,  the  public  may  appropriate  them  without  express  author- 
ity of  law ;  but  the  power  to  appropriate  must  be  expressly  con- 


corporation,  and  might  be  appropriated 
to  public  uses,  or  sold  in  case  of  no  such 
appropriation.  Of  this  statute  it  was  said 
by  the  Supreme  Court  of  New  York :  "  If 
this  provision  was  intended  merely  to 
give  to  the  corporation  capacity  to  take 
property  under  such  circumstances  with 
the  consent  of  the  owner,  and  then  to  dis- 
pose of  the  same,  there  can  be  no  objec- 
tion to  it ;  but  if  it  is  to  be  taken  literally, 
that  the  commissioners  may,  against  the 
consent  of  the  owner,  take  the  whole  lot, 
when  only  a  part  is  required  for  public 
use,  and  the  residue  to  be  applied  to  pri- 
vate use,  it  assumes  a  power  which,  with 
all  respect,  the  legislature  did  not  possess. 
The  constitution,  by  authorizing  the  ap- 
propriation of  private  property  to  public 
use,  impliedly  declares  that  for  any  other 
use  private  property  shall  not  be  taken 
from  one  and  applied  to  the  private  use 
of  another.  It  is  in  violation  of  natural 
right ;  and  if  it  is  not  in  violation  of  the 
letter  of  the  constitution,  it  is  of  its  spirit, 
and  cannot  be  supported.  This  power 
has  been  supposed  to  be  convenient  when 
the  greater  part  of  a  lot  is  taken,  and  only 
a  small  part  left,  not  required  for  public 
use,  and  that  small  part  of  but  little  value 
in  the  hands  of  the  owner.  In  such  case 
the  corporation  has  been  supposed  best 
qualified  to  take  and  dispose  of  such  par- 
cels, or  gores,  as  they  have  sometimes 
been  called ;  and  probably  this  assump- 
tion of  power  has  been  acquiesced  in  by 
the  proprietors.  I  know  of  no  case  where 
the  power  has  been  questioned,  and  where 


it  has  received  the  deliberate  sanction  of 
this  court.  Suppose  a  case  where  only  a 
few  feet,  or  even  inches,  are  wanted,  from 
one  end  of  a  lot  to  widen  a  street,  and  a 
valuable  building  stands  upon  the  other 
end  of  such  lot ;  would  the  power  be  con- 
ceded to  exist  to  take  the  whole  lot, 
whether  the  owner  consented  or  not  ? 
The  quantity  of  the  residue  of  any  lot  can- 
not vary  the  principle.  The  owner  may 
be  very  unwilling  to  part  with  only  a  few 
feet ;  and  I  hold  it  equally  incompetent 
for  the  legislature  thus  to  dispose  of  pri- 
vate property,  whether  feet  or  acres  are 
the  subject  of  this  assumed  power."  Mat- 
ter of  Albany  St.,  11  Wend.  151,  25  Am. 
Dec.  618,  per  Savage,  Ch.  J.  To  the 
same  effect  is  Dunn  v.  City  Council,  Har- 
per, 129.  And  see  Paul  v.  Detroit,  32 
Mich.  108;  Baltimore,  &c.  K.  R.  Co.  v. 
Pittsburgh,  &c.  R.  11.  Co.,  17  W.  Va.  812. 

1  Embury  v.   Conner,    3    N.    Y.   511. 
There  is  clearly  nothing  in  constitutional 
principles  which  would  preclude  the  legis- 
lature from  providing  that  a  man's  prop- 
erty   might  be   taken   with   his   assent, 
whether    the  assent    was  evidenced    by 
deed  or  not ;  and  if  he  accepts  payment, 
he  must  be  deemed  to  assent.     See  Has- 
kell  v.  New  Bedford,  108  Mass.  208. 

2  Chicago,  B.  &  Q.  R.  R.  Co.  v.  Wil- 
son, 17  111.  123 ;  Low  v.  Galena  &  C.  U. 
R.  R.  Co.,  18  111.  324 ;  Giesy  v.  Cincin- 
nati, W.  &  Z.  R.  R.  Co.,  4  Ohio  St.  308. 
Or  extra  track  room.     Matter  of  Staten 
Island  Transit  Co.,  103  N.  Y.  251,  8  N.  E. 
548. 


(a)  £A  question  as  to  the  amount  to  be  taken  is  a  legislative  not  a  judicial  one. 
U.  S.  v.  Gettysburgh  Elec.  Ry.  Co.,  160  U.  S.  668,  16  Sup.  Ct.  Rep.  427.J 


GIT.  XV.] 


THE   EMINENT   DOMAIN. 


781 


ferred,  and  the  public  agencies  seeking  to  exercise  this  high 
prerogative  must  be  careful  to  keep  within  the  authority  dele- 
gated, since  the  public  necessity  cannot  be  held  to  extend  beyond 
what  has  been  plainly  declared  on  the  face  of  the  legislative 
enactment. 

What  constitutes  a  Taking  of  Property. 

Any  proper  exercise  of  the  powers  of  government,  which  does 
not  directly  encroach  upon  the  property  of  an  individual,  or  dis- 
turb him  in  its  possession  or  enjoyment,  will  not  entitle  him  to 
compensation,  or  give  him  a  right  of  action.1  If,  for  instance, 
the  State,  under  its  power  to  provide  and  regulate  the  public 
highways,  should  authorize  the  construction  of  a  bridge  across  a 
navigable  river,  it  is  quite  possible  that  all  proprietary  interests 
in  land  upon  the  river  might  be  injuriously  affected ;  but  such 


1  Zimmerman  v.  Union  Canal  Co.,  1 
W.  &  S.  846  ;  Shrunk  v.  Schuylkill  Navi- 
gation Co.,  14  S.  &  R.  71 ;  Monongahela 
Navigation  Co.  v.  Coons,  6  W.  &  S.  101 ; 
Davidson  v.  Boston  &  Maine  R.  R.  Co.,  3 
Cush.  91 ;  Gould  v.  Hudson  River  R.  R. 
Co.,  12  Barb.  616,  and  6  N.  Y.  522 ;  Rad- 
cliff  v.  Mayor,  &c.  of  Brooklyn,  4  N.  Y. 
195 ;  Murray  v.  Menefee,  20  Ark.  661 ; 
Hooker  v.  New  Haven  &  Northampton 
Co.,  14  Conn.  146;  People  v.  Kerr,  27 
N.  Y.  188;  Fuller  v.  Edings,  11  Rich. 
Law,  239 ;  Eddings  v.  Seabrook,  12  Rich. 
Law,  504 ;  Richardson  v.  Vermont  Cen- 
tral R.  R.  Co.,  25  Vt.  465;  Kennett's 
Petition,  24  N.  H.  139 ;  Alexander  v.  Mil- 
waukee, 16  Wis.  247 ;  Richmond,  &c.  Co. 
v.  Rogers,  1  Duvall,  135 ;  Harvey  v .  Laek- 
awanna,  &c.  R.  R.  Co.,  47  Pa.  St.  428; 
Tinicum  Fishing  Co.  v.  Carter,  61  Pa. 
St.  21;  Railroad  Co.  v.  Richmond,  96 
U.  S.  521.  The  discontinuance  of  a  high- 
way does  not  entitle  parties  incommoded 
thereby  to  compensation.  Fearing  v. 
Irwin,  65  N.  Y.  486;  fJLevee  District 
No.  9  v.  Farmer,  101  Cal.  178,  35  Pac. 
569,  23  L.  R.  A.  388.  This  is  particularly 
true  if  such  persons  are  not  abutting 
owners.  Stanwood  v.  City  of  Maiden, 
157  Mass.  17,  31  N.  E.  702,  16  L.  R.  A. 
591 ;  Glasgow  v.  City  of  St.  Louis,  107 
Mo.  198,  17  S.  W.  743.  To  the  effect 
that  vacation  of  a  street  is  a  taking,  see 
Cullen  v.  N.  Y.,  N.  H.  &  H.  R.  Ry.  Co., 
66  Conn.  211,  33  All.  910;  Pearsall  v. 
Eaton  County  Supervisors,  74  Mich.  558, 
42  N.  W.  77,  4  L.  R.  A.  193.  See  cases 


pro  and  con  cited  in  notes  to  Selden 
v.  Jacksonville,  14  L.  R.  A.  370,  and  29 
Am.  St.  278.  Many  of  which  depend 
upon  particular  statutes ;  and  Buhl  v. 
Fort  Street  Union  Depot  Co.,  98  Mich. 
696,  57  N.  VV.  829,  23  L.  R.  A.  392 ;  Dant- 
zer  v.  Indianapolis  Union  Ry.  Co.,  141 
Ind.  604,  39  N.  E.  223,  34  L.  R  A.  769.] 
Incidental  injury  to  adjoining  lot-owners 
from  constructing  a  tunnel  in  a  street  to 
pass  under  a  river  will  give  no  right  of 
action.  Transportation  Co.  v.  Chicago, 
99  U.  S.  635.  See  the  case  in  the  Cir- 
cuit Court,  7  Biss.  45.  But  a  railroad 
company  cannot  be  required  at  its  own 
expense  to  construct  and  maintain  across 
its  right  of  way  every  new  highway 
which  may  be  laid  out  over  it.  That 
would  be  a  taking  without  just  compen- 
sation. People  »'.  Lake  Shore,  &c.  Ry. 
Co.,  52  Mich.  277,  17  N.  W.  841 ;  Chicago 
&  G.  T.  Ry.  Co.  v.  Hough,  61  Mich.  507, 
28  N.  W.  632.  [JStatute  requiring  exist- 
ing railway  companies  to  build  farm 
crossings,  their  roads  having  been  built 
when  the  statute  did  not  require  it,  is 
unconstitutional.  If  such  crossings  are 
considered  as  for  public  use,  it  is  tak- 
ing without  compensation.  People  v. 
D.  G.  H.  &  M.  Ry.  Co.,  79  Mich.  471,  44 
N.  W.  934,  7  L.  R.  A.  717.  The  State  or 
its  grantees  may  construct  wharves  upon 
its  lands  under  navigable  waters  without 
compensation  to  riparian  owners  for  in- 
juries resulting.  Eisenbach  v.  Hatfield, 
2  Wash.  236,  26  Pac.  639,  12  L.  R.  A. 
632.] 


782 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


injury  could  no  more  give  a  valid  claim  against  the  State  for  dam- 
ages, than  could  any  change  in  the  general  laws  of  the  State, 
which,  while  keeping  in  view  the  general  good,  might  injuriously 
affect  particular  interests.1  So  if  by  the  erection  of  a  dam  in 
order  to  improve  navigation  the  owner  of  a  fishery  finds  it  dimin- 
ished in  value,2  or  if  by  deepening  the  channel  of  a  river  to  im- 


1  Davidson  v.  Boston  &  Maine  R.  R. 
Co.,  3  Cusli.  91;   Transportation  Co.  v. 
Chicago,  99  U.  S.  635. 

2  Shrunk  v.  Schuylkill  Navigation  Co., 
14  S.  &  R.  71.     In  Green  v.  Swift,  47  Cal. 
636,  and  Green  v.  State,  73  Cal.  29,  11 

,•      Pac.  602,   14  Pac.   610,  it   is   held   that 
where  one  finds  his  land  injured  in  con- 
sequence of  a  change  in  the  current  of  a 
river,  caused  by  straightening  it,  he  can- 
not claim  compensation  as  of  right.     £A 
riparian  proprietor  is  entitled  to  compen- 
sation for  land  taken  for  public  dam,  for 
overflow  of  his  lands,  and  diversion  of 
water    by    reason    thereof.      Kaukauna 
W.  P.  Co.  v.  Green  Bay  &  M.  C.  Co.,  142 
U.  S.  254,  12  Sup.  Ct.   Rep.  173.    But 
not,  it   seems,   for  injury  from  washing 
away  soil  of  banks  through  reasonable 
increase  of  flow  of  water  at  times,  caused 
by  a  dam  authorized  by  the  legislature. 
Brooks  v.  Cedar  Brook  &  S.  C.  R.  I.  Co., 
82  Me.   17,  19  Atl.  87,  7  L.  R.  A.  460; 
nor  for  injuries  to  rice  fields  by  construc- 
tion of  harbor  improvements  in  a  navi- 
gable stream.     Mills  v.  United  States,  46 
Fed.  Rep.  738,  12  L.  R.  A.  673;  Farist 
Steel  Co.  v.  City  of  Bridgeport,  60  Conn. 
278,  22  Atl.  561,  13  L.  R.  A.  590;  Rum- 
sey  v.  N.  Y.  &c.  Ry.  Co.,  133  N.  Y.  79,  30 
N.  E.  654,  28  Am.  St.  600.     The  construc- 
tion by  tlie  United  States  of  a  pier  in  a 
navigable  river  under  authority  of  Con- 
gress for  the  improvement  of  navigation 
gives  an  owner  of  lands  bordering  on  the 
river  no   right  to  compensation  though 
his  access  to  navigable  water  be  cut  off. 
Scranton  v.  Wheeler,  113  Mich.  565,  71  N. 
W.  1091,  aff.  179  U.  S.  141,  21  Sup.  Ct. 
Rep.  48.     Same    doctrine,  Sage  v.  New 
York,  154  N.  Y.  61,  47  N.  E.  1096,  61  Am. 
,St.  592,  38  L.  R.  A.  606.    A  riparian  owner 
on  navigable  water  owns  to  high-water 
mark,  which  is  that  line  below  which  the 
lands  are  so  frequently  flowed  that  they 
are  not  productive  as  agricultural  lands, 
and  the  State  cannot,  even  in  aid  of  public 
navigation,  by  artificial  means  maintain 
such  waters  above  high-water  mark  to 


the  injury  of  riparian  owners.  In  re 
Minnetonka  Lake  Improvement,  56  Minn. 
513,  58  N.  W.  295,  45  Am.  St.  494.  Below 
high-water  mark  the  State  has  full  au- 
thority and  right  on  navigable  waters  to 
do  whatsoever  it  pleases  in  aid  of  public 
navigation,  and  any  injury  resulting  inci- 
dentally to  the  riparian  owner  is  damnum 
absque  injuria.  In  re  Minnetonka  Lake 
Improvement,  supra.  Right  in  lands 
flowed  under  exercise  of  right  of  eminent 
domain  is  more  than  a  mere  easement.  It 
includes  the  right  of  exclusive  occupation, 
and  carries  right  to  cut  ice  which  forms 
on  the  water.  Wright  v.  Woodcock,  86 
Me.  113,  29  Atl.  953,  24  L.  R.  A.  499. 
See  also,  on  general  subject  of  taking 
riparian  interests  in  lands,  Patten  Paper 
Co.  Ltd.  v.  Kaukauna  Water  Power  Co., 
90  Wis.  370,  61  N.  W.  1121,  63  N.  W. 
1019,  28  L.  R.  A.  443;  Priew  v.  Wiscon- 
sin State  Land  &  Imp.  Co.,  93  Wis.  534, 
67  N.  W.  918,  33  L.  R.  A.  645;  Carlson 
v.  St.  Louis  Kiver  D.  &  I.  Co.,  73  Minn. 
128,  75  N.  W.  1044,  72  Am.  St.  610,  41 
L.  R.  A.  371 ;  Platt  Bros.  &  Co.  v.  Water- 
bury,  72  Conn.  531,  45  Atl.  154,  48  L.  R. 
A.  691 ;  Valparaiso  v.  Hagen,  153  Ind. 
337,  54  N.  E.  1062,  48  L.  R.  A.  707. 
These  last  two  cases  are  opposed  to  each 
other  on  the  question  of  whether  a  ripa- 
rian owner  is  entitled  to  compensation 
for  the  casting  of  the  sewage  of  a  city 
upon  his  lands  to  their  injury.  The  Con- 
necticut case  finds  support  in  Smith  v. 
Sedalia,  152  Mo.  283,  53  S.  W.  907,  48 
L.  R.  A.  711,  and  in  Grey  ex  rel.  Simmons 
v.  Paterson,  —  N.  J.  — ,  45  Atl.  995.  The 
retention  of  surface  water  on  lot  in 
city,  caused  by  change  of  grade  in  street, 
is  not  a  taking  in  violation  of  constitution. 
Jordan  v.  Ben  wood,  42  W.  Va.  312,  26 
S.  E.  266,  57  Am.  St.  859,  36  L.  R.  A. 
519.  In  Maine  and  Massachusetts  where 
the  "  great  ponds "  belong  to  the  State, 
the  taking  of  a  reasonable  quantity  of 
water  by  authority  of  the  State  is  not  a 
"  taking"  as  against  a  mill  owner  with  a 
water  power  on  the  outlet.  Auburn  v. 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


783 


prove  the  navigation  a  spring  is  destroyed,1  or  by  a  change  in  the 
grade  of  a  city  street  the  value  of  adjacent  lots  is  diminished,2  — 


Union  Water  Power  Co.,  90  Me.  676,  38 
All.  561,  38  L.  R.  A.  188.  The  diversion 
of  water  from  its  natural  course  in  which 
it  serves  as  motive  power  for  a  mill  is  in 
Michigan  unlawful,  and  will  be  enjoined 
where  such  diversion  is  for  drainage  pur- 
poses only.  Stock  v.  Jefferson,  114  Mich. 
357,  72  N.  W.  132,  38  L.  R.  A.  356J 

1  Commonwealth  v.  Richter,  1  Pa.  St. 
467.  But  in  Winklemans  v.  Des  Moines, 
&c.  Ry.  Co.,  62  Iowa,  11,  17  N.  W.  82, 
the  value  of  a  spring  destroyed  in  rail- 
road construction  is  held  recoverable. 
^Incidental  draining  of  a  well  through 
construction  of  a  public  work  is  a  "  direct 
injuring  "of  property  within  the  meaning 
of  that  term  in  a  statute  authorizing  the 
construction.  United  States  o.  Alexan- 
der, 148  U.  S.  186,  13  Sup.  Ct.  Rep.  529.] 
It  is  justly  said  by  Mr.  Justice  Miller,  in 
Pumpelly  v.  The  Green  Bay,  &c.  Co.,  13 
Wall.  166,  180,  that  the  decisions  "  that 
for  the  consequential  injury  to  the  prop- 
erty of  an  individual  from  the  prosecution 
of  improvement  of  roads,  streets,  rivers, 
and  other  highways  for  the  public  good, 
there  is  no  redress,"  "  have  gone  to  the 
extreme  and  limit  of  sound  judicial  con- 
struction in  favor  of  this  principle,  and  in 
some  cases  beyond  it ;  and  it  remains 
true  that  where  real  estate  is  actually 
invaded  by  superinduced  additions  of 
water,  earth,  sand,  or  other  material,  or 
by  having  any  artificial  structure  placed 
on  it,  so  as  effectually  to  destroy  or  im- 
pair its  usefulness,  it  is  a  taking  within 
the  meaning  of  the  Constitution."  See 
also  Arimond  v.  Green  Bay,  &c.  Co.,  81 
Wis.  316 ;  Aurora  r.  Reed,  67  III.  29,  1 1 
Am.  Rep.  1.  This  whole  subject  is  most 
elaborately  considered  by  Smith,  J.,  in 
Eaton  v.  Boston,  C.  &  M.  R.  R.  Co.,  61 
N.  H.  504.  It  was  decided  in  that  case 
that,  notwithstanding  a  party  had  re- 
ceived compensation  for  the  taking  of 
his  land  for  a  railroad,  he  was  entitled 
to  a  further  remedy  at  the  common  law 
for  the  flooding  of  his  land  in  conse- 
quence of  the  road  being  cut  through  a 
ridge  on 'the  land  of  another;  and  that 
this  flooding  was  a  taking  of  his  property 
within  the  meaning  of  the  constitution. 
The  cases  to  the  contrary  are  all  consid- 
ered by  the  learned  judge,  who  is  able 


to  adduce  very  forcible  reasons  for  his 
conclusions.  QA  change  in  the  plan  of 
construction  of  a  railway  after  condem- 
nation may  entitle  the  owner  of  lands 
condemned  to  additional  compensation. 
Wabash,  St.  L.  &  P.  R.  Co.  v.  McDougall, 
126  111.  Ill,  18  N.  E.  291,  1  L.  R.  A.  207. 
The  conversion  of  a  public  way  into  a 
pleasure  driveway,  and  excluding  loaded 
vehicles  from  it,  is  not,  as  against  per- 
sons desiring  to  use  it  with  such  vehicles, 
a  taking  of  their  property  for  public  use 
without  compensation.  Cicero  Lumber 
Co.  v.  Cicero,  176  III.  9,  61  N.  E.  768,  68 
Am.  St.  155,  42  L.  R.  A.  696J  Compare 
Aldrich  v.  Cheshire  R.  R.  Co.,  21  N.  H. 
859;  West  Branch,  &c.  Canal  Co.  v. 
Mulliner,  68  Pa.  St.  857 ;  Bellinger  v. 
N.  Y.  Central  R.  R.  Co.,  23  N.  Y.  42; 
Hatch  v.  Vt.  Central  R.  R.  Co.,  25  Vt. 
49 ;  and  cases,  ante,  p.  767. 

2  British  Plate  Manufacturing  Co.  v. 
Meredith,  4  T.  R.  794 ;  Matter  of  Furman 
Street,  17  Wend.  649  ;  Radcliff' s  Ex'rs  v. 
Mayor,  &c.  of  Brooklyn,  4  N.  Y.  195; 
Graves* v.  Otis,  2  Hill,  466;  Wilson  v. 
Mayor,  &c.  of  New  York,  1  Denio,  695 ; 
Murphy  v .  Chicago,  29  111.  279 ;  Roberta 
v.  Chicago,  26  III.  249  ;  Charlton  v.  Alle- 
ghany  City,  1  Grant,  208  ;  La  Fayette  i\ 
Bush,  19  Ind.  326 ;  Macy  v.  Indianapolis, 
17  Ind.  267;  Vincennes  v.  Richards,  23 
Ind.  381 ;  Green  v.  Reading,  9  Watts, 
382 ;  O'Conner  v.  Pittsburg,  18  Pa.  St. 
187 ;  In  re  Ridge  Street,  29  Pa.  St.  391 ; 
Callendar  v.  Marsh,  1  Pi<jk.  418 ;  Creal 
v.  Keokuk,  4  Greene  (Iowa),  47;  Smith 
v.  Washington,  20  How.  13-3;  Skinner  v. 
Hartford  Bridge  Co.,  29  Conn.  523 ;  Ben- 
den  r.  Nashua,  17  N.  H.  477;  Pontiac  v. 
Carter,  32  Mich.  164 ;  Goszler  v.  George- 
town, 6  Wheat.  693;  Stewart  v.  Clinton, 
79  Mo.  603;  Kehrer  v.  Richmond,  81  Va. 
745;  Meth.  Epis.  Church  r.  Wyandotte, 

31  Kan.  721,  3  Pac.  527.     See  cases,  ante, 
p.  296,  and  Conklin  v.  New  York,  &c.  Ry. 
Co.,  102  N.  Y.  107,  6  N.  E.  663 ;  Uline  ». 
New  York,  &c.  R.  R.  Co.,  101  N.  Y.  98, 
4  N.  E.  636;  Henderson  v.  Minneapolis, 

32  Minn.  319,  20  N.  W.  322;  £Selden  v. 
City  of  Jacksonville,  28  Fla.  658,  10  So. 
457,  29  Am.  St.  278  and  note,  14  L.  R.  A. 
370.     It  seems  that  where  the  constitu- 
tion contains  a  provision  requiring  com- 


784 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


in  these  and  similar  cases  the  law  affords  no  redress  for  the 
injury.  So  if  in  consequence  of  the  construction  of  a  public 
work  an  injury  occurs,  but  the  work  was  constructed  on  proper 
plan  and  without  negligence,  and  the  injury  is  caused  by  acci- 
dental and  extraordinary  circumstances,  the  injured  party  cannot 
demand  compensation.1 


pensation  for  property  "  damaged  "  for 
public  use,  that  a  change  of  grade,  result- 
ing in  damage,  gives  an  action.  Rauen- 
stein  v.  N.  Y.  L.  &  W.  Ry.  Co.,  136  N.  Y. 
638,  32  N.  E.  1074,  18  L.  R.  A.  768; 
O'Brien  v.  Philadelphia,  150  Pa.  589,  24 
All.  1047,  30  Am.  St.  832,  and  note,  pp. 
835  et  seq. ;  Henderson  v.  McClain,  102 
Ky.  402,  43  S.  \V.  700,  39  L.  R.  A.  349; 
Searle  v.  City  of  Lead,  10  S.  D.  312,  405, 
73  N.  W.  101,  913,  39  L.  R.  A.  345; 
Pueblo  v.  Strait,  20  Col.  13,  36  Pac.  789, 
46  Am.  St.  273,  24  L.  R.  A.  392 ;  Dicker- 
man  v.  Duluth,  —  Minn.  — ,  92  N.  W. 
1119;  Brown  v.  City  of  Seattle,  5  Wash. 
35,  31  Pac.  313,  32  Pac.  214,  18  L.  R.  A. 
161.  Though  property  does  not  abut  on 
the  street  but  on  an  alley  opening  into  it. 
Id.  There  is  no  taking  as  against  abut- 
ting owner  where  a  railway  company 
constructs  in  a  public  way  a  stone  abut- 
ment nine  feet  high  which  reduces  the 
width  in  front  of  his  premises  to  ten  feet, 
interfering  with  access  of  light  and  air, 
and  almost  destroying  access  to  the  abut- 
ting property.  Garrett  v.  Lake  Roland 
Elevated  R.  Co.,  79  Md.  277,  29  All.  830, 
24  L.  R.  A.  396.  Similar  cases  are  Willis 
v.  Winona,  59  Minn.  27,  60  N.  W.  814,  26 
L.  R.  A.  142 ;  Home  Building  &  C.  Co.  v. 
City  of  Roanoke,  91  Va.  62,  20  S.  E.  895, 
27  L.  R.  A.  651.  But  see  Field  v.  Bar- 
ling, 149  111.  556, 37  N.  E.  850,  24  L.  R.  A. 
406,  where  it  is  held  that  an  overhead 
bridge  across  an  alley  which  obstructs 
access  of  light  and  air  to  abutting  pro- 
perty is  such  an  injury  as  must  be  com- 
pensated for  though  the  city  owns  the 
alley  and  authorized  the  bridge.  A  sim- 
ilar conclusion  was  reached  in  Willam- 
ette Iron  Works  v.  Oregon  R.  &  N.  Co., 
26  Oreg.  224,  37  Pac.  1016,  29  L.  R.  A. 
88,  which  involved  a  railway  bridge  ap- 
proach in  a  public  street.  It  is  a  taking 
against  the  constitutional  inhibition  to 
require  abutting  owners  in  New  Ham- 
shire  to  keep  sidewalks  free  from  snow 
and  ice.  State  v.  Jackman,  69  N.  H.  318, 
41  Atl.  347,  42  L.  R.  A.  438/]  Com- 


pare cases,  post,  p.  812,  note.  The  cases 
of  McComb  v.  Akron,  16  Ohio,  474,  18 
Ohio,  229,  and  Crawford  v.  Delaware,  7 
Ohio  St.  459,  are  contra.  Those  cases, 
however,  admit  that  a  party  whose  inter- 
ests are  injured  by  the  original  establish- 
ment of  a  street  grade  can  have  no  claim 
to  compensation ;  but  they  hold  that 
when  the  grade  is  once  established,  and 
lots  are  improved  in  reference  to  it,  the 
corporation  has  no  right  to  change  the 
grade  afterwards,  except  on  payment  of 
the  damages.  And  see  Johnson  v.  Par- 
kersburg,  16  W.  Va.  402,  37  Am.  Rep. 
779.  That  if  the  lateral  support  to  his 
land  is  removed  by  grading  a  street  the 
owner  is  entitled  to  compensation,  see 
O'Brien  v.  St.  Paul,  25  Minn.  331 ;  Bus- 
kirk  p.  Strickland,  47  Mich.  389, 11  N.  W. 
210.  rjParke  v.  City  of  Seattle,  5  Wash. 
1,  31  Pac.  310,  32  Pac.  82, 20  L.  R.  A.  68  ] 
1  As  in  Sprague  v.  Worcester,  13  Gray, 
193,  where,  in  consequence  of  the  erec- 
tion of  a  bridge  over  a  stream  on  which 
a  mill  was  situated,  the  mill  was  injured 
by  an  extraordinary  rise  in  the  stream ; 
the  bridge,  however,  being  in  all  respects 
properly  constructed.  fJThe  destruction 
of  oysters  by  turning  the  sewage  of  a 
city  upon  their  beds  is  a  taking,  requiring 
compensation.  Huffmire  v.  Brooklyn, 
162  N.  Y.  584,  57  N.  E.  176,  48  L.  R.  A. 
421.]  In  Hamilton  v.  Vicksburg,  &c. 
R.  R.  Co.,  119  U.  S.  280,  7  Sup.  Ct.  Rep. 
206,  the  obstruction  of  a  navigable  stream 
by  unavoidable  delay  in  rebuilding  a  law- 
ful bridge  was  held  not  actionable.  And 
see  Brown  v.  Cayuga,  &c.  R.  R.  Co.,  12 
N.  Y.  486,  where  bridge  proprietors  were 
held  liable  for  similar  injuries  on  the 
ground  of  negligence.  And  compare 
Norris  v.  Vt.  Central  R.  R.  Co.,  28  Vt.  99, 
with  Mellen  v.  Western  R.  R.  Corp., 
4  Gray,  301.  And  see  note  on  preceding 
page.  The  inconvenience  from  smoke 
and  jar  caused  by  the  careful  construc- 
tion and  operation  of  a  railroad  near 
property  is  not  actionable.  Carroll  v. 
Wis.  Cent.  R.  R.  Co.,  40  Minn.  168,  41 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


785 


This  principle  is  peculiarly  applicable  to  those  cases  where 
property  is  appropriated  under  the  right  of  eminent  domain.  It 
must  frequently  occur  that  a  party  will  find  his  rights  seriously 
affected,  though  no  property  to  which  he  has  lawful  claim  is 
actually  appropriated.  As  where  a  road  is  laid  out  along  the  line 
of  a  man's  land  without  taking  any  portion  of  it,  in  consequence 
of  which  he  is  compelled  to  keep  up  the  whole  of  what  before  was 
a  partition  fence,  one  half  of  which  his  neighbor  was  required  to 
support.1  No  property  being  taken  in  this  case,  the  partv  has  no 
relief  unless  the  statute  shall  give  it.  The  loss  is  damnum 
absque  im'uria.  So  a  turnpike  company,  whose  profits  will  be 
diminished  by  the  construction  of  a  railroad  along  the  same  gen- 
eral line  of  travel,  is  not  entitled  to  compensation.2  So  where  a 
railroad  company,  in  constructing  their  road  in  a  proper  manner 
on  their  own  land,  raised  a  high  embankment  near  to  and  in 
front  of  the  plaintiff's  house,  so  as  to  prevent  his  passing  to  and 
from  the  same  with  the  same  convenience  as  before,  this  conse- 
quential inquiry  was  held  to  give  no  claim  to  compensation.8  So 


N.  W.  661 ;  Beseman  v.  Pa.  R.  R.  Co.,  50 
N.  J.  L.  235,  13  Atl.  164.  Compare  Bal- 
timore &  0.  R.  R.  Co.  v.  Fifth  Bapt.  Ch., 
108  U.  S.  317,  2  Sup.  Ct.  Rep.  719;  Cogs- 
well v.  New  York,  &c.  R.  R.  Co.,  103 
N.  Y.  10,  8  N.  E.  537. 

1  Kennett's  Petition,  4  Fost.  139.  See 
Eddings  v.  Seabrook,  12  Rich.  Law,  504; 
Slatten  v.  Des  Moines  Valley  R.  R.  Co., 
29  Iowa,  148 ;  Hoag  v.  Switzer,  61  111.  294. 
Qlf  construction  of  railway  along  opposite 
side  of  highway  causes  depreciation  of 
lands,  the  owner  is  entitled  to  compensa- 
tion for  such  depreciation  as  is  occasioned 
by  causes  not  affecting  the  public  gen- 
erally. Lake  Erie  &  Western  Ry.  Co.  v. 
Scott,  132  111.  429,  24  N.  E.  78,  8  L.  R.  A. 
330-3  Merely  crossing  a  railroad  by  an- 
other track  is  not  a  taking  of  property. 
Lehigh  V.  R.  R.  Co.  v.  Dover,  &c.  R.  R. 
Co.,  43  N.  J.  528.  But  this  cannot  be 
universally  true.  See  Lake  Shore,  &c. 
R.  R.  Co.  v.  Chicago,  &c.  R.  R.  Co.,  100 
111.  21.  Damage  for  the  resulting  incon- 
venience may  be  allowed  as  well  as  for 
maintaining  the  crossing.  Chicago  &  W. 
I.  R.  R.  Co.  v.  Englewood,  &c.  Ry.  Co., 
115111.  375,  4  N.  E.  246. 

a  Troy  &  Boston  R.  R.  Co.  v.  North- 
ern Turnpike  Co.,  16  Barb.  100.  See  La 
Fayette  Plank  Road  Co.  v.  New  Albany 
&  Salem  R.  R.  Co.,  13  Ind.  90;  Rich- 
mond, &c.  Co.  v.  Rogers,  1  Duvall,  135. 


So  an  increased  competition  with  a  party's 
business  caused  by  the  construction  or 
extension  of  a  road  is  not  a  ground  of 
claim.  Harvey  v.  Lackawanna,  &c.  R. 
R.  Co.,  47  Pa.  St.  428.  "  Every  great 
public  improvement  must,  almost  of  ne- 
cessity, more  or  less  affect  individual  con- 
venience and  property ;  and  where  the 
injury  sustained  is  remote  and  consequen- 
tial, it  is  damnum  absque  injuria,  and  is  to 
be  borne  as  a  part  of  the  price  to  be  paid 
for  the  advantages  of  the  social  condition. 
This  is  founded  upon  the  principle  that 
the  general  good  is  to  prevail  over  par- 
tial individual  convenience."  Lansing  v. 
Smith,  8  Cow.  146,  149. 

3  Richardson  v.  Vermont  Central  R.  R. 
Co.,  25  Vt.  465.  But  qucere  if  this  could 
be  so,  if  the  effect  were  to  prevent  access 
from  the  lot  to  the  highway.  In  certain 
Indiana  cases  it  is  said  that  the  right  of 
the  owner  of  adjoining  land  to  the  use  of 
the  highway  is  as  much  property  as  the 
land  itself;  that  it  is  appurtenant  to  the 
land,  and  is  protected  by  the  constitution. 
Haynes  v.  Thomas,  7  Ind.  38 ;  Protzman 
v.  Indianapolis,  &c.  R.  R.  Co.,  9  Ind.  467 ; 
New  Albany  &  Salem  R.  R.  Co.  v. 
O'Daily,  13  Ind.  453.  The  same  doc- 
trine is  recognized  in  Crawford  v.  Dela- 
ware, 7  Ohio  St.  459 ;  Street  Railway  v. 
Cumminsville,  14  Ohio  St.  523 ;  Schneider 
v.  Detroit;  72  Mich.  240,  40  N.  W.  329; 


50 


786 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XY. 


the  owner  of  dams  erected  by  legislative  authority  is  without 
remedy,  if  they  are  afterwards  rendered  valueless  by  the  construc- 
tion of  a  canal.1  And  in  New  York  it  has  been  held  that,  as  the 
land  where  the  tide  ebbs  and  flows,  between  high  and  low  water 
mark,  belongs  to  the  public,  the  State  may  lawfully  authorize  a 
railroad  company  to  construct  their  road  along  the  water  front 
below  high-water  mark,  and  the  owner  of  the  adjacent  bank  can 
claim  no  compensation  for  the  consequential  injury  to  his  inter- 
ests.2 So  the  granting  of  a  ferry  right  with  a  landing  on  private 


Columbus  &  W.  Ry.  Co.  v.  Witherow,  82 
Ala.  190,  3  So.  23;  Shealy  v.  Chicago, 
&c.  Ry.  Co.,  72  Wis.  471,  40  N.  W.  145. 
See  also  Indianapolis  R.  R.  Co.  v.  Smith, 
52  Ind.  428 ;  Terre  Haute  &  L.  R.  R.  Co. 
v.  Bissell,  108  Ind.  113,  9  N.  E.  144;  In- 
diana, B.  &  W.  Ry.  Co.  v.  Eberle,  110 
Ind.  542, 11  N.  E.  467;  Pekin  t;.  Brereton, 
67  111.  477 ;  Pekin  v.  Winkel,  77  111.  56 ; 
Grand  Rapids,  &c.  R.  R.  Co.  v.  Heisel,  38 
Mich.  62,  31  Am.  Rep.  306.  In  the  Ver- 
mont case  above  cited  it  was  held  that  an 
excavation  by  the  company  on  their  own 
land,  so  near  the  line  of  the  plaintiff's 
that  his  land,  without  any  artificial  weight 
thereon,  slid  into  the  excavation,  would 
render  the  company  liable  for  the  injury  ; 
the  plaintiff  being  entitled  to  the  lateral 
support  for  his  land.  But  if  to  bridge  a 
cut  made  by  a  railroad  in  crossing  a  street 
the  grade  in  front  of  a  lot  is  raised,  it  is 
held  not  a  taking  for  a  new  use,  though 
access  to  the  lot  is  cut  off.  Henderson  v. 
Minneapolis,  32  Minn.  319,  20  N.  W.  322; 
Conklin  v.  New  York,  &c.  Ry.  Co.,  102 
N.  Y.  107,  6  N.  E.  663.  The  same  prin- 
ciple is  followed  in  Uline  v.  New  York, 
&c.  R.  R.  Co.,  101  N.  Y.  98,  4  N.  E.  536. 
1  Susquehanna  Canal  Co.  v.  Wright, 
9  W.  &  S.  9 ;  Monongahela  Navigation 
Co.  v.  Coons,  6  W.  &  S.  101.  £But  see 
Lee  v.  Pembroke  Iron  Co.,  57  Me.  481, 
2  Am.  Rep.  59 ;  Trenton  Water  Power 
Co.  v.  Roff,  36  N.  J.  L.  343;  Red 
River  Bridge  Co.  v.  Clarksville,  1  Sneed, 
176,  60  Am.  Dec.  143.]  In  any  case,  if 
parties  exercising  the  right  of  eminent 
domain  shall  cause  injury  to  others  by 
a  negligent  or  improper  construction  of 
their  work,  they  may  be  liable  in  dam- 
ages. Rowe  v.  Granite  Bridge  Corpora- 
tion, 21  Pick.  348  ;  Sprague  v.  Worcester, 
13  Gray,  193.  And  if  a  public  work  is  of 
a  character  to  necessarily  disturb  the  oc- 
cupation and  enjoyment  of  his  estate  by 


one  whose  land  is  not  taken,  he  may 
have  an  action  on  the  case  for  the  injury, 
notwithstanding  the  statute  makes  no 
provision  for  compensation.  As  where 
the  necessary,  and  not  simply  the  acci- 
dental, consequence  was  to  flood  a  man's 
premises  with  water,  thereby  greatly  di- 
minishing their  value.  Hooker  v.  New 
Haven  &  Northampton  Co.,  14  Conn. 
146,  15  Conn.  312;  Evansville,  &c.  R.  R. 
Co.  v.  Dick,  9  Ind.  433  ;  Robinson  v.  N.  Y. 
&  Erie  R.  R.  Co.,  27  Barb.  512 ;  Trustees 
of  Wabash  &  Erie  Canal  v.  Spears,  16 
Ind.  441 ;  Eaton  v.  Boston,  C.  &  M.  R.  R. 
Co.,  51  N.  H.  504  ;  Ashley  v.  Port  Huron, 
35  Mich.  296.  So,  where,  by  blasting 
rock  in  making  an  excavation,  the  frag- 
ments are  thrown  upon  adjacent  build- 
ings so  as  to  render  their  occupation 
unsafe.  Hay  v.  Cohoes  Co.,  2  N.  Y.  159  ; 
Trgmain  v.  Same,  2  N.  Y.  163 ;  Carman 
v.  Steubenville  &  Indiana  R.  R.  Co., 
4  Ohio  St.  399  ;  Sunbury  &  Erie  R.  R. 
Co.  v.  Hummel,  27  Pa.  St.  99;  George- 
town, &c.  R.  R.  Co.  v.  Eagles,  9  Col.  544, 
13  Pac.  696.  See  Mairs  v.  Manhattan, 
&c.  Ass.,  89  N.  Y.  498.  There  has  been 
some  disposition  to  hold  private  cor- 
porations liable  for  all  incidental  damages 
caused  by  their  exercise  of  the  right  of 
eminent  domain.  See  Tinsman  v.  Belvi- 
dere  &  Delaware  R.  R.  Co.,  26  N.  J.  148; 
Alexander  v.  Milwaukee,  16  Wis.  247. 
[[Opening  of  street  adjacent  to  one's 
property,  thus  bounding  it  by  streets  on 
three  sides  and  diminishing  its  value  by 
rendering  it  unsightly  to  the  public  and 
destroying  its  privacy,  is  not  a  "  taking  " 
or  "damaging"  under  the  constitution. 
Peel  v.  City  of  Atlanta,  85  Ga.  138,  11 
S.  E.  582,  8  L.  R.  A.  787.] 

2  Gould  v.  Hudson  River  R.  R.  Co.,  6 
N.  Y.  522.  And  see  Stevens  w.  Paterson, 
&c.  R.  R.  Co.,  34  N.  J.  532;  Tomlin  v. 
Dubuque,  &c.  R.  R.  Co.,  32  Iowa,  100, 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


787 


property  within  a  highway  terminating  on  a  private  stream  is  not 
an  appropriation  of  property,1  the  ferry  being  a  mere  continuation 
of  the  highway,  and  the  landing  place  upon  the  private  property 
having  previously  been  appropriated  to  public  uses. 

These  cases  must  suffice  as  illustrations  of  the  principle  stated, 
though  many  others  might  be  referred  to.  On  the  other  hand, 
any  injury  to  the  property  of  an  individual  which  deprives  the 
owner  of  the  ordinary  use  of  it,  is  equivalent  to  a  taking,  and 
entitles  him  to  compensation.2  Water  front  on  a  stream  where 


7  Am.  Rep.  176;  [jScranton  v.  Wheeler, 
113  Mich.  565,  71  N.  W.  1091,  aff.  179 
U.  S.  141,  21  Sup.  Ct.  Rep.  48;  Sage 
v.  New  York  City,  154  N.  Y.  61,  47  N.  E. 
1096,  61  Am.  St.  592,  38  L.  R.  A.  606.] 
So  far  as  these  cases  hold  it  competent  to 
cut  off  a  riparian  proprietor  from  access 
to  the  navigable  water,  they  seem  to  us  to 
justify  an  appropriation  of  his  property 
without  compensation ;  for  even  those 
courts  which  hold  the  fee  in  the  soil  under 
navigable  waters  to  be  in  the  State  admit 
valuable  riparian  rights  in  the  adjacent 
proprietor.  See  Yates  v.  Milwaukee,  10 
Wall.  497 ;  Chicago,  &c.  R.R.  Co.  v.  Stein, 
75  111.  41.  Compare  Pennsylvania  R.  R. 
Co.  v.  New  York,  &c.  R.  R.  Co.,  23 
N.  J.  Eq.  157.  In  the  case  of  Railway 
Co.  v.  Renwick,  102  U.  S.  180,  it  is  de- 
cided expressly  that  the  land  under  the 
water  in  front  of  a  riparian  proprietor  and 
beyond  the  line  of  private  ownership, 
cannot  be  taken  and  appropriated  to  a 
public  purpose  without  making  compen- 
sation to  the  riparian  proprietor.  This  is 
a  very  sensible  and  just  decision.  See,  in 
the  same  line,  Langdbn  v.  Mayor,  93 
N.  Y.  129;  Kingsland  v.  Mayor,  110  N.  Y. 
569,  18  N.  E.  435. 

1  Murray   v.   Menefee,   20   Ark.   561. 
Compare    Prosser    v.    Wapello    County, 
18  Iowa,  327. 

2  Hooker    v.    New   Haven    &   North- 
ampton Co.,  14  Conn.  146;  Pumpelly  v. 
Green  Bay,  &c.  Co.,  13  Wall.  166 ;  Ari- 
mond  v.  Green  Bay,  &c.  Co.,  31  Wis.  316; 
Ashley   v.   Port    Huron,   35   Mich.   296. 
£Any  restriction  or  interruption  of  the 
common   or  necessary  use   of   property 
that  destroys  its  value,  or  strips  it  of  its 
attributes,  or  to  say  that  the  owner  shall 
not  use  his  property  as  he  pleases,  takes  it 
'in  violation  of  a  constitutional  provision 
forbidding  the  taking  of  private  property 
for  public    use    without   compensation. 


City  of  Janesville  v.  Carpenter,  77  Wis. 
288,  46  N.  W.  128,  20  Am.  St.  123.3  The 
flowing  of  private  lands  by  the  operations 
of  a  booming  company  is  a  taking  of 
property.  Grand  Rapids  Booming  Co.  v. 
Jarvis,  30  Mich.  308 ;  Weaver  c.  Missis- 
sippi, &c.  Co.,  28  Minn.  534,  11  N.  W. 
114.  And  see  cases,  p.  786,  note  1.  The 
legislature  cannot  authorize  a  telegraph 
company  to  erect  its  poles  on  the  lands 
of  a  railroad  company  without  compensa- 
tion. Atlantic,  &c.  Telegraph  Co.  v. 
Chicago,  &c.  R.  R.  Co.,  6  BUs.  158.  £A 
railway  company  cannot  give  authority 
to  a  telegraph  or  telephone  company  to 
construct  a  line  of  telegraph  or  telephone 
along  its  right  of  way  as  against  the 
adjoining  proprietor  whose  lands  have 
been  condemned  for  railway  purposes 
only.  American  T.  &  T.  Co.  v.  Smith, 
71  Md.  535,  18  All.  910,  7  L.  R.  A.  200. 
Contra,  if  constructed  in  good  faith  for 
the  use  and  benefit  of  the  railway  in  the 
carrying  on  of  its  railway  business.  7rf.] 
The  erection  of  telephone,  telegraph,  and 
electric  wire  poles  on  a  highway  is  a  new 
use  of  it.  Board  of  Trade  Tel.  Co.  v. 
Barnett,  107  111.  507 ;  Metr.  Tel.  &c.,  Co. 
v.  Col  well  Lead  Co.,  67  How.  Pr.  365; 
Tiffany  v.  U.  S.  Ilium.  Co.,  Id.  73 ;  [^West- 
ern Union  Telegraph  Co.  v.  Williams,  86 
Va.  696,  11  S.  E.  106,  8  L.  R.  A.  429.] 
Contra,  Pierce  v.  Drew,  136  Mass  75 ; 
Julia  B'ld'g  Ass.  v.  Bell  Tel.  Co  ,  88  Mo. 
258.  A  statute  cannot  compel  a  railroad 
company  to  allow  any  one  upon  payment 
of  one  dollar  to  erect  a  grain  elevator 
upon  its  station  grounds.  State  v. 
Chicago,  &c.  Ry.  Co.,  36  Minn.  402,  31 
N.  W.  365.  If  under  an  ordinance  an 
abutter  on  rebuilding  is  required  to  put 
his  house  back  five  feet  from  the  street 
line,  property  is  taken.  In  re  Chestnut 
St.,  118  Pa.  St.  593,  12  Atl.  485;  £•  i  y 
of  St.  Louis  v.  Hill,  116  Mo.  527,  22  S.  \V. 


788 


CONSTITUTIONAL   LIMITATIONS. 


[CII.  XV. 


the  tide  does  not  ebb  and  flow  is  property,  and,  if  taken,  must  be 
paid  for  as  such.1  So  with  an  exclusive  right  of  wharfage  upon 
tide  water.2  So  with  the  right  of  the  owner  of  land  to  use  an 
adjoining  street,  whether  he  is  owner  of  the  land  over  which  the 
street  is  laid  out  or  not.3  So  with  the  right  of  pasturage  in 
streets,  which  belongs  to  the  owners  of  the  soil.4  So  a  partial 
destruction  or  diminution  of  value  of  property  by  an  act  of  the 
government  which  directly  and  not  merely  incidentally  affects  it, 
is  to  that  extent  an  appropriation.5 

It  sometimes  becomes  important,  where  a  highway  has  been 
laid  out  and  opened,  to  establish  a  different  and  higher  grade  of 
way  upon  the  same  line,  with  a  view  to  accommodate  an  increased 
public  demand.  The  State  may  be  willing  to  surrender  the  con- 
trol of  the  streets  in  these  cases,  and  authorize  turnpike,  plank- 
road,  or  railroad  corporations  to  occupy  them  for  their  purposes ; 
and  if  it  shall  give  such  consent,  the  control,  so  far  as  is  neces- 


861,  21  L.  R.  A.  226-3  So,  if  under  a 
statute  a  road  officer  cuts  a  drain  on 
property  to  draw  surface  water  from  a 
highway.  Ward  v.  Peck,  49  N.  J.  L.  42, 
6  Atl.  805.  So,  if  in  grading  a  street  an 
embankment  is  placed  so  as  to  take  up 
part  of  an  abutting  lot,  and  injure  a 
house  on  it.  Vanderlip  v.  Grand  Rapids, 
73  Mich.  522,  16  Am.  St.  597,  and  note, 
3  L.  R.  A.  247,  41  N.  W.  677 ;  Broadwell 
v.  Kansas  City,  75  Mo.  213.  £Use  of 
artificial  means  to  increase  the  flow  of 
natural  gas  to  the  injury  of  others  sup- 
plied from  some  common  reservoir,  is  a 
taking  entitling  to  compensation.  Manu- 
facturer's G.  &  O.  Co.  v.  Indiana  N.  G.  & 
O.  Co.,  155  Ind.  461,  57  N.  E.  912,  50 
L.  R.  A.  768. 

1  Varick  v.  Smith,  9  Paige,  547.     See 
Tales  v.  Milwaukee,  10  Wall.  497. 

2  Murray  ».  Sharp,  1  Bosw.  539. 

8  Lackland  v.  North  Missouri  R.  R.  Co., 
31  Mo.  180.  See  supra,  p.  785,  note  3. 
Abutters,  as  members  of  the  public  who 
have  not  bought  by  a  plat,  have  no  right 
of  action  for  the  obstruction  of  a  street 
under  State  authority.  Gerhard  v.  See- 
konk,  &c.  Com.,  15  R.  I.  334,  5  Atl.  199. 

4  Tonawanda  R.  R.  Co.  v.  Munger,  6 
Denio,  255 ;  Woodruff  v.  Neal,  28  Conn. 
165.  In  the  first  case  it  was  held  that  a 
by-law  of  a  town  giving  liberty  to  the 
inhabitants  to  depasture  their  cows  in 
the  public  highways  under  certain  regula- 
tions, passed  under  the  authority  of  a 
general  statute  empowering  towns  to 


pass  such  by-laws,  was  of  no  validity, 
because  it  appropriated  the  pasturage, 
which  was  private  property,  to  the  pub- 
lic use,  without  making  compensation. 
The  contrary  has  been  held  in  New 
"York  as  to  all  highways  laid  out  while 
such  a  statute  was  in  existence ;  the 
owner  being  held  to  be  compensated  for 
the  pasturage,  as  well  as  for  the  use 
of  the  land  for  other  purposes,  at  the 
time  the  highway  was  laid  out.  Griffin 
v.  Martin,  7  Barb.  297  ;  Hardenburgh  v. 
Lock  wood,  25  Barb.  9.  See  also  Ker- 
whacker  v.  Cleveland,  C.  &  C.  R.  R.  Co., 
3  Ohio  St.  172,  where  it  was  held  that  by 
ancient  custom  in  that  State  there  was  a 
right  of  pasturage  by  the  public  in  the 
highways. 

6  See  Glover  v.  Powell,  10  N.  J.  Eq. 
211 ;  Eaton  v.  Boston,  C.  &  M.  R.  R.  Co., 
51  N.  H.  504.  Even  a  temporary  right  to 
the  possession  of  lands  cannot  be  given 
by  the  legislature  without  provision  for 
compensation.  San  Mateo  Water  Works 
v.  Sharpstein,  50  Cal.  284.  A  provision 
in  the  charter  of  a  corporation  that  it  shall 
not  be  liable  for  diverting  water  is  void. 
Harding  v.  Stamford  Water  Co. ,41  Conn. 
87.  ^Destruction  of  crops  planted  after 
the  location  of  a  railway,  but  before  con- 
demnation or  compensation,  entitles  the 
tenant  planting  them  to  compensation. 
Lafferty  v.  Schuylkill  River  E.  S.  Ry. 
Co.,  124  Pa.  St.  297, 16  Atl.  869, 3  L.  R.  A, 
124.3 


CH.  XV.]  THE   EMINENT   DOMAIN.  789 

sary  to  the  purposes  of  the  turnpike,  plank-road,  or  railway,  is 
thereby  passed  over  to  the  corporation,  and  their  structure  in 
what  was  before  a  common  highway  cannot  be  regarded  as  a  pub- 
lic nuisance.1  But  the  municipal  organizations  in  the  State  have 
no  power  to  give  such  consent  without  express  legislative  per- 
mission ;  the  general  control  of  their  streets  which  is  commonly 
given  by  municipal  charters  not  being  sufficient  authority  for  this 
purpose.2  When,  however,  the  public  authorities  have  thus  as- 
sented, it  may  be  found  that  the  owners  of  the  adjacent  lots,  who 
are  also  owners  of  the  fee  in  the  highway  subject  to  the  public 
easement,  may  be  unwilling  to  assent  to  the  change,  and  may 
believe  their  interests  to  be  seriously  and  injuriously  affected 
thereby.  The  question  may  then  arise,  Is  the  owner  of  the  land, 
who  has  been  once  compensated  for  the  injury  he  has  sustained 
in  the  appropriation  of  his  land  as  a  highway,  entitled  to  a  new 
assessment  for  any  further  injury  he  may  sustain  in  consequence 
of  the  street  being  subjected  to  a  change  in  the  use  not  contem- 
plated at  the  time  of  the  original  taking,  but  nevertheless  in 
furtherance  of  the  same  general  purpose  ? 

When  a  common  highway  is  made  a  turnpike  or  a  plank-road, 
upon  which  tolls  are  collected,  there  is  much  reason  for  holding 
that  the  owner  of  the  soil  is  not  entitled  to  any  further  compensa- 

1  See  Commonwealth  v.  Erie  &  N.  E.  and  of  course  warranted ;  and  numerous 
R.  R.  Co.,  '27  Pa.  St.  339 ;  Tennessee,  &c.  provisions    are    industriously    made     to 
R.  R.  Co.  v.  Adams,  3  Head,  596 ;  New  regulate  such  crossings,  by  determining 
Orleans,  &c.  R.  R.  Co.  v.  New  Orleans,  26  when   they  shall    be   on   the   same   and 
La.  Ann.  517;  Chicago,  &c.  R.  R.  Co.  t'.  when   on    different    levels,   in    order  to 
Joliet,  79  III.  25 ;   Donnaher's  Case,  16  avoid  collision ;  and,  when  on  the  same 
Miss.  649.  level,  what   gates,  fences,  and  barriers 

2  Lackland  u.  North  Missouri  R.  R.  Co.,  shall  be  made,  and  what  guards   shall 
31  Mo.  180 ;  New  York  &  Harlem  R.  R.  be  kept  to  insure  safety.      Had  it  been 
Co.  v.  Mayor,  &c.  of  New  York,  1  Hilt,  intended  that  railroad  companies,  under 
562;  Milhaui;.  Sharp,  27  N.Y.  611;  State  a  general  grant,  should  have  power  to 
v.  Cincinnati,  &c.  Gas  Co.,  18   Ohio   St.  lay  a  railroad  over  a  highway  longitudi- 
262;  State  v.  Trenton,  36  N.  J.  79;  Cham-  nally,  which  ordinarily  is  not  necessary, 
berlain    v.    Elizabethport,    &c.    Co.,    41  we  think  that  would  have  been  done  in 
N.  J.  Eq.  43 ;   Garnett   v.  Jacksonville,  express  terms,  accompanied  with  full  leg- 
Ac.  Co.,  20  Fla.  889.     In  Inhabitants  of  islative  provisions  for  maintaining  such 
Springfield  v.  Connecticut   River   R.  R.  barriers  and  modes  of  separation  as  would 
Co  ,  4  Gush.  63,  it  was  held   that  legis-  tend  to  make  the  use  of  the  same  road, 
lative  authority  to  construct  a  railroad  for  both  modes  of  travel,  consistent  with 
between     certain    termini,    without    pre-  the  safety  of  travellers   on   both.     The 
scribing    its    precise    course   and    direc-  absence   of   any   such   provision   affords 
tion,  would  not  prima  facie  confer  power  a   strong  inference   that,  under   general 
to  lay  out  the  road  on  and  along  an  exist-  terms,  it  was   not  intended  that  such  a 
ing  public  highway.     Per  Shaw,  C.  J. :  power  should  be  given."     See  also  Com- 
"The  whole  course  of  legislation  on  the  monwealth  v,  Erie  &  N.  E.  R.  R.  Co.,  17 
subject  of  railroads  is  opposed  to  such  a  Pa.  St.  339;  Attorney-General  v.  Morris 
construction.  The  crossing  of  public  high-  &  Essex  R.  R.  Co.,  19  N.  J.  Eq.  386. 
ways  by  railroads  is  obviously  necessary, 


790  CONSTITUTIONAL   LIMITATIONS.  [oil.  XV. 

tion.  The  turnpike  or  the  plank-road  is  still  an  avenue  for  public 
travel,  subject  to  be  used  in  the  same  manner  as  the  ordinary 
highway  was  before,  and,  if  properly  constructed,  is  generally 
expected  to  increase  rather  than  diminish  the  value  of  property 
along  its  line ;  and  though  the  adjoining  proprietors  are  required 
to  pay  toll,  they  are  supposed  to  be,  and  generally  are,  fully  com- 
pensated for  this  burden  by  the  increased  excellence  of  the  road, 
and  by  their  exemption  from  highway  labor  upon  it.1  But  it  is 
different  when  a  highway  is  appropriated  for  the  purposes  of  a 
railroad.  "  It  is  quite  apparent  that  the  use  by  the  public  of  a 
highway,  and  the  use  thereof  by  a  railroad  company,  is  essentially 
different.  In  the  one  case  every  person  is  at  liberty  to  travel 
over  the  highway  in  any  place  or  part  thereof,  but  he  has  no 
exclusive  right  of  occupation  of  any  part  thereof  except  while  he 
is  temporarily  passing  over  it.  It  would  be  trespass  for  him  to 
occupy  any  part  of  the  highway  exclusively  for  any  longer  period 
of  time  than  was  necessary  for  that  purpose,  and  the  stoppages 
incident  thereto.  But  a  railroad  company  takes  exclusive  and 
permanent  possession  of  a  portion  of  the  street  or  highway.  It 
lays  down  its  rails  upon,  or  imbeds  them  in,  the  soil,  and  thus 
appropriates  a  portion  of  the  street  to  its  exclusive  use,  and  for 
its  own  particular  mode  of  conveyance.  In  the  one  case,  all 
persons  may  travel  on  the  street  or  highway  in  their  own  common 
modes  of  conveyance.  In  the  other  no  one  can  travel  on  or  over 
the  rails  laid  down,  except  the  railroad  company  and  with  their 
cars  specially  adapted  to  the  tracks.  In  one  case  the  use  is 
general  and  open  alike  to  all.  In  the  other  it  is  peculiar  and 
exclusive. 

"  It  is  true  that  the  actual  use  of  the  street  by  the  railroad  may 
not  be  so  absolute  and  constant  as  to  exclude  the  public  also  from 
its  use.  With  a  single  track,  and  particularly  if  the  cars  used 
upon  it  were  propelled  by  horse- power,  the  interruption  of  the 
public  easement  in  the  street  might  be  very  trifling  and  of  no 
practical  consequence  to  the  public  at  large.  But  this  considera- 
tion cannot  affect  the  question  of  right  of  property,  or  of  the 
increase  of  the  burden  upon  the  soil.  It  would  present  simply  a 

1  See    Commonwealth    v.   Wilkinson,  class  road  cannot  be  changed  to  one  of 

16   Pick.  175,  24   Am.  Dec.  624 ;   Bene-  the  second  class  without  compensation, 

diet  v.  Goit,  3  Barb.  459;  Wright  v.  Car-  as  the  burden  on  the  owner  is  increased, 

ter,  27  N.  J.  76;   State  v.  Laverack,  34  Bounds  v.  Kirven,  63  Tex.  159.  In  Murray 

N.  J.  201 ;   Chagrin   Falls   &  Cleveland  v.  County  Commissioners  of  Berkshire, 

Plank  Road  Co.  v.  Cane,  2  Ohio  St.  419 ;  12  Met.  455,  it  was  held  that  owners  of 

Douglass  v    Turnpike  Co.,  22   Md.  219.  lands  adjoining  a  turnpike  were  not  en- 

But    see   Williams   ».    Natural    Bridge  titled  to  compensation  when  a  turnpike 

Plank  Road  Co.,  21  Mo.  580.    A  third-  was  changed  to  a  common  highway. 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


791 


question  of  degree  in  respect  to  the  enlargement  of  the  easement, 
and  would  not  affect  the  principle,  that  the  use  of  a  street  for  the 
purposes  of  a  railroad  imposed  upon  it  a  new  burden."1 

The  case  from  which  we  here  quote  is  approved  in  cases  in 
Wisconsin,  where  importance  is  attached  to  the  different  effect 
the  common  highway  and  the  railroad  will  have  upon  the  value 
of  adjacent  property.  "  The  dedication  to  the  public  as  a  high- 
way," it  is  said,  "  enhances  the  value  of  the  lot,  and  renders  it 
more  convenient  and  useful  to  the  owner.  The  use  by  the  rail- 
road company  diminishes  its  value,  and  renders  it  inconvenient 
and  comparatively  useless.  It  would  be  a  most  unjust  and  op- 
pressive rule  which  would  deny  the  owner  compensation  under 
such  circumstances."  2 


i  Wager  v.  Troy  Union  B.  R.  Co.,  25 
N.  Y.  526,  582,  approving  Williams  o. 
New  York  Central  H.  R.  Co.,  16  N.  Y. 
97;  Carpenter  v.  Oswego  &  Syracuse 
R.  R.  Co.,  24  N.  Y.  655;  Mahon  v.  New 
York  Central  R.  R.  Co.,  24  N.  Y.  658; 
Starr  v.  Camden  &  Atlantic  R.  R.  Co.,  24 
N.  J.  592;  Donnaher's  Case,  16  Miss.  649; 
Theobold  v.  Louisville,  &c.  Ry.  Co.,  66 
Miss.  279,  6  So.  230 ;  Adams  v.  Chicago, 
&c.  R.  R.  Co.,  39  Minn.  286,  39  N.  W. 
629 ;  Phipps  v.  West  Md.  R.  R.  Co.,  66 
Md.  319;  Cox  v.  Louisville,  &c.  R.  R.  Co., 
48  Ind.  178.  In  Inhabitants  of  Spring- 
field v.  Connecticut  River  R.  R.  Co.,  4 
Cush.  71,  where,  however,  the  precise 
question  here  discussed  was  not  involved, 
Chief  Justice  Shaw,  in  comparing  rail- 
roads with  common  highways,  says : 
"  The  two  uses  are  almost,  if  not  wholly, 
inconsistent  with  each  other,  so  that  tak- 
ing the  highway  for  a  railroad  will  nearly 
supersede  the  former  use  to  which  it  had 
been  legally  appropriated."  See  also 
Presbyterian  Society  of  Waterloo  v.  Au- 
burn &  Rochester  R.  R.  Co.,  3  Hill,  567  ; 
Craig  v.  Rochester,  &c.  R.  R.  Co.,  39  Barb. 
494;  Schurmeier  v.  St.  Paul,  &c.  R.  R. 
Co.,  10  Minn.  82 ;  Gray  v.  First  Division, 
&o.,  13  Minn.  315;  Central  R,  R.  Co.  v. 
Hetfleld,  29  N.  J.  206;  South  Carolina 
R.  R.  Co.  v.  Steiner,  44  Ga.  546.  Under 
the  California  Constitution  the  owner  of 
the  fee  must  be  compensated.  Weyl  v. 
Sonoma  R.  R.  Co.,  69  Cal.  202,  10  Pac. 
610.  Compare  cases,  p.  810,  note,  post. 
The  cases  of  Philadelphia  &  Trenton 
R.  R.  Co.,  6  Whart.  25,  35  Am.  Dec.  202  ; 
Struthers  v.  Railroad  Co.,  87  Pa.  St.  282 ; 
Lexington,  &c.  R.  R.  Co.  v.  Applegate,  8 


Dana,  289,  33  Am.  Dec.  497 ;  Elizabeth- 
town  &  P.  R.  R.  Co.  v.  Thompson,  79 
Ky.  52;  and  Morris  &  Essex  R.  R.  Co.  v, 
Newark,  10  N.  J.  Eq.  352,  are  opposed  to 
the  New  York  cases.  And  see  Wolfe  v. 
Covington,  &c.  R.  R.  Co.,  15  B.  Monr. 
404 ;  Com.  v.  Erie  &  N.  E.  R.  R.  Co.,  27 
Pa.  St.  339 ;  Snyder  v.  Pennsylvania  R. 
R.  Co.,  55  Pa.  St.  340;  Peddicord  v.  Bal- 
timore, &c.  R.  R.  Co.,  34  Md.  463 ;  Hous- 
ton, &c.  R.  R.  Co.  v  Odum,  63  Tex.  H43, 
2  Am.  &  Eng.  R.  R.  Cas.  603 ;  West  Jer- 
sey R.  R.  Co.  v.  Cape  May,  &c.  Co.,  34 
N.  J.  Eq.  164 ;  Terre  Haute  &  L.  R.  R. 
Co.  v.  Bissell,  108  Ind.  113,  9  N.  E.  144; 
Indianapolis,  B.  &  W.  Ry.  Co.  v.  Eberle, 

110  Ind.  542,  11  N.  E.  467;  [Reichert  v. 
St.  Louis  &  S.  Ry.  Co.,  51  Ark.  491,  11 
S.  W.  696,  5  L.  R.  A.  183.]     A  gas-light 
company  cannot  be  authorized  to  lay  its 
pipes  in  a  country  highway  without  con- 
sent of  or  compensation  to  the  owners  of 
the  fee.     Bloomfield,  &c.  Co.  v.  Calkins, 
62  N.  Y.  386.    Nor  may  a  pipe  line  for 
natural  gas  be   laid.     Sterling's  Appeal, 

111  Pa.  St.  35,  2  Atl.  105;  pDncaid  v. 
Indianapolis  N.  G.  Co.,  124  Ind.  577,  24 
N.  E.  1066,  8  L.  R.  A.  602.] 

2  Ford  v.  Chicago  &  Northwestern 
R.  R.  Co.,  14  Wis.  609,  616;  followed  in 
Pomeroy  v.  Chicago  &  M.  R.  R.  Co.,  16 
Wis.  640.  The  later  cases  allow  compen- 
sation only  when  the  fee  of  the  street  is 
in  the  owner  and  there  is  an  actual  phys- 
ical interference  with  the  property  in 
the  strict  sense  :  Heiss  v.  Milwaukee,  &c. 
R.  R.  Co.,  69  Wis.  555,  34  N.  W.  916 ; 
Hanlin  v.  Chicago,  &c.  Ry.  Co.,  61  Wis. 
515,  21  N.  W.  623 ;  where  there  was  no 
such  interference,  distinguishing  Buchner 


792 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


It  is  not  always  the  case,  however,  that  the  value  of  a  lot  of 
land  will  be  enhanced  by  the  laying  out  of  a  common  highway 
across  it,  or  diminished  by  the  construction  of  a  railway  over  the 
same  line  afterwards.  The  constitutional  question  cannot  depend 
upon  the  accidental  circumstance  that  the  new  road  will  or  will 
not  have  an  injurious  effect ;  though  that  circumstance  is  prop- 
erly referred  to,  since  it  is  difficult  to  perceive  how  a  change  of 
use  which  may  possibly  have  an  injurious  effect  not  contemplated 
in  the  original  appropriation  can  be  considered  anything  else  than 
the  imposition  of  a  new  burden  upon  the  owner's  estate.  In 
Connecticut,  where  the  authority  of  the  legislature  to  authorize 
a  railroad  to  be  constructed  in  a  common  highway  without  com- 
pensation to  land-owners  is  also  denied,  importance  is  attached  to 
the  terms  of  the  statute  under  which  the  original  appropriation 
was  made,  and  which  are  regarded  as  permitting  the  taking  for 
the  purposes  of  a  common  highway,  and  for  no  other.  The  rea- 
soning of  the  court  appears  to  us  sound ;  and  it  is  applicable  to 
the  statutes  of  the  States  generally.^ 


v.  Chicago,  &c.  K.  R.  Co.,  66  Wis.  403,  14 
N.  W.  273,  60  Wis.  264,  19  N.  W.  66, 
where  part  of  the  property  was  actually 
taken.  In  many  of  the  cases  noted  in 
the  preceding  note  the  right  to  compen- 
sation is  based  upon  the  ownership  of 
the  fee.  In  Pennsylvania  it  is  held  com- 
petent for  the  legislature,  though  not 
necessary,  to  provide  compensation  to 
land-owners  when  a  highway  is  taken 
for  a  railroad.  Mifflin  v.  Railroad  Co., 
16  Pa.  St.  182. 

1  Imlay  v.  Union  Branch  R.  R.  Co., 
26  Conn.  249,  255.  "  When  land  is  con- 
demned for  a  special  purpose,"  say  the 
court,  "  on  the  score  of  public  utility,  the 
sequestraiion  is  limited  to  that  particular 
use.  Land  taken  for  a  highway  is  not 
thereby  convertible  into  a  common.  As 
the  property  is  not  taken,  but  the  use 
only,  the  right  of  the  public  is  limited 
to  the  use,  the  specific  use,  for  which  the 
proprietor  has  been  divested  of  a  com- 
plete dominion  over  his  own  estate.  These 
are  propositions  which  are  no  longer  open 
to  discussion.  But  it  is  contended  that 
land  once  taken  and  still  held  for  high- 
way purposes  may  be  used  for  a  railway 
without  exceeding  the  limits  of  the  ease- 
ment already  acquired  by  the  public.  If 
this  is  true,  if  the  new  use  of  the  land  is 
within  the  scope  of  the  original  seques- 
tration or  dedication,  it  would  follow  that 


the  railway  privileges  are  not  an  encroach- 
ment on  the  estate  remaining  in  the  owner 
of  the  soil,  and  that  the  new  mode  of  en- 
joying the  public  easement  will  not  en- 
able him  rightfully  to  assert  a  claim  to 
damages  therefor.  On  the  contrary,  if 
the  true  intent  and  efficacy  of  the  original 
condemnation  was  not  to  subject  the  land 
to  such  a  burden  as  will  be  imposed  upon 
it  when  it  is  confiscated  to  the  uses  and 
control  of  a  railroad  corporation,  it  can- 
not be  denied  that  in  the  latter  case  the 
estate  of  the  owner  of  the  soil  is  injuri- 
ously affected  by  the  supervening  servi- 
tude; that  his  rights  are  abridged,  and 
that  in  a  legal  sense  his  land  is  again 
taken  for  public  uses.  Thus  it  appears 
that  the  court  have  simply  to  decide 
whether  there  is  such  an  identity  be- 
tween a  highway  and  a  railway,  that 
statutes  conferring  a  right  to  establish 
the  former  include  an  authority  to  con- 
struct the  latter. 

"The  term  'public  highway,'  as  em- 
ployed in  such  of  our  statutes  as  convey 
the  right  of  eminent  domain,  has  cer- 
tainly a  limited  import.  Although,  as 
suggested  at  the  bar,  a  navigable  river  or 
a  canal  is,  in  some  sense,  a  public  high- 
way, yet  an  easement  assumed  under  the 
name  of  a  highway  would  not  enable  the 
public  to  convert  a  street  into  a  canal. 
The  highway,  in  the  true  meaning  of 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


793 


It  would  appear  from  the  cases  cited  that  the  weight  of  judicial 
authority  is  against  the  power  of  the  legislature  to  appropriate 


the  word,  would  be  destroyed.  But  as 
no  such  destruction  of  the  highway  is 
necessarily  involved  in  the  location  of  a 
railway  track  upon  it,  we  are  pressed  to 
establish  the  legal  proposition  that  a  high- 
way, such  as  is  referred  to  in  these  stat- 
utes, means  or  at  least  comprehends  a 
railroad.  Such  a  construction  is  possible 
only  when  it  is  made  to  appear  that  there 
is  a  substantial  practical  or  technical  iden- 
tity between  the  uses  of  land  for  highway 
and  for  railway  purposes. 

"  No  one  can  fail  to  see  that  the  terms 
'  railway '  and  '  highway '  are  not  conver- 
tible, or  that  the  two  uses,  practically  con- 
sidered, although  analogous,  are  not  iden- 
tical. Land  as  ordinarily  appropriated 
by  a  railroad  company  is  inconvenient, 
and  even  impassable,  to  those  who  would 
use  it  as  a  common  highway.  Such  a 
corporation  does  not  hold  itself  bound  to 
make  or  to  keep  its  embankments  and 
bridges  in  a  condition  which  will  facili- 
tate the  transitus  of  such  vehicles  as  ply 
over  an  ordinary  road.  A  practical  dis- 
similarity obviously  exists  between  a 
railway  and  a  common  highway,  and  is 
recognized  as  the  basis  of  a  legal  distinc- 
tion between  them.  It  is  so  recognized 
on  a  large  scale  when  railway  privileges 
are  sought  from  legislative  bodies,  and 
granted  by  them.  If  the  terms  'high- 
way' and  'railway*  are  synonymous,  or 
if  one  of  them  includes  the  other  by  legal 
implication,  no  act  could  be  more  super- 
fluous than  to  require  or  to  grant  author- 
ity to  construct  railways  over  localities 
already  occupied  as  highways. 

"  If  a  legal  identity  does  not  subsist 
between  a  highway  and  a  railway,  it  is 
illogical  to  argue  that,  because  a  railway 
may  be  so  constructed  as  not  to  interfere 
with  the  ordinary  uses  of  a  highway,  and 
so  as  to  be  consistent  with  the  highway 
right  already  existing,  therefore  such  a 
new  use  is  included  within  the  old  use. 
It  might  as  well  be  urged,  that  if  a  com- 
mon, or  a  canal,  laid  out  over  the  route 
of  a  public  road,  could  be  so  arranged  as 
to  leave  an  ample  roadway  for  vehicles 
and  passengers  on  foot,  the  land  should 
be  held  to  be  originally  condemned  for 
a  canal  or  a  common,  as  properly  incident 
to  the  highway  use. 


"  There  is  an  important  practical  rea- 
son why  courts  should  be  slow  to  recog- 
nize a  legal  identity  between  the  two  uses 
referred  to.  They  are  by  no  means  the 
same  thing  to  the  proprietor  whose  land 
is  taken;  on  the  contrary,  they  suggest 
widely  different  standards  of  compensa- 
tion. One  can  readily  conceive  of  cases 
where  the  value  of  real  estate  would  be 
directly  enhanced  by  the  opening  of  a 
highway  through  it;  while  its  confisca- 
tion for  a  railway  at  the  same  or  a  subse- 
quent time  would  be  a  gross  injury  to  the 
estate,  and  a  total  subversion  of  the  mode 
of  enjoyment  expected  by  the  owner 
when  he  yielded  his  private  rights  to  the 
public  exigency. 

"  But  essential  distinctions  also  exist 
between  highway  and  railway  powers,  as 
conferred  by  statute,  —  distinctions  which 
are  founded  in  the  very  nature  of  the 
powers  themselves.  In  the  case  of  the 
highway,  the  statute  provides  that,  after 
the  observance  of  certain  legal  forms,  the 
locality  in  question  shall  be  forever  sub- 
servient to  the  right  of  every  individual 
in  the  community  to  pass  over  the  thor- 
oughfare so  created  at  all  times.  This 
right  involves  the  important  implication 
that  he  shall  so  use  the  privilege  as  to 
leave  the  privilege  of  all  others  as  unob- 
structed as  his  own  ;  and  that  he  is  there- 
fore to  use  the  road  in  the  manner  in 
which  such  roads  are  ordinarily  used,  with 
such  vehicles  as  will  not  obstruct,  or  re- 
quire the  destruction  of  the  ordinary 
modes  of  travel  thereon.  He  is  not  au- 
thorized to  lay  down  a  railway  track,  and 
run  his  own  locomotive  and  car  upon  it. 
No  one  ever  thought  of  regarding  high- 
way acts  as  conferring  railway  privileges, 
involving  a  right  in  every  individual,  not 
only  to  break  up  ordinary  travel,  but  also 
to  exact  tolls  from  the  public  for  the  priv- 
ilege of  using  the  peculiar  conveyances 
adapted  to  a  railroad.  If  a  right  of  this 
description  is  not  conferred  when  a  high- 
way is  authorized  by  law,  it  is  idle  to  pre- 
tend that  any  proprietor  is  divested  of 
such  a  right.  It  would  seem  that,  under 
such  circumstances,  the  true  construction 
of  highway  laws  could  hardly  be  debata- 
ble, and  that  the  absence  of  legal  identity 


794  CONSTITUTIONAL  LIMITATIONS.  [oil.  XV. 

a  common  highway  to  the  purposes  of  a  railroad,  unless  at  the 
same  time  provision  is  made  for  compensation  to  the  owners  of 
the  fee.  These  cases,  however,  have  had  reference  to  the  common 
railroad  operated  by  steam.  In  one  of  the  New  York  cases  l  it  is 
intimated,  and  in  another  case  in  the  same  State  it  was  directly 
decided,  that  the  ruling  should  be  the  same  in  the  case  of  the 
street  railway  operated  by  horse  power.2  There  is  generally, 
however,  a  very  great  difference  in  the  two  cases,  and  some  of  the 
considerations  to  which  the  courts  have  attached  importance 
could  have  no  application  in  many  cases  of  common  horse  rail- 
ways. A  horse  railway,  as  a  general  thing,  will  interfere  very 
little  with  the  ordinary  use  of  the  way  by  the  public,  even  upon 
the  very  line  of  the  road  ;  and  in  many  cases  it  would  be  a  relief 
to  an  overburdened  way,  rather  than  an  impediment  to  the  pre- 
vious use.  In  Connecticut,  after  it  had  been  decided,  as  above 
shown,  that  the  owner  of  the  fee  subject  to  a  perpetual  highway 
was  entitled  to  compensation  when  the  highway  was  appropriated 
for  an  ordinary  railroad,  it  was  also  held  that  the  authority  to 
lay  and  use  a  horse-railway  track  in  a  public  street  was  not  a 
new  servitude  imposed  upon  the  land,  for  which  the  owner  of  the 
fee  would  be  entitled  to  damages,  but  that  it  was  a  part  of  the 
public  use  to  which  the  land  was  originally  subjected  when  taken 
for  a  street.3  The  same  distinction  between  horse  railways  and 
those  operated  by  steam  is  also  taken  in  recent  New  York  cases.4 

between  the  two  uses  of  which  we  speak  intimated  by  this  court  in  a  former  case 

was  patent  and  entire.  (see  opinion  of  Hinman,  J.,  in  Nicholson 

"Again,  no  argument   or  illustration  v.  N.  Y.  &  N.  H.  R.  R.  Co.,  22  Conn.  74, 

can  strengthen  the  self-evident  proposi-  85),  that  to  subject  the  owner  of  the  soil 

tion  that,  when  a  railway  is  authorized  of  a  highway  to  a  further  appropriation 

over  a  public  highway,  a  right  is  created  of  his  land  to  railway  uses  is  the  imposi- 

against  the  proprietor  of  the  fee,  in  favor  tion  of  a  new  servitude  upon  his  estate, 

of  a  person,  an  artificial  person,  to  whom  and  is  an  act  demanding  the  compensa- 

he  before  bore  no  legal  relation  whatever,  tion  which  the  law  awards  when  land  is 

It  is  understood  that  when  such  an  ease-  taken   for   public    purposes."      And   see 

inent  is  sought  or  bestowed,  a  new  and  South  Carolina  R.  R.  Co.  v.  Steiner,  44 

independent  right  will  accrue  to  the  rail-  Ga.  546. 

road  corporation  as  against  the  owner  of         1  Wager  v.  Troy  Union  R.  R.  Co.,  25 

the  soil,  and  that,  without  any  reference  N.  Y.  526. 

to  the  existence  of  the  highway,  his  land         2  Craig  v.  Rochester  City  &  Brighton 

will  forever  stand  charged  with  the  ac-  R.  R.  Co.,  39  Barb.  449. 
cruing  servitude.    Accordingly,  if  such  a         8  Elliott  v.  Fair   Haven   &  Westville 

highway  were  to  be  discontinued  accord-  R.  R.  Co.,  32  Conn.  579,  586. 
ing  to  the  legal  forms  prescribed  for  that         4  Brooklyn  Central,  &c.  R.  R.  Co.  r. 

purpose,  the  railroad  corporation  would  Brooklyn  City  R.  R.  Co.,  33  Barb.  420 ; 

still  insist  upon  the  express  and  indepen-  People  v.  Kerr,   37  Barb.  357,  27  N.  Y. 

dent  grant  of  an  easement  to  itself,  ena-  188.     See  Kellinger  v.  Railroad   Co.,  60 

bling  it  to  maintain  its  own  road  on  the  N.  Y.  206.     A  horse  railroad  in  a  street 

site  of  the  abandoned  highway.     We  are  is  not  an  additional  servitude.     Hodges 

of  opinion,  therefore,  as  was  distinctly  v.  Bait.  Pass.  Ry.  Co.,  58  Md.  603 ;  Texas 


CH.  XV.]  THE   EMINENT   DOMAIN.  795 

But  whether  the  mere  difference  in  the  motive  power  will  make 
different  principles  applicable  is  a  question  which  the  courts  will 
probably  have  occasion  to  consider  further.  Conceding  that  the 
interests  of  individual  owners  will  not  generally  suffer,  or  their 
use  of  the  highway  be  incommoded  by  the  laying  down  and  use 
of  the  track  of  a  horse  railway  upon  it,  there  are  nevertheless 
cases  where  it  might  seriously  impede,  if  not  altogether  exclude, 
the  general  travel  and  use  by  the  ordinary  modes,  and  very  greatly 
reduce  the  value  of  all  the  property  along  the  line.  Suppose,  for 
instance,  a  narrow  street  in  a  city,  occupied  altogether  by  whole- 
sale houses,  which  require  constantly  the  use  of  the  whole  street 
in  connection  with  their  business,  and  suppose  this  to  be  turned 
over  to  a  street-railway  company,  whose  line  is  such  as  to  make 
the  road  a  principal  avenue  of  travel,  and  to  require  such  constant 
passage  of  cars  as  to  drive  all  drayage  from  the  street.  The 
corporation,  under  these  circumstances,  will  substantially  have  a 
monopoly  in  the  use  of  the  street;  their  vehicles  will  drive  the 
business  from  it,  and  the  business  property  will  become  compara- 
tively worthless.  And  if  property  owners  are  without  remedy  in 
such  case,  it  is  certainly  a  very  great  hardship  upon  them,  and  a 
very  striking  and  forcible  instance  and  illustration  of  damage 
without  legal  injury. 

When  property  is  appropriated  for  a  public  way,  and  the  pro- 
prietor is  paid  for  the  public  easement,  the  compensation  is  gen- 
erally estimated,  in  practice,  at  the  value  of  the  land  itself.1  If, 
therefore,  no  other  circumstances  were  to  be  taken  into  the  ac- 
count in  these  cases,  the  owner,  who  has  been  paid  the  value  of 
his  land,  could  not  reasonably  complain  of  any  use  to  which  it 
might  afterwards  be  put  by  the  public.  But,  as  was  pointed  out 
in  the  Connecticut  case,2  the  compensation  is  always  liable  either 
to  exceed  or  to  fall  below  the  value  of  the  land  taken,  in  conse- 
quence of  incidental  injuries  or  benefits  to  the  owner  as  proprietor 
of  the  land  which  remains.  These  injuries  or  benefits  will  be  es- 
timated with  reference  to  the  identical  use  to  which  the  property 
is  appropriated ;  and  if  it  is  afterwards  put  to  another  use,  which 
causes  greater  incidental  injury,  and  the  owner  is  not  allowed 
further  compensation,  it  is  very  evident  that  he  has  suffered  by 
the  change  a  wrong  which  could  not  have  been  foreseen  and  pro- 

&  P.  Ry.  Co.  e.  Rosedale  St.  Ry.  Co.,  64  Metrop.  St.  Ry.  Co.,  82  Ga.  320,  9  S.  E. 

Tex.  80 ;  Randall  v.  Jacksonville,  &c.  Co.,  1078. 

19  Fla.  409 ;  Eichels  v.  Evansville  St.  Ry.          *  Murray  v.  County  Commissioners,  12 

Co.,  78  Ind.  261  ;   and  this   though  the  Met.  455,  per  Shaw,  Ch.  J. 

company  is  authorized  to  use  steam  as  a          2  Imlay  v.  Union  Branch  R.  R.  Co.,  26 

motor.     Briggs  v.  Lewiston,  &c.  Co.,  79  Conn.  249. 

Me.   363,  10  Atl.  47.    See  Campbell  v. 


796  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

vided  against.  And  if,  on  the  other  hand,  he  is  entitled  in  any 
case  to  an  assessment  of  damages,  in  consequence  of  such  an 
appropriation  of  the  street  affecting  his  rights  injuriously,  then 
he  must  be  entitled  to  such  an  assessment  in  every  case,  and 
the  question  involved  will  be,  not  as  to  the  right,  but  only  of  the 
quantum  of  damages.  The  horse  railway  either  is  or  is  not 
the  imposition  of  a  new  burden  upon  the  estate.  If  it  is  not,  the 
owner  of  the  fee  is  entitled  to  compensation  in  no  case ;  if  it  is,  he 
is  entitled  to  have  an  assessment  of  damages  in  every  case. 

In  New  York,  where,  by  law,  when  a  public  street  is  laid  out  or 
dedicated,  the  fee  in  the  soil  becomes  vested  in  the  city,  it  has 
been  held  that  the  legislature  might  authorize  the  construction  of 
a  horse  railway  in  a  street,  and  that  neither  the  city  nor  the 
owners  of  lots  were  entitled  to  compensation,  notwithstanding  it 
was  found  as  a  fact  that  the  lot-owners  would  suffer  injury  from 
the  construction  of  the  road.  The  city  was  not  entitled,  because, 
though  it  held  the  fee,  it  held  it  in  trust  for  the  use  of  all  the 
people  of  the  State,  and  not  as  corporate  or  municipal  property  ; 
and  the  land  having  been  originally  acquired  under  the  right  of 
eminent  domain,  and  the  trust  being  publici  juris,  it  was  under 
the  unqualified  control  of  the  legislature,  and  any  appropriation 
of  it  to  public  use  by  legislative  authority  could  not  bo  regarded 
as  an  appropriation  of  the  private  property  of  the  city.  And  so 
far  as  the  adjacent  lot-owners  were  concerned,  their  interest  in 
the  streets,  distinct  from  that  of  other  citizens,  was  only  as  hav- 
ing a  possibility  of  reverter  after  the  public  use  of  the  land  should 
cease ;  and  the  value  of  this,  if  anything,  was  inappreciable,  and 
could  not  entitle  them  to  compensation.1 

So  in  Indiana,  in  cases  where  the  title  in  fee  to  streets  in  cities 
and  villages  is  vested  in  the  public,  it  is  held  that  the  adjacent 
land-owners  are  not  entitled  to  the  statutory  remedy  for  an  as- 

1  People  v.  Kerr,  37  Barb.  357,  27  N.  People  v.  Kerr,  the  several  judges  seem 

Y.  188.     The  same  ruling  as  to  the  right  generally  to  have  agreed  on  the  principle 

of  the  city  to  compensation  was  had  in  as  stated  in  the  text,  it  is  not  very  clear 

Savannah,  &c.  R.  11.  Co.  v.  Mayor,  &c.  how  much  importance  was  attached  to  the 

of  Savannah,  45  Ga.  602.     And  see  Brook-  fact  that  the  fee  to  the  street  was  in  the 

lyn  Central,  &c.  R.  11.  Co.   v.  Brooklyn  city,  nor  that  the  decision   would   have 

City  R.  R.  Co.,  33  Barh.  420  ;  Brooklyn  been  different  if  that  had  not  been  the 

&  Newtown   R.  R.  Co.  v.  Coney  Island  case.     Where  land  has  been  dedicated  to 

R.  R.  Co.,  05  Barb.  364 ;  People  v.  Kerr,  a  city  as  a   levee,  the   legislature  may 

37  Barb.   357 ;  Chapman    v.    Albany   &  authorize  its  use  by  a  railroad  without 

Schenectady   R.   R.   Co.,    10  Barb.   360.  compensation   to  the  city,   but  the   one 

And  as  to  the  title  reverting  to  the  ori-  who  has  dedicated  it  must  be  compen- 

ginal  owner,  compare  Water  Works  Co.  sated  for  the  injury  to  his  ultimate  fee. 

v.  Burkhart,  41   Ind.   364 ;   Gebhardt  v.  Portland  &  W.  V.  R.  R.  Co.  v.  Portland, 

Reeves,  75  111.  301 ;  Heard  v.  Brooklyn,  14  Oreg.  188,  12  Pac.  265. 
60  N.  Y.  242.    Although,  in  the  case  of 


CH.  XV.] 


THE    EMINENT   DOMAIN. 


797 


sessment  of  damages  in  consequence  of  the  street  being  appro- 
priated to  the  use  of  a  railroad  ;  and  this  without  regard  to  the 
motive  power  by  which  the  road  is  operated.  At  the  same  time 
it  is  also  held  that  the  lot-owners  may  maintain  an  action  at  law 
if,  in  consequence  of  the  railroad,  they  are  cut  off  from  the 
ordinary  use  of  the  street.1  In  Iowa  it  is  held  that  where  the 
title  to  city  streets  is  in  the  corporation  in  trust  for  the  public, 
the  legislature  may  authorize  the  construction  of  an  ordinary 
railroad  through  the  same,  with  the  consent  of  the  city,  and  with- 
out awarding  compensation  to  lot-owners;2  or  even  without  the 
consent  of  the  municipal  authorities,  and  without  entitling  the  city 
to  compensation.3  But  the  city,  without  legislative  permission,  has 
no  power  to  grant  such  a  privilege,  and  it  wilt  be  responsible  for 
all  damages  to  individuals  using  the  street  if  it  shall  assume  to 
do  so.4  In  Illinois,  in  a  case  where  a  lot-owner  had  filed  a  bill  in 
equity  to  restrain  the  laying  down  of  the  track  of  a  railroad,  by  con- 
sent of  the  common  council,  to  be  operated  by  steam  in  one  of  the 
streets  of  Chicago,  it  was  held  that  the  bill  could  not  be  main- 
tained ;  the  title  to  the  street  being  in  the  city,  which  might 
appropriate  it  to  any  proper  city  purpose.8  In  Michigan  it  has 


1  Protzman  v.  Indianapolis  &  Cincin- 
nati R.  R.  Co.,  9  Ind.  467  ;  New  Albany 
&  Salem  R.  R.  Co.  v.  O'Daily,  13  Ind. 
353 ;  Same  v.  Same,  12  Ind.  551.  Unless 
the  railroad  causes  a  physical  disturbance 
of  a  right,  as  where  the  abutter  owns  the 
fee  of  the  street  or  where  his  access  is 
cut  off,  he  is  not  entitled  to  compensation. 
Dwenger  v.  Chicago,  &c.  Ry.  Co.,  98  Ind. 
153;  Terre  Haute  &  L.  R.  R.  Co.  v.  Bls- 
sell,  108  Ind.  113,  9  N.  E.  144  ;  Indianapo- 
lis, B.  &  W.  Ry.  Co.  v.  Eberle,  110  Ind. 
542,  11  N.  E.  467.  See  also  Street  Rail- 
way v.  Cumminsville,  14  Ohio  St.  523 ; 
State  v.  Cincinnati  Gas,  &c.  Co.,  18  Ohio 
St.  262.  In  Nebraska  although  the  fee  is 
in  the  city,  the  right  of  access,  which  is 
property,  may  not  be  cut  off  without  com- 
pensation. Burlington  &  M.  R.  R.  R.  Co. 
v.  Reinhackle,  15  Neb.  279,  18  N.  W.  69 ; 
Omaha  V.  R.  R.  Co.  v.  Rogers,  16  Neb. 
117,  19  N.  W.  603.  If  egress  and  ingress 
are  not  disturbed,  no  action  lies  in  such 
case  in  Tennessee.  Iron  Mt.  R.  R.  Co. 
v.  Bingham,  87  Tenn.  522,  11  S.  W.  705. 
The  rule  in  Kansas  is  similar.  Ottawa, 
&c.  R.  R.  Co.  v.  Larson,  40  Kan.  301,  19 
Pac.  661;  Kansas,  N.  &  D.  Ry.  Co.  v. 
Cuykendall,  42  Kan.  234,  21  Pac.  1051 ; 
Central  B.  U.  P.  R.  R.  Co.  v.  Andrews, 
30  Kan.  590,  2  Pac.  677. 


2  Millburn  v.  Cedar  Rapids,  &c.  R.  R. 
Co.,  12  Iowa,  246 ;  Franz  v.  Railroad  Co., 
65  Iowa,  107.     See  Uinard  v.  Burlington, 
&c.  Ry.  Co.,  66  Iowa,  440,  23  N.  W.  914. 
Under  a  statute  providing  for  compensa- 
tion for  laying  a  track  in  the  street  a  mere 
right-angle  crossing  is  not  included  :  Mor- 
gan v.  Des  Moines,  &c.  Ry.  Co.,  64  Iowa, 
589,  21  N.  W.  96;  a  diagonal  crossing  is. 
Enos  v.  Chicago,  &c.  Ry.  Co.,  78  Iowa, 
28,  42  N.  W.  575. 

3  Clinton  v.  Cedar  Rapids,  &c.  R.  R. 
Co.,  24  Iowa,  455. 

4  Stanley  v.  Davenport,  54  Iowa,  463, 
2  N.  W.  1064,  6  N.  W.  706,  37  Am.  Rep. 
216. 

6  Moses  v.  Pittsburgh,  Fort  Wayne, 
&  Chicago  R.  R.  Co.,  21  111.  516,  522. 
We  quote  from  the  opinion  of  Caton,  Ch. 
J. :  "  By  the  city  charter,  the  common 
council  is  vested  with  the  exclusive  con- 
trol and  regulation  of  the  streets  of  the 
city,  the  fee-simple  title  to  which  we  have 
already  decided  is  vested  in  the  municipal 
corporation.  The  city  charter  also  em- 
powers the  common  council  to  direct  and 
control  the  location  of  railroad  tracks 
within  the  city.  In  granting  this  permis- 
sion to  locate  the  track  in  Beach  Street, 
the  common  council  acted  under  an  ex- 
press power  granted  by  the  legislature. 


798 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


been  decided  that  an  abutting  lot-owner  who  does  not  own  the 
soil  of  a  city  street  cannot  recover  for  any  injury  to  his  freehold 


So  that  the  defendant  has  all  the  right 
which  both  the  legislature  and  the  com- 
mon council  could  give  it,  to  occupy  the 
street  with  its  track.  But  the  complain- 
ant assumes  higher  ground,  and  claims 
that  any  use  of  the  street,  even  under 
the  authority  of  the  legislature  and  the 
common  council,  which  tends  to  deterio- 
rate the  value  of  his  property  on  the 
street,  is  a  violation  of  that  fundamental 
law  which  forbids  private  property  to  be 
taken  for  public  use  without  just  com- 
pensation. This  is  manifestly  an  erro- 
neous view  of  the  constitutional  guaranty 
thus  invoked.  It  must  necessarily  hap- 
pen that  streets  will  be  used  for  various 
legitimate  purposes,  which  will,  to  a  great- 
er or  less  extent,  discommode  persons  re- 
siding or  doing  business  upon  them,  and 
just  to  that  extent  damage  their  prop- 
erty ;  and  yet  such  damage  is  incident  to 
all  city  property,  and  for  it  a  party  can 
claim  no  remedy.  The  common  council 
may  appoint  certain  localities  where 
hacks  and  drays  shall  stand  waiting  for 
employment,  or  where  wagons  loaded 
with  hay  or  wood,  or  other  commodities, 
shall  stand  waiting  for  purchasers.  This 
may  drive  customers  away  from  shops  or 
stores  in  the  vicinity,  and  yet  there  is  no 
remedy  for  the  damage,  A  street  is 
made  for  the  passage  of  persons  and  prop- 
erty ;  and  the  law  cannot  define  what 
exclusive  means  of  transportation  and 
passage  shall  be  used.  Universal  expe- 
rience shows  that  this  can  best  be  left  to 
the  determination  of  the  municipal  au- 
thorities, who  are  supposed  to  be  best 
acquainted  with  the  wants  and  necessities 
of  the  citizens  generally.  To  say  that  a 
new  mode  of  passage  shall  be  banished 
from  the  streets,  no  matter  how  much 
the  general  good  may  require  it,  simply 
because  streets  were  not  so  used  in  the 
days  of  Blackstone,  would  hardly  com- 
port with  the  advancement  and  enlight- 
enment of  the  present  age.  Steam  has 
but  lately  taken  the  place,  to  any  extent, 
of  animal  power  for  land  transportation, 
and  for  that  reason  alone  shall  it  be  ex- 
pelled the  streets  ?  For  the  same  reason 
camels  must  be  kept  out,  although  they 
might  be  profitably  employed.  Some 
fancy  horse  or  timid  lady  might  be  fright- 


ened by  such  uncouth  objects.  Or  is  the 
objection  not  in  the  motive  power  used, 
but  because  the  carriages  are  larger  than 
were  formerly  used, and  run  upon  iron,  and 
are  confined  to  a  given  track  in  the  street. 
Then  street  railroads  must  not  be  ad- 
mitted; they  have  large  carriages  which 
run  on  iron  rails,  and  are  confined  to  a 
given  track.  Their  momentum  is  great, 
and  may  do  damage  to  ordinary  vehicles 
or  foot  passengers.  Indeed  we  may  sup- 
pose or  assume  that  streets  occupied  by 
them  are  not  so  pleasant  for  other  car- 
riages, or  so  desirable  for  residences  or 
business  stands,  as  if  not  thus  occupied. 
But  for  this  reason  the  property  owners 
along  the  street  cannot  expect  to  stop 
such  improvements.  The  convenience 
of  those  who  live  at  a  greater  distance 
from  the  centre  of  a  city  requires  the 
use  of  such  improvements,  and  for  their 
benefit  the  owners  of  property  upon  the 
street  must  submit  to  the  burden,  when 
the  common  council  determine  that  the 
public  good  requires  it.  Cars  upon  street 
railroads  are  now  generally,  if  not  uni- 
versally, propelled  by  horses,  but  who 
can  say  how  long  it  will  be  before  it  will 
be  found  safe  and  profitable  to  propel 
them  with  steam  or  some  other  power 
besides  horses  ?  Should  we  say  that  this 
road  should  be  enjoined,  we  could  ad- 
vance no  reason  for  it  which  would  not 
apply  with  equal  force  to  street  railroads, 
so  that  consistency  would  require  that 
we  should  stop  all.  Nor  would  the  evil 
which  would  result  from  the  rule  we  must 
lay  down  stop  here.  We  must  prohibit 
every  use  of  a  street  which  discommodes 
those  who  reside  or  do  business  upon  it, 
because  their  property  will  else  be  dam- 
aged. This  question  has  been  presented 
in  other  States,  and  in  some  instances, 
where  the  public  have  only  an  easement 
of  the  street,  and  the  owner  of  the  ad- 
joining property  still  holds  the  fee  in  the 
street,  it  has  been  sustained ;  but  the 
weight  of  authority,  and  certainly, 'in  our 
apprehension,  all  sound  reasoning,  is  the 
other  way."  See  also  Chicago,  &c.  R.  R. 
Co.  p.  Joliet,  79  III.  25 ;  and  Harrison  v. 
New  Orleans,  &c.  Ry.  Co.,  34  La.  Ann. 
462,  where  a  like  ruling  is  made. 

All   the   cases   from   which  we  have 


CH.  XV.] 


THE   EMINENT  DOMAIN. 


799 


resulting  from  the  construction  of  a  steam  railway  in  the  street 
under  legislative  authority,  but  that  he  may  have  an  action  for 
any  injury  consequent  on  mismanagement  amounting  to  a  private 
nuisance ;  such  as  leaving  cars  standing  in  the  street  an  unreason- 
able time,  making  unnecessary  noises,  &C.1  In  New  York  it  is 
held  not  competent  for  a  city  to  authorize  the  construction  of  an 
elevated  railroad  in  its  streets  without  making  compensation  to 
abutting  owners  who  had  bought  their  lots  of  the  city  with  a 
covenant  that  the  streets  should  be  kept  open  forever.2  This 


quoted  assume  that  the  use  of  the  street 
by  the  railroad  company  is  still  a  public 
use  ;  and  an  appropriation  of  a  street,  or 
of  any  part  of  it,  by  an  individual  or  com- 
pany, for  his  or  their  own  private  use, 
unconnected  with  any  accommodation  of 
the  public,  would  not  be  consistent  with 
the  purpose  for  which  it  was  originally 
acquired.  Mikesell  v.  Durkee,  34  Kan. 
609,  9  PJIC.  278.  See  Brown  v.  Duplessis, 
14  La.  Ann.  842;  Green  v.  Portland,  32 
Me.  431. 

1  Grand  Rapids,  &c.  R.  R.  Co.  v.  Hei- 
sel,  38  Mich.  62,  31  Am.  Rep.  306;  Same 
v.  Same,   47  Mich.  393,  11  N.  W.  212. 
£The  rule  seems  to  have  been  settled  in 
New  York  by  the  case  of  Fobes  v.  Rome, 
W.  &  O.  R.  Co.,  121  N.  Y.  505,  24  N.  E. 
919,  8  L.  R.  A.  453,  that,  as  against  abut- 
ting owners,  having  no  title  in  the  bed  of 
the  street,  the  legislature  might  author- 
ize a  steam  surface  railway  therein  with- 
out compensation  to  the  abutting  owner. 
This  broad  statement  of  the  rule  is  sub- 
ject to  the  limitation,  however,  that  where 
the  construction    rendered    ingress    and 
egress  seriously  difficult  or  dangerous,  the 
owner  is  entitled  to  compensation.    Rein- 
ing v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  128  N.  Y. 
157,  28  N.  E.  640,  14  L.  R.  A.  133.     This 
case  reviews  prior  cases.] 

2  Story  t>.  New   York  Elevated  Rail- 
way Co.,  90  N.  Y.  122.     In  Lahr  v.  Metr. 
Elev.  R.  R.  Co.,  104  N.  Y.  268,  10  N.  E. 
528,  the  doctrine  was  extended  to  a  case 
where  there  was  no  such  covenant  and  the 
plaintiff  whose  lot  only  went  to  the  street 
line  held  under  mesne  conveyances,  from 
one  whose  land  had  been  condemned  for 
use  as  a  public  street  forever.     QAben- 
droth  v.  Manhattan  R,  Co.,  122  N.  Y.  1, 25 
N.  E.  496,  19  Am.  St.  461,  11  L.  R.  A. 
634,  one  of  the  so-called  "  Elevated  Rail- 
way  Cases  "  presented  the  question   of 
compensation  of  an  abutting  owner  for 


an  injury  claimed  to  result  from  the  erec- 
tion of  an  elevated  railway  in  the  street. 
There  was  no  claim  that  the  abutter,  or 
any  predecessor  in  title,  at  the  time  of  the 
injury  complained  of,  or  at  any  prior 
time,  owned  any  interest  or  right  in  the 
street,  except  such  as  was  appurtenant  to 
ownership  of  lands  abutting,  which  were 
never,  so  far  as  was  made  to  appear,  a 
part  of  the  lands  in  the  street.  It  was 
held  in  the  case  that  an  abutting  owner 
had  such  property  rights  in  the  street  as 
might  be  "  taken  "  against  the  prohibi- 
tion of  the  constitution,  and  this  though 
that  which  results  in  the  injury  is  done 
under  legislative  sanction.  Andrews,  J., 
says :  "  The  judgments  for  damages 
which  have  been  recovered  and  sustained 
against  the  elevated  roads  do  not,  and 
cannot,  rest  upon  the  ground  that  the 
roads  are  public  nuisances,  for  they  were 
constructed  pursuant  to  statutes;  and 
besides  a  public  nuisance  does  not  create 
a  private  cause  of  action  unless  a  private 
right  exists  and  is  injured  by  it  specially. 
The  only  remaining  ground  upon  which 
they  may  and  do  stand  is  that  by  the 
common  law  the  plaintiffs  had  private 
rights  in  the  streets  before  the  railways 
were  built  or  authorized  to  be  built.  It 
is  clear,  we  think,  that  these  rights  were 
not  created  by  the  statutes  under  which 
the  corporations  were  organized,  nor  by 
the  construction  of  the  roads ;  nor  do 
they  exist  by  virtue  of  the  judgment  in 
Story's  Case  .(90  N.  Y.  122);  but  they 
existed  anterior  to  the  construction  of  the 
roads,  and  have  simply  been  defined  and 
protected  by  the  decisions  made  in  the 
litigations  against  these  corporations. 
...  It  then  becomes  material  to  inquire 
whether  rights  of  action  are  cut  off 
because  the  road  was  constructed  pursu- 
ant to  legislative  authority.  The  consti- 
tution of  this  State  provides  '  Nor  shall 


800 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


last  decision  settles  a  long-pending  controversy,  and  is  in  harmony 
with  the  cases  in  Indiana  and  Michigan  ahove  referred  to.  (a) 

It  is  not  easy,  as  is  very  evident,  to  trace  a  clear  line  of  au- 
thority running  through  the  various  decisions  bearing  upon  the 
appropriation  of  the  ordinary  highways  and  streets  to  the  use  of 
railroads  of  any  grade  or  species ;  but  a  strong  inclination  is  ap- 
parent to  hold  that,  when  the  fee  in  the  public  way  is  taken  from 
the  former  owner,  it  is  taken  for  any  public  use  whatever  to  which 
the  public  authorities,  with  the  legislative  assent,  may  see  fit 
afterwards  to  devote  it,  in  furtherance  of  the  general  purpose  of 
the  original  appropriation  ; 1  and  if  this  is  so,  the  owner  must  be 


private  property  be  taken  for  public  use 
without  just  compensation.'  Art.  1,  sec.  6. 
It  is  settled  by  Story's  Case  and  Lahr's 
Case  (104  N.  Y.  268,  10  N.  E.  528),  that 
such  rights  as  plaintiff  has  in  Pearl  Street 
are  '  private  property  '  within  the  mean- 
ing of  the  constitutional  provision  quoted ; 
and  these  cases  also  hold  that  by  the  con- 
struction and  operation  of  an  elevated 
road  in  the  street  in  front  of  an  owner's 
premises,  his  rights  are  '  taken  for  public 
use'  within  the  meaning  of  the  constitu- 
tion. It  follows  that  the  authority  con- 
ferred by  the  legislature  to  construct  the 
road  is  not  a  defence  to  the  action."  It  is 
to  be  noticed  that  this  interpretation  of 
the  terms  "taking  of  private  property" 
does  not  necessarily  involve  an  actual 
physical  invasion  of  lands  of  the  claimant 
in  order  to  entitle  him  to  compensation 
under  the  constitution,  and  that  it  is  not 
necessary  that  the  constitution  should 
provide  that  compensation  shall  be  made 
for  "  injury  "  or  "  damage  "  in  order  that 
compensation  can  be  coerced  by  an  abut- 
ting owner,  though  he  have  no  interest 
in  the  fee  of  the  street,  for  injury  to  his 
right  to  ingress  and  egress,  to  access  of 
light  and  air,  or  for  depreciation  in  value 
of  the  abutting  property,  by  reason  of 
the  construction  and  operation  of  the 
improvement  in  the  public  street.  But 
see  these  Elevated  Railway  Cases  distin- 
guished from  the  cases  growing -out  of 
the  so-called  "  Park  Avenue  Improve- 
ment "  Cases  in  the  same  court :  Fries  v. 
New  York  &  H.  R.  Co.,  169  N.  Y.  270,  62 
N.  E.  358  ;  Muhlker  v.  N.  Y.  &  H.  R.  Co., 
173  N.  Y.  549,  66  N.  E.  558.  O'Brien,  J., 
in  the  Fries  Case,  says  :  The  law  is  well 
settled  in  this  State  that  where  the  prop- 


erty of  an  abutting  owner  is  damaged,  or 
even  its  easements  interfered  with  in  con- 
sequence of  the  work  of  an  improvement 
in  a  public  street  conducted  under  lawful 
authority, he  is  without  remedy  or  redress, 
even  though  no  provision  for  compensa- 
tion is  made  in  the  statute.  Whatever 
detriment  the  improvement  may  be  to 
the  abutter  in  such  cases  is  held  to  be 
damnum  absque  injuria."  The  Elevated 
Railway  Cases  are  distinguished  in  this 
language  :  They  "  proceed  upon  the  prin- 
ciple, that,  as  against  abutting  owners, 
the  railroad  was  unlawfully  in  the  street, 
as  they  had  not  consented  to  the  construc- 
tion or  conveyed  the  right  to  interfere 
with  their  easements.  But  in  the  case  at 
bar,  we  have  an  express  finding  that  the 
defendant  had  acquired  the  right  as 
against  the  plaintiff  to  use  the  street  for 
the  operation  of  the  railroad.  Hence  the 
principles  upon  which  that  mass  of  litiga- 
tion proceeded  have  no  application  to 
this  case."  Citing  Conabeer  v.  N.  Y.  C. 
&  H.  R.  R.  Co.,  156  N.  Y.  474,  51  N.  E. 
402.  See  Lewis  v.  New  York  &  H.  R. 
Co.,  162  N.  Y.  202,  66  N.  E.  540.] 

1  On  this  subject  see,  in  addition  to 
the  other  cases  cited,  West  v.  Bancroft, 
32  Vt.  367 ;  Kelsey  v.  King,  32  Barb.  410 ; 
Ohio  &  Lexington  R.  R.  Co.  v.  Apple- 
gate,  8  Dana,  289 ;  Hinchman  v.  Paterson 
Horse  R.  Co.,  17  N.  J.  Eq.  75;  Covington 
St.  R.  Co.  v.  Covington,  &c.  R.  Co.  (Ky.), 
19  Am.  Law  Reg.  N.  s.  765.  When,  how- 
ever, land  is  taken  or  dedicated  specifi- 
cally fora  street,  it  would  seem,  although 
the  fee  is  taken,  it  is  taken  for  the  re- 
stricted use  only ;  that  is  to  say,  for  such 
uses  as  streets  in  cities  are  commonly  put 
to.  See  State  v.  Laverack,  34  N.  J.  201 ; 


(a)  See  reference  to  later  cases  in  preceding  note. 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


801 


held  to  be  compensated  at  the  time  of  the  original  taking  for  any 
such  possible  use ;  and  he  takes  his  chances  of  that  use,  or  any 
change  in  it,  proving  beneficial  or  deleterious  to  any  remaining 
property  he  may  own,  or  business  he  may  be  engaged  in ;  and  it 
must  also  be  held  that  the  possibility  that  the  land  may,  at  some 
future  time,  revert  to  him,  by  the  public  use  ceasing,  is  too  remote 
and  contingent  to  be  considered  as  property  at  all.1  At  the  same 
time  it  must  be  confessed  that  it  is  difficult  to  determine  precisely 
how  far  some  of  the  decisions  made  have  been  governed  by  the 
circumstance  that  the  fee  was,  or  was  not  in  the  public,  or,  on  the 
other  hand,  have  proceeded  on  the  theory  that  a  railway  was  only 
in  furtherance  of  the  original  purpose  of  the  appropriation,  and 
not  to  be  regarded  as  the  imposition  of  any  new  burden,  even 
where  an  easement  only  was  originally  taken.2 


Railroad  Co.  v.  Shurmeir,  7  Wall.  272. 
QThe  weight  of  judicial  opinion  is  that  an 
ordinary  surface  street  railway  is  not  an 
additional  servitude,  whether  operated  by 
horses  or  electricity.  See  Fobes  v.  Rome, 
W.  &  0.  Ry.  Co.,  121  N.  Y.  605,  24  N.  E. 
919,  8  L.  II.  A.  453.  Contra,  as  to  electric 
railwav  in  a  public  highway :  Zehren  v. 
Milwaukee  El.  Ry.  Co.,  99  Wis.  83,  74 
N.  W.  538.] 

1  As  to  whether  there  is  such  possi- 
bility of  reverter,  see  Heyward  v.  Mayor, 
&c.  of  New  York,  7  N.  Y.  314 ;  People  v. 
Kerr,  27  N.  Y.  188,  211,  per  Wright,  J. ; 
Plitt  v.  Cox,  43  Pa.  St.  486. 

2  QThe  following  case  illustrates  that 
view  of  the  courts  which  makes  owner- 
ship in  the  fee  of  the  street  essential  to 
the  right  to  compensation  for  the  new  or 
added  use  of  the  street.     O'Brien  v.  Bal- 
timore Belt  Ry.  Co.,  74  Md.  363,  22  All. 
141,   13   L.    R.    A.    126.     The  following 
illustrate  the  view  that  ownership  of  the 
fee  is  not  essential  to  the  right  to  com- 
pensation.    Abendroth  v.  Manhattan  Ry. 
Co.,  122  N.  Y.  1,  25  N.  E.  496,  19  Am.  St. 
461,   11  L.  R.  A.  634  (elevated  railway, 
injury  to  easement  of  light,  air,  and  ac- 
cess) ;    Kane  v.  N.  Y.  E.   Ry.   Co.,   125 
N.  Y.  164,  26  N.   E.   278,   11  L.   R.  A. 
6 JO;  Stowers  v.  Postal   Telegraph    Co., 
68   Miss.    559,  9   So.  356,    12  L.   R.   A. 
864,  24  Am.  St.  2(,)0;   telegraph  line  in 
street :  Egerer  v.  N.  Y.  C.  &  H.  R.  Ry.  Co., 
130  N.  Y.  108,  29  N.  E.  95,  14  L.  R.  A. 
381,  and  note.     Can  be  no  damages  for 
injury  to  easement  of  light  and   air  if 
property  worth  more  after  than  before 


the  improvement :  Somers  v.  Met.  El. 
Ry.  Co.,  129  N.  Y.  576,  29  N.  E.  802,  14 
L.  R.  A.  344.3  There  is  great  difficulty, 
as  it  seems  to  us,  in  supporting  impor- 
tant distinctions  upon  the  fact  that  the 
fee  was  originally  taken  for  the  use  of 
the  public  instead  of  a  mere  easement. 
If  the  fee  is  appropriated  or  dedicated,  it 
is  for  a  particular  use  only  ;  and  it  is  a 
conditional  fee,  —  a  fee  on  condition  that 
the  land  continue  to  be  occupied  for  that 
use.  The  practical  difference  in  the 
cases  is,  that  when  the  fee  is  taken,  the 
possession  of  the  original  owner  is  ex- 
cluded ;  and  in  the  case  of  city  streets, 
where  there  is  occasion  to  devote  them  to 
many  other  purposes  besides  those  of 
passage,  but  nevertheless  not  inconsis- 
tent, such  as  for  the  laying  of  water  and 
gas  pipes,  and  the  construction  of  sewers, 
this  exclusion  of  any  private  right  of  oc- 
cupation is  important,  and  will  sometimes 
save  controversies  and  litigation.  But  to 
say  that  when  a  man  has  declared  a  dedi- 
cation for  a  particular  use,  under  a  stat- 
ute which  makes  a  dedication  the  gift  of 
a  fee,  he  thereby  makes  it  liable  to  be 
appropriated  to  other  purposes,  when  the 
same  could  not  be  done  if  a  perpetual 
easement  had  been  dedicated,  seems  to 
be  basing  important  distinctions  upon  a 
difference  which  after  all  is  more  techni- 
cal than  real,  and  which  in  any  view  does 
not  affect  the  distinction  made.  The  same 
reasoning  which  has  sustained  the  legisla- 
ture in  authorizing  a  railroad  track  to  be 
laid  down  in  a  city  street  would  support 
its  action  in  authorizing  it  to  be  made 


51 


802 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


Perhaps  the  true  distinction  in  these  cases  is  not  to  be  found 
in  the  motive  power  of  the  railway,  or  in  the  question  whether  the 
fee-simple  or  a  mere  easement  was  taken  in  the  original  appro- 
priation, but  depends  upon  the  question  whether  the  railway  con- 
stitutes a  thoroughfare,  or,  on  the  other  hand,  is  a  mere  local 
convenience.  When  land  is  taken  or  dedicated  for  a  town  street, 
it  is  unquestionably  appropriated  for  all  the  ordinary  purposes  of 
a  town  street;  not  merely  the  purposes  to  which  such  streets 
were  formerly  applied,  but  those  demanded  by  new  improvements 
and  new  wants.  Among  these  purposes  is  the  use  for  carriages 
which  run  upon  a  grooved  track ;  and  the  preparation  of  impor- 
tant streets  in  large  cities  for  tlieir  use  is  not  only  a  frequent 
necessity,  which  must  be  supposed  to  have  been  contemplated,  but 
it  is  almost  as  much  a  matter  of  course  as  the  .grading  and  pav- 
ing.1 The  appropriation  of  a  country  highway  for  the  purposes 
of  a  railway,  on  the  other  hand,  is  neither  usual  nor  often  impor- 


into  a  canal ;  and  the  purpose  of  the  orig- 
inal dedication  or  appropriation  would 
thereby  be  entirely  defeated.  Is  it  not 
more  consistent  with  established  rules  to 
hold  that  a  dedication  or  appropriation  to 
one  purpose  confines  the  use  to  that  pur- 
pose ;  and  when  it  is  taken  for  any  other, 
the  original  owner  has  not  been  compen- 
sated for  the  injury  he  may  sustain  in 
consequence,  and  is  therefore  entitled  to 
it  now?  Notwithstanding  a  dedication 
which  vests  the  title  in  the  public,  it 
must  be  conceded  that  the  interest  of 
the  adjacent  lot-owners  is  still  property. 
"They  have  a  peculiar  interest  in  the 
street,  which  neither  the  local  nor  the 
general  public  can  pretend  to  claim;  a 
private  right  of  the  nature  of  an  incor- 
poreal hereditament,  legally  attached  to 
their  contiguous  grounds,  and  the  erec- 
tions thereon ;  an  incidental  title  to  cer- 
tain facilities  and  franchises  assured  to 
them  by  contracts  and  by  law,  and  with- 
out which  their  property  would  be  com- 
paratively of  little  value.  This  ease- 
ment, appendant  to  the  lots,  unlike  any 
right  of  one  lot-owner  in  the  lot  of 
another,  is  as  much  property  as  the  lot 
itself."  Crawford  v.  Delaware,  7  Ohio 
St.  450,  469.  See  some  very  pertinent 
and  sensible  remarks  on  the  same  subject 
by  Ranney,  J.,  in  Street  Railway  v.  Cum- 
minsville,  14  Ohio  St.  641.  See  also 
Railroad  Co  v.  Hambleton,  40  Ohio  St. 
490.  It  makes  no  difference  that  the  fee 


is  not  in  the  abutter.  Railway  Co.  v. 
Lawrence,  38  Ohio  St.  41.  He  has,  inde- 
pendent of  the  ownership  of  the  soil,  an 
interest  in  the  street  appurtenant  to  his 
lot,  for  the  admission  of  light  and  air. 
Adams  v.  Chicago,  &c.  R.  R.  Co.,  3(J  Minn. 
286,  39  N.  W.  629.  Whether  the  fee  is  in 
him  or  the  public,  he  is  to  be  paid  if  a 
steam  railroad  is  laid  in  the  street,  as  the 
use  is  not  for  an  ordinary  street  purpose. 
Theobold  v.  Louisville,  &c.  Ry.  Co.,  66 
Miss.  279,  6  So.  230.  See  Columbus  & 
W.  Ry.  Co.  v.  Witherow,  82  Ala.  190, 
3  So.  23,  and  cases  p.  797,  note  1,  supra. 
FJBut  see  contra,  Fobes  v.  Rome,  W.  &  0. 
Ry.  Co.,  121  N.  Y.  505,  24  N.  E.  919, 
8  L.  R.  A.  453.] 

1  Attorney-General  v.  Railway  Co.,  125 
Mass.  615,  28  Am.  Rep.  264;  Hiss  v. 
Railway  Co.,  52  Md.  242,  36  Am.  Rep. 
371 ;  Covington  St.  R.  Co.  v.  Covington, 
&c.  R.  Co.  (Ky.),  19  Am.  Law  Reg.  N.  s. 
765.  See  cases  p.  794,  note  4,  supra.  If  a 
street  railroad  is  used  for  passing  from 
place  to  place  on  the  street,  a  change  in 
the  motive  power  from  horses  to  steam  is 
not  a  change  in  the  use.  Not  the  motor 
but  the  use  of  the  street  is  the  criterion. 
Briggs  v.  Lewiston,  &c.  R.  R.  Co.,  79  Me. 
360,  10  Atl.  47.  So  where  cars  were  run 
in  trains  by  steam  motors,  but  the  use 
was  no  substantial  infringement  upon 
the  common  public  right  of  passage. 
Newell  v.  Minneapolis,  &c.  Ry.  Co.,  35 
Minn.  112,  27  N.W.  839. 


CH.  XV.]  THE    EMINENT   DOMAIN.  803 

tant ;  and  it  cannot  with  any  justice  be  regarded  as  within  the 
contemplation  of  the  parties  when  the  highway  is  first  established.1 
And  if  this  is  so,  it  is  clear  that  the  owner  cannot  be  considered 
as  compensated  for  the  new  use  at  the  time  of  the  original 
appropriation,  (a) 

1  A  steam  railroad  in  such  road  is  a  Co.  v.  Ingalls,  15  Neb.  123,  16  N.  W. 
new  servitude.  Hastings  &  G.  I.  II.  R.  762. 

(a)  [[What  will  constitute  such  a  new  use  or  additional  servitude  as  will  entitle  an 
owner  whose  rights  are  subject  to  a  prior  use  or  servitude  to  compensation'? 

Steam  railway  in  a  public  street  or  highway  is  :  East  End  St.  Ry.  Co.  v.  Doyle,  88 
Tenn.  747,  13  S  W.  936,  9  L.  R.  A.  100;  Am.  Bank  Note  Co.  v.  N.  Y.  El.  Ry.  Co., 
12(J  N.  Y.  252,  21)  N.  E.  302 ;  Nichols  v.  A.  A.  &  Y.  Ry.  Co.,  87  Mich.  361,  49  N.  W. 
538,  16  L.  R.  A.  371 ;  Kauffman  v.  Tacoma,  O.  &  G.  H.  Ry.  Co.,  11  Wash.  632,  40 
Pac.  137;  Jones  v.  Erie  &  \V.  V.  Ry.  Co.,  151  Pa.  St.  30,  25  All.  134,  31  Am.  St.  722, 
and  note,  18  L.  Li.  A.  339 ;  Finch  v.  Riverside  &  A.  Ry.  Co.,  87  Cal.  697  ;  Freiday  v. 
Sioux  City  Rap.  Tran.  Co.,  92  Iowa,  191,  60  N.  W.  656,  26  L.  R.  A.  246;  Western 
Ry.  Co.  *>."  Ala.  G.  T.  Ry.  Co.,  96  Ala.  272,  11  So.  483,  17  L.  R.  A.  474;  White  n. 
N.  W.  N.  C.  Ry.  Co.,  118  N.  C.  610,  18  S.  E.  330,  37  Am.  St.  639,  22  L.  R.  A.  627; 
Schaaf  v.  Cleveland  M.  &  S.  Ry.  Co.,  60  Ohio,  215,  64  N.  E.  145.  Contra,  Henry  Gans 
&  Sons  Mfg.  Co.  v.  St.  L.  K.  &  N.  W.  Ry.  Co.,  113  Mo.  308,  20  S.  W.  658,  18  L.  R  A. 
339,  35  Am.  St.  506;  also  in  Pennsylvania,  unless  excavation  or  embankment  injures 
adjoining  property  or  access  is  cut  off,  or  light  and  air  excluded :  Jones  r.  Erie  & 
W.  V.  Ry.  Co.,  151  Pa.  St.  30,  25  Atl.  134,  31  Am.  St.  722  ;  Montgomery  v.  Santa 
Ana  &  W.  Ry.  Co.,  104  Cal.  186,  37  Pac.  786,  24  L.  R.  A.  654 ;  use  of  lines  of  one 
railway  company  by  another  is  not:  Miller  v.  G.  B.  W.  &  St.  P.  Ry.  Co.,  59  Minn.  169, 
60  N.  W.  1006,  26  L.  R.  A.  443 ;  grant  by  one  railway  company  to  another  of  part 
of  its  right  of  way  for  construction  of  tracks  ;  such  new  line  is:  Fort  Worth  &  R.  G. 
Ry.  Co.  v.  Jennings,  76  Tex.  373,  13  S.  W.  270,  8  L.  R.  A.  180. 

Surface  street  railway  propelled  by  horses,  cable,  or  electricity  is  not  in  a  city 
street.  Dean  v.  Ann  Arbor  St.  Ry.  Co.,  93  Mich.  330,  53  N.  W.  396 ;  State  v.  Jack- 
sonville St.  Ry.  Co.,  29  Fla.  590,  10  So.  590 ;  Penn.  Ry.  Co.  v.  Montgomery  Co.,  &c., 
167  Pa.  St.  62,  31  Atl.  468.  46  Am.  St.  659,  27  L.  R.  A.  766 ;  (contra,  in  country  high- 
way, Id.)  Cumberland  Tel.  &  Telph.  Co.  v.  United  El.  Ry.  Co.,  93  Tenn.  492,  29 
S.  W.  104,  27  L.  R.  A.  236;  Green  v.  City  &  Suburban  Ry.  Co.,  78  Md.  294,  28  Atl. 
626,  44  Am.  St.  288 ;  Ashland  &  C.  S.  Ry.  Co.  v.  Faulkner,  —  Ky.  — ,  45  S.  W.  235, 
43  L.  R.  A.  554 ;  Finch  v.  Riverside  &  A.  Ry.  Co.,  87  Cal.  597,  25  Pac.  765 ;  Rafferty 
t».  Central  Traction  Co.,  147  Pa.  St.  679,  23  Atl.  884 ;  Chicago  &  C.  Terminal  Ry. 
Co.  v.  Whiting.  H.  &  E.  C.  St.  Ry.  Co.,  139  Ind.  297,  33  N.  E.  604,  47  Am.  St.  264, 
26  L.  R.  A.  337 ;  New  Jersey  ex  rel.  Kennelly  v.  Jersey  City,  57  N.  J.  L.  293,  30  Atl. 
531,  26  L.  R.  A.  281  ;  Chicago,  B.  &  Q.  Ry.  Co.  v.  West  Chicago  S.  Ry.  Co.,  156  111. 
255,  40  N.  E.  1008,  29  L.  R.  A.  485.  Unless  constructed  in  disregard  of  convenience 
of  abutting  owners  on  a  city  street,  a  trolley  railway  is  not :  Snyder  v.  Fort  Madison 
St.  Ry.  Co.,  105  Iowa,  284,  75  N.  W.  179,  41  L.  R.  A.  3 to;  Birmingham  T.  Co.  r. 
Birmingham  R.  &  E.  Co.,  119  Ala.  137,  24  So.  502,  43  L.  R.  A.  233.  Electric  rail- 
way in  village  street  is  an  additional  servitude  :  Chicago  &  N.  W.  Ry.  Co.  v.  Mil- 
waukee R.  &  K.  El.  Ry.,  95  Wis.  561,  70  N.  W.  678,  60  Am.  St.  136,  37  L.  R.  A.  856. 
So  held  in  case  of  city  street,  in  Jaynes  v.  Omaha  S.  Ry.  Co.,  53  Neb.  631,  74  N.  W. 
67,  39  L.  R.  A.  751.  Such  railway  in  public  country  highway  is:  Zehren  v.  Mil- 
waukee El.  Ry.  &  L.  Co.,  99  Wis.  83,  74  N.  W.  638,  67  Am.  St.  844,  41  L.  R.  A.  675. 
Elevated  street  railway  is :  Williams  v.  Brooklyn  El.  Ry.  Co.,  126  N.  Y.  96,  26  N.  E. 
1048,  (rev.  67  Hun,  691.)  Contrti,  Doane  v.  Lake  Street  El.  Ry.  Co.,  165  111.  510,  46 
N.  E.  520,  56  Am.  St.  265,  36  L.  R.  A.  97.  See  Jaynes  v.  Omaha  St.  Ry.  Co.,  53  Neb. 
631,  74  N.  W.  67,  39  L.  R.  A.  751.  Substitution  of  electric  motors  with  trolley  sys- 
tem on  street  railway  operated  by  horses  is  not :  State  v.  Trenton  Pass.  Ry.  Co.,  68 


804  CONSTITUTIONAL    LIMITATIONS.  [CH.  XV. 

The  cases  thus  far  considered  are  those  in  which  the  original 
use  is  not  entirely  foreign  to  the  purpose  of  the  new  appropriation  ; 
and  it  is  the  similarity  that  admits  of  the  question  which  has  been 
discussed.  Were  the  uses  totally  different,  there  could  be  no 
question  whatever  that  a  new  assessment  of  compensation  must 
be  made  before  the  appropriation  could  be  lawful.1  And  in  any 

1  Where  lands  were  appropriated  by  a  streets  by  telegraph  and  telephone  com- 
railroad  company  for  its  purposes,  and  panies  and  the  effect  upon  the  rights 
afterwards  leased  out  for  private  occupa-  of  abutting  owners,  see  52  Cent.  Law 
tion,  it  was  held  that  the  owner  of  the  Jour.  205;  Callen  v.  Columbus  M.  &  S. 
fee  was  entitled  to  maintain  a  writ  of  Ry.  Co.,  66  Ohio,  166,  64  N.  E.  141.]  So 
entry  to  establish  his  title  and  recover  a  city  may  not  condemn  a  pier  to  let  it 
damages  for  the  wrongful  use.  Proprie-  to  a  private  corporation.  Belcher  Sugar 
tors  of  Locks,  &c.  v.  Nashua  &  Lowell  Refining  Co.  v.  St.  Louis  Elev.  Co.,  82  Mo. 
R.  R.  Co.,  104  Mass.  1,  6  Am.  Rep.  121.  As  to  what  use  may  be  made  of 
181.  QUse  of  vacant  portion  of  rail-  land  in  which  an  easement  has  been  con- 
way  depot  grounds  for  place  of  business  demned  for  a  railroad  station,  see  Pierce 
by  customer  of  the  railway  company  is  an  u.  Boston,  &c.  R.  R.  Corp.,  141  Mass.  481, 
additional  servitude  :  Lyon  v.  McDonald,  6  N.  E.  96  ;  Hoggatt  v.  Vicksburg,  &c.  R. 
78  Tex.  71,  14  S.  W.  261,  9  L.  R.  A.  295.  R.  Co.,  34  La.  Ann.  624.  Where  land 
The  legislature  cannot  authorize  a  com-  has  been  taken  for  a  street,  it  cannot  be 
mission  to  compel  a  railway  company  to  appropriated  as  a  house  to  confine  tramps  : 
grant  the  use  of  its  lands  to  private  Winchester  v.  Capron,  63  N.  H.  605,  4 
persons  for  elevator  purposes.  Missouri  All.  795 ;  nor  for  the  erection  of  a  market 
Pacific  Ry.  Co.  v.  Nebraska,  164  U.  S.  building  without  making  compensation : 
403,  17  Sup.  Ct.  Rep.  130,  rev.  29  Neb.  State  v.  Mayor,  &c.  of  Mobile,  5  Porter, 
550,  45  N.  W.  785.  As  to  the  use  of  279,  30  Am.  Dec.  564 ;  State  v.  Laverack, 

N.  J.  L.  666,  34  Atl.  1090, 33  L.  R.  A.  129;  Reid  ».  Norfolk  City  Ry.  Co.,  94  Va.  117, 
26  S.  E.  428,  36  L.  R.  A.  274,  64  Am.  St.  708. 

Telegraph  or  telephone  line  in  public  highway  or  street  is:  Pac.  Postal  Telph. 
Cable  CD.  v.  Irvine,  49  Fed.  Rep.  113 ;  Callen  v.  Columbus  E.  E.  L.  Co.,  66  Ohio,  166, 
64  N.  E.  141 ;  Stowers  v.  Postal  Telph.  Cable  Co.,  68  Miss.  559,  9  So.  356,  24  Am.  St. 
290,  12  L.  R.  A.  564 ;  Nicholl  v.  New  York  &  N.  J.  Tel.  Co.,  62  N.  J.  L.  733,  42  Atl. 
583;  West.  Union  Telph.  Co.  v.  Williams,  86  Va.  696,  11  S.  E.  106,  19  Am.  St.  908, 
8  L.  R.  A.  429;  Postal  Telegraph  Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  62 
Am.  St.  3!)0,  39  L.  R.  A.  722;  Krueger  v.  Wisconsin  Telne.  Co.,  106  Wis.  96,  81 
N.  W.  1041,  50  L.  R.  A.  298.  Contra:  Cater  v.  N.  W.  Telephone  Exchange  Co.,  60 
Minn.  539,  63  N.  W.  Ill,  27  L.  R.  A.  310,  51  Am.  St.  543 ;  People  v.  Eaton,  100  Mich. 
208,  50  N.  W.  145,  24  L.  R.  A.  721 ;  Irwin  v.  Great  Southern  Telph.  Co  ,  37  La.  Ann. 
63;  Magee  v.  Overshiner,  150  Ind.  127,  40  N.  E.  951,  65  Am.  St.  358,  40  L.  R.  A.  370; 
State  ex  rel.  National  Subway  Co.  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42  L.  R.  A. 
113.  Telegraph  line  on  railway  line,  if  for  use  of  railway  is  not:  Am.  Telph.  & 
Telne.  Co.  ».  Pearce,  71  Md.  535,  18  Atl.  910,  7  L.  R.  A.  200.  Contra,  if  not  for  use 
of  railway:  Id.  Poles  for  electric  light  wires  in  country  highway  are  not:  Palmer 
v.  Larchmont  E.  Co.,  158  N.  Y.  231,  52  N.  E.  1092,  43  L.  R.  A.  672.  Pipe  line  for 
natural  gas  in  public  highway  is:  Kincaid  v.  Indianapolis  N.  G.  Co.,  124  Ind.  577,  24 
N.  E.  1066,  19  Am.  St.  113,  8  L.  R.  A.  602.  When  pipe  is  laid  under  walk  in  city 
street,  it  is  not :  McDevitt  v.  Peoples  N.  G.  Co.,  160  Pa.  St.  367,  28  Atl.  948. 

Sewer  system  in  a  town  road  is  not  in  Massachusetts  :  Lincoln  v.  Comm.,  164 
Mass.  1.  Change  of  country  road  to  city  street  is  not  to  create  a  new  servitude: 
Huddleston  Admx.  v.  City  of  Eugene,  34  Oreg.  343,  55  Pac.  868,  43  L.  R.  A.  444. 
Construction  of  grain  elevator  on  lands  condemned  for  railway  by  the  railway  com- 
pany or  its  lessee  is  not  misuse  of  easement  condemned  :  Gurney  v.  Minneapolis 
Union  Elevator  Co.,  63  Minn.  70,  65  N.  W.  136,  30  L.  R.  A.  534.] 


Oil.  XV.] 


THE  EMINENT  DOMAIN. 


805 


case,  to  authorize  lands  already  taken  for  one  public  use  to  be 


34  N.  J.  201.  The  opinion  of  Beasley,  Ch. 
J.,  in  the  New  Jersey  case,  will  justify  lib- 
eral quotations.  He  says  (p.  204)  :  "  I 
think  it  undeniable  that  the  appropriation 
of  this  land  to  the  purposes  of  a  market 
was  an  additional  burthen  upon  it. 
Clearly  it  was  not  using  it  as  a  street. 
So  far  from  that,  what  the  act  authorized 
to  be  done  was  incongruous  with  such 
use;  for  the  market  was  an  obstruction 
to  it,  considered  merely  as  a  highway. 
.  .  .  When,  therefore,  the  legislature 
declared  that  these  streets  in  the  city  of 
Paterson  might  be  used  for  market  pur- 
poses, the  power  which  was  conferred  in 
substance  was  an  authority  to  place 
obstructions  in  these  public  highways. 
The  consequence  is  that  there  is  no  force 
in  the  .argument,  which  was  the  principal 
one  pressed  upon  our  attention,  that  the 
use  of  these  streets  for  the  purpose  now 
claimed  is  as  legitimate  as  the  use  of  a 
public  highway  by  a  horse  railroad, 
which  latter  use  has  been  repeatedly 
sanctioned  by  the  courts  of  the  State. 
The  two  cases,  so  far  as  related  to  prin- 
ciple, stand  precisely  opposite.  I  have 
said  that  a  market  is  an  obstruction  to  a 
street,  that  it  is  not  a  use  of  it  as  a 
street,  but,  if  unauthorized,  is  a  nuisance. 
To  the  contrary  of  this,  a  horse  railroad 
is  a  new  mode  of  using  a  street  as  such, 
and  it  is  precisely  upon  this  ground  that 
it  has  been  held  to  be  legal.  The  cases 
rest  upon  this  foundation.  That  a  horse 
railway  was  a  legitimate  use  of  a  high- 
way was  decided  in  Hinchman  v.  Pater- 
son  Horse  Railroad  Co.,  17  N.  J.  Eq.  76 ; 
and,  in  his  opinion,  Chancellor  Greene  as- 
signs the  following  as  the  reasons  of  his 
judgment :  '  The  use  of  the  road  is  nearly 
identical  with  that  of  the  ordinary  high- 
way. The  motive  power  is  the  same. 
The  noise  and  jarring  of  the  street  by 
the  cars  is  not  greater,  and  ordinary  less, 
than  that  produced  by  omnibuses  and 
other  vehicles  in  ordinary  use.  Admit 
that  the  nature  of  the  use,  as  respects  the 
travelling  public,  is  somewhat  variant, 
how  does  it  prejudice  the  land-owner  ? 
Is  his  property  taken  ?  Are  his  rights  as 
a  land-owner  affected  ?  Does  it  interfere 
with  the  use  of  his  property  any  more 
than  the  ordinary  highway  1  '  It  is  clear 
that  this  reasoning  can  have  no  appropri- 
ate application  to  a  case  in  which  it  ap- 


pears that  the  use  of  the  street  is  so  far 
from  being  nearly  identical  with  that  of 
the  ordinary  highway  that  in  law  it  has 
always  been  regarded  as  an  injury  to 
such  public  easement,  and  on  that  account 
an  indictable  offence. 

"  I  regard,  then,  a  right  to  hold  a  mar- 
ket in  a  street  as  an  easement  additional 
to,  and  in  a  measure  inconsistent  with, 
its  ordinary  use  as  a  highway.  The  ques- 
tion therefore  is  presented,  Can  such  ease- 
ment be  conferred  by  the  legislature  on 
the  public  without  compensation  to  the 
land-owner  ?  I  have  already  said  that 
from  the  first  it  has  appeared  to  me  this 
question  must  be  answered  in  the  nega- 
tive. I  think  the  true  rule  is,  that  land 
taken  by  the  public  for  a  particular  use 
cannot  be  applied  under  such  a  seques- 
tration to  any  other  use  to  the  detriment 
of  the  land-owner.  This  is  the  only  rule 
which  will  adequately  protect  the  consti- 
tutional right  of  the  citizen.  To  permit 
land  taken  for  one  purpose,  and  for  which 
the  land-owner  lias  been  compensated,  to 
be  applied  to  another  and  additional  pur- 
pose, for  which  he  has  received  no  com- 
pensation, would  be  a  mere  evasion  of  the 
spirit  of  the  fundamental  law  of  the  State. 
Land  taken  and  applied  for  the  ordinary 
purpose  of  a  street  would  often  be  an  im- 
provement of  the  adjacent  property ;  an 
appropriation  of  it  to  the  uses  of  a  mar- 
ket would,  perhaps,  as  often  be  destruc- 
tive of  one-half  the  value  of  such  property. 
Compensation  for  land,  therefore,  to  be 
used  as  a  highway,  might,  and  many 
times  would  IK--,  totally  inadequate  com- 
pensation if  such  land  is  to  be  used  as  a 
public  market  place.  Few  things  would 
be  more  unjust  than,  when  compensation 
has  been  made  for  land  in  view  of  one  of 
these  purposes,  to  allow  it  to  be  used 
without  compensation  for  the  other.  The 
right  of  the  public  in  a  highway  consists 
in  the  privilege  of  passage,  and  such  priv- 
ileges as  are  annexed  as  incidents  by 
usage  or.  custom,  as  the  right  to  make 
sewers  and  drains,  and  to  lay  gas  and 
water  pipes.  These  subordinate  privi- 
leges are  entirely  consistent  with  the  pri- 
mary use  of  the  highway,  and  are  no 
detriment  to  the  land-owner.  But  I  am 
not  aware  of  any  case  in  which  it  has 
been  held  that  the  pulbic  has  any  right  in 
a  highway  which  is  incongruous  with  the 


806 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


appropriated   to   another,   there    must  be   distinct   and   express 
legislative  authority.1 


purpose  for  which  it  was  originally  cre- 
ated, and  which  at  the  same  time  is  inju- 
rious to  the  proprietor  of  the  soil.  Such 
certainly  has  not  been  the  course  of  judi- 
cial decision  in  our  own  courts.  Indeed 
the  cases  appear  to  be  all  ranged  on  the 
opposite  side.  I  have  shown  that  the 
legalization  of  the  use  of  a  street  by  a 
horse  railroad  has  been  carefully  placed 
on  the  ground  that  such  an  appropriation 
of  the  street  was  merely  a  new  mode  of 
its  legitimate  and  ordinary  use.  The 
rationale  adopted  excludes  by  necessary 
implication  the  hypothesis  that  the  dedi- 
cation of  a  street  to  a  new  purpose,  incon- 
sistent with  its  original  nature,  would  be 
legal  with  respect  to  the  uncompensated 
land-owner.  But  beyond  this  it  has  been 
expressly  declared  that  such  superadded 
use  would  be  illegal.  In  the  opinion  of 
Mr.  Justice  Haines,  in  Starr  v.  Camden 
&  Atlantic  R.  R.  Co.,  24  N.  J.  692,  it  is 
very  explicitly  held  that  the  constitution 
of  this  State  would  prevent  the  legislature 
from  granting  to  a  railroad  company  a 
right  to  use  a  public  highway  as  a  bed 
for  their  road  without  first  making  com- 
pensation to  the  owner  of  the  soil.  And 
in  the  case  of  Hinchman  v.  The  Paterson 
Horse  Railroad  Co.,  already  cited,  Chan- 
cellor Greene  quotes  these  views,  and  gives 
the  doctrine  the  high  sanction  of  his  own 
approval.  See  also  the  Central  R.  R.  Co. 
v.  Hetfield,  29  N.  J.  206." 

The  learned  judge  then  distinguishes 
Wright  v.  Carter,  27  N.  J.  76,  and  quotes, 
as  sustaining  his  own  views,  State  v. 
Mayor,  &c.  of  Mobile,  6  Porter,  279, 
SO  Am.  Dec.  664;  Trustees  of  Presby- 
terian Society  v.  Auburn  &  Rochester 
R.  R.  Co.,  3  Hill,  567 ;  Williams  v.  N.  Y. 
C.  R.  R.  Co.,  16  N.  Y.  97;  Angell  on 
Highways,  §  243  et  seq.,  and  cases  cited. 
[JA  public  park  may  be  taken  for  rapid 
transit  railway  :  Suburban  Rapid  Tran- 
sit Co.  v.  City  of  New  York,  128  N.  Y. 
610,  28  N.  E.  525,  rev.  60  Hun,  577. 
Highway  for  railway:  Louisville  &  W. 
Ry.  Co.  v.  Whitley  Co.  Court,  96  Ky. 
215,  24  S.  W.  604,  44  Am.  St.  Rep.  220, 
note ;  Chicago  &  Northwestern  Ry.  Co. 
».  Chicago,  151  111.  348,  37  N.  E.  842; 
City  of  Valparaiso  v.  Chicago  &  Grand 
Trunk  Ry.  Co.,  123  Ind.  467,  24  N.  E. 


249;  modified  in  Lake  Erie  &  Western 
Ry.  Co.  v.  City  of  Kokomo,  130  Ind.  224, 
29  N.  E.  780 ;  Minneapolis  Western  Ry. 
Co.  i;.  Minneapolis  &  St.  Louis  Ry.  Co., 
61  Minn.  502,  63  N.  W.  1035.  Part  of 
school  house  site  may  be  taken  for  a  pub- 
lic way,  though  such  taking  to  some 
extent  diminishes  its  usefulness :  East- 
hampton  v.  Hampshire  County,  154  Mass. 
424,  28  N.  E.  298;  13  L.  R.  A.  157.] 

1  In  re  Boston,  &c.  R.  R.  Co.,  63  N.  Y. 
457 ;  State  v.  Montclair  R.  Co.,  35  N.  J. 
328  ;  Railroad  Co.  r.  Dayton,  23  Ohio  St. 
610  ;  Stanley  v.  Davenport,  54  Iowa,  463, 
2  N.  W.  1064,  6  N.  W.  706,  37  Am.  Rep. 
216;  [[Suburban  Rap.  Trans.  Co.  v.  City 
of  N.  Y.,  128  N.  Y.  510,  28  N.  E.  525,  rev.  60 
Hun,  577.  Wharves  of  railway  company, 
for  public  wharves,  authority  for  may  be 
implied,  if  implication  is  clear.  In  re 
Mayor  of  City  of  New  York,  135  N.  Y. 
253,  31  N.  E.  1043,  31  Am.  St.  825.  Rail- 
way lands  for  street  crossing  with  viaduct 
rather  than  at  grade,  not  under  general 
authority  to  cross.  111.  Cent.  Ry.  Co.  v. 
City  of  Chicago,  141  111.  686,  30  N.  E. 
1044,  17  L.  R.  A.  530.  Railway  depot 
grounds  for  street :  Cin.,  Wab.  &  M.  Ry. 
Co.  v.  City  of  Anderson,  139  Ind.  490,  38 
N.  E.  167,  47  Am.  St.  285,  citing  previ- 
ous Indiana  cases  and  others.  Colorado 
E.  Ry.  Co.  v.  Union  Pac.  Ry.  Co.,  41 
Fed.  Rep.  293.3  ^n  a  case  where  a 
steamboat  company's  dock  was  suffered 
to  be  taken  by  a  railroad,  it  was  said 
that  the  test  of  whether  land  is  thus 
held  for  public  use  "  appears  to  be  not 
what  the  owner  does  or  may  choose  to 
do,  but  what  under  the  law  it  must  do, 
and  whether  a  public  trust  is  impressed 
upon  it."  Matter  of  New  York,  L.  &  W. 
R.  R.  Co.,  99  N.  Y.  12,  1  N.  E.  27.  One 
railroad  may  condemn  an  easement  to 
cross  another.  East  St.  Louis  Conn.  Ry. 
Co.  v.  East  St.  Louis,  &c.  Co.,  108  111. 
265 ;  Toledo  A.  A.  &c.  Ry.  Co.  v.  Detroit, 
&c.  R.  R.  Co.,  62  Mich.  664,  29  N.  W. 
600  ;  pMinn.  &  St.  Louis  Ry.  Co.v.  Minn. 
West.  Ry.  Co.,  61  Minn.  502,  63  N.  W. 
1035;  United  N.  J.  Ry.  &  Canal  Co.  v. 
Nat'l  Docks  &  N.  J.  J.  C.  Ry.  Co.,  52 
N.  J.  L.  90,  18  Atl.  674;  Nat'l  Docks  & 
N.  J.  J.  C.  Ry.  Co.  v.  State,  53  N.  J  L. 
217,  21  Atl.  570,  26  Am.  St.  421;  Mem- 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


807 


Although  the  regulation  of  a  navigable  stream  will  give  to  the 
persons  incidentally  affected  no  right  to  compensation,  yet  if  the 
stream  is  diverted  from  its  natural  course,  so  that  those  entitled 
to  its  benefits  are  prevented  from  making  use  of  it  as  before,  the 
deprivation  of  this  right  is  a  taking  which  entitles  them  to  com- 
pensation, notwithstanding  the  taking  may  be  for  the  purpose  of 
creating  another  and  more  valuable  channel  of  navigation.1  The 
owners  of  land  over  which  such  a  stream  flows,  although  they  do 
not  own  the  flowing  water  itself,  yet  have  a  property  in  the  use 


phis  &  C.  Ry.  Co.  v.  Birmingham  S.  &  T. 
R.  Ry.  Co.,  96  Ala:  671,  11  So.  642,  18 
L.  R.  A.  166.]  When  by  agreement  it 
already  has  a  crossing,  a  f  urtlier  one  may 
be  condemned.  Chicago  &  W.  I.  R.  R. 
Co.  v.  111.  Centr.  R.  R.  Co.,  113  111.  156. 
One  railroad  may  not  condemn  a  strip 
lengthwise  of  another  without  express 
legislative  authority.  Alexandria  &  F. 
Ry.  Co.  o.  Alexandria,  &c.  R.  R.  Co.,  75 
Va.  780 ;  Barre  R.  R.  Co.  v.  Montpelier, 
&c.  R.  R.  Co.,  61  Vt.  1,  17  Atl.  923, 
4  L.  R.  A.  785;  [Seattle  &  M.  Ry.  Co. 
v.  State,  7  Wash.  150,  34  Pac.  651,  38 
Am.  St.  866,  22  L.  R.  A.  217  ;  Minn.  & 
St.  Louis  Ry.  Co.  v.  Minn.  West.  Ry.  Co., 
61  Minn.  502, 63  N.  W.  1035 ;  In  re  Provi- 
dence &  W.  Ry.  Co.,  17  R.  I.  324,  21  Atl. 
965]  Nor  may  it  take  a  considerable 
portion  of  another's  yard  unless  abso- 
lutely necessary.  Appeal  of  Sharon  Ry., 
122  Pa.  St.  533,  17  Atl.  234,9  Am.  St.  133, 
and  note,  137.  But  see  Chicago  &  N.  W. 
Ry.  Co.  v.  Chicago,  &c.  R.  R.  Co.,  112  111. 
589.  As  to  the  right  of  condemnation 
where  a  track  is  alreadjr  laid  in  a  narrow 
pass,  see  Anniston,  &c.  R.  R  Co.  v.  Jack- 
sonville, &c.  R.  R.  Co.,  82  Ala.  297,  2  So. 
710;  Montana  Centr.  Ry.  Co.  v.  Helena, 
&c.  Co.,  6  Mont.  416,  12  Pac.  916;  Den- 
ver &  R.  G.  Ry.  Co.  v.  Denver,  &c.  Co.,  17 
Fed.  Rep.  837;  111.  Centr.  R.  R.  Co.  v. 
Chicago,  &c.  R.  R.  Co.,  122  111.  473,  13 
N.  E.  140.  If  by  necessary  implication 
under  the  circumstances  such  power  is 
intended  to  be  granted,  a  lengthwise  con- 
demnation is  valid.  Providence,  &c.  R.  R. 
Co.  v.  Norwich,  &c.  R.  R.  Co.,  138  Mass. 
277.  Streets  may  be  opened  across 
tracks :  St.  Paul,  M.  &  M.  Ry.  Co.  v. 
Minneapolis,  35  Minn.  141,  27  N.  W.  500 ; 
Pres't  &c.  D.  &  H.  C.  Co.  v.  Whitehall,  90 
N.  Y.  21 ;  hut  not,  without  express  au- 
thority, across  necessary  depot  grounds 
acquired  by  condemnation.  Prospect 


Park,  &c.  R.  R.  Co.  v.  Williamson,  91 
N.  Y.  552,  or  by  purchase:  St.  Paul 
Union  Depot  Co.  v.  St.  Paul,  30  Minn. 
359,  15  N.  W.  684.  Compare  New  York 

6  L.  B.   R.   R.  Co.   v.    Drummond,  46 
N.  J.  L.  644.    Nor  may  a  ditch  be  located 
lengthwise   of  a   railroad  right  of  way. 
Baltimore  &  O.  &c.  R.  R.  Co.  v.  North, 
103  Ind.  486,  3  N.  E.  144.     Without  such 
authority  a  railroad  may  not   condemn 
land  dedicated  as  a  levee :   Oregon  Ry. 
Co.  v.  Portland,  9  Oreg  231 ;  nor  a  school 
district,  a  poor  farm  for  school  site.     Ap- 
peal of  Tyrone  School  Dist,  15  Atl.  667. 
The  existing  use  must  be  actual  and  in 
good  faith.     Rochester,  H.  &  L.  R.  R.  Co. 
v.  New  York,  &c.  Co.,  110  N.  Y.  128,  17 
N.  E.  680  ;  Matter  of  Rochester  H.  &  L. 
R.  R.  Co.,  Id.    119,  17  N.  E.  678;  New 
York  &  A.  R.  R.  Co.  v.  New  York,  &c. 
R.  R.  Co.,  11  Abb.  N.  C.  386.     See  also 
cases,  p.  757,  note  3,  ante.     When  for  a 
way  land  already  used  for  that  purpose  is 
taken,  everything  upon  it  is  also  taken ; 
such    as    flagstones,    bridges,    culverts, 
&c. ;    and    the    assessment    of   damages 
should  cover  the  whole  :  Ford  v.  County 
Commissioners,    64    Me.   408 ;    also  any 
buildings  which  it  may  be  necessary  to 
destroy.    Lafayette,  &c.  It.  R.  Co.  v.  Wins- 
low,   66   111.   219.      [Legislature   cannot 
authorize  the  taking  by  one  from  another 
of  property  held  for  a  public  use  to  he 
held   by    that    other  for   the   same  use. 
Cary  Library  v.  Bliss,  151  Mass.  364,  25 
N.  E.  92,  7  L.  R.  A.  765.] 

1  People  v.  Canal  Appraisers,  13  Wpnd. 
856.  And  see  Hatcli  v.  Vermont  Central 
R.  R.  Co.,  25  Vt.  49;  Bellinger  f.  New 
York  Central  R.  R  Co..  23  N.  Y.  42; 
Gardner  v.  Newburg,  2  Johns.  Ch.  162, 

7  Am.  Dec.  526;  Thunder  Bay,  &c.  Co. 
r.   Spepch'y,  31   Mich.  336;    Emporia  v. 
Soden,  25  Kan.  588,  37  Am.  Rep.  265. 


808  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

of  that  water  as  it  flows  past  them,  for  the  purpose  of  producing 
mechanical  power,  or  for  any  of  the  other  purposes  for  which  they 
can  make  it  available,  without  depriving  those  below  them  of  the 
like  use,  or  encroaching  upon  the  rights  of  those  above ;  and 
this  property  is  equally  protected  with  any  of  a  more  tangible 
character.1 

What  Interest  in  Land  can  be  taken  under  the  Right  of  Eminent 

Domain. 

Where  land  is  appropriated  to  the  public  use  under  the  right 
of  eminent  domain,  and  against  the  will  of  the  owner,  we  have 
seen  how  careful  the  law  is  to  limit  the  public  authorities  to  their 
precise  needs,  and  not  to  allow  the  dispossession  of  the  owner 
from  any  portion  of  his  freehold  which  the  public  use  does  not 
require.  This  must  be  so  on  the  general  principle  that  the  right, 
being  based  on  necessity,  cannot  be  any  broader  than  the  neces- 
sity which  supports  it.  For  the  same  reason,  it  would  seem  that, 
in  respect  to  the  land  actually  taken,  if  there  can  be  any  conjoint 
occupation  of  the  owner  and  the  public,  the  former  should  not 
be  altogether  excluded,  but  should  be  allowed  to  occupy  for  his 
private  purposes  to  any  extent  not  inconsistent  with  the  public 
use.  As  a  general  rule,  the  laws  for  the  exercise  of  the  right  of 
eminent  domain  do  not  assume  to  go  further  than  to  appropriate 
the  use,  and  the  title  in  fee  still  remains  in  the  original  owner. 
In  the  common  highways,  the  public  have  a  perpetual  easement, 
but  the  soil  is  the  property  of  the  adjacent  owner,  and  he  may 
make  any  use  of  it  which  does  not  interfere  with  the  public  right 
of  passage,  and  the  public  can  use  it  only  for  the  purposes  usual 
with  such  ways.2  And  when  the  land  ceases  to  be  used  by  the 
public  as  a  way,  the  owner  will  again  become  restored  to  his 
complete  and  exclusive  possession,  and  the  fee  will  cease  to  be 
encumbered  with  the  easement.3 

1  Morgan  v.   King,   18  Barb.   284,  35  488,  37  N.   W.  845.      Hay  standing  on 
N.  Y.  454  ;  Gardner  v.  Newburg,  2  Johns,  land  which  has  been  condemned  for  right 
Ch.   162,  7  Am.   Dec.  526;   Emporia  v.  of  way  belongs  to  the  land-owner.    Bailey 
Soden,  25  Kan.  588,  37  Am.  Rep.  265.  v.  Sweeney,  64  N.  H.  296,  9  Atl.  543.     So 

2  In  Adams  v.  Rivers,  11  Barb.  390,  a  of  ice.    Julien  v.  Woodsmall,  82  Ind.  568. 
person  who  stood  in  the  public  way  and  Where  in  the  course  of  a  sewer  improve- 
abused  the  occupant  of  an  adjoining  lot  ment  the  fee  of  an  island  is  not  taken,  the 
was  held  liable  in  trespass  as  being  Tin-  gravel  taken  from  it  may  be  used  else- 
lawfully   there,   because   not    using  the  where  in    the    sewer    work.      Titus    v. 
highway  for  the  purpose  to  which  it  was  Boston,  149  Mass.  164,  21  N.  E.  310. 
appropriated.     See,  as  to  what  is  a  proper         3  Dean  v.  Sullivan  R.  R.  Co.,  22  N.  H. 
use  of  highway  by  land,  Bliss  v.  South  316 ;  Blake  v.  Rich,  34  N.  H.  282 ;  Henry 
Hadley,  145  Mass.  91, 13  N.  E.  352  ;  Gul-  v.  Dubuque  &  Pacific  R.  R,  Co.,  2  Iowa, 
line  i>.  Lowell,  144  Mass.  491,  UN.  E.  723  ;  288;    Weston   v.    Foster,    7    Met.    297; 
by  water,  Sterling  v.  Jackson,  69  Mich.  Quitnby  v.  Vermont  Central  R.  R.  Co.,  23 


CH.  XV.]  THE   EMINENT   DOMAIN.  809 

It  seems,  however,  to  be  competent  for  the  State  to  appropriate 
the  title  to  the  land  in  fee,  and  so  to  altogether  exclude  any  use 
by  the  former  owner,  except  that  which  every  individual  citizen 
is  entitled  to  make,  if  in  the  opinion  of  the  legislature  it  is  need- 
ful that  the  fee  be  taken.1  The  judicial  decisions  to  this  effect 
proceed  upon  the  idea  that,  in  some  cases,  the  public  purposes 
cannot  be  fully  accomplished  without  appropriating  the  complete 
title ;  and  where  this  is  so  in  the  opinion  of  the  legislature, 
the  same  reasons  which  support  the  legislature  in  their  right  to 
decide  absolutely  and  finally  upon  the  necessity  of  the  taking  will 
also  support  their  decision  as  to  the  estate  to  be  taken.  The 
power,  it  is  said  in  one  case,  "  must  of  necessity  rest  in  the  legis- 
lature, in  order  to  secure  the  useful  exercise  and  enjoyment  of 
the  right  in  question.  A  case  might  arise  where  a  temporary 
use  would  be  all  that  the  public  interest  required.  Another  case 
might  require  the  permanent  and  apparently  the  perpetual  occu- 
pation and  enjoyment  of  the  property  by  the  public,  and  the  right 
to  take  it  must  be  coextensive  with  the  necessity  of  the  case,  and 
the  measure  of  compensation  should  of  course  be  graduated  by 
the  nature  and  the  duration  of  the  estate  or  interest  of  which  the 
owner  is  deprived." 2  And  it  was  therefore  held,  where  the 
statute  provided  that  lands  might  be  compulsorily  taken  in  fee- 
simple  for  the  purposes  of  an  almshouse  extension,  and  they  were 
taken  accordingly,  that  the  title  of  the  original  owner  was  thereby 
entirely  divested,  so  that  when  the  land  ceased  to  be  used  for  the 
public  purpose,  the  title  remained  in  the  municipality  which  had 
appropriated  it,  and  did  not  revert  to  the  former  owner  or  his 
heirs.3  And  it  does  not  seem  to  be  uncommon  to  provide  that, 

Vt.  387;  Giesy  v.  Cincinnati,  &c.  R.  R.          2  Hey  ward  v.  Mayor,  &c.  of  New  York, 

Co.,  4  Ohio  St.  308.      See    Skillman    v.  1  N.  Y.  314,  325.     See  also  Dingley  v. 

Chicago,  &c.  Ry.  Co.,  78   Iowa,  404,  43  Boston,  100  Mass.  544 ;  Brooklyn  Park 

N.  VV.  275,  ante.  p.  796,  note  1.  Coni'rs  v.  Armstrong,  2  Lans.  429 ;  8.  c. 

1  Roanoke  City  v.  Berkowitz,  80  Va.  on   appeal,   45    N.   Y.  234,   and   6  Am. 

616.     See  Matter  of  Amsterdam  Water  Rep.  70. 

Commissioners,  96  N.  Y.  351.  This,  how-  8  Hey  ward  v.  Mayor,  &c.  of  New 
ever,  is  forbidden  by  the  Constitution  of  York,  7  N.  Y.  314.  And  see  Baker  v. 
Illinois  of  1870,  in  the  case  of  land  taken  Johnson,  2  Hill,  342 ;  Wheeler  v.  Roches- 
for  railroad  tracks.  Art.  2,  §  13.  And  ter,  &c.  R.  R.  Co.,  12  Barb.  227 ;  Hunger 
we  think  it  would  be  difficult  to  demon-  v.  Tonawanda  R.  R.  Co.,  4  N.  Y.  349 ; 
strate  the  necessity  for  appropriating  the  Rexford  v.  Knight,  11  N.  Y.  308;  Coin- 
fee  in  case  of  any  thoroughfare ;  and  if  monwealth  v.  Fisher,  1  Pen.  &  Watts,  462 ; 
never  needful,  it  ought  to  be  held  ineom-  De  Varaigne  v.  Fox,  2  Blatch.  95 ;  Coster 
petent.  See  New  Orleans,  &c.  R.  R.  Co.  v.  N.  J.  R.  R.  Co.,  23  N.  J.  227;  Plitt  r. 
v.  Gay,  32  La.  Ann  47 1.  [JAny  easement  Cox,  43  Pa.  St.  486;  Brooklyn  Park 
or  right  connected  with  land  may  be  Com'rs  r.  Armstrong,  45  N.  Y.  234, 6  Am. 
taken  as  well  as  the  absolute  fee.  John-  Rep.  70 ;  Water  Works  Co.  v.  Burkhart, 
ston  v.  Old  Colony  R.  Co.,  18  R.  I.  642,  41  Ind.  364.  Compare  Gebhardt  v.  Reeves, 
29  All.  694,  49  Am.  St.  800.3  75  111.  301. 


810 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


in  the  case  of  some  classes  of  public  ways,  and  especially  of  city 
and  village  streets,  the  dedication  or  appropriation  to  the  public 
use  shall  vest  the  title  to  the  land  in  the  State,  county,  or  city ; 
the  purposes  for  which  the  land  may  be  required  by  the  public 
being  so  numerous  and  varied,  and  so  impossible  of  complete 
specification  in  advance,  that  nothing  short  of  a  complete  owner- 
ship in  the  public  is  deemed  sufficient  to  provide  for  them.  In 
any  case,  however,  an  easement  only  would  be  taken,  unless  the 
statute  plainly  contemplated  and  provided  for  the  appropriation 
of  a  larger  interest.1 

The  Damaging  of  Property. 

In  addition  to  providing  for  compensation  for  the  taking  of 
property  for  public  use,  several  States  since  1869  have  embodied 
in  their  constitutions  provisions  that  property  shall  not  be 
"  damaged  "  or  "  injured  "  in  the  course  of  public  improvements 
•without  compensation.2  The  construction  of  these  provisions 
has  not  been  uniform.  In  some  cases  they  are  held  to  require 
compensation  only  where  like  acts  done  by  an  individual  would 
warrant  the  recovery  of  damages  at  common  law.3  In  others  a 


1  Barclay   v.  Howell's  Lessee,  6  Pet. 
498;  Rust  v.  Lowe,  6  Mass.  90;  Jackson 
v.  Rutland  &  B.  R.   R.  Co.,  25  Vt.  1'50; 
Jackson  v.  Hathaway,  15  Johns.  447. 

2  Constitution  of  Alabama,  Art.  XIII., 
§  7;  Arkansas,  Art.  II.  §  22;  California, 
Art.   I.   §    14;    Colorado,   Art.  II.  §  14; 
Georgia,  Bill  of  Rights,  I.  §  3;  Illinois, 
Art.  II.  §  13 ;  Louisiana,  Art.  156 ;  Mis- 
souri,   Art.   I.   §   20;   Nebraska,   Art.  I. 
§21;  Pennsylvania,  Art.  I.  §  8 ;  Texas, 
Art.   I.  §  17;   West  Virginia,  Art.  III. 
§9. 

8  The  purpose  was  to  impose  on  cor- 
porations "  having  the  right  of  eminent 
domain  a  liability  for  consequential  dam- 
ages from  which  they  had  been  previously 
exempt,"  when  for  doing  the  same  act 
an  individual  would  have  been  liable. 
Edmundson  r.  Pittsburgh,  &c.  R.  R.  Co., 
Ill  Pa.  St.  316,  2  Atl.  404.  "Injured" 
means  such  legal  wrong  as  would  have 
been  the  subject  of  an  action  for  damages 
at  common  law.  Pennsylvania  R.  R.  Co. 
v.  Marchant,  119  Pa.  St.  541, 13  Atl.  690; 
Pa.  S.  V.  R.  R.  Co.  v.  Walsh,  124  Pa.  St. 
544,  17  Atl.  186.  "In  all  cases,  to  war- 
rant  a  recovery  it  must  appear  that  there 
has  been  some  direct  physical  disturbance 
of  a  right,  either  public  or  private,  which 
the  plaintiff  enjoys  in  connection  with  his 


property  and  which  gives  to  it  an  addi- 
tional value,  and  that  by  reason  of  such 
disturbance  he  lias  sustained  a  special 
damage  with  respect  to  his  property  in 
excess  of  that  sustained  by  the  public 
generally.  In  the  absence  of  any  statu- 
tory or  constitutional  provisions  on  the 
subject,  the  common  law  afforded  redress 
in  all  such  cases,  and  we  have  no  doubt 
it  was  the  intention  of  the  framers  of  the 
present  constitution  to  require  compensa- 
tion to  be  made  in  all  cases  where  but 
for  some  legislative  enactment  an  action 
would  lie  at  the  common  law."  Alulkey, 
J.,  in  Rigney  v.  Chicago,  102  III.  64 ;  fol- 
lowed in  Chicago  v.  Taylor,  125  U.  S. 
161,  8  Sup.  Ct.  Rep.  820;  Rude  v.  St. 
Louis,  93  Mo.  408,  6  S.  W.  257.  To  the 
same  effect  is  Trinity  &  S.  Ry.  Co.  v. 
Meadows,  73  Tex.  32,  3  L.  R.  A.  565,  11 
S.  W.  145;  [Austin  v.  Augusta  T.  Ry. 
Co.,  108  Ga.  671,  34  S.  E.  852,47  L.  R.  A. 
755.  To  "  damage  "  property  within  the 
meaning  of  that  term  as  used  in  the 
Georgia  constitution  there  must  be  some 
physical  interference  with  property  or 
with  a  right  or  use  appurtenant  to  prop- 
erty. A  railway  company  is  not  liable, 
therefore,  to  the  owner  of  real  property 
for  diminution  in  the  market  value  re- 
sulting from  the  making  of  noise  or 


CH.  XV.] 


THE   EMINENT  DOMAIN. 


811 


broader  scope  has  been  given  to  them.1  Compensation  has  been 
awarded  under  them  for  the  laying  of  a  railroad  track  in  the 
street,  the  fee  of  which  the  abutter  does  not  own;2  for  a  change 
in  the  grade  of  the  street ; 3  for  cutting  off  egress  by  it ;  *  and  for 

sending  forth  of  smoke  and  cinders  caus- 
ing personal  inconvenience  and  discom- 
fort only  to  the  occupants.  Austin  v.  Ter- 
minal Ry.  Co.,  108  Ga.  671,  34  S.  E.  852, 
47  L.  11.  A.  755.  Under  constitution  pro- 
viding for  compensation  where  property 
is  "  injured,"  one  whose  property  is  de- 
preciated, in  common  with  others  of  the 
general  public,  by  reason  of  noise,  smoke, 
etc.,  resulting  from  the  ordinary  opera- 
tion of  a  railway,  and  suffered  by  the 
public  generally,  is  not  entitled  to  com- 
pensation. But  if  by  reason  of  the  near 
location  of  a  turn-table  this  depreciation 
is  unusual  he  is  entitled  to  compensation. 
Louisville  Ry.  Co.  v.  Foster,  22  Ky.  L. 
458,  57  S.  W.  480,  50  L.  R.  A.  813-3  In 
Alabama  the  provision  in  case  of  a 
change  of  grade  is  held  to  cover  only 
such  alterations  as  could  not  have  been 
anticipated  at  the  time  of  the  first  tak- 
ing. City  Council  of  Montgomery  v. 
Townsend,  80  Ala.  489.  The  English 
statute  covering  the  same  ground  as 
these  provisions  receives  substantially 
the  same  construction  as  that  put  upon 
them  in  the  Pennsylvania  cases,  noted 
above.  Caledonian  Ry.  Co.  v.  Walker's 
Trustees,  L.  R.  7  App.  Cas.  259. 

1  The  word  "  damaged "  embraces 
more  than  physical  invasions  of  prop- 
erty. It  is  not  restricted  to  cases  where 
the  owner  is  entitled  to  recover  as  for  a 
tort  at  common  law.  Reardon  v.  San 
Francisco,  66  Cal.  492,  6  Fac.  317.  The 
language  is  intended  to  cover  "  all  cases 
in  which  even  in  the  proper  prosecution 
of  a  public  work  or  purpose  the  right  or 
property  of  any  person  in  a  pecuniary 
way  may  be  injuriously  affected."  Gulf 
C.  &  S.  F.  Ry.  Co.  v.  Fuller,  63  Tex.  467. 
See  Gottschalk  v.  Chicago,  &c.  R.  R.  Co., 
14  Neb.  650,  16  N.  W.  475,  17  N.  W.  120; 
Hot  Springe  R.  R.  Co.  v  Williamson,  45 
Ark.  429 ;  Atlanta  v.  Green,  67  Ga.  386 ; 
Denver  v.  Bayer,  7  Col.  113,  2  Pac.  6; 


Denver  Circle  R.  R.  Co.  v.  Nestor,  10  Col. 
403,  15  Pac.  714.  The  damages  are  not 
restricted  to  such  as  could  reasonably 
have  been  anticipated  when  the  structure 
was  built.  Omaha  &  R.  V.  R.  R.  Co.  v. 
Standen,  22  Neb.  343,  35  N.  W.  183. 
[^Depreciation  in  value  by  reason  of 
noise,  smoke,  and  vibration  incident  to 
the  operation  of  a  railway  near  by,  but 
entirely  on  lands  of  private  persons,  is 
"  damage  "  within  meaning  of  the  term 
in  the  constitution,  though  no  land  taken. 
Gainesville,  H.  &  W.  Ry.  Co.  v.  Hall,  78 
Tex.  169,  14  S.  W.  259,  9  L.  R.  A.  298.] 

2  Hot  Springs  R.  R.  Co.  v.  Williamson, 
45  Ark.  429  ;  Columbus  &  W.  Ry.  Co.  w. 
Witherow,  82  Ala.  190,  3  So.  23;  Denver 
v.  Bayer,  7  Col.  113,  2  Pac.  6 ;  Denver  & 
R.  G.  Ry.  Co.  v.  Bourne,  11  Col.  59,  16 
Pac.  839  ;  McMahon  v.  St.  Louis,  &c.  Hy. 
Co.,  41  La.  Ann.  827,  6  So.  640;  Gulf  C. 
&  S.  F.  Ry.  Co.  v.  Fuller,  63  Tex.  467 ; 
G.ottschalk  v.  Chicago,  &c.  R.  R.  Co.,  14 
Neb.  550,  16  N.  W.  475,  17  N.  W.  120. 
[Reining  v.  N.  'Y.  L.  &  W.  Ry.  Co.,  128 
N.  Y.  157,  623,  28  N.  E.  640,  14  L.  R. 
A.  133 ;  Jones  v.  Erie  &  W.  V.  Ry.  Co., 
151  Pa.  St.  30,  25  Atl.  134,  31  Am.  St.  722, 
17  L.  R.  A.  758.  So  damages  have  been 
awarded  under  such  circumstances  though 
no  such  specific  constitutional  provision. 
Kansas  N.  &  D.  Ry.  Co.  v.  Cuykendall,  42 
Kan.  234,  21  Pac.  1051,  16  Am.  St.  479.} 
So  of  a  street  railroad.  Campbell  v. 
Metrop.  St.  Ry.  Co.,  82  Ga.  320,  9  S.  E. 
1078.  In  Illinois  it  is  so  held  as  to  a  track 
in  a  road  :  Chicago  &  W.  I.  R.  R.  Co.  v. 
Ayres,  106  III.  511 ;  but  not  as  to  one  laid 
in  the  street  of  a  city  by  its  permission 
under  legislative  authority.  Olney  v. 
Wharf,  115  111.  519,  6  N.  E.  366.  Nor 
can  a  railroad  which  crosses  a  street  com- 
plain that  another  crosses  it  in  the  street. 
Kansas  City,  St.  J.,  &c.  R.  R.  Co.  v.  St. 
Joseph,  &c.  Co.,  97  Mo.  457,  10  S.  W.  826. 

8  Reardon  v.  San  Francisco,  66  Cal. 


*  Rigney  v.  Chicago,  102  111.  64 ;  Chi-  cut  off.     Pa.  S.  V.  R.  R.  Co.  v.  Walsh,  124 

cago  v.  Taylor,  125  U.  S.  161,  8  Sup.  Ct.  Pa.  St.  544,  17  Atl.  186,  10  Am.  St.  Oil. 

Rep.  820;   Chicago,  K.  &  N.  Ry.  Co.  v.  See  also  Quigley  v.  Pa.  S.  V.  R.  R.  Co., 

Hazels,  26  Neb.  364,  42  N.  W.  93.     So  if  121  Pa.  St.  35,  15  Atl.  478. 
access  is  rendered  dangerous  where  not 


812 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XV. 


other  damage  from  the  construction  of  public  works.1  It  has 
been  denied,  however,  where  a  railway  viaduct  has  been  built 
on  the  other  side  of  a  narrow  street  from  the  plaintiff's  lot,2  and 
where  the  street  has  been  rendered  impassable  at  some  distance 
from  the  property  of  the  complaining  party,3  and  where  the 
damage  results  from  the  operation  and  not  the  construction  of 
the  work.4 

Compensation  for  Property  Taken. 

It  is  a  primary  requisite,  in  the  appropriation  of  lands  for  pub- 
lic purposes,  that  compensation  shall  be  made  therefor.  Eminent 
domain  differs  from  taxation  in  that,  in  the  former  case,  the  citi- 
zen is  compelled  to  surrender  to  the  public  something  beyond  his 
due  proportion  for  the  public  benefit.  The  public  seize  and  ap- 
propriate his  particular  estate,  because  of  a  special  need  for  it, 
and  not  because  it  is  right,  as  between  him  and  the  government, 
that  he  should  surrender  it.5  To  him,  therefore,  the  benefit  and 
protection  he  receives  from  the  government  are  not  sufficient 
compensation;  for  those  advantages  are  the  equivalent  for  the 
taxes  he  pays,  and  the  other  public  burdens  he  assumes  in  common 
with  the  community  at  large.  And  this  compensation  must  be 


492,  6  Pac.  317  ;  Atlanta  v.  Green,  67  Ga. 
386;  Moon  v.  Atlanta,  70  Ga.  611; 
Sheehy  v.  Kansas  City,  &c.  Co.,  94  Mo. 
674,  7  S.  W.  579;  New  Brighton  v.  Peir- 
sol,  107  Pa.  St.  280;  Hutchinson  v.  Par- 
kersburg,  25  W.  Va.  226.  So  as  to  the 
establishment  of  the  grade.  Harmon  v. 
Omaha,  17  Neb.  548,  23  N.  W.  503.  But 
if  after  a  grade  is  established  one  buys 
and  the  walk  is  then  cut  down  to  grade, 
there  is  no  damage.  Denver  v.  Vernia, 
8  Col.  399,  8  Pac.  656.  In  Alabama  there 
is  none,  if  the  change  might  have  been 
anticipated.  City  Council  of  Montgom- 
ery t-.  Townsend,  80  Ala.  489. 

1  In  Omaha  Horse  Ry.  Co.  v.  Cable 
Tramway  Co.,  32  Fed.  Rep.  727,  the  lay- 
ing of  a  cable  road  by  the  side  of  a  horse 
railroad  was  held  a  damaging.     So  of  the 
erection  of  a  bridge  near  a  ferry.     Mason 
v.  Harper's  Ferry  B.  Co  ,  17  W.  Va.  396. 
But  the  clogging  of  a  stream  caused  by 
the  removal  of  timber  incidental  to  proper 
railroad  construction  is  not  a  ground  for 
damages.      Trinity  &  S.  R.   Ry.  Co.  v. 
Meadows,  73  Tex.  32,  11  S.  W.  145. 

2  Pennsylvania  R.  R.  Co.  v.  Lippin- 
cott,  116  Pa.  St.  472,  9  Atl.  871  ;  Penn- 
sylvania R.  R.  Co.  v.  Marchant,  119  Pa. 


St.  541, 13  Atl.  690,  4  Am.  St.  659.  QSee 
Pennsylvania,  &c.  Ry.  v.  Walsh,  124  Pa. 
St.  644, 17  Atl.  186, 10  Am.  St.  611,  where 
these  cases  are  interpreted  as  holding  that 
the  constitutional  provision  was  not  in- 
tended to  apply  to  injuries  which  are  the 
result  of  the  operation  of  the  railway,  as 
distinguished  from  such  as  result  from  its 
construction.  It  is  here  held  that  where 
access  to  abutting  property  is  cut  off  or 
rendered  dangerous,  the  provision  is  ap- 
plicable.] 

3  Rude  v.  St.  Louis,  93  Mo.  408,  6  S.  W. 
257  ;  East  St.  Louis  v.  O'Flynn,  119  III. 
200,  10  N.  E.  395. 

4  Pennsylvania  R.  R.  Co.  v.  Marchant, 
119  Pa.  St.  541,  13  Atl.  690,  4  Am.  St. 
659.     See  Caledonian  Ry.  Co.  v.  Walker's 
Trustees,  L.   R.  7  App.  Gas.  259.     Nor 
may  damages  be  given  for  negligence  in 
the  construction.     Edmundson  v.   Pitts- 
burgh, &c.  R.  R.  Co.,  Ill  Pa.  St.  316,  2 
Atl.  404;  Atlanta  v.  Word,  78  Ga.  276. 
Contra,    Omaha   &    R.    V.  R.   R.  Co.  v. 
Standen,  22  Neb.  343,  35  N.  W.  183. 

5  People  v.  Mayor,  &c.  of  Brooklyn, 
4  N.   Y.   419;    Woodbridge   v.  Detroit, 
8  Mich.   274;    Booth  v.    Woodbury,  32 
Conn.  118. 


CH.  XV.]  THE   EMINENT   DOMAIN.  813 

pecuniary  in  its  character,  because  it  is  in  the  nature  of  a  payment 
for  a  compulsory  purchase.1 

The  time  when  the  compensation  must  be  made  may  depend 
upon  the  peculiar  constitutional  provisions  of  the  State.  In  some 
of  the  States,  by  express  constitutional  direction,  compensation 
must  be  made  before  the  property  is  taken.  No  constitutional 
principle,  however,  is  violated  by  a  statute  which  allows  private 
property  to  be  entered  upon  and  temporarily  occupied  for  the 
purpose  of  a  survey  and  other  incipient  proceedings,  with  a  view 
to  judging  and  determining  whether  or  not  the  public  needs  re- 
quire the  appropriation,  and,  if  they  do,  what  the  proper  location 
shall  be  ;  and  the  party  acting  under  this  statutory  authority 
would  neither  be  bound  to  make  compensation  for  the  temporary 
possession,  nor  be  liable  to  action  of  trespass.2  When,  however, 
the  land  has  been  viewed,  and  a  determination  arrived  at  to  ap- 
propriate it,  the  question  of  compensation  is  to  be  considered  ;  and 
in  the  absence  of  any  express  constitutional  provision  fixing  the 
time  and  the  manner  of  making  it,  the  question  who  is  to  take  the 
property  —  whether  the  State,  or  one  of  its  political  divisions  or 
municipalities,  or,  on  the  other  hand,  some  private  corporation  — • 
may  be  an  important  consideration. 

When  the  property  is  taken  directly  by  the  State,  or  by  any 
municipal  corporation  by  State  authority,  it  has  been  repeatedly 
held  not  to  be  essential  to  the  validity  of  a  law  for  the  exercise  of 
the  right  of  eminent  domain,  that  it  should  provide  for  making 
compensation  before  the  actual  appropriation.  It  is  sufficient  if 
provision  is  made  by  the  law  by  which  the  party  can  obtain  com- 
pensation, and  that  an  impartial  tribunal  is  provided  for  assess- 
ing it.3  The  decisions  upon  this  point  assume  that,  when  the 

1  The  effect  of  the  right  of  eminent  that  taken  and  the  amount  of  damages 

domain  against  the  individual  "amounts  for  injury  to  that  not  taken.    This  results 

to  nothing  more  than  a  power  to  oblige  in  a  taking  without  compensation.     City 

him  to  sell  and  convey  when  the  public  of  Bloomington  v.  Latham,  142  111.  462, 

necessities   require   it."      Johnson,  J.,  in  32  N.  E.  606,  18  L.  R.  A.  487.]      The 

Fletcher  v.  Peck,  6  Cranch,  87,  145.    And  power  of  a  treaty  is  such  that  it  may  take 

see  Bradshaw  v.  Rogers,  20  Johns.  103,  private   property  without  compensation, 

per  Spencer,  Ch.  J. ;  People  v.  Mayor,  &c.  Cornet  v.  Winton,  2  Yerg.  143. 
of  Brooklyn,  4  N.  Y.  419 ;  Carson  v.  Cole-         2  Bloodgood  v.  Mohawk  &  Hudson  R. 

man,  11  N.  J.  Eq.106;  Young  v.  Harrison,  R.  Co.,  14   Wend.  51,  and   18  Wend.  9; 

6  Ga.  130;  United  States  v.  Minnesota,  Cushman  v.  Smith,  34  Me.  247;  Nichols 

&c.  R.  R.  Co.,  1  Minn.  127  ;  Railroad  Co.  v.  Somerset,  &c.  R.  R.  Co.,  43  Me.  356; 

w.  Ferris,  26  Tex.  588;  Currant;.  Shattuck,  Mercer  c.  Me  Williams,    Wright   (Ohio), 

24Cal.427;  State  v.  Graves,  19  Md.  351 ;  132;    Walther  v.  Warner,  25  Mo.  277; 

Weckler  v.   Chicago,    61    111.142,    147.  Fox  v.  W.  P.  R.  R.  Co.,  31  Cal.  538;  State 

(^Constitutional  requirement  of  compen-  t».  Seymour,  35  N.  J.  47,  53. 
sation  is  not  satisfied  by  taxing  back  on         8  Bloodgood    v.   Mohawk   &   Hudson 

portion  of  lands  not  taken,  the  value  of  R.  R.  Co.,  18  Wend.  9 ;  Rogers  v.  Brad- 


814 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


State  has  provided  a  remedy  by  resort  to  which  the  party  can 
have  his  compensation  assessed,  adequate  means  are  afforded  for 
its  satisfaction ;  since  the  property  of  the  municipality,  or  of  the 
State,  is  a  fund  to  which  he  can  resort  without  risk  of  loss.1  It 


shaw,  20  Johns.  744;  Calking  r.  Baldwin, 
4  Wend.  667,  21  Am.  Dec.  168;  Case 
v.  Thompson,  6  Wend.  634 ;  Fletcher  v. 
Auburn  &  Syracuse  R.  K.  Co.,  25  Wend. 
462;  Rexford  v.  Knight,  11  N.  Y.  308; 
Taylor  v.  Marcy,  25  111.  518;  Callison  v. 
Hedrick,  15  Gratt.  244 ;  Jackson  v.  Winn's 
Heirs,  4  Lit.  323;  People  v.  Green,  3 
Mich.  496 ;  Lyon  v.  Jerome,  26  Wend. 
485,  497,  per  Verplanck,  Senator;  Gard- 
ner v.  Newburg,  2  Johns.  Ch.  162,  7 
Am.  Dec.  526;  Charlestown  Branch 
R.  R.  Co.  v.  Middlesex,  7  Met.  78 ;  Har- 
per v.  Richardson,  22  Cal.  251 ;  Baker  v. 
Johnson,  2  Hill,  342 ;  People  v.  Hayden, 
6  Hill,  359  ;  Orr  v.  Quimby,  54  N.  H.  590; 
Ash  v.  Cummings,  50  N.  H.  591;  White 
v.  Nashville,  &c.  R.  R.  Co.,  7  Heisk.  518 ; 
Simrns  v.  Railroad  Co.,  12  Heisk.  621 ; 
State  v.  Messenger,  27  Minn.  119,  6  N.  W. 
457 ;  Chapman  v.  Gates,  54  N.  Y.  132 ; 
Hamersley  v.  New  York,  56  N.  Y.  633 ; 
Lovveree  v.  Newark,  38  N.  J.  151 ;  Brock 
v.  Hishen,  40  Wis.  674 ;  Long  v.  Fuller, 
68  Pa.  St.  170  (case  of  a  school  district) ; 
Smeaton  v.  Martin,  57  Wis.  364, 15  N.  W. 
403 ;  Com'rs  of  State  Park  v.  Henry,  88 
Minn.  266,  36  N.  H.  874.  [Provision  re- 
quiring payment  into  court  in  case  of  an 
appeal  from  assessment,  of  double  the 
amount  of  the  assessment  is  adequate. 
Cherokee  Nation  v.  Southern  Kansas  Ry. 
Co.,  135  U.  S.  641,  10  Sup.  Ct,  Rep.  965 ; 
Sweet  v.  Rechel,  159  U.  S.  380,  40  L.  ed. 
U.  S.  188,  and  note,  16  Sup.  Ct.  Rep.  43 ; 
Backus  v.  Fort  St.  Union  Depot  Co.,  169 
U.  S.  657,  42  L.  ed.  U.  S.  853,  and  note, 
18  Sup.  Ct.  Rep.  445 ;  Consumer's  Gas 
Trust  Co.  r.  Harless,  131  Ind.  446,  29 
N.  E.  1062,  15  L.  R.  A.  605.  But  pro- 
vision for  payment  into  court  of  only  the 
amount  awarded  is  not  sufficient.  Harris- 
burg  C.  &  C.  T.  R.  Co.  «'.  Harrisburg  & 
M.  E.  Ry.  Co.,  177  Pa.  St.  585,  35  Atl.  850, 
34  L.  R.  A.  439.]  The  same  rule  applies 
to  the  United  States.  Great  Falls  M'f'g 
Co.  v.  Garland,  25  Fed.  Rep.  621 :  "  Al- 
though it  may  not  be  necessary,  within 
the  constitutional  provision,  that  the 
amount  of  compensation  should  be  actu- 
ally ascertained  and  paid  before  property 


is  thus  taken,  it  is,  I  apprehend,  the  set- 
tled doctrine,  even  as  respects  the  State 
itself,  that  at  least  certain  and  ample  pro- 
vision must  first  be  made  by  law  (except 
in  cases  of  public  emergency),  so  that 
the  owner  can  coerce  payment  through 
the  judicial  tribunals  or  otherwise,  with- 
out any  unreasonable  or  unnecessary 
delay ;  otherwise  the  law  making  the 
appropriation  is  no  better  than  blank 
paper.  Bloodgood  v.  Mohawk  &  Hudson 
R.  R.  Co.,  18  Wend.  9.  The  provisions 
of  the  statute  prescribing  the  mode  of 
compensation  in  cases  like  the  present, 
when  properly  understood  and  adminis- 
tered, come  fully  up  to  this  great  funda- 
mental principle ;  and  even  if  any  doubt 
could  be  entertained  about  their  true 
construction,  it  should  be  made  to  lean  in 
favor  of  the  one  that  is  found  to  be  most 
in  conformity  with  the  constitutional 
requisite."  People  v.  Hayden,  6  Hill, 
359,  301 ;  [Branson  v.  Gee,  25  Oreg.  462, 
36  Pac.  527,  24  L.  R.  A.  355 ;  Old  Colony 
Ry.  Co.  v.  Framingham  Water  Co.,  163 
Mass.  601,  27  N.  E.  662,  13  L.  R.  A.  332; 
Sweet  v.  Rechel,  159  U.  S.  380,  16  Sup. 
Ct.  Rep.  43.]  "  A  provision  for  com- 
pensation is  an  indispensable  attendant 
upon  the  due  and  constitutional  exercise 
of  the  power  of  depriving  an  individual 
of  his  property."  Gardner  v.  Newburg, 
2  Johns.  Ch.  162,  168,  7  Am.  Dec.  526 ; 
Buffalo,  &c.  R.  R.  Co.  v.  Ferris,  26  Tex. 
588;  Ash  v.  Cummings,  50  N.  H.  691, 
613;  Haverhill  Bridge  Proprietors  v. 
County  Com'rs,  103  Mass.  120,  4  Am. 
Rep.  518  ;  Langford  v.  Com'rs  of  Ramsay 
Co.,  16  Minn.  375;  Southwestern  R.  R. 
Co.  v.  Telegraph  Co.,  46  Ga.  43.  [Statute 
making  no  provision  for  measuring  com- 
pensation is  void.  Mulligan  v.  City  of 
Perth- Amboy,  52  N.  J.  L.  132,  18  Atl. 
670.  See  also  Tuttle  v.  Justice  of  Knox 
County,  89  Tenn.  157,  14  S.  W.  486; 
Cherokee  Nation  v.  Southern  K.  Ry.  Co., 
135  U.  S.  641,  10  Sup.  Ct.  Rep.  965; 
Sweet  v.  Rechel,  159  U.  S.  380,  16  Sup. 
Ct.  Rep.  48.] 

1  In  Commissioners,  &c.  v.  Bowie,  34 
Ala.  461,  it  was  held  that  a  provision  by 


CH.  XV.] 


THE    EMINENT   DOMAIN. 


815 


is  essential,  however,  that  the  remedy  be  one  to  which  the  party 
can  resort  on  his  own  motion ;  (a)  if  the  provision  be  such  that 
only  the  public  authorities  appropriating  the  land  are  authorized  to 
take  proceedings  for  the  assessment,  it  must  be  held  to  be  void.1 
But  if  the  remedy  is  adequate,  and  the  party  is  allowed  to  pursue 
it,  it  is  not  unconstitutional  to  limit  the  period  in  which  he  shall 
resort  to  it,  and  to  provide  that,  unless  he  shall  take  proceedings 
for  the  assessment  of  damages  within  a  specified  time,  all  right 
thereto  shall  be  barred.2  The  right  to  compensation,  when  prop- 
erty is  appropriated  by  the  public,  may  always  be  waived  ; 3  and 


law  that  compensation,  when  assessed, 
should  be  paid  to  the  owner  by  the 
county  treasurer,  sufficiently  secured  its 
payment.  And  see  Zimmerman  v.  Can- 
field,  42  Ohio  St.  463 ;  Talbot  v.  Hudson, 
16  Gray,  417 ;  Chapman  o.  Gates,  64  N.  Y. 
132.  But  it  is  not  competent  to  leave 
compensation  to  be  made  from  the  earn- 
ings of  a  railroad  company.  Conn.  Riv. 
R.  R.  Co.  v.  Commissioners,  127  Mass. 
60,  34  Am.  Dec  338.  QAs  to  whether 
sufficient  where  provision  is  for  payment 
out  of  special  fund  of  municipality,  see 
In  re  Lincoln  Park,  44  Minn.  299,  46  N.  W. 
355.3 

1  Shepardson  v.  Milwaukee  &  Be- 
loit  R.  R.  Co.,  6  Wis.  605;  Powers  v. 
Bears,  12  Wis.  213.  See  McCann  v, 
Sierra  Co.,  7  Cal.  121;  Colton  v.  Rossi, 
9  Cal.  595;  Ragatz  v.  Dubuque,  4  Iowa, 
343.  An  impartial  tribunal  for  the  ascer- 
tainment of  the  damage  must  exist  when 
the  land  is  taken.  State  v.  Perth  Amboy, 
62  N.  J.  L.  132,  18  Atl.  670.  But  in 
People  v.  Hayden,  6  Hill,  359,  where  the 
statute  provided  for  appraisers  who  were 
to  proceed  to  appraise  the  land  as  soon 
as  it  was  appropriated,  the  proper  remedy 
of  the  owner,  if  they  failed  to  perform 
this  duty,  was  held  to  be  to  apply  for  a 
mandamus.  If  land  is  taken  without  pro- 
vision for  compensation,  the  owner  has  a 
common-law  remedy.  Hooker  v.  New 
Haven,  &c.  Co.,  16  Conn.  146,  36  Am. 
Dec.  477.  The  party  making  an  appro- 
priation may  abandon  it  if  the  terms, 
when  ascertained,  are  not  satisfactory. 


Lamb  v.  Schotter,  64  Cal.  319.  But  not 
after  judgment :  Drath  v.  Burlington, 
&c.  R.  R.  Co.,  15  Neb.  367,  18  N.  W.  717  ; 
nor  after  verdict  when  an  appeal  has 
been  taken  and  entry  made.  Witt  i;.  St. 
Paul,  &c.  R.  R.  Co.,  35  Minn.  404,  29 
N.  W.  161.  But  see  Denver  &  N.  0.  R.  R. 
Co.  v.  Lamborn,  8  Col.  880,  8  Pac.  582, 
contra. 

2  People  u.  Green,  3  Mich.  496 ;  Charles- 
town  Branch  R.  R.  Co.  v.  Middlesex,  7 
Met.  78;  Rexford  v.  Knight,  11  N.  Y. 
308;  Taylor  v.  Marcy,  25  111.  518;  Cam- 
son  v.  Hedrick,  15  Grat.  244 ;  Gilmer  v. 
Lime  Point,  18  Cal.  229;  Harper  v.  Rich- 
ardson, 22  Cal.  251 ;  Cupp  v.  Commis- 
sioners of  Seneca,  19  Ohio  St.  173;  Cage 
r.  Tracer,  60  Miss.  663.  fjSee  Snohomish 
County  v.  Hay  wood,  11  Wash.  429,  39 
Pac.  652,  to  the  effect  that  compensation 
must  not  be  dependent  upon  application 
for  it.  Contra,  Branson  v.  Gee,  25  Oreg. 
462,  36  Pac.  627,  24  L.  R.  A.  855.] 

8  Matter  of  Albany  St.,  11  Wend.  149, 
25  Am.  Dec.  618;  Brown  v.  Worcester, 
13  Gray,  31  ;  ante,  p.  250.  (^Uncondi- 
tional consent  in  writing  to  construction 
is  waiver  of  compensation.  White  v. 
Manhattan  Ry.  Co.,  139  N.  Y.  19,  34  N.  E. 
887.  Knowledge  of  construction  without 
objection  is  not  a  waiver.  Maysville  & 
B.  S.  Ry.  Co.  v.  Ingraham,  16  Ky.  L.  853, 
30  S.  W.  8.  See  further  upon  this  ques- 
tion of  waiver,  Abendroth  v.  Manhattan 
Ry.  Co.,  122  N.  Y.  1, 25  N.  E.  496,  19  Am. 
St.  461,  11  L.  R.  A.  634;  Pennsylvania 
Co.  v.  Platt,  47  Ohio,  366,  25  N.  E.  1028  ; 


(a)  FJHickman  v.  City  of  Kansas,  120  Mo.  110,  25  S.  W.  225,  23  L.  R.  A.  658. 
The  constitutional  guarantee  is  for  the  protection  of  a  right  and  not  for  the  redress  of 
a  wrong,  and  a  rule  which  permits  land  to  be  taken  without  proof  of  the  right  to  do  so, 
and  casts  upon  the  owner  the  burden  of  instituting  proceedings  to  save  his  property, 
does  not  meet  the  constitutional  requirement.  Stearns  v.  Barre,  73  Vt.  281,  60  Atl. 
1086,  87  Am.  St.  781.] 


816  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

a  failure  to  apply  for  and  have  the  compensation  assessed,  when 
reasonable  time  and  opportunity  and  a  proper  tribunal  are  afforded 
for  the  purpose,  may  well  be  considered  a  waiver. 

Where,  however,  the  property  is  not  taken  by  the  State,  or  by 
a  municipality,  but  by  a  private  corporation  which,  though  for  this 
purpose  to  be  regarded  as  a  public  agent,  appropriates  it  for  the 
benefit  and  profit  of  its  members,  and  which  may  or  may  not  be 
sufficiently  responsible  to  make  secure  and  certain  the  payment, 
in  all  cases,  of  the  compensation  which  shall  be  assessed,  it  is  cer- 
tainly proper,  and  it  has  sometimes  been  questioned  whether  it 
was  not  absolutely  essential,  that  payment  be  actually  made  before 
the  owner  could  be  divested  of  his  freehold.1  Chancellor  Kent 
has  expressed  the  opinion  that  compensation  and  appropriation 
should  be  concurrent.  "  The  settled  and  fundamental  doctrine 
is,  that  government  has  no  right  to  take  private  property  for  pub- 
lic purposes  without  giving  just  compensation  ;  and  it  seems  to 
be  necessarily  implied  that  the  indemnity  should,  in  cases  which 
will  admit  of  it,  be  previously  and  equitably  ascertained,  and  be 
ready  for  reception,  concurrently  in  point  of  time  with  the  actual 
exercise  of  the  right  of  eminent  domain."  2  And  while  this  is  not 
an  inflexible  rule  unless  in  terms  established  by  the  constitution, 
it  is  so  just  and  reasonable  that  statutory  provisions  for  taking 
private  property  very  generally  make  payment  precede  or  accom- 
pany the  appropriation,  and  by  several  of  the  State  constitutions 
this  is  expressly  required.3  And  on  general  principles  it  is  essen- 
tial that  an  adequate  fund  be  provided  from  which  the  owner  of 

Quackenbush  v.  District  of  Columbia,  20  tion  of  Iowa,  art.  1,  §  18;  Constitution  of 
1).  C.  300.  Acquiescence  in  construction  Kansas,  art.  12,  §  4 ;  Constitution  of  Ken- 
is  waiver :  Merchant,  Union  Barb-wire  tucky,  art.  13,  §  14 ;  Constitution  of 
Co.  v.  C.  R,  I.  &  P.  Ry.  Co.,  79  Iowa,  613,  Maryland,  art.  1,  §  40;  Constitution  of 
44  N.  W.  900.]  Minnesota,  art.  1,  §  13;  Constitution 

1  This  is  the  intimation  in  Shepard-  of  Mississippi,  art.  1,  §  13;  Constitution 
son  v.  Milwaukee  &  Beloit  R.  R.  Co.,  0  of  Missouri,  art.  2,  §  21 ;  Constitution  of 
Wis.  605;  Powers  v.  Bears,  12  Wis.  213;  Nevada,    art.    1,    §8;    Constitution    of 
State  v.  Graves,  19  Md.  351;  Dronberger  Ohio,  art.  1,  §  19;  Constitution  of  Penn- 
v.  Reed,  11  Ind.  420;  Loweree  v.  Newark,  sylvania,  art.  1,  §  10.     The  Constitution 
38  N.  J.  151.     QBrown  v.  Chicago,  R.  I.  of  Indiana,  art.  1,  §  21,  and  that  of  Ore- 
&  P.  Ry.  Co.,  — Neb.  — ,  02  N.  \V.  128.]  gon,  art.    1,  §  19,  require  compensation 
But  see  Calking  U.Baldwin,  4  Wend.  667,  to  be  first  made,  except  when  the  prop- 
21  Am.  Dec.  168.  erty  is  appropriated  by  the  State.     The 

2  2  Kent,  339,  note.  Constitution  of  Alabama,  art.  1,  §  24,  and 

3  The  Constitution  of  Florida  provides  of  South  Carolina,  art.  1,  §  23,  are  in  legal 
"  that  private  property  shall  not  be  taken  effect  not  very  different.    A  construction 
or  applied  to  public  use,  unless  just  com-  requiring  payment  before  appropriation 
pensation  be  first  made  therefor."    Art.  1,  is  given  to  the  Constitution   of  Illinois. 
§  14.     See  also,  to  the  same  effect,  Con-  Cook  v.  South  Park  Com'rs,  61  111.  115, 
Btitution  of  Colorado,  art.  1,  §  15;  Consti-  and  cases  cited;  Phillips  v.  South  Park 
tution  of  Georgia,  art.  1,  §  17  ;  Constitu-  Com'rs,  119  111.  626,  10  N.  E.  230. 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


817 


the  property  can  certainly  obtain  compensation ;  it  is  not  com- 
petent to  deprive  him  of  his  property,  and  turn  him  over  to  an 
action  at  law  against  a  corporation  which  may  or  may  not  prove 
responsible,  and  to  a  judgment  of  uncertain  efficacy.1  For  the 
consequence  would  be,  in  some  cases,  that  the  party  might  lose 
his  estate  without  redress,  in  violation  of  the  inflexible  maxim 
upon  which  the  right  is  based. 

What  the  tribunal  shall  be  which  is  to  assess  the  compensation 
must  be  determined  either  by  the  constitution  or  by  the  statute 
which  provides  for  the  appropriation.  The  case  is  not  one  where, 
as  a  matter  of  right,  the  party  is  entitled  to  a  trial  by  jury,  un- 
less the  constitution  has  provided  that  tribunal  for  the  purpose.2 
Nevertheless,  the  proceeding  is  judicial  in  its  character,  and  the 
party  in  interest  is  entitled  to  have  an  impartial  tribunal,  and 
the  usual  rights  and  privileges  which  attend  judicial  investiga- 
tions.3 It  is  not  competent  for  the  State  itself  to  fix  the  compen- 
sation through  the  legislature,  for  this  would  make  it  the  judge  in 
its  own  cause.4  And,  if  a  jury  is  provided,  the  party  must  have 
the  ordinary  opportunity  to  appear  when  it  is  to  be  impanelled, 
that  he  may  make  any  legal  objections.5  And  he  has  the  same 


1  Shepardson  v.  Milwaukee  &  Beloit 
R.  It.  Co.,  6  Wis.  605 ;  Walther  v.  War- 
ner, 25  Mo.  277  ;  Gilmer  v.  Lime  Point, 
18  Cal.  229  ;  Curran  v.  Shattuck,  24  Cal. 
427 ;  Memphis  &  Charleston  R.  R.  Co.  v. 
Payne,  37  Miss.  700 ;  Henry  v.  Dubuque 
&  Pacific  R.  11.  Co.,  10  Iowa,  540 ;  Ash 
v.   Cummings,    60   N.    H.    691 ;    Carr   v. 
Georgia  R.  R.  Co.,  1  Ga.  524 ;  Southwest- 
ern R.  R.  Co.v.  Telegraph  Co.,  46  Ga.43; 
Yazoo  Delta  Levee  Board  v.  Dancy,  65 
Miss.  335,  3  So.  568 ;  State  v.  Mclver,  88 
N.  C.  686.     Statutory  provisions  for  a  de- 
posit under  an  order  of  court  pending  a 
contest  about  compensation,  in  order  that 
the  work  may  not  be  delayed,  are  valid. 
Ex  parte  Reynolds,  52  Ark.  330,  12  S.  W. 
670,  citing  St.  Louis  &  S.  F.  R.  R.  Co.  v. 
Evans,  &c.  Brick  Co.,  85  Mo.  307  ;  Centr. 
B.  U.  P.  R.  R.  Co.  v.  Atchison,  &c.  Co., 
28  Kan.  453  ;  Wagner  v.  Railway  Co.,  38 
Ohio  St.  32.     See  also  McClain  v.  People, 
9  Col.  190,  11  Pac.  85.     [Upon  question 
of  whether  provision  for  payment  out  of 
a  special  fund  of  a  municipality  is  suffi- 
cient, see  In  re  Lincoln  Park,  44  Minn. 
299,  46  N.  W.  355.] 

2  Petition  of  Mount  Washington  Co., 
35  N.  IL  134;  Ligat  v.  Commonwealth,  19 
Pa.  St.  456,  460;  Rich  v.  Chicago,  59  111. 


286  ;  Ames  v.  Lake  Superior,  &c.  R.  R. 
Co.,  21  Minn.  241 ;  United  States  v.  Jones, 
109  U.  S.  513,  3  Sup.  Ct.  Rep.  346  ;  Oliver 
v.  Union,  &c.  R.  R.  Co.,  83  Ga.  257,9  S.  E. 
1086. 

8  Rich  v .  Chicago,  59  111.  286 ;  Cook  v. 
South  Park  Com'rs,  61  111.  115;  Ames  v. 
v.  Lake  Superior,  &c.  R.  R.  Co.,  21  Minn. 
241.  [[Question  of  compensation  is  a 
judicial  one  and  not  for  the  legislature. 
Monongahela  Nav.  Co.  v.  United  States, 
148  U.  S.  312,  13  Sup.  Ct.  Rep.  622.] 
Whatever  notices,  &c.,  the  law  requires, 
must  be  given.  People  r.  Kniskern,  54 
N.  Y.  62  ;  Powers's  Appeal,  29  Mich.  504. 
A  judgment  for  damages  where  a  railroad 
has  entered  without  paying  is  enforceable 
against  a  purchaser  of  the  road  upon 
foreclosure.  Buffalo,  N.  Y.  &  P.  R.  R. 
Co.  v.  Harvey,  107  Pa.  St.  319. 

4  Charles  River  Bridge  v.  Warren 
Bridge,  7  Pick.  344,  11  Pet.  420,  671,  per 
McLean,  J.  And  see  Rhine  v.  McKin- 
ney,  53  Tex.  354 ;  Tripp  v.  Overocker, 
7  Col.  72,  1  Pac.  695. 

6  People  v.  Tallman,  36  Barb.  222; 
Booneville  v.  Ormrod,  26  Mo.  193.  That 
it  is  essential  to  any  valid  proceedings 
for  the  appropriation  of  land  to  public 
uses  that  the  owner  have  notice  and  an 


52 


818  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

right  to  notice  of  the  time  and  place  of  assessment  that  he  would 
have  in  any  other  case  of  judicial  proceedings,  and  the  assessment 
will  be  invalid  if  no  such  notice  is  given.1  These  are  just,  as  well 
as  familiar  rules,  and  they  are  perhaps  invariably  recognized  in 
legislation. 

It  is  not  our  purpose  to  follow  these  proceedings,  and  to  at- 
tempt to  point  out  the  course  of  practice  to  be  observed,  and 
which  is  so  different  under  the  statutes  of  different  States.  An 
inflexible  rule  should  govern  them  all,  that  the  interest  and  ex- 
clusive right  of  the  owner  is  to  be  regarded  and  protected  so  far 
as  may  be  consistent  with  a  recognition  of  the  public  necessity. 
While  the  owner  is  not  to  be  disseised  until  compensation  is  pro- 
vided, neither,  on  the  other  hand,  when  the  public  authorities  have 
taken  such  steps  as  finally  to  settle  upon  the  appropriation,  ought 
he  to  be  left  in  a  state  of  uncertainty,  and  compelled  to  wait  for 
compensation  until  some  future  time,  when  they  may  see  fit  to 
use  his  land.  The  land  should  either  be  his  or  he  should  be  paid 
for  it.  Whenever,  therefore,  the  necessary  steps  have  been  taken 
on  the  part  of  the  public  to  selecb  the  property  to  be  taken,  locate 
the  public  work,  and  declare  the  appropriation,  the  owner  becomes 
absolutely  entitled  to  the  compensation,  whether  the  public  proceed 
at  once  to  occupy  the  property  or  not.  If  a  street  is  legally  es- 
tablished over  the  land  of  an  individual,  he  is  entitled  to  demand 
payment  of  his  damages,  without  waiting  for  the  street  to  be 
opened.2  And  if  a  railway  line  is  located  across  his  land,  and  the 


opportunity  to  be  heard,  see  Baltimore,  upon  its  view  of  the  land.  Grand  Rapids 
&c.,  R.  R.  Co.  v.  Pittsburg,  &c.  R.  R.  Co.,  v.  Perkins,  78  Mich.  93,  43  N.  W.  1037. 
17  W.Va.  812.  A  jury,  without  further  1  Hood  v.  Finch,  8  Wis.  381;  Dickey 
explanation  in  the  law,  must  be  under-  v.  Tennison,  27  Mo.  373;  Powers's  Ap- 
stood  as  one  of  twelve  persona.  Lamb  v.  peal,  29  Mich.  504.  Notice  by  publica- 
Lane,  4  Ohio  St.  167.  See  ante,  p.  455.  tion  may  be  sufficient.  Huling  v.  Kaw 
Where  a  jury  is  the  constitutional  tribu-  Valley  Ry.  Co.,  130  U.  S.  559,  9  Sup.  Ct. 
nal,  it  is  not  waived  by  failure  to  demand  Eep.  603  ;  Missouri  Pac.  Ry.  Co.  v.  House- 
it.  Port  Huron,  &c.  Ry.  Co.  v.  Callanan,  man,  41  Kan.  300,  304,  21  Pac.  284.  As 
61  Mich.  12,  27  N.  W.  717.  Nor  can  a  to  the  right  to  order  reassessments,  see 
court  of  chancery  usurp  its  functions.  Clark  v.  Miller,  54  N.  Y.  528. 
Clark  v.  Drain  Com'r,  50  Mich.  G18,  16  2  Philadelphia  v.  Dickson,  38  Pa.  St. 
N.  W.  167.  It  must  act  even  where  an  247;  Philadelphia  v.  Dyer,  41  Pa.  St. 
officer  only  takes  material  from  an  indi-  463 ;  Hallock  v.  Franklin  County,  2  Met. 
vidual's  land  to  repair  roads.  Hender-  658;  Harrington  v.  County  Commission- 
shot  v.  State,  44  Ohio  St.  208,  6  N.  E.  ers,  22  Pick.  263 ;  Blake  v.  Dubuque,  13 
245.  It  need  not,  where  the  amount  of  a  Iowa,  66 ;  Higgins  v.  Chicago,  18  111.  276; 
deposit  is  to  be  fixed,  pending  a  final  de-  County  of  Peoria  v.  Harvey,  18  111.  364; 
termination  of  compensation.  Ex  parte  Shaw  v.  Charlestown,  3  Allen,  538; 
Reynolds,  52  Ark.  330, 12  S.  W.  570.  But  Hampton  v.  Coffin,  4  N.  H.  517 ;  Clough  v. 
see  Wagner  v.  Railway  Co.,  38  Ohio  St.  Unity,  18  N.  H.  75.  And  where  a  city 
32.  The  jury  may  not  disregard  testi-  thus  appropriates  land  for  a  street,  it 
mony  and  determine  compensation  solely  would  not  be  allowed  to  set  up,  in  defence 


CH.  XV.]  THE   EMINENT   DOMAIN.  819 

damages  are  appraised,  his  right  to  payment  is  complete,  and  he 
cannot  be  required  to  wait  until  the  railway  company  shall  actually 
occupy  his  premises,  or  enter  upon  the  construction  of  the  road  at 
that  point.  It  is  not  to  be  forgotten,  however,  that  the  proceed- 
ings for  the  assessment  and  collection  of  damages  are  statutory, 
and  displace  the  usual  remedies ;  that  the  public  agents  who  keep 
within  the  statute  are  not  liable  to  common-law  action;1  that  it 
is  only  where  they  fail  to  follow  the  statute  that  they  render 
themselves  liable  as  trespassers;2  though  if  they  construct  their 
work  in  a  careless,  negligent,  and  improper  manner,  by  means  of 
which  carelessness,  negligence,  or  improper  construction  a  party 
is  injured  in  his  rights,  he  may  have  an  action  at  the  common  law 
as  in  other  cases  of  injurious  negligence.3 

The  principle  upon  which  the  damages  are  to  be  assessed  is  al- 
ways an  important  consideration  in  these  cases ;  and  the  circum- 
stances of  different  appropriations  are  sometimes  so  peculiar  that 
it  has  been  found  somewhat  difficult  to  establish  a  rule  that  shall 
always  be  just  and  equitable.  If  the  whole  of  a  man's  estate  is 
taken,  there  can  generally  be  little  difficulty  in  fixing  upon  the 
measure  of  compensation ;  for  it  is  apparent  that,  in  such  a  case, 
he  ought  to  have  the  whole  market  value  of  his  premises,  and  he 
cannot  reasonably  demand  more.  The  question  is  reduced  to  one 
of  market  value,  to  be  determined  upon  the  testimony  of  those 
who  have  knowledge  upon  that  subject,  or  whose  business  or  ex- 
perience entitles  their  opinions  to  weight.  It  may  be  that,  in  such 
a  case,  the  market  value  may  not  seem  to  the  owner  an  adequate 
compensation  ;  for  he  may  have  reasons  peculiar  to  himself,  spring- 
ing from  association,  or  other  cause,  which  make  him  unwilling  to 
part  with  the  property  on  the  estimate  of  his  neighbors ;  but  such 
reasons  are  incapable  of  being  taken  into  account  in  legal  proceed- 
ings, where  the  question  is  one  of  compensation  in  money,  inas- 
much as  it  is  manifestly  impossible  to  measure  them  by  any  standard 
of  pecuniary  value.  Concede  to  the  government  a  right  to  appro- 
priate the  property  on  paying  for  it,  and  we  are  at  once  remitted 
to  the  same  standards  for  estimating  values  which  are  applied  in 

to  a  demand  for  compensation,  its  own  tibone  v.  La  Crosse  &  Milwaukee  R.  R. 

irregularities  in  the  proceedings  taken  to  Co.,  14  Wis.  443;  Vilas  v.  Milwaukee  & 

condemn  the  land.    Higgins  v.  Chicago,  18  Mississippi  R.  R.  Co.,  15  Wis.  233. 
III.  276 ;  Chicago  v.  Wheeler,  25  111.  478.  2  Dean  v.  Sullivan  R.  R.  Co.,  22  N.  H. 

1  East  &  West  India  Dock,  &c.  Co.  316 ;  Furniss  v.  Hudson  River  R.  R.  Co., 

v.  Gattke,  15  Jur.  61 ;  Kimble  v.  White  5  Sandf.  651. 

Water  Valley  Canal,  1  Ind.  285 ;  Mason         3  Lawrence  v.  Great  Northern  R.  Co., 

v.  Kennebec,  &c.  R.  R.  Co.,  31  Me.  215;  20  L.  J.  Q.  B.  293;  Bagnall  v.  London  & 

Aldrich  v.  Cheshire  R.  R.  Co.,  21  N.  H.  N.  W.  R.,  7  H.  &  N.  423  ;  Brown  v.  Cayuga 

359;  Brown  v.  Beatty,  34  Miss.  227 ;  Pet-  &  Susquehanna  R.  R.  Co.,  12  N.  Y.  486. 


820  CONSTITUTIONAL  LIMITATIONS.  [CH.  XV. 

other  cases,  and  which  necessarily  measure  the  worth  of  property 
by  its  value  as  an  article  of  sale,  or  as  a  means  of  producing  pecu- 
niary returns. 

When,  however,  only  a  portion  of  a  parcel  of  land  is  appro- 
priated, just  compensation  may  perhaps  depend  upon  the  effect 
which  the  appropriation  may  have  on  the  owner's  interest  in  the 
remainder,  to  increase  or  diminish  its  value,  in  consequence  of 
the  use  to  which  that  taken  is  to  be  devoted,  or  in  consequence 
of  the  condition  in  which  it  may  leave  the  remainder  in  respect 
to  convenience  of  use.  If,  for  instance,  a  public  way  is  laid  out 
through  a  tract  of  land  which  before  was  not  accessible,  and  if  in 
consequence  it  is  given  a  front,  or  two  fronts,  upon  the  street, 
which  furnish  valuable  and  marketable  sites  for  building  lots,  it 
may  be  that  the  value  of  that  which  remains  is  made,  in  conse- 
quence of  taking  a  part,  vastly  greater  than  the  whole  was  before, 
and  that  the  owner  is  benefited  instead  of  damnified  by  the  appro- 
priation. Indeed,  the  great  majority  of  streets  in  cities  and  vil- 
lages are  dedicated  to  the  public  use  by  the  owners  of  lands,  with- 
out any  other  compensation  or  expectation  of  compensation  than 
the  increase  in  market  value  which  is  expected  to  be  given  to  such 
lands  thereby ;  and  this  is  very  often  the  case  with  land  for  other 
public  improvements,  which  are  supposed  to  be  of  peculiar  value 
to  the  locality  in  which  they  are  made.  But  where,  on  the  other 
hand,  a  railroad  is  laid  out  across  a  man's  premises,  running  be- 
tween his  house  and  his  out-buildings,  necessitating,  perhaps,  the 
removal  of  some  of  them,  or  upon  such  a  grade  as  to  render  deep 
cuttings  or  high  embankments  necessary,  and  thereby  greatly  in- 
creasing the  inconveniences  attending  the  management  and  use  of 
the  land,  as  well  as  the  risks  of  accidental  injuries,  it  will  often 
happen  that  the  pecuniary  loss  which  he  would  suffer  by  the  ap- 
propriation of  the  right  of  way  would  greatly  exceed  the  value  of 
the  land  taken,  and  to  pay  him  that  value  only  would  be  to  make 
very  inadequate  compensation. 

It  seems  clear  that,  in  these  cases,  it  is  proper  and  just  that  the 
injuries  suffered  and  the  benefits  received  by  the  proprietor,  as 
owner  of  the  remaining  portion  of  the  land,  should  be  taken  into 
account  in  measuring  the  compensation.  This,  indeed,  is  gener- 
ally conceded ;  but  what  injuries  shall  be  allowed  for,  or  what 
benefits  estimated,  is  not  always  so  apparent.  The  question,  as 
we  find  it  considered  by  the  authorities,  seems  to  be,  not  so  much 
what  the  value  is  of  that  which  is  taken,  but  whether  what  re- 
mains is  reduced  in  value  by  the  appropriation,  and  if  so,  to  what 
extent;  in  other  words,  what  pecuniary  injury  the  owner  sus- 
tains by  a  part  of  his  land  being  appropriated.  But,  in  estimating 


cir.  xv.] 


THE  EMINENT  DOMAIN. 


821 


either  the  injuries  or  the  benefits,  those  which  the  owner  sustains 
or  receives  in  common  with  the  community  generally,  and  which 
are  not  peculiar  to  him  and  connected  with  his  ownership,  use, 
and  enjoyment  of  the  particular  parcel  of  land,  should  be  alto- 
gether excluded,  as  it  would  be  unjust  to  compensate  him  for  the 
one,  or  to  charge  him  with  the  other,  when  no  account  is  taken 
of  such  incidental  benefits  and  injuries  with  other  citizens  who 
receive  or  feel  them  equally  with  himself,  but  whose  lands  do  not 
chance  to  be  taken.1 


1  In  Somerville  &  Easton  R.  R.  Co. 
ads.  Doughty,  22  N.  J.  495,  a  motion  was 
made  for  a  new  trial  on  an  assessment  of 
compensation  for  land  taken  by  a  railroad 
company,  on  the  ground  that  the  judge 
in  his  charge  to  the  jury  informed  them 
"that  they  were  authorized  by  law  to 
ascertain  and  assess  the  damages  sus- 
tained by  the  plaintiff  to  his  other  lands 
not  taken  and  occupied  by  the  defendants  ; 
to  his  dwelling-house,  and  other  buildings 
and  improvements,  by  reducing  their 
value,  changing  their  character,  obstruct- 
ing their  free  use ;  by  subjecting  his 
buildings  to  the  hazards  of  fire,  his  fam- 
ily and  stock  to  injury  and  obstruction  in 
their  necessary  passage  across  the  road ; 
the  inconvenience  caused  by  embank- 
ments or  excavations,  and,  in  general, 
the  effect  of  the  railroad  upon  his  adja- 
cent lands,  in  deteriorating  their  value  in 
the  condition  they  were  found,  whether 
adapted  for  agricultural  purposes  only, 
or  for  dwellings,  stores,  shops,  or  other 
like  purposes." 

"On  a  careful  review  of  this  charge," 
says  the  judge,  delivering  the  opinion  of 
the  court,  "  I  cannot  see  that  any  legal 
principle  was  violated,  or  any  unsound 
doctrine  advanced.  The  charter  provides 
that  the  jury  shall  assess  the  value  of  the 
land  and  materials  taken  by  the  company, 
and  the  damages.  The  damages  here 
contemplated  are  not  damages  to  the  land 
actually  occupied  or  covered  by  the  road, 
but  sucli  damages  as  the  owner  may  sus- 
tain in  his  other  and  adjacent  lands  not  oc- 
cupied by  the  company's  road.  His  build- 
ings may  be  reduced  in  value  by  the  con- 
tiguity of  the  road  and  the  use  of  engines 
upon  it.  His  lands  and  buildings,  before 
adapted  and  used  for  particular  purposes, 
may,  from  the  same  cause,  become  utterly 
unfitted  for  such  purposes.  The  owner 
may  be  incommoded  by  high  embank- 
ments or  deep  excavations  on  the  line 


of  the  road,  his  buildings  subjected  to 
greater  hazard  from  fire,  his  household 
and  stock  to  injury  and  destruction,  unless 
guarded  with  more  than  ordinary  care. 
It  requires  no  special  experience  or  saga- 
city to  perceive  that  such  are  the  usual 
and  natural  effects  of  railroads  upon  the 
adjoining  lands,  and  which  necessarily  de- 
teriorate not  only  their  marketable  but 
their  intrinsic  value.  The  judge,  there- 
fore, did  not  exceed  his  duty  in  instruct- 
ing the  jury  that  these  were  proper  sub- 
jects for  their  consideration  in  estimating 
the  damages  which  the  plaintiff  might 
sustain  by  reason  of  the  location  of  this 
road  upon  and  across  his  lands."  And  in 
the  same  case  it  was  held  that  the  jury, 
in  assessing  compensation,  were  to  adopt 
as  the  standard  of  value  for  the  lands 
taken,  not  such  a  price  as  they  would 
bring  at  a  forced  sale  in  the  market  for 
money,  but  such  a  price  as  they  could  bo 
purchased  at,  provided  they  were  for  sale, 
and  the  owner  asked  such  prices  as,  in  the 
opinion  of  the  community,  they  were  rea- 
sonably worth  ;  that  it  was  matter  of  uni- 
versal experience  that  land  would  not 
always  bring  at  a  forced  sale  what  it  was 
reasonably  worth,  and  the  owner,  not  de- 
siring to  sell,  could  not  reasonably  be  re- 
quired to  take  less.  In  Sater  v.  Burlington 
&  Mount  Pleasant  Plank  Road  Co.,  1 
Iowa,  386,  393,  Isbell,  J.,  says :  "  The 
terms  used  in  the  constitution,  'just  com- 
pensation,' are  not  ambiguous.  They  un- 
doubtedly mean  a  fair  equivalent;  that 
the  person  whose  property  is  taken  shall 
be  made  whole.  But  while  the  end  to  be 
attained  is  plain,  the  mode  of  arriving  at 
it  is  not  without  its  difficulty.  On  due 
consideration,  we  see  no  more  practical 
rule  than  to  first  ascertain  the  fair  mar- 
ketable value  of  the  premises  over  which 
the  proposed  improvement  is  to  pass,  ir- 
respective of  such  improvement,  and  also 
a  like  value  of  the  same,  in  the  condition 


822 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XY. 


The  question,  then,  in  these  cases,  relates  first  to  the  value  of 
the  land  appropriated ;  which  is  to  be  assessed  with  reference  to 
what  it  is  worth  for  sale,  in  view  of  the  uses  to  which  it  may  he 
applied,  and  not  simply  in  reference  to  its  productiveness  to  the 
owner  in  the  condition  in  which  he  has  seen  fit  to  leave  it.1  Sec- 
ond, if  less  than  the  whole  estate  is  taken,  then  there  is  further 
to  be  considered  how  much  the  portion  not  taken  is  increased  or 
diminished  in  value  in  consequence  of  the  appropriation.2 


in  which  they  will  be  immediately  after 
the  land  for  the  improvement  has  been 
taken,  irrespective  of  tlie  benefit  which 
will  result  from  the  improvement,  and 
the  difference  in  value  to  constitute  the 
measure  of  compensation.  But  in  ascer- 
taining the  depreciated  value  of  the  prem- 
ises after  that  part  which  has  been  taken 
for  public  use  has  been  appropriated,  re- 
gard must  be  had  only  to  the  immediate, 
and  not  remote,  consequence  of  the  ap- 
propriation ;  that  is  to  say,  the  value  of 
the  remaining  premises  is  not  to  be  de- 
preciated by  heaping  consequence  on  con- 
sequence. While  we  see  no  more  practical 
mode  of  ascertainment  than  this,  yet  it 
must  still  be  borne  in  mind  that  this  is 
but  a  mode  of  ascertainment;  that,  after 
all,  the  true  criterion  is  tlie  one  provided 
by  tlie  constitution,  namely,  just  compen- 
sation for  tlie  property  taken."  See  this 
rule  illustrated  and  applied  in  Henry  v. 
Dubuque  &  Pacific  R.  R.  Co.,  2  Iowa, 
300,  where  it  is  said  :  "  That  the  language 
of  the  constitution  means  that  the  person 
whose  property  is  taken  for  public  use 
shall  have  a  fair  equivalent  in  money  for 
the  injury  done  him  by  such  taking;  in 
other  words,  that  he  shall  be  made  whole 
so  far  as  money  is  a  measure  of  compen- 
sation, we  are  equally  clear.  This  just 
compensation  should  be  precisely  com- 
mensurate with  the  injury  sustained  by 
having  the  property  taken  ;  neither  more 
nor  less."  And  see  Richmond,  &c.  Co.  v. 
Rogers,  1  Duvall,  135;  Robinson  v.  Rob- 
inson, 1  Duvall,  162;  Holton  v.  Milwau- 
kee, 31  Wis.  27  ;  Root's  Case,  77  Pa.  St. 
276;  East  Brandy  wine,  &c.  R.  R.  Co.  v. 
Ranck,  78  Pa.  St.  454.  FJThe  compensa- 
tion to  which  owner  is  entitled  for  land 
taken  for  a  street  includes  in  addition  to 
the  value  of  land  taken  such  expenses  as 
are  naturally  incident  to  the  taking,  like 
cost  of  moving  fence  and  the  like.  City 
of  Detroit  v.  Beecher,  75  Mich.  454,  42 


N.  W.  986,  4  L.  R.  A.  813 ;  but  not  future 
and  contingent  expenses  like  assessments 
for  improvements,  nor  for  removing  snow 
from  sidewalks,  for  grading  or  paving. 
tdl 

1  Matter  of  Furman  Street,  17  Wend. 
649;   Tidewater  Canal  Co.  i?.  Archer,  9 
Gill  &  J.  479;   Sater  v.  Burlington,  &c. 
R.  R.  Co.,  1  Iowa,  386;  Parks  v.  Boston, 
15  Pick.  206;  First  Parish,  &c.  v.  Middle- 
sex, 7  Gray,  106;    Dickenson  v.  Inhab- 
itants of  Fitchburg,  13  Gray,  546;  Lex- 
ington v.  Long,  31  Mo.  369  ;  Moulton  v. 
Newburyport  Water  Co.,  137  Mass.  163. 
The  compensation  should  be  the  fair  cash 
market  value  of  the  land  taken:   Brown 
v.  Calumet  R.  Ry.  Co.,  125  111.  600,  18  N. 

E.  283;  including  that  of  appurtenances 
used  in  connection  with  it :  Chicago,  S. 

F.  &  C.  Ry.  Co.  v.  Ward,  128  111.  349,  18  N. 
E.  828,  21  N.  E.  562 ;  but  not  the  value  of 
an  illegal  use:    Kingsland  v.  Mayor,  110 
N.   Y.   569,    18    N.    E.   435.     While  its 
value  as  mineral  land  may  be  considered : 
Doud   v.  Mason   City,   &c.   Ry.   Co.,  76 
Iowa,  438,  41   N.  W.  65;  the  estimated 
specific  value  of  minerals  in  it  may  not. 
Reading  &  P.  R.  R.  Co.  v.  Balthaser,  119 
Pa.  St.  472,  13  Atl.  294.     Where  railroad 
land  is  taken,  the  reasonable  expectation 
of  future  use  is  to  be  considered.     Port- 
land &  R.  R.  R.  Co.  v.  Deering,  78  Me. 
61,  2  Atl.  670.     The  availability  of  land 
for  a  bridge  site  or  ferry  landing  may  be 
considered:  Little  Rock  June.  Ry.  Co.  v. 
Woodruff,  49   Ark.  381,   5   S     W.  792; 
Little  Rock  &  F.  S.  Ry.  Co.  v.  McGehee, 
41  Ark.  202  ;  but  not  the  enhanced  value 
due  to  the  proposed  improvement.     Shen- 
andoah  V.  R,  R.  Co.  v.  Shepherd,  26  W. 
Va.   672.    Nor  can   the  damage  to   the 
ferry  privilege  by  building  a  bridge  be 
compensated  for.     Moses  v.  Sanford,  11 
Lea,  731.     Compare  Mason  v.   Harper's 
Ferry  B.  Co.,  17  W.  Va.  396. 

2  Deaton  v.  Polk,  9  Iowa,  594 ;  Parks 


CH.  XV.] 


THE   EMINENT   DOMAIN. 


823 


But,  in  making  this  estimate,  there  must  be  excluded  from  con- 
sideration those  benefits  which  the  owner  receives  only  in  common 


v.  Boston,  15  Pick.  198 ;  Dickenson  v. 
Fitchburg,  13  Gray,  546 ;  Harvey  v.  Lack- 
awanna,  &c.  K.  R.  Co.,  47  Pa.  St.  428; 
Newby  v.  Platte  .County,  25  Mo.  258; 
Pacific  R.  R.  Co.  v.  Chrystal,  25  Mo.  544; 
Somerville  &  Easton  R.  R.  Co.  ads. 
Doughty,  22  N.  J.  495  ;  Carpenter  v. 
Landaff,  42  N.  H.  218 ;  Troy  &  Boston 
R.  R.  Co.  v.  Lee,  13  Barb.  109;  Tide- 
water Canal  Co.  v.  Archer,  9  Gill  &  J. 
479;  Winona  &  St.  Paul  R.  R.  Co.  v. 
Waldron,  11  Minn.  515;  Nicholson  v.  N. 
Y.  &  N.  H.  R.  R.  Co.,  22  Conn.  74 ;  Nichols 
U.Bridgeport,  23  Conn.  189;  Harding  v. 
Funk,  8  Kan.  315;  Holton  v.  Milwaukee, 
31  Wis.  27.  If  the  whole  tract  is  not 
taken,  the  value  of  the  part  taken  as  part 
of  the  whole  should  be  allowed.  Chicago, 
B.  &  N.  R.  R.  Co.  i'.  Bowman,  122  111. 
695,  13  N.  E.  814;  Balfour  o.  Louisville, 
&c.  R.  R.  Co.,  62  Miss.  608;  Asher  v. 
Louisville,  &c.  R.  R.  Co.,  87  Ky.  391,  8 
S.  W.  854.  As  to  how  far  different  lots 
or  subdivisions  used  as  one  tract  are  to 
be  held  one  parcel  within  this  rule,  see 
Port  Huron,  &c.  Ry.  Co.  v.  Voorheis,  50 
Mich.  506,  15  N.  W.  882 ;  Wilcox  v.  St. 
Paul,  &c.  Ry.  Co.,  35  Minn.  439,  29  N.  W. 
148;  Cox  v.  Mason  City,  &c.  R.  Co.,  77 
Iowa,  20,  41  N.  W.  475 ;  Ham  v.  Wiscon- 
sin, &c.  Ry.  Co.,  61  Iowa,  716,  17  N. 
W.  157 ;  Northeastern  Neb.  Ry.  Co.  v. 
Frazier,  25  Neb.  42,  53,  40  N.  W.  604, 
609;  Cameron  v.  Chicago,  &c.  Ry.  Co., 
42  Minn.  75,  43  N.  W.  785  ;  Potts  v.  Penn. 
S.  V.  R.  R.  Co.,  119  Pa.  St.  278,  13  All. 
291.  "  Compensation  is  an  equivalent  for 
property  taken,  or  for  an  injury.  It  must 
be  ascertained  by  estimating  the  actual 
damage  the  party  has  sustained.  That 
damage  is  the  sum  of  the  actual  value  of 
the  property  taken,  and  of  the  injury 
done  to  the  residue  of  the  property  by 
the  use  of  that  part  which  is  taken.  The 
benefit  is,  in  part,  an  equivalent  to  the 
loss  and  damage.  The  loss  and  damage 
of  the  defendant  is  the  value  of  the  land 
the  company  has  taken,  and  the  injury 
which  the  location  and  use  of  the  road 
through  his  tract  may  cause  to  the  re- 
mainder. The  amount  which  may  be 
assessed  for  these  particulars  the  com- 
pany admits  that  it  is  bound  to  pay. 
Bur,  as  a  set-off,  it  claims  .credit  for  the 


benefit  the  defendant  has  received  from 
the  construction  of  the  road.  That  bene- 
fit may  consist  in  the  enhanced  value  of 
the  residue  of  his  tract.  When  the  com- 
pany has  paid  the  defendant  the  excess 
of  his  loss  or  damage  over  and  above  the 
benefit  and  advantage  he  has  derived 
from  the  road,  he  will  have  received  a 
j  ust  compensation.  It  is  objected  that  the 
enhanced  salable  value  of  the  land  should 
not  be  assessed  as  a  benefit  to  the  defend- 
ant, because  it  is  precarious  and  uncertain. 
The  argument  admits  that  the  enhanced 
value,  if  permanent,  should  be  assessed. 
But  whether  the  appreciation  is  perma- 
nent and  substantial,  or  transient  and 
illusory,  is  a  subject  about  which  the 
court  is  not  competent  to  determine.  It 
must  be  submitted  to  a  jury,  who  will 
give  credit  to  the  company  according  to 
the  circumstances.  The  argument  is  not 
tenable,  that  an  increased  salable  value  is 
no  benefit  to  the  owner  of  land  unless  he 
sells  it.  This  is  true  if  it  be  assumed  that 
the  price  will  decline.  The  chance  of  this 
is  estimated  by  the  jury,  in  the  amount 
which  they  may  assess  for  that  benefit. 
The  sum  assessed  is  therefore  (so  far  as 
human  foresight  can  anticipate  the  future) 
the  exponent  of  the  substantial  increase 
of  the  value  of  the  land.  This  is  a  bene- 
fit to  the  owner,  by  enlarging  his  credit 
and  his  ability  to  pay  his  debts  or  pro- 
vide for  his  familj-,  in  the  same  manner 
and  to  the  same  extent  as  if  his  fortune 
was  increased  by  an  acquisition  of  prop- 
erty." Greenville  &  Columbia  R.  R. 
Co.  v.  Partlow,  6,  Rich.  428.  And  see 
Pennsylvania  R.  R.  Co.  v.  Heister,  8  Pa. 
St.  445;  Matter  of  Albany  Street,  11 
Wend.  149,  25  Am.  Dec.  618;  Upton 
v.  South  Reading  Branch  R.  R.,  8  Cush. 
600  ;  Proprietors,  &c.  v.  Nashua  &  Lowell 
R.  R.  Co.,  10  Cush.  385;  Mayor,  &c. 
of  Lexington  v.  Long,  31  Mo.  369;  St. 
Louis,  &c.  R.  R.  Co.  v.  Richardson,  45 
Mo.  466;  Little  Miami  R.  R.  Co.  i'.  Col- 
lett,  6  Ohio  St.  182;  Bi-:elow  v.  West 
Wisconsin  R.  R.  Co.,  27  Wis.  478.  In 
Newby  v.  Platte  County,  25  Mo.  258,  the 
right  to  assess  benefits  was  referred  to 
the  taxing  power;  but  this  seems  not 
necessary,  and  indeed  somewhat  difficult 
on  principle.  See  Button's  Heirs  v.  Louis- 


824 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XV. 


with  the  community  at  large  in  consequence  of  his  ownership  of 
other  property,1  and  also  those  incidental  injuries  to  other  property, 


ville,  5  Dana,  28.  Qn  measuring  com- 
pensation for  a  taking  it  is  not  competent 
to  increase  compensation  by  any  amount 
as  the  increase  of  value  caused  by  the 
projected  improvement.  Shoemaker  v. 
United  States,  147  U.  S.  282,  13  Sup.  Ct. 
liep.  861.] 

1  Dickenson  v.  Inhabitants  of  Fitch- 
burg,  13  Gray,  540  ;  Cliilds  v.  New  Haven, 
&c.  II.  R.  Co.,  133  Mass.  253 ;  Newby  v. 
Platte  County,  25  Mo.  258;  Pacific  K.  R. 
Co.  v.  Chrystal,  25  Mo.  544  ;  Carpenter  v. 
Landaff,  42  N.  H.  218;  Mount  Washing- 
ton Co.'s  Petition,  35  N.  H.  134 ;  Penrice 
v.  Wnllis,  37  Miss.  172;  Haislip  v.  Wil- 
mington, &c.  R.  R.  Co.,  102  N.  C.  376,  8 
S.  E.  926;  Omaha  v.  Schaller,  26  Neb. 
522,  42  N.  W.  721 ;  Railroad  Co.  v.  Fore- 
man, 24  W.  Va.  662  ;  Palmer  Co.  v.  Fer- 
rill,  17  Pick.  58;  Meacham  v.  Fitchburg 
R.  R.  Co.,  4  Cush.  291,  where  the  jury 
were  instructed  that,  if  they  were  satis- 
fied that  the  laying  out  and  constructing 
of  the  railroad  had  occasioned  any  bene- 
fit or  advantage  to  the  lands  of  the  peti- 
tioner through  which  the  road  passed, 
or  lands  immediately  adjoining  or  con- 
nected therewith,  rendering  the  part  not 
taken  for  the  railroad  more  convenient 
or  useful  to  the  petitioner,  or  giving  it 
some  peculiar  increase  in  value  com- 
pared with  other  lands  generally  in  the 
vicinity,  it  would  be  the  duty  of  the  jury 
to  allow  for  such  benefit,  or  increase 
of  value,  by  way  of  set-off,  in  favor  of 
the  railroad  company  ;  but,  on  the  other 
hand,  if  the  construction  of  the  railroad, 
by  increasing  the  convenience  of  the 
people  of  the  town  generally  as  a  place 
for  residence,  and  by  its  anticipated  and 
probable  effect  in  increasing  the  popula- 
tion, business,  and  general  prosperity  of 
the  place,  had  been  the  occasion  of  an 
increase  in  the  salable  value  of  real 
estate  generally  near  the  station,  includ- 
ing the  petitioner's  land,  and  thereby 
occasioning  a  benefit  or  advantage  to  him, 
in  common  with  other  owners  of  real 
estate  in  the  vicinity,  this  benefit  was  too 
contingent,  indirect,  and  remote  to  be 
brought  into  consideration  in  settling  the 
question  of  damages  to  the  petitioner  for 
taking  his  particular  parcel  of  land.  Up- 
ton v.  South  Reading  Branch  R.  R.  Co., 


8  Cush.  600.  See  Pittsburgh,  &c.  R.  R. 
Co.  v.  Reich,  101  111.  157  ;  Chicago,  B.  & 
N.  R.  R.  Co.  v.  Bowman,  122  111.  595,  13 
N.  E.  814.  QThis  rule  is  applicable  as 
well  where  the  claim  is  for  a  "  damag- 
ing" of  property  where  such  constitu- 
tional provisions  exist  as  where  it  is  for  a 
"  taking."  Hickman  i;.  Kansas  City,  120 
Mo.  110,  25  S.  W.  225,  23  L.  R.  A.  658; 
Randolph  v.  Board  of  Freeholders,  63 
N.  J.  L.  155,  41  Atl.  960.  See  Wagner 
v.  Gage  County,  3  Neb.  237.]  Remote 
and  speculative  benefits  are  not  allowed. 
Whitely  v.  Miss.,  &c.  Co.,  38  Minn.  523, 
38  N.  W.  753.  Locating  a  depot  near  a 
lot  is  not  a  special  benefit.  Washburn  v . 
Milwaukee,  &c.  R.  R.  Co.,  59  Wis.  364, 
18  N.  W.  328.  It  lias  sometimes  been 
objected,  with  great  force,  that  it  was  un- 
just and  oppressive  to  set  off  benefits 
against  the  loss  and  damage  which  the 
owner  of  the  property  sustains,  because 
thereby  he  is  taxed  for  such  benefits, 
while  his  neighbors,  no  part  of  whose 
land  is  taken,  enjoy  the  same  benefits 
without  the  loss;  and  the  courts  of  Ken- 
tucky have  held  it  to  be  unconstitutional, 
and  that  full  compensation  for  the  land 
taken  must  be  made  in  money.  Sutton 
v.  Louisville,  5  Dana,  28 ;  Rice  v.  Turn- 
pike Co.,  7  Dana,  81 ;  Jacob  v.  Louis- 
ville, 9  Dana,  114.  So  in  Mississippi. 
Natchez,  J.  &  C.  R.  R.  Co.  v.  Currie,  62 
Miss.  506.  And  some  other  States  have 
established,  by  their  constitutions,  the 
rule  that  benefits  shall  not  be  deducted. 
See  cases,  note  4,  825.  That  the  dam- 
age and  benefits  must  be  separately  as- 
sessed and  returned  by  the  jury  where 
part  only  of  the  land  is  taken,  see  De- 
troit v.  Daly,  68  Mich.  603,  37  N.  W.  11. 
But  the  cases  generally  adopt  the  doc- 
trine stated  in  the  text ;  and  if  the  owner 
is  paid  his  actual  damages,  he  has  no 
occasion  to  complain  because  his  neigh- 
bors are  fortunate  enough  to  receive  a 
benefit.  Greenville  &  Columbia  R.  R. 
Co.  v.  Partlow,  5  Rich.  428 ;  Mayor,  &c. 
of  Lexington  v.  Long,  31  Mo.  369.  Bene- 
fits to  the  adjacent  property  owned  in 
severally  may  be  deducted  from  damage 
to  property  owned  jointly.  Wilcox  r. 
Merfden,  57  Conn.  120,  17  Atl.  366. 


CH.  XV.] 


THE  EMINENT  DOMAIN. 


825 


such  as  would  not  give  to  other  persons  a  right  to  compensation ; 1 
while  allowing  those  which  directly  affect  the  value  of  the  remain- 
der of  the  land  not  taken,  such  as  the  necessity  for  increased 
fencing,  and  the  like.2  And  if  an  assessment  on  these  principles 
makes  the  benefits  equal  the  damages,  and  awards  the  owner  noth- 
ing, he  is  nevertheless  to  be  considered  as  having  received  full 
compensation,  and  consequently  as  not  being  in  position  to  com- 
plain.3 But  in  some  States,  by  constitutional  provision  or  by 
statute,  the  party  whose  property  is  taken  is  entitled  to  have  the 
value  assessed  to  him  without  any  deduction  for  benefits.4 

The  statutory  assessment  of  compensation  will  cover  all  con- 
sequential damages  which  the  owner  of  the  land  sustains  by  means 


1  Somerville,    &c.    R.     R.     Co.    ads. 
Doughty,  22  N.  J.  495;    Dorian  v.  East 
Brandywine,  &c.   R.  R.  Co.,  46   Pa.    St. 
520;     Proprietors,     &c.     v.    Nashua     & 
Lowell  R.  R.  Co.,  10  Gush.  385 ;   Louis- 
ville &  Nashville   R.  R.  Co.  v.  Thomp- 
son,  18   B.   Mour.   735;    Winona  &   St. 
Peter's  R.  R.  Co.  v.  Denman,  10  Minn. 
267 ;   Shenandoah   V.  R.  R.  Co.  v.  Shep- 
herd, 26  W.  Va.  672;    Stone  v.  Inh.  of 
Heath,  135  Mass.  561 ;  Com'rs  Dickinson 
Co.  v.  Hogan,  39  Kan.  606,  18  Pac.  611. 
So  of  increased  danger  from  fire  in  case 
a  railroad  is   laid  out.     Texas  &  St.  L. 
Ry.  Co.  v.  Cella,  42  Ark.  523 ;  Setzler  o. 
Pa.  &c.  R.  R.  Co.,  112  Pa.  St.  56,  4  Atl. 
370. 

2  Pennsylvania  R.  R.  Co.  v.  Heister,  8 
Pa.    St.    445;     Greenville    &    Columbia 
R.  R.  Co.  v.  Partlow,  5  Rich.  428 ;   Dear- 
born v.  Railroad  Co.,  24  N.  H.  179;  Car- 
penter v.  Landaff ,  42  N.  H.  218 ;  Dorian 
v.  East   Brandywine,   &c.  R.  R.  Co.,  46 
Pa    St.  520;    Winona   &  St.   Peter's   R. 
R.  Co.  >/.  Denman,  10  Minn.  267 ;  Mount 
Washington  Co.'s  Petition,  35  N.  H.  134. 
Where  a  part  of  a  meeting-house  lot  was 
taken  for  a  highway,  it  was  held  that  the 
anticipated    annoyance    to    worshippers 
by  the  use  of  the  way  by  noisy  and  disso- 
lute persons  on  the  Sabbath,  could  form 
no  basis  for  any  assessment  of  damages. 
First   Parish    in    Woburn   v.  Middlesex 
County,  7  Gray,  106. 

8  White  v.  County  Commissioners  of 
Norfolk,  2  Cush.  361;  Whitman  v.  Bos- 
ton &  Maine  R.  R.  Co.,  3  Allen,  133; 
Nichols  v.  Bridgeport,  23  Conn.  189; 
State  v.  Kansas  City,  89  Mo.  34,  14  S.  W. 
515;  Ross  v.  Davis,  97  Ind.  79.  The 
benefits  upon  the  owner's  property  not 


taken,  but  in  the  assessment  district, 
may  exceed  the  damages.  Genet  v. 
Brooklyn,  99  N.  Y.  296,  1  N.  E.  777. 
But  it  is  not  competent  for  the  commis- 
sioners who  assess  the  compensation  to 
require  that  which  is  to  be  made  to  be 
wholly  or  in  part  in  anything  else  than 
money.  An  award  of  "one  hundred  and 
fifty  dollars,  with  a  wagon-way  and  stop 
for  cattle,"  is  void,  as  undertaking  to  pay 
the  owner  in  part  in  conveniences  to  be 
furnished  him,  and  which  he  may  not 
want,  and  certainly  cannot  be  compelled 
to  take  instead  of  money.  Central  Ohio 
R.  R.  Co.  v.  Holler,  7  Ohio  St.  220.  See 
Rockford,  &c.  R.  R.  Co.  v.  Coppinger,  66 
111.  510 ;  Toledo,  A.  A.  &  N.  Ry.  Co.  v. 
Munson,  57  Mich.  42,  23  N.  W.  455. 
[^Compensation  cannot  be  made  by  charg- 
ing the  owner  with  the  amount  of  it,  as  a 
special  tax  on  that  portion  of  his  lands 
not  taken :  Bloomington  v.  Latham,  142 
111.  462,  32  N.  E.  506,  18  L.  R.  A.  487.] 

*  Wilson  v.  Rockford,  &c.  R.  R.  Co., 
59  III.  273  ;  Carpenter  v.  Jennings,  77  111. 
250;  Todd  v.  Kankakee,  &c.  R.  R.  Co., 
78  111.  530;  Atlanta  v.  Central  R.  R.  Co., 
53  Ga.  120;  Koestenbader  v.  Peirce,  41 
Iowa,  204  ;  Britton  v.  Des  Moines,  &c.  R. 
R.  Co.,  59  Iowa,  540,  13  N.  W.  710; 
Pacific  Coast  Ry.  Co.  v.  Porter,  74  Cal. 
261,  15  Pac.  774";  Leroy  &  W.  R.  R.  Co. 
v.  Ross,  40  Kan.  598,  20  Pac.  197;  Giesy 
v.  Cincinnati,  &c.  R.  R.  Co.,  4  Ohio  St. 
308  ;  Woodfolk  v.  Nashville  R.  R.  Co.,  2 
Swan,  422 ;  Memphis  v.  Bolton,  9  Heisk. 
508.  In  Illinois  benefits  may  not  be  set 
off  against  the  value  of  the  land  taken, 
but  may  be  against  damage  to  land  not 
taken.  Harwood  v.  Bloomington,  124 
111.  48,  16  N.  E.  91. 


826  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

of  the  construction  of  the  work,  except  such  as  may  result  from 
negligence  or  improper  construction,1  and  for  which  an  action  at 
the  common  law  will  lie,  as  already  stated,  (a) 

1  Philadelphia  &  Reading  R.  R.  Co.  v.  St.  42,  and  note.]  But  see  Roushlange  v. 
Yeiser,  8  Pa.  St.  366 ;  O'Connor  v.  Pitts-  Chicago,  &c.  Ry.  Co.,  115  Ind.  106,  17 
burgh,  18  Pa.  St.  187  ;  Aldrich  v.  Cheshire  N.  E.  198.  The  rule  applies  to  cases  of 
R.  R.  Co.,  21  N.  H.  359;  Dearborn  v.  purchase  instead  of  condemnation.  North 
Boston,  Concord,  &  Montreal  R.  R.  Co.,  &  W.  B.  Ry.  Co.  v.  Swank,  105  Pa.  St. 
24  N.  H.  179 ;  Eaton  r.  Boston  C.  &  M.  655 ;  Cassidy  v.  Old  Colony  R.  R.  Co., 
R.  R.  Co.,  51  N.  H.  504 ;  Dodge  v.  County  141  Mass.  174,  6  N.  E.  142  ;  Houston  & 
Commissioners,  3  Met.  380;  Brown  v.  E.  T.  Ry.  Co.  v.  Adams,  68  Tex.  476. 
Providence,  W.  &  B.  R.  R.  Co.,  5  Gray,  The  rule  covers  a  case  where  a  right  of 
35 ;  Mason  v.  Kennebec  &  Portland  R.  R.  action  existed  for  a  former  invalid  con- 
Co.,  31  Me.  215  ;  Bellinger  v.  N.  Y.  Cen-  damnation.  Dunlap  v.  Toledo,  &c.  Ry. 
tral  R.  R.  Co.,  23  N.  Y.  42 ;  Hatch  v.  Vt.  Co.,  50  Mich.  470,  15  N.  W.  555.  A  cor- 
Central  R.  R.  Co.,  25  Vt.  49  ;  Slatten  v.  poration  appropriating  property  under 
Des  Moines  Valley  R.  R.  Co.,  29  Iowa,  the  right  of  eminent  domain  is  always 
148;  Whitehouse  v.  Androscoggin  R.  R.  liable  for  any  abuse  of  the  privilege  or 
Co.,  52  Me.  208;  Denver  City  Irrig.  Co.  neglect  of  duty  under  the  law  under 
v.  Middaugh,  12  Col.  434,  21  Pac.  565;  which  they  proceed.  Fehr  v.  Schuylkill 
[Stork  v.  Philadelphia,  195  Pa.  St.  101,45  Nav.  Co.,  69  Pa.  St.  161 ;  Eaton  v.  Eos- 
Ail  678,  49  L.  R.  A.  600,  Hunt  v.  Iowa  ton,  C.  &  M.  R.  R.  Co.,  61  N.  H.  604 ; 
Cent.  Ry.  Co.,  86  Iowa,  15,  52  N.  W.  608,  Terre  Haute,  &c.  R.  R.  Co.  v.  McKinley, 
41  Am.  St.  473  ;  Gainesville,  &c.  Ry.  Co.  33  Ind.  274 ;  Neilson  v.  Chicago,  &c.  Ry. 
v.  Hall,  78  Tex.  169, 14  S.  W.  259, 22  Am.  Co.,  58  Wis.  516,  17  N.  W.  310. 

(a)  ^Compensation.  —  The  question  of  compensation  may  arise  in  one  of  three 
classes  of  cases  :  — 

A.  Where  the  whole  interest  of  a  particular  owner  is  taken  in  a  particular  tract.  — 
Here,  as  stated  in  the  text,  the  amount  of  compensation  is  generally  held  to  be  the 
market  value  of  that  interest  at  the  time  of  the  taking.  Chicago,  K.  &  W.  Ry.  Co. 
v.  Parsons,  51  Kan.  408,  32  Pac.  1083;  Texas,  W.  Ry.  Co.  v.  Cave,  80  Tex.  137,  15 
S.  W.  786.  When  taken  by  municipality,  at  time  of  determination  to  take:  Shana- 
han  v.  City  of  Waterbury,  63  Conn.  420,  28  All.  611;  In  re  Condemnation  of  Land 
for  a  State  House,  19  R.  I.  382,  33  Atl.  523.  In  some  jurisdictions  compensation  is 
assessed  at  market  value  at  time  of  assessment:  Leeds  v.  Cainden  &  A.  Ry.  Co., 
53  N.  J.  L.  229,  233,  23  Atl.  168,  169.  Where  the  compensation  is  fixed  in  an  appel- 
late proceeding,  assessment  is  as  of  the  time  of  the  assessment  appealed  from : 
Ellsworth  v.  Chicago  &  I.  W.  Ry.  Co.,  91  Iowa,  386,  59  N.  W.  78 ;  Forsyth  Boulevard 
v.  Forsyth,  127  Mo.  417,  30  S.  W.  188.  At  time  of  filing  of  petition  for  appraisal: 
Fremont,  E.  &  M.  V.  Ry.  Co.  v.  Bates,  40  Neb.  381,  68  N.  W.  959.  The  assessment 
must  be  irrespective  of  prospective  general,  as  distinguished  from  special,  benefits, 
resulting  from  the  improvement :  Shoemaker  v.  U.  S.,  147  U.  S.  282, 13  Sup.  Ct.  Rep. 
361 ;  Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  Rep.  966,  42  L.  ed.  U.  S.  270,  and 
note ;  Louisville  and  N.  Ry.  Co.  v.  Ingram,  12  Ky.  L.  456,  14  S.  W.  634 ;  West  Va., 
P.  &  T.  Ry.  Co.  v.  Gibson,  94  Ky.  234,  21  S.  W.  1055 ;  Benton  v.  Town  of  Brookline, 
151  Mass.  250,  23  N.  E.  846;  May  v.  City  of  Boston,  158  Mass.  21,  32  N.  E.  902 ;  (by 
virtue  of  statute  in  Massachusetts)  ;  Harris  v.  Schuylkill  River  E.  S.  Ry.  Co.,  141 
Pa.  St.  242,  21  Atl.  690,  23  Am.  St.  Rep.  278.  Contra,  Sanitary  District  of  Chicago 
v.  Loughran,  160  111.  362,  43  N.  E.  359.  May  consider  effect  of  improvements  pre- 
viously made.  In  re  Condemnation  of  Land  for  State  House,  19  R.  I.  382,  33  Atl. 
523 ;  Bowditch  v.  City  of  Boston,  164  Mass.  107,  41  N.  E.  132.  See  further  De 
Benneville  v.  Philadelphia,  —  Pa.  St. — ,53  Atl.  621.  It  is  market  value  for  any 
legitimate  use :  Muller  z;.  So.  Pac.  B.  Ry.  Co.,  83  Cal.  240,  23  Pac.  265 ;  Seattle  and 
M.  Ry.  Co.  n.  Murphine,  4  Wash.  448,  30  Pac.  720;  North.  Pac.  &  M.  Ry.  Co.  v. 
Forbis,  15  Mont.  452,  39  Pac.  671,  48  Am.  St.  692;  Alloway  ».  City  of  Nashville,  88 


CH.  XV.]  THE   EMINENT  DOMAIN.  827 

Tenn.  510,  13  S.  W.  123,  8  L.  R.  A.  123.  Value  for  special  use,  only  competent  as 
assisting  to  fix  market  value:  Miss.  &  R.  R.  Boom  Co.  v.  Patterson,  98  U.  S.  403; 
Denver  &  R.  G.  Ry.  Co.  v.  Griffith,  17  Col.  698,  81  Pac.  171;  Fales  v.  Town  of  E. 
Hampton,  102  Mass.  422,  38  M.  E.  1129;  N.  Pacif.  &  M.  Ry.  Co.  v.  Forbis,  supra ; 
Currie  v.  Waverly  &  N.  Y.  B.  Ry.  Co.,  62  N.  J.  L.  381,  20  All.  66,  19  Am.  St.  452; 
Harris  v.  Schuylkill  Riv.  E.  S.  Ry.  Co.,  141  Pa.  St.  242,  21  Atl.  590,  23  Am.  St.  278; 
San  Diego  Land  &  Town  Co.  v.  Neale,  88  Cal.  50,  25  Pac.  977,  11  L.  R.  A.  604. 
Not  prospective,  but  present  value  :  Omaha  Bell  Ry.  Co.  v.  McDermott,  25  Neb.  714, 
41  N.  W.  648;  Lee  v.  Springfield  Water  Power  Co.,  176  Pa.  St.  223,  35  Atl.  184; 
Penn.  S.  V.  Ry.  Co.  v.  Cleary,  125  Pa.  St.  442,  17  Atl.  468,  11  Am.  St.  913.  Not 
what  its  value  may  be  to  any  particular  person  :  City  of  Santa  Ana  v.  Harlan,  99 
Cal.  538,  34  Pac.  224.  If,  in  addition  to  material  property,  a  franchise  is  destroyed, 
compensation  should  cover  value  of  material  thing  and  also  of  the  franchise:  Clarion 
Turnpike  &  Bridge  Co.  v.  Clarion  Co.,  172  Pa.  St.  243,  33  Atl.  580. 

B.  Where,  part  only  of  a  sini/le  tract  is  taken.  —  In  this  case  the  rule  is  variously 
stated  as  follows:  (1)  Difference  between  the  value  of  the  whole  tract  just  before 
and  just  after  the  improvement  is  made :  Chicago,  P.  &  St.  L.  Ry.  Co.  v.  Eaton,  136 
III.  9,  26  N.  E.  575;  Evansville  &  R.  Ry.  Co.  v.  Swift,  128  Ind.  34,  27  N.  E.  420; 
Struthers  v.  Phila.  &  D.  C.  Ry.  Co.,  174  Pa.  St.  29  L,  34  Atl.  443;  West  Va.,  P.  &  T. 
Ry.  Co.  v.  Gibson,  94  Ky.  234,  21  S.  W.  1055;  Driscoll  v.  City  of  Taunton,  160  Mass. 
486,  36  N.  E.  495;  Richmond  &  M.  Ry.  Co.  v.  Humphreys,  90  Va.  425,  18  S.  E.  901 ; 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Henderson,  —  Tex.  Civ.  App.  — ,  32  S.  W.  143;  Mo. 
Pac.  Ry.  Co.  v.  Porter,  112  Mo.  361,  20  S.  W.  568.  This  allows  consideration  of 
benefits  and  injuries  common  to  whole  community.  (2)  Value  of  part  taken  as  a 
portion  of  whole  and  damage  to  remainder:  Omaha  So.  Ry.  Co.  v.  Todd,  39  Neb.  818, 
58  N.  W.  289;  Liverman  v.  Roanoke  &  T.  Ry.  Co.,  114  N.  C.  692,  19  S.  E.  61; 
Greeley  S.  L.  Ry.  Co.  v.  Yount,  7  Col.  App.  189,  42  Pac.  1023 ;  L.  S.  &  M.  S.  Ry.  Co. 
v.  City  of  Chicago,  151  111.  359,  37  N.  E.  880;  Orth  v.  City  of  Milwaukee,  92  Wis. 
230,  65  N.  W.  1029;  Comstock  v.  Cleared  &  M.  Ry.  Co.,  169  Pa.  St.  582,  32  Atl. 
431,  17  L.  R.  A.  785;  State  v.  Hudson  County  Board,  &c.,  55  N.  J.  L.  88,  25  Atl.  322. 
In  State  v.  Sup.  Ct.  of  King  Co.,  —  Wash.  — ,  70  Pac.  484,  the  measure  of  damages 
allowed  was  the  value  of  that  taken  and  depreciation  of  portion  not  taken,  disregard- 
ing benefits.  Upon  principle,  damages  common  to  all  in  the  community  should  not 
be  compensated  for.  See  citations,  f^ost.  Benefits  accruing  to  owner  by  reason  of 
the  construction  of  the  improvement  and  not  common  to  general  public,  which  en- 
hance the  value  of  lands  not  taken,  but  which  were  part  of  the  same  parcel,  a  portion 
of  which  was  taken,  should  be  considered  in  determining  compensation.  Butchers 
Slaughtering  &  Melting  Ass'n  r.  Commonwealth,  163  Mass.  386,  40  N.  E.  176;  Good- 
wine  v.  Evans,  134  Ind.  262,  33  N.  E.  1031.  Benefits  common  to  all  in  the  community 
should  not  be  considered  in  fixing  damages.  Spencer  v.  Metropolitan  Street  Ry.  Co., 
120  Mo.  154,  23  S.  W.  T26,  22  L.  R.  A.  668;  Beveridge  v.  Lewis,  —  Cal.  — ,  70  Pac. 
1083.  Injury  to  business  by  reason  of  taking  of  lands  for  right  of  way  is  held  not  re- 
coverable. Bailey  v.  Boston  &  P.  Ry.  Co,  —  Mass.  — ,  66  N.  E.  203;  Sawyer  v. 
Conn,  —  Mass.  — ,  65  N.  E.  52 ;  following  Monongahela  Nav.  Co.  v.  United  States,  148 
U.  S.  312, 13  Sup.  Ct.  Rep.  622.  If  there  is  a  grant  of  a  portion  of  a  tract  of  land  for  a 
public  use,  such  grunt  will  operate  to  prevent  recovery  of  damages  for  injuries  to  por- 
tion not  taken.  Watts  v.  Norfolk  &  Western  Ry.  Co ,  39  W.  Va.  196,  19  S.  E.  521, 
23  L.  R.  A.  674.  Where  lands  have  been  subdivided  into  lots,  but  not  separated  in 
ownership,  all  belonging  naturally  to  the  particular  tract  are  to  be  considered  in 
determining  .compensation.  Metropolitan  W.  S.  El.  Ry.  v.  Johnson,  159  111.  434,  42 
N.  E.  871;  Cox  v.  Mason  City  &  Ft.  Dodge  Ry.  Co.,  77  Iowa,  20,  41  N.  W.  475; 
Atchinson  &  N.  Ry.  Co.  v.  Boerner,  34  Neb.  240,  51  N.  W.  842,  33  Am.  St.  637  ;  Currie 
v.  Waverly  &  N.  Y.  B.  Ry.  Co.,  52  N.  J.  L.  381,  20  Atl.  66,  19  Am.  St.  452;  Lincoln 
v.  Commonwealth,  164  Mass.  368,  41  N.  E.  489;  Bischoff  v.  N.  Y.  El.  Ry.  Co.,  138 
N.  Y.  257,  33  N.  E.  1073;  Kremer  r.  C.  M.  &  St.  P.  Ry.  Co.,  51  Minn  15,  62  N.  W. 
977,  38  Am.  St.  468.  If  lots  not  adjacent,  though  parts  of  same  general  tract,  they 
cannot  be  considered.  Wellington  v.  Boston  &  M.  Ry.  Co.,  164  Mass.  380,  41  N.  E. 
652;  Cameron  v.  Chicago,  M.  &  St.  Paul  Ry.  Co.,  42  Minn.  75,  43  N.  W.  785. 


828  CONSTITUTIONAL   LIMITATIONS.  [CH.  XV. 

Though  adjacent,  if  not  used  together,  they  should  not  be  considered.  Koerper  v. 
St.  P.  &  N.  P.  Ky.  Co.,  42  Minn.  340,  44  N.  W.  195.  Separation  of  parcels  by  high- 
way, railway,  canal,  or  the  like,  may  defeat  the  consideration  of  all  as  one  tract 
dependent  upon,  whether  or  not  they  are  occupied  and  used  as  one  tract.  White  v. 
Met.  W.  S.  El.  Ry.  Co.,  154  111.  620,  39  N.  E.  270;  Union  El.  Co.  v.  Kansas  City  Sub. 
Belt  Ry.  Co.,  —  Mo.  — ,  33  S.  W.  926;  Cameron  v.  P.  &  L.  E.  Ry.  Co.,  157  Pa.  St. 
617,  27  All.  668,  22  L.  R.  A.  443;  Duluth  &  W.  Ry.  Co.  v.  West,  51  Minn.  163,  53 
N.  W.  197  .  Upon  the  question  as  to  what  lands  are  to  be  regarded  as  a  part  of  the 
parcel  taken,  see  Sharpe  v.  United  States,  60  C.  C.  A.  697,  112  Fed.  Rep.  893,  57 
L.  R.  A.  932,  and  extended  note  in  67  L.  R.  A.  932. 

C.  Where  there  is  no  actual  taking,  but  such  interference  as  directly  affects  and  injures 
some  right  of  property.  —  No  new  principle  is  involved  in  such  cases,  but  compensation 
is  assessed  at  the  difference  between  the  value  of  the  property  before  and  after  the 
construction  of  the  improvement.  Nicks  v.  Chicago,  St.  P.  &  K.  C.  Ry.  Co.,  84  Iowa, 
27,  50  N.  W.  222;  City  of  Bloomington  v.  Pollock,  141  111.  346,  31  N.  E.  146 ;  Beale 
v.  City  of  Boston,  166  Mass.  53,  43  N.  E.  1029.  This  condition  arises  moat  often  in 
cases  where  there  is  a  change  in  grade,  or  some  new  use  granted  of  a  public  way, 
claimed,  by  an  abutting  owner  who  does  not  own  the  land  under  the  street,  to  be  in- 
jurious to  him.  The  following  cases  illustrate  the  view  of  such  courts  as  hold  that 
such  owner  may  be  entitled  to  compensation.  Adams  v.  Chicago,  B.  &  Q.  Ry.  Co., 
39  Minn.  286,  39  N.  W.  629,  1  L.  R.  A.  493.  Followed  in  Lamm  ».  Chicago,  M.  &  St. 
P.  Ry.  Co.,  45  Minn.  71,  47  N.  W.  455,  10  L.  R.  A.  268 ;  Ottawa,  O.  C.  &  C.  G.  Ry. 
Co.  v.  Larsen,  40  Kan.  301, 19  Pac.  661, 2  L.  R.  A.  59.  The  so-called  "  Elevated  Rail- 
way "  Cases  are  of  this  class  :  Abendroth  v.  Manhattan  Ry.  Co.,  122  N.  Y.  1,  25  N.  E. 
496,  19  Am.  St.  461 ;  Arbenz  v.  Wheeling  &  Harrisburg  Ry.  Co.,  33  W.  Va.  1,  10  S.E. 
14,  5  L.  R.  A.  371.  Much  more  is  it  true,  where  the  adjoining  proprieter  owns  the 
fee  in  the  street.  Reichert  v.  St.  Louis  &  S.  Ry.  Co.,  51  Ark.  491,  11  S.  W.  696, 

5  L.  II.  A.  183.     Many  of  the  cases  holding  that  abutting  proprietors  may  be  entitled 
to  compensation  though  no  actual  taking,  are  cases  involving  the  construction  of 
constitutional  provisions  providing  for  compensation  where  property  is  "  damaged  " 
for  public  use.    Blair  v.  Charleston,  43  W.  Va.  62,  26  S.  E.  341,  35  L.  R.  A.  852,  will 
illustrate.    The  injury  must  be  peculiar  as  distinguished  from  such  as  is  common  to 
all  in  the  neighborhood.     Campbell  v.  Met.  St.  Ry.  Co.,  82  Ga.  320,  9  S.  E.  1078  ; 
Ft.  Worth  &  N.  O.  Ry.  Co.  v.  Garoin,  —  Tex.  — ,  29  "s.  W.  794  ;  Blair  v.  Charleston,  43 
W.  Va.  62,  26  S.  E.  341,  35  L.  R.  A.  852.     Generally  it  may  be  said  that  in  assessing 
the  amount  of  compensation  the  nature  of  the  taking  or  injury  should  be  considered. 
If  permanent,  the  prospective  as  well  as  present  injury  is  an  element  in  the  proper 
measure  of  such  compensation.     Joy  v.  Grindstone-Neck  Water  Co.,  85  Me.  109,  26 
All.  1052  ;  City  of  Centralia  v.  Wright,  156  111.  561,  41  N.  E.  217  ;  Highland  Avenue 

6  B.  R.  Co.  v.  Matthews,  99  Ala.  24,  10  So.  267,  14  L.  R.  A.  462.     See  notes,  ante, 
pp.  811,  822,  et  seq.,  for  other  cases  on  these  and  similar  propositions  as  to  compensa- 
tion.    Where  lands  of  railway  company  are  condemned  for  street  crossing,  those  ex- 
penses more  properly  the  result  of  the  exercise  of  the  police  power  of  the  State  are 
not  assessable.     Such  are  the  expenses  of  erecting  gates,  planking  the  crossing,  and 
maintaining  a  flagman:  Chicago,  B.  &  Q.  Ry.  Co.  v  Chicago,  166  U.  S.  226,  17  Sup. 
Ct.  Rep.  581.    Only  nominal  damages  can  be  allowed  as  against  a  telegraph  company 
for  constructing  telegraph  line  along  and  on  lands  of  railway  company  through  an 
agricultural  country.     Mobile  &  O.  Ry.  Co.  v.  Postal  T.  C.  Co.,  101  Tenn.  62,  46 
S.  W.  571,  41  L.  R.  A.  403.     See  case  between  same  parties,  76  Miss.  731,  26  So. 
370,  45  L.  R.  A.  223.     Wife  is  not  entitled  to  compensation  for  her  inchoate  right  of 
dower  in  lands  taken.    Flynn  v.  Flynn,  171  Mass.  312,  50  N.  E.  660,  68  Am.  St.  427, 
42  L.  R.  A.  98.] 


CH.  XVI.]  THE   POLICE   POWER   OF   THE    STATES.  829 


CHAPTER  XVI. 

THE  POLICE    POWER   OP  THE   STATES. 

FREQUENTLY  when  questions  of  conflict  between  national  and 
State  authority  are  made,  and  also  when  it  is  claimed  that  gov- 
ernment has  exceeded  its  just  powers  in  dealing  with  the  property 
and  controlling  the  actions  of  individuals,  it  becomes  necessary  to 
consider  the  extent  and  pass  upon  the  proper  bounds  of  another 
State  power,  which,  like  that  of  taxation,  pervades  every  depart- 
ment of  business  and  reaches  to  every  interest  and  every  subject 
of  profit  or  enjoyment.  We  refer  to  what  is  known  as  the  police 
power. 

The  police  of  a  State,  in  a  comprehensive  sense,  embraces  its 
whole  system  of  internal  regulation,  by  which  the  State  seeks  not 
only  to  preserve  the  public  order  and  to  prevent  offences  against 
the  State,  but  also  to  establish  for  the  intercourse  of  citizens  with 
citizens  those  rules  of  good  manners  and  good  neighborhood 
which  are  calculated  to  prevent  a  conflict  of  rights,  and  to  insure 
to  each  the  uninterrupted  enjoyment  of  his  own  so  far  as  is  rea- 
sonably consistent  with  a  like  enjoyment  of  rights  by  others.1 

1  Blackstone  defines  the  public  police  be  classed  the  provision  which  it  is  now 
and  economy  as  "  the  due  regulation  and  customary  with  all  enlightened  States  to 
domestic  order  of  the  kingdom,  whereby  make  for  the  custody  and  care,  and  if  pos- 
tlie  inhabitants  of  a  State,  like  members  sible  the  cure,  of  insane  persons.  That 
of  a  well-governed  family,  are  bound  to  the  State,  for  the  protection  of  others, 
conform  their  general  behavior  to  the  may  cause  such  persons  to  be  restrained 
rules  of  propriety,  good  neighborhood,  of  their  liberty  is  undoubted,  and  it  has 
and  good  manners,  and  to  be  decent,  in-  been  common  to  provide  that  this  may 
dustrious,  and  inoffensive  in  their  respec-  be  done  on  the  certificate  of  physicians 
tive  stations."  4  Bl.  Com.  162.  Jeremy  to  the  diseased  mental  condition.  But 
Bentham,  in  his  General  View  of  Public  while  confinement  on  such  a  certificate 
Offences,  has  this  definition:  "Police  is  may  be  justified  when  no  mistake  is  made 
in  general  a  system  of  precaution,  either  as  to  the  fact,  it  is  certain  that  it  cannot 
for  the  prevention  of  crimes  or  of  calam-  be  if  the  person  deprived  of  his  liberty 
ities.  Its  business  may  be  distributed  was  not  in  truth  at  the  time  insane.  No 
into  eight  distinct  branches  :  1.  Police  number  of  physicians  can  be  given  the 
for  the  prevention  of  offences  ;  2.  Police  power  to  take  from  a  sane  man  his  liberty, 
for  the  prevention  of  calamities ;  3.  Po-  without  a  public  investigation  in  which  he 
lice  for  the  prevention  of  endemic  dis-  may  produce  his  witnesses  ;  and  any  leg- 
eases;  4.  Police  of  charity;  5.  Police  of  islation  assuming  to  confer  such. power 
interior  communications ;  6.  Police  of  would  be  void.  On  this  general  subject 
public  amusements ;  7.  Police  for  recent  the  following  cases  are  of  interest :  An- 
intelligence  ;  8.  Police  for  registration."  derdon  v.  Burrows,  4  C.  &  P.  210 ;  Fletcher 
Edinburgh  ed.  of  Works,  Part  IX,  p.  157.  v.  Fletcher,  1  El.  &  El.  420;  Colby  v. 
Under  the  head  of  police  for  charity  may  Jackson,  12  N.  H.  526 ;  Look  v.  Dean, 


830  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

In  the  present  chapter  we  shall  take  occasion  to  speak  of  the 
police  power  principally  as  it  affects  the  use  and  enjoyment  of 
property  ;  the  object  being  to  show  the  universality  of  its  pres- 
ence, and  to  indicate,  so  far  as  may  be  practicable,  the  limits 
which  settled  principles  of  constitutional  law  assign  to  its  in- 
terference. 

No  definition  of  the  power  can  be  more  complete  and  satisfac- 
tory than  some  which  have  been  given  by  eminent  jurists  in 
deciding  cases  which  have  arisen  from  its  exercise,  and  which 
have  been  so  often  approved  and  adopted,  that  to  present  them  in 
any  other  than  the  language  of  the  decisions  would  be  unwise,  if 
not  inexcusable.  Says  Chief  Justice  Shaw,  "  We  think  it  is  a 
settled  principle,  growing  out  of  the  nature  of  well-ordered  civil 
society,  that  every  holder  of  property,  however  absolute  and  un- 
qualified may  be  his  title,  holds  it  under  the  implied  liability  that 
his  use  of  it  shall  not  be  injurious  to  the  equal  enjoyment  of 
others  having  an  equal  right  to  the  enjoyment  of  their  property, 
nor  injurious  to  the  rights  of  the  community.  All  property  in 
this  Commonwealth  is  ...  held  subject  to  those  general  regula- 
tions which  are  necessary  to  the  common  good  and  general  wel- 
fare. Rights  of  property,  like  all  other  social  and  conventional 
rights,  are  subject  to  such  reasonable  limitations  in  their  enjoy- 
ment as  shall  prevent  them  from  being  injurious,  and  to  such 
reasonable  restraints  and  regulations  established  by  law  as  the 
legislature,  under  the  governing  and  controlling  power  vested  in 
them  by  the  constitution,  may  think  necessary  and  expedient. 
This  is  very  different  from  the  right  of  eminent  domain,  —  the 
;right  of  a  government  to  take  and  appropriate  private  property 
whenever  the  public  exigency  requires  it,  which  can  be  done  only 
ion  condition  of  providing  a  reasonable  compensation  therefor. 
/The  power  we  allude  to  is  rather  the  police  power ;  the  power 
1  vested  in  the  legislature  by  the  constitution  to  make,  ordain,  and 
jestablish  all  manner  of  wholesome  and  reasonable  laws,  statutes, 
and  ordinances,  either  with  penalties  or  without,  not  repugnant 
to  the  constitution,  as  they  shall  judge  to  be  for  the  good  and 
welfare  of  the  Commonwealth,  and  of  the  subjects  of  the  same, 
tt  is  much  easier  to  perceive  and  realize  the  existence  and  sources 
of  this  power  than  to  mark  its  boundaries,  or  prescribe  limits  to 
jits  exercise."1 

108  Mass.  116;  Van  Deusen  v.  Newcomer,  bury,  11  Met.  55;  Hart «;.  Mayor,  &c.  of 

40  Mich.  90;  Morton  r.  Sims,  G4  Ga.  298 ;  Albany,  9  Wend.  571;  New   Albany  & 

In  re  Gannon,  16  R.  I.  537,  18  Atl.  159.  Salem  R.  R.  Co.  v.  Tilton,  12  Ind.  3 ;  In- 

1  Commonwealth  v.  Alger,  7  Cush  53,  dianapolis   &   Cincinnati   R.   R.     Co.    v. 

84.     See  also  Commonwealth  v.  Tewks-  Kercheval,  16  Ind.  84 ;   Ohio   &  Missis- 


CH.  XVI.] 


THE   POLICE    POWER   OF   THE   STATES. 


831 


"  This  police  power  of  the  State,"  says  another  eminent  judge, 
"  extends  to  the  protection  of  the  lives,  limbs,  health,  comfort, 
and  quiet  of  all  persons,  and  the  protection  of  all  property  within 
the  State.  According  to  the  maxim,  Sic  utere  tuo  ut  ulienum  non 
loedas,  which  being  of  universal  application,  it  must,  of  course,  be 
within  the  range  of  legislative  action  to  define  the  mode  and 
manner  in  which  every  one  may  so  use  his  own  as  not  to  injure 
others."  And  again  :  [By  this]  "  general  police  power  of  the 
State,  persons  and  property  are  subjected  to  all  kinds  of  restraints 
and  burdens,  in  order  to  secure  the  general  comfort,  health,  and 
prosperity  of  the  State  ;  of  the  perfect  right  in  the  legislature  to 
do  which,  no  question  ever  was,  or,  upon  acknowledged  general 
principles,  ever  can  be  made,  so  far  as  natural  persons  are  con- 
cerned." l  And  neither  the  power  itself,  nor  the  discretion  to 
exercise  it  as  need  may  require,  can  be  bargained  away  by  the 
State.2 

Where  the  Power  is  located.  In  the  American  constitutional 
system,  the  power  to  establish  the  ordinary  regulations  of  police 
has  been  left  with  the  individual  States,  and  it  cannot  be  taken 
from  them,  either  wholly  or  in  part,  and  exercised  under  legisla- 
tion of  Congress.3  Neither  can  the  national  government,  through 


sippi  R.  R.  Co.  v.  McClelland,  25  111.  140  ; 
People  v.  Draper,  25  Barb.  344 ;  Baltimore 
v.  State,  15  Md.  376 ;  Police  Commission- 
ers v.  Louisville,  3  Bush,  597 ;  Wyne- 
hamer  v.  People,  13  N.  Y.  378;  Taney, 
Ch.  J.,  in  License  Cases,  5  How.  504, 
583  ;  Waite,  Ch.  J.,  in  Munn  v.  Illinois,  94 
U.  S.  113,  124.  [Brown,  J.,  in  Lawton  v. 
Steele,  152  U.  S.  133,  14  Sup.  Ct.  Rep. 
499,  says  of  this  power  of  the  State,  that 
"  It  is  generally  conceded  to  include 
everything  essential  to  the  public  safety, 
health,  and  morals,  and  to  justify  the 
destruction  or  abatement  by  summary 
proceedings  of  whatever  may  be  re- 
garded as  a  public  nuisance.  Under  this 
power  it  has  been  held  that  the  state  may 
order  the  destruction  of  a  house  falling  to 
decay,  or  otherwise  endangering  the  lives 
of  passers-by  ;  the  demolition  of  such  as 
are  in  the  path  of  a  conflagration  ;  the 
slaughter  of  diseased  cattle  ;  the  prohibi- 
tion of  wooden  buildings  in  cities;  the 
regulations  of  railways  and  other  means 
of  public  conveyance,  and  of  interments 
in  burial  grounds ;  the  restrictions  of 
objectionable  trades  to  certain  localities; 
the  compulsory  vaccination  of  children  ; 
the  confinement  of  the  insane  or  those 


afflicted  with  contagious  diseases ;  the 
restraint  of  vagrants,  beggars,  and  habit- 
ual drunkards ;  the  suppression  of  ob- 
scene publications  and  houses  of  ill-fame 
and  the  prohibition  of  gambling  houses 
and  places  where  intoxicating  liquors  are 
sold." 

See  article  in  36  Am.  L.  Rev.  681,  trac- 
ing in  some  measure  the  judicial  develop- 
ment of  the  doctrine  of  the  police  power.] 

i  Redfiehl,  Ch.  J.,  in  Thorpe  v.  Rutland 
&  Burlington  R,  R.  Co.,  27  Vt.  140, 
149.  See  the  maxim,  Sic  utere,  &c.,  — 
"  Enjoy  your  own  property  in  such  man- 
ner as  not  to  injure  that  of  another,"  — 
in  Broom,  Legal  Maxims,  (5th  Am.  ed.) 
p.  327  ;  Wharton,  Legal  Maxims,  No.  XC. 
See  also  Turbeville  v.  Stampe,  1  Ld. 
Raym.  264;  and  1  Salk.  13;  Jeffries  v. 
Williams,  5  Exch.  792;  Humphries?;. 
Brogden,  12  Q.  B.  739 ;  Pixley  v.  Clark, 
35  N.  Y.  520 ;  Philadelphia  v.  Scott,  81 
Pa.  St.  80. 

"  Beer  Company  v.  Massachusetts,  97 
U.  S.  25,  33,  citing  Boyd  v.  Alabama,  94 
U.  S.  645. 

8  So  decided  in  United  States  v.  I)e 
Witt.  9  Wall.  41,  in  which  a  section  of 
the  Internal  Revenue  Act  of  1867  — 


832  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

any  of  its  departments  or  officers,  assume  any  supervision  of  the 
police  regulations  of  the  States.  All  that  the  federal  authority 
can  do  is  to  see  that  the  States  do  not,  under  cover  of  this  power, 
invade  the  sphere  of  national  sovereignty,  obstruct  or  impede  the 
exercise  of  any  authority  which  the  Constitution  has  confided  to 
the  nation,  or  deprive  any  citizen  of  rights  guaranteed  by  the 
federal  Constitution.1 

Conflict  with  Federal  Authority.  But  while  the  general  au- 
thority of  the  State  is  fully  recognized,  it  is  easy  to  see  that  the 
power  might  be  so  employed  as  to  interfere  with  the  jurisdiction 
of  the  general  government ;  and  some  of  the  most  serious  ques- 
tions regarding  the  police  of  the  States  concern  the  cases  in 
which  authority  has  been  conferred  upon  Congress.  In  those 
cases  it  has  sometimes  been  claimed  that  the  ordinary  police 
jurisdiction  is  by  necessary  implication  excluded,  and  that,  if  it 
were  not  so,  the  State  would  be  found  operating  within  the  sphere 
of  the  national  powers,  and  establishing  regulations  which  would 
either  abridge  the  rights  which  the  national  Constitution  under- 
takes to  render  absolute,  or  burden  the  privileges  which  are  con- 
ferred by  law  of  Congress,  and  which  therefore  cannot  properly 
be  subject  to  the  interference  or  control  of  any  other  authority. 

fBut  any  accurate  statement  of  the  theory  upon  which  the  police 
power  rests  will  render  it  apparent  that  a  proper  exercise  of  it  by 

which  undertook  to  make  it  a  misde-  Fourteenth  Amendment  does  not  limit 
meanor  to  mix  for  sale  naphtha  and  illu-  the  subjects  in  relation  to  which  the 
minating  oils,  or  to  sell  oil  of  petroleum  police  power  of  the  State  may  be  exer- 
inflammable  at  a  less  temperature  than  cised.  Barbier  v.  Connolly,  113  U.  S.  27, 
110°  Fahrenheit  —  was  held  to  be  a  mere  5  Sup.  Ct.  Rep.  357;  Minneapolis  &  St. 
police  regulation,  and  as  such  void  within  Louis  Ry.  Co.  v.  Beckwith,  129  U.  S.  26, 
the  States.  That  the  States  may  pass  9  Sup.  Ct.  Rep.  207,  and  cases  cited, 
such  laws,  see  Patterson  v.  Common-  Congress  has  no  power  to  authorize  a 
wealth,  11  Bush,  811.  A  license  may  be  business  within  a  State  which  is  pro- 
required  for  the  peddling  of  patented  hibited  by  the  State.  License  Tax  Cases, 
articles.  People  v.  Russell,  49  Mich.  617,  6  Wall.  462,  per  Chase,  Ch.  J.  In  Canada, 
14  N.  W.  568.  On  the  general  subject  of  power  over  sales  of  liquor  is  in  the  Do- 
the  police  power  of  the  States,  see  also  minion  parliament,  and,  after  license  in 
United  States  r.:.,Reese,  92  U.  S.  214;  pursuance  of  its  authority,  the  provincial 
United  States  v.  Cruikshank,  92  U.  S.  parliament  cannot  forbid.  Severn  v.  The 
542.  But  the  States  cannot,  by  police  Queen,  2  Can.  Sup.  Ct.  71 ;  Mayor,  &c.  v. 
regulations,  interfere  with  the  control  The  Queen,  3  Can.  Sup.  Ct.  505.  QAc- 
by  Congress  over  inter-state  commerce,  tion  in  the  nature  of  police  regulation 
Post,  pp.  857,  858,  867,  and  notes.  is  void  if  against  the  express  provisions 
1  See  this  subject  considered  at  large  of  the  constitution  though  otherwise 
in  the  License  Cases,  5  How.  604,  the  within  the  general  power  to  make  police 
Passenger  Cases,  7  How.  283,  and  the  regulations.  State  »'.  Fraehlich,  115  Wis. 
Slaughter-House  Case,  16  Wall.  36;  Peo-  — ,  91  N.  W.  115.  On  the  constitutional 
pie  v.  Compagnie  Ge'n.,  107  U.  S.  59,  limitations  of  the  police  power,  see  55 
2  Sup.  Ct.  Rep.  87  ;  Head  Money  Cases,  Cent.  L.  Jour.  225J 
112  U.  S.  580,  5  Sup.  Ct.  Rep.  247.  The 


CH.  XVI.]  THE   POLICE    POWEK   OF    THE    STATES.  833 

the  State  cannot  come  in  conflict  with  the  provisions  of  the  Con- 
stitution of  the  United  States.  If  the  power  extends  only  to  a 
just  regulation  of  rights  with  a  view  to  the  due  protection  and 
enjoyment  of  all,  and  does  not  deprive  any  one  of  that  which  is 
justly  and  properly  his  own,  it  is  obvious  that  its  possession  by 
the  State,  and  its  exercise  for  the  regulation  of  the  property  and 
actions  of  its  citizens,  cannot  well  constitute  an  invasion  of 
national  jurisdiction,  or  afford  a  basis  for  an  appeal  to  the  pro- 
tection of  the  national  authorities. 

Obligation  of  Contracts.  The  occasions  to  consider  this  subject 
in  its  bearings  upon  the  clause  of  the  Constitution  of  the  United 
States  which  forbids  the  States  passing  any  laws  impairing  the 
obligation  of  contracts  have  been  frequent  and  varied  ;  and  it  has 
been  held  without  dissent  that  this  clause  does  not  so  far  remove 
from  State  control  the  rights  and  properties  which  depend  for 
their  existence  or  enforcement  upon  contracts,  as  to  relieve  them 
from  the  operation  of  such  general  regulations  for  the  good  gov- 
ernment of  the  State  and  the  protection  of  the  rights  of  individuals 
as  may  be  deemed  important.  All  contracts  and  all  rights,  it  is 
declared,  are  subject  to  this- power; (a)  and  not  only  may  regula- 

(fl)  £What  shall  be  the  public  policy  of  a  State  is  determined  by  itself,  and  is 
subject  to  no  Federal  control  unless  it  contravenes  the  Federal  Constitution  or  some 
treaty  or  congressional  statute  conformable  thereto.  Hartford  Fire  Insurance  Co.  v. 
Chicago,  M  &  St.  P.  R.  Co.,  175  U.  S.  91,  20  Sup.  Ct.  Rep.  33.  And  the  Federal 
courts  will  enforce  the  public  policy  of  a  State  in  regard  to  usurious  contracts.  Mis- 
souri, K.  &  T.  Trust  Co.  v.  Krumseig,  172  U.  S.  351,  19  Sup.  Ct.  Rep.  179.  But  the 
public  policy  of  a  State  cannot  be  extended  to  the  infringement  of  rights  acquired 
outside  of  the  State,  nor  can  the  State  penalize  acts  merely  collateral  to  the  enjoy- 
ment of  such  rights.  In  1894  Louisiana  enacted  "  that  any  person  .  .  .  who  in  any 
manner  whatever  does  any  act  to  effect  for  himself,  or  for  another,  insurance  on 
property  then  in  this  State,  in  any  marine  insurance  company  which  has  not  com- 
plied in  all  respects  with  the  laws  of  this  State,  shall  be  subject  to  a  fine  of,"&c. 
This  came  under  consideration  in  Allgeyer  v.  Louisiana,  165  U.  S.  578,  17  Sup.  Ct. 
Rep.  427.  A.  was  a  citizen  of  L.,  resident  in  New  Orleans.  He  was  an  exporter  of 
cotton  from  N.  0.  to  the  ports  of  Great  Britain  and  of  the  Continent.  As  incidental 
to  his  business,  he  entered  in  N.  Y.  City  into  a  contract  of  insurance  with  the  Atl.  M. 
Ins.  Co.  of  that  city,  which  contract  was  for  an  open  policy  of  $200,000.  This  con- 
tract was  to  be  performed  entirely  within  the  State  of  N.  Y.  and  was  there  entirely 
valid.  Under  it,  whenever  A.  made  a  shipment  of  cotton  which  he  desired  insured, 
he  notified  the  insurance  company  by  mail  or  by  telegraph,  and  the  insurance  at- 
tached to  the  parcel  specified  at  the  instant  of  despatch  of  the  letter  or  telegram. 
Upon  receipt  of  the  notification,  the  insurance  company  made  out  a  special  policy 
of  insurance  upon  the  parcel  and  delivered  it  to  A.'s  agent  in  N.  Y.,  who  thereupon 
paid  the  premium.  The  insurance  company  never  complied  with  the  conditions  pre- 
scribed by  Louisiana  to  be  observed  by  all  marine  insurance  companies  doing  busi- 
ness therein.  A.  mailed  in  N.  O.,  in  compliance  with  the  conditions  of  the  contract, 
a  letter  addressed  to  the  insurance  company,  specifying  a  particular  cargo  of  cotton 
then  "hipped  upon  which  insurance  was  to  attach,  and  for  this  L.  filed  its  petition 
against  him,  praying  judgment  for  the  penalty,  which  was  decreed.  A.  sued  out  a 
writ  of  error,  alleging  that  the  action  of  L.  deprived  him  of  his  liberty  and  his  prop- 

63 


834  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

tions  which  affect  them  be  established  by  the  State,  but  all  such 
regulations  must  be  subject  to  change  from  time  to  time,  as  the 
general  well-being  of  the  community  may  require,  or  as  the 
circumstances  may  change,  or  as  experience  may  demonstrate 
the  necessity.1 

1  In  the  case  of  Thorpe  v.  Rutland  &  sufficient  to  prevent  cattle  and  other  ani- 

Burlington  R.  It.  Co.,  27  Vt.  140,  a  ques-  mals  from  getting  upon  the  railroad,  and 

tion  arose  under  a  provision  in  the  Ver-  which  made  the  corporation  and  its  agents 

mont    General    Railroad    Law    of  1849,  liable  for  all  damages  which  should  be 

which  required  each  railroad  corporation  done  by  its  agents  or  engines  to  cattle, 

to  erect  and   maintain  fences  on  the  line  horses,  or  other  animals  thereon,  if  occa- 

of  its  road,  and  also  cattle-guards  at  all  sioned  by  the  want  of  such  fences  and 

farm   and  road   crossings,    suitable   and  cattle-guards.     It  was  not  disputed  that 

erty  without  due  process  of  law.  The  U.  S.  Supreme  Court  reversed  the  action  of 
the  L.  court,  and,  in  giving  the  opinion  of  the  court,  Mr.  Justice  Peckham  said : 
"  The  act  done  within  the  limits  of  the  State,  under  the  circumstances  of  this  case 
and  for  the  purpose  therein  mentioned,  we  hold  a  proper  act,  one  which  defendants 
were  at  liberty  to  perform,  and  which  the  State  legislature  had  no  right  to  prevent, 
at  least  with  reference  to  the  Federal  Constitution.  ...  In  the  privilege  of  pursuing 
an  ordinary  calling  or  trade  and  of  acquiring,  holding,  and  selling  property  [which, 
earlier  in  the  opinion,  had  been  declared  to  be  included  in  the  liberty  of  the  citizen] 
must  be  embraced  the  right  to  make  all  proper  contracts  in  relation  thereto,  ami 
although  it  may  be  conceded  that  this  right  to  contract  in  relation  to  persons  or 
property,  or  to  do  business  within  the  jurisdiction  of  the  State,  may  be  regulated  and 
sometimes  prohibited  when  the  contracts  or  business  conflict  with  the  policy  of  the 
State  as  contained  in  the  statutes,  yet  the  power  does  not  and  cannot  extend  to  pro- 
hibiting the  citizen  from  making  contracts  of  the  nature  involved  in  this  case  outside 
of  the  limits  and  jurisdiction  of  the  State,  and  which  are  also  to  be  performed  out- 
side of  such  jurisdiction  ;  nof  can  the  State  legally  prohibit  its  citizens  from  doing 
such  an  act  as  writing  this  letter  of  notification,  even  though  the  property  which  is 
to  be  insured  may  at  the  time  when  such  insurance  attaches  be  within  the  limits  of 
the  State.  The  mere  fact  that  a  citizen  may  be  within  the  limits  of  a  particular  State 
does  not  prevent  his  making  a  contract  outside  its  limits  while  he  himself  remains 
within  it.  Milliken  v.  Pratt,  125  Mass.  374,  28  Am.  Rep.  241 ;  Tildon  v.  Blair,  21 
Wall.  241.  The  contract  in  this  case  was  thus  made.  It  was  a  valid  contract, 
made  outside  of  the  State,  to  be  performed  outside  of  the  State,  although  the 
subject  was  property  temporarily  within  the  State.  As  the  contract  was  valid  in 
the  place  where  made  and  where  it  was  to  be  performed,  the  party  to  the  contract 
upon  whom  is  devolved  the  right  or  duty  to  send  the  notification  in  order  that  the 
insurance  provided  for  by  the  contract  may  attach  to  the  property  specified  in  the 
shipment  mentioned  in  the  notice,  must  have  liberty  to  do  that  act  and  to  give  that 
notification  within  the  limits  of  the  State,  any  prohibition  of  the  State  statute  to  the 
contrary  notwithstanding.  The  giving  of  the  notice  is  a  mere  collateral  matter;  it 
is  not  the  contract  itself,  but  is  an  act  performed  pursuant  to  a  valid  contract  which 
the  State  had  no  right  or  jurisdiction  to  prevent  its  citizens  from  making  outside 
the  limits  of  the  State."  But  in  Hooper  v.  California,  155  U.  S.  648,  15  Sup.  Ct. 
Rep.  207,  it  was  held  that  a  State  may  in  pursuance  of  its  public  policy  penalize  any 
act  done  within  its  borders,  looking  toward  the  formation  of  contract  relations  with 
foreign  corporations  which  it  has  forbidden  to  do  business  within  its  borders.  The 
State  may  regulate  the  formation  of  contracts  of  insurance  within  its  borders,  and 
the  parties  are  powerless  to  waive  the  benefits  of  such  regulation.  Equitable  Life 
A.  S.  v.  Clements,  140  U.  S.  226,  11  Sup.  Ct.  Rep  822.  See  Nutting  v.  Massachu- 
setts, 183  U.  S.  553,  22  Sup.  Ct.  Rep.  238 ;  aff .  175  Mass.  156,  55  N.  E.  895,  in 
which  the  cases  of  Hooper  and  Allgeyer  are  distinguished  and  reconciled.^ 


CH.  XVI.] 


THE  POLICE  POWER  OF  THE  STATES. 


835 


Perhaps  the  most  striking  illustrations  of  the  principle  here 
stated  will  be  found  among  the  judicial  decisions  which  have  held 


this  provision  would  be  valid  as  to  such 
corporations  as  might  be  afterwards  cre- 
ated witliin  the  State;  but  in  respect  to 
those  previously  in  existence,  and  whose 
charters  contained  no  sucli  provision,  it 
was  claimed  that  this  legislation  was  in- 
operative, since  otherwise  its  effect  would 
be  to  modify,  and  to  that  extent  to 
violate,  the  obligation  of  the  charter-con- 
tract. "  The  case,"  says  the  court,  "  re- 
solves itself  into  the  narrow  question  of 
the  right  of  the  legislature,  by  general 
statute,  to  require  all  railways,  whether 
now  in  operation  or  hereafter  to  be  char- 
tered or  built,  to  fence  their  roads  upon 
both  sides,  and  provide  sufficient  cattle- 
guards  at  all  farm  and  road  crossings, 
under  penalty  of  paying  all  damages 
caused  by  their  neglect  to  comply  with 
such  requirements.  .  .  .  We  think  the 
power  of  the  legislature  to  control  exist- 
ing railways  in  this  respect  may  be  found 
in  the  general  control  over  the  police  of 
the  country,  which  resides  in  the  law- 
making  power  in  all  free  States,  and 
which  is,  by  the  fifth  article  of  the  bill  of 
rights  of  this  State,  expressly  declared  to 
reside  perpetually  and  inalienably  in  the 
legislature ;  which  is,  perhaps,  no  more 
than  the  enunciation  of  a  general  prin- 
ciple applicable  to  all  free  States,  and 
which  cannot  therefore  be  violated  so  as 
to  deprive  the  legislature  of  the  power, 
even  by  express  grant  to  any  mere  pub- 
lic or  private  corporation.  And  when  the 
regulation  of  the  police  of  a  city  or  town, 
by  general  ordinances,  is  given  to  such 
towns  and  cities,  and  the  regulation  of 
their  own  internal  police  is  given  to  rail- 
roads to  be  carried  into  effect  by  their  by- 
laws and  other  regulations,  it  is  of  course 
always,  in  all  such  cases,  subject  to  the 
superior  control  of  the  legislature.  That 
is  a  responsibility  which  legislatures  can- 
not divest  themselves  of  if  they  would. 

"  So  far  as  railroads  are  concerned, 
this  police  power  which  resides  primarily 
and  ultimately  in  the  legislature  is  two- 
fold :  1.  The  police  of  the  roads,  which, 
in  the  absence  of  legislative  control,  the 
corporations  themselves  exercise  over 
their  operatives,  and  to  some  extent  over 
all  who  do  business  with  them,  or  come 
upon  their  grounds,  through  their  general 


statutes,  and  by  their  officers.  We  ap- 
prehend there  can  be  no  manner  of  doubt 
that  the  legislature  may,  if  they  deem  the 
public  good  requires  it,  of  which  they  are 
to  judge,  and  in  all  doubtful  cases  their 
judgment  is  final,  require  the  several  rail- 
roads in  the  State  to  establish  and  main- 
tain the  same  kind  of  police  which  is  now 
observed  upon  some  of  the  more  impor- 
tant roads  in  the  country  for  their  own 
security,  or  even  such  a  police  as  is  found 
upon  the  English  railways,  and  those  upon 
the  continent  of  Europe.  No  one  ever 
questioned  the  right  of  the  Connecticut 
legislature  to  require  trains  upon  all  of 
their  railroads  to  come  to  a  stand  before 
passing  draws  in  bridges  ;  or  of  the  Massa- 
chusetts legislature  to  require  the  same 
thing  before  passing  another  railroad. 
And  by  parity  of  reasoning  may  all  rail- 
ways be  required  so  to  conduct  them- 
selves as  to  other  persons,  natural  or  cor- 
porate, as  not  unreasonably  to  injure 
them  or  their  property.  And  if  the  busi- 
ness of  railways  is  specially  dangerous, 
they  may  be  required  to  bear  the  expense 
of  erecting  such  safeguards  as  will  render 
it  ordinarily  safe  to  others,  as  is  often 
required  of  natural  persons  under  such 
circumstances. 

"  There  would  be  no  end  of  illustra- 
tions upon  this  subject.  ...  It  may  be 
extended  to  the  supervision  of  the  track, 
tending  switches,  running  upon  the  time 
of  other  trains,  running  a  road  with  a 
single  track,  using  improper  rails,  not 
using  proper  precaution  by  way  of  safety- 
beams  in  case  of  the  breaking  of  axle- 
trees,  the  number  of  brakemen  upon  a 
train  with  reference  to  the  number  of 
cars,  employing  intemperate  or  incom- 
petent engineers  and  servants,  running 
beyond  a  given  rate  of  speed,  and  a  thou- 
sand similar  tilings,  most  of  which  have 
been  made  the  subject  of  legislation  or 
judicial  determination,  and  all  of  which 
may  be.  Hegeman  v.  Western  R.  Co.,  16 
Barb.  353. 

"2.  There  is  also  the  general  police 
power  of  the  State,  by  which  persons  and 
property  are  subjected  to  all  kinds  of 
restraints  and  burdens,  in  order  to  secure 
the  general  comfort,  health,  and  pros- 
perity of  the  State ;  of  the  perfect  right 


836 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


that  the  rights  insured  to  private  corporations  by  their  charters, 
and  the  manner  of  their  exercise,  are  subject  to  such  new  regula- 
tions as  from  time  to  time  may  be  made  by  the  State  with  a  view 
to  the  public  protection,  health,  and  safety,  and  in  order  to  guard 
properly  the  rights  of  other  individuals  and  corporations.  Al- 
though these  charters  are  to  be  regarded  as  contracts,  and  the 
rights  assured  by  them  are  inviolable,  it  does  not  follow  that 
these  rights  are  at  once,  by  force  of  the  charter-contract,  removed 
from  the  sphere  of  State  regulation,  and  that  the  charter  implies 
an  undertaking,  on  the  part  of  the  State,  that  in  the  same  way  in 
which  their  exercise  is  permissible  at  first,  and  under  the  regula- 
tions then  existing,  and  those  only,  may  the  corporators  continue 
to  exercise  their  rights  while  the  artificial  existence  continues. 
The  obligation  of  the  contract  by  no  means  extends  so  far ;  but, 
on  the  contrary,  the  rights  and  privileges  which  come  into  exist- 
ence under  it  are  placed  upon  the  same  footing  with  other  legal 
rights  and  privileges  of  the  citizen,  and  subject  in  like  manner  to 
proper  rules  for  their  due  regulation,  protection,  and  enjoyment. 


in  the  legislature  to  do  which  no  question 
ever  was  or,  upon  acknowledged  general 
principles,  ever  can  be,  made,  so  far  as 
natural  persons  are  concerned.  And  it  is 
certainly  calculated  to  excite  surprise  anil 
alarm  that  the  right  to  do  the  same  in 
regard  to  railways  should  be  made  a  seri- 
ous question."  And  the  court  proceed 
to  consider  the  various  cases  in  which 
the  right  of  the  legislature  to  regulate 
matters  of  private  concern  with  reference 
to  the  general  public  good  has  been  acted 
upon  as  unquestioned,  or  sustained  by 
judicial  decisions ;  and  quote,  as  pertinent 
to  the  general  question  of  what  laws  are 
prohibited  on  the  ground  of  impairing 
the  obligation  of  contracts,  the  language 
of  Chief  Justice  Marshall  in  Dartmouth 
College  v.  Woodward,  4  Wheat.  518,  629, 
that  "  the  framers  of  the  Constitution  did 
not  intend  to  restrain  the  States  in  the 
regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that 
the  instrument  they  have  given  us  is  not 
to  be  so  construed."  See,  to  the  same 
effect,  Suydam  v.  Moore,  8  Barb.  358; 
Waldron  v.  Rensselaer  &  Saratoga  R.  R. 
Co.,  8  Barb.  390 ;  Galena  &  Chicago  U. 
R.  R.  Co.  v.  Loomis,  13  111.  548  ;  Fitchburg 
R.  R.  v.  Grand  Junction  R.  R.  Co  ,  1  Al- 
len, 552;  Veazie  v.  Mayo,  45  Me.  560; 
Peters  v.  Iron  Mountain  R.  R.  Co.,  23  Mo. 
107;  Grannahan  v.  Hannibal,  &c.  R.  R. 


Co.,  30  Mo.  546;  Indianapolis  &  Cincin- 
nati R.  R.  Co.  v.  Kercheval,  16  Ind.  84 ; 
Galena  &  Chicago  U.  R.  R.  Co.  v.  Ap- 
pleby,  28  111.  283 ;  Blair  v.  Milwaukee,  &c. 
R.  R.  Co.,  20  Wis.  254 ;  State  v.  Mathews, 
44  Mo.  523;  Commissioners,  &c.  v.  Hoi- 
yoke  Water  Power  Co.,  104  Mass.  446  ; 
Railroad  Co.  v.  Fuller,  17  Wall.  560;  To- 
ledo, &c.  R.  R.  Co.  v.  Deacon,  63  111.  91 ; 
Ames  v.  Lake  Superior,  &c.  R.  R.  Co.,  21 
Minn.  241 ;  N.  W.  Fertilizing  Co.  v.  Hyde 
Park,  70  III.  634;  State  v.  New  Haven, 
&c.  Co.,  43  Conn.  351.  [[Missouri,  K.  & 
T.  Trust  Co.  v.  Krumseig,  172  U.  S.  351, 
19  Sup.  Ct.  Rep.  179;  Matthews  v.  St. 
Louis  &  S.  F.  R.  Co.,  121  Mo.  298,  24 
S.  W.  591,  25  L.  R.  A.  161,  and  note. 
Upon  the  proposition  that  police  regula- 
tions are  subject  to  change,  from  time  to 
time,  as  the  public  welfare  may  demand, 
without  impairing  the  obligation  of  con- 
tract, see  Pingree  v.  Michigan  Central 
Ry.  Co.,  118  Mich.  814,  76  N.  W.  635,  53 
L.  R.  A.  274,  where  the  charter  gave  to 
the  company  the  right  to  fix  rates  for 
passenger  carriage  within  the  maximum 
of  three  cents  per  mile,  and  it  was  held 
that  any  subsequent  attempt  to  fix  rates 
was  unconstitutional  as  impairing  the 
obligation  of  contract.  See,  also,  Detroit 
v.  Detroit  Cit.  St.  Ry.  Co.,  184  U.  S.  368, 
22  Sup.  Ct.  Rep.  410  ] 


CH.  XVI.]  THE   POLICE   POWER  OF   THE   STATES.  837 

The  limit  to  the  exercise  of  the  police  power  (a)  in  these  cases 
must  be  this :  the  regulations  must  have  reference  to  the  comfort, 
safety,  or  welfare  of  society ;  they  must  not  be  in  conflict  with 

(a)  [[Police  regulations  cannot  be  purely  arbitrary  nor  purely  for  the  promotion  of 
private  interests.  A  statute  requiring  railroads  and  transportation  companies  to 
turn  over  to  a  storage  company  or  public  warehouseman  all  property  which  the  con- 
signee fails  to  call  for  or  receive  within  twenty  days  after  its  arrival  is  unconstitu- 
tional. State  v.  Chicago,  M.  &  St.  P.  R.  Co.,  68  Minn.  381,  71  N.  W.  400,  38  L.  R.  A. 
672.  A  gift  element  carried  on  by  a  merchant  in  connection  with  his  business  and 
involving  no  element  of  chance  cannot  be  prohibited.  Long  v.  State,  73  Md.  527,  21 
All.  683,  74  Md.  565,  22  Atl.  4,  12  L.  R.  A.  425.  In  State  v.  Ashbrook,  154  Mo.  376, 
65  S.  W.  627,  48  L.  R.  A.  2(i5,  an  act  of  the  legislature  which  was  aimed  at  depart- 
ment stores  of  any  considerable  magnitude  was  considered  and  held  void.  The  act 
divided  commodities  into  twenty-eight  groups,  and  provided  that  in  cities  having 
fifty  thousand  inhabitants  or  more,  any  merchant  who  employed  more  than  fifteen 
persons  in  the  same  establishment  and  sold  more  than  one  group  of  commodities 
should  be  subject  to  a  certain  license  fee,  not  less  than  three  hundred  dollars  per 
group.  No  provision  for  inspection  or  other  regulation  was  made.  The  court  held 
that  the  whole  scheme  was  an  unwarranted  attempt  at  discrimination  against  large 
merchants.  In  discussing  the  limits  of  the  police  power,  Robinson,  J.,  in  giving  the 
opinion  of  the  court,  said  :  "  In  order  to  sustain  legislation  of  the  character  of  the  act 
in  question  as  a  police  measure,  the  courts  must  be  able  to  see  that  its  object  [opera- 
tion] to  some  degree  tends  towards  the  prevention  of  some  offence  or  manifest  evil, 
or  has  for  its  aim  the  preservation  of  the  public  health,  morals,  safety,  or  welfare. 
If  no  such  object  is  discernible,  but  the  mere  guise  and  masquerade  of  public  control, 
under  the  name  of  'An  Act  to  Regulate  Business  and  Trade,  &c./  is  adopted,  that 
the  liberty  and  property  rights  of  the  citizens  may  be  invaded,  the  courts  will  strike 
down  the  act  as  unwarranted.  Mere  legislative  assumption  of  the  right  to  direct 
and  indicate  the  channel  and  course  into  which  the  private  energies  of  the  citizen 
shall  flow,  or  the  attempt  to  abridge  or  hamper  his  right  to  pursue  any  lawful  call- 
ing or  avocation  which  he  may  choose  without  unreasonable  regulation  or  molesta- 
tion, have  ever  been  condemned  in  all  free  government."  For  an  ordinance  of 
similar  purpose,  similarly  disposed  of,  see  Chicago  v.  Netcher,  183  111.  104,  55  N.  E. 
707,  48  L.  R.  A.  261,  and  for  cases  on  department  stores  and  their  regulation,  see 
note  to  this  case  in  L  R.  A.;  see  also  People  v.  Coolidge,  124  Mich.  664,  83  N.  W. 
594,  50  L.  R.  A.  493.  Police  regulations  cannot  be  purely  arbitrary;  e.g.,  barbers 
cannot  be  singled  out  from  men  of  all  trades  and  callings  and  alone  deprived  of  right 
to  work  on  Sunday.  Eden  v.  People,  161  111.  29(5,  43  N.  E.  1108,  32  L.  R.  A.  659; 
Ex  parte  Jentzsch,  112  Cal.  468, 44  Pac.  803,  32  L.  R.  A.  664 ;  contra,  People  v.  Havnor, 
149  N.  Y.  195,  43  N.  E.  541,  31  L.  R.  A.  689.  Mines  shipping  by  rail  or  by  water 
cannot  be  singled  out  and  alone  compelled  to  provide  special  facilities  for  coal  weigh- 
ing. Harding  v.  People,  160  111.  459,  43  N.  E.  624,  32  L.  R.  A.  445.  Upon  extent  of 
police  power,  see  State  v.  Schlemmer,  42  La.  Ann.  1166,  8  So.  307,  10  L.  R.  A.  135, 
and  note.  Restrictions  upon  the  use  of  property  by  its  owner  cannot  be  purely  arbi- 
trary. They  must  be  in  some  degree  necessary  to  protect  the  legitimate  interests  of 
others.  A  riparian  owner  cannot  be  prevented  from  driving  piles  upon  liis  own  land 
and  erecting  buildings  upon  such  piles,  where  they  neither  impede  the  flow  materially 
nor  interfere  with  navigation.  Janesville  v.  Carpenter,  77  Wis.  288,  46  N.  W.  128,  8 
L.  R.  A.  808,  and  note  ;  State  v.  Oilman,  33  W.  Va.  146,  10  S.  E.  283,  6  L.  R.  A.  847  ; 
Northwestern  Telephone  &  E.  Co.  v.  Minneapolis,  81  Minn.  140,  83  N.  W.  627,  86 
N.  W.  69,  53  L.  R.  A.  175.  But  see  Summerville  v.  Pressley,  33  S.  C.  66,  11  S.  E. 
645,  8  L.  R  A.  854,  and  note.  Non-performance  of  an  impossibility  cannot  be  made 
a  crime.  Port  Huron  v.  Jenkinson,  77  Mich.  414,  43  N.  W.  923,  6  L.  R.  A.  54.  Nor 
can  any  other  police  regulation  be  purely  arbitrary.  Noel  v.  People,  187  111.  587,  58 
N.  E.  616.  See  also  Allgeyer  v.  Louisiana,  note  a,  p.  833,  ante;  also  many  of  the 
cases  in  note  1,  p.  568,  and  note  a,  p.  15,  ante/] 


838 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


any  of  the  provisions  of  the  charter ;  and  they  must  not,  under 
pretence  of  regulation,  take  from  the  corporation  any  of  the  es- 
sential rights  and  privileges  which  the  charter  confers.  In  short, 
they  must  be  police  regulations  in  fact,  and  not  amendments  of 
the  charter  in  curtailment  of  the  corporate  franchise.1 

The  maxim,  Sic  utere  tuo  ut  alienum  non  Icedas,  is  that  which 
lies  at  the  foundation  of  the  power;  and  to  whatever  enactment 
affecting  the  management  and  business  of  private  corporations  it 
cannot  fairly  be  applied,  the  power  itself  will  not  extend.  It  has 
accordingly  been  held  that  where  a  corporation  was  chartered 
with  the  right  to  take  toll  from  passengers  over  their  road,  a  sub- 
sequent statute  authorizing  a  certain  class  of  persons  to  go  toll 
free  was  void.2  This  was  not  a  regulation  of  existing  rights,  but 
it  took  from  the  corporation  that  which  they  before  possessed, 


1  Washington  Bridge  Co.  v.  State,  18 
Conn.  53  ;  Bailey  v.  Philadelphia,  &c.  R.  R. 
Co.,  4  Harr.  389 ;  State  v.  Noyes,  47  Me. 
189;  Pingry  v.  Washburn,  1  Aiken,  264; 
Miller  v.  N.  Y.  &  Erie  R.  R.  Co.,  21 
Barb.  513;  People  i>.  Jackson  &  Michi- 
gan Plank  Road  Co.,  9  Mich.  285,  307 ; 
Sloan  v.  Pacific  R,  R.  Co.,  61  Mo.  24  ;  At- 
torney-General v.  Chicago,  &c.  R.  R.  Co., 
35  Wis.  425.  In  Benson  v.  Mayor,  &c.  of 
New  York,  10  Barb.  223,  245,  it  is  said, 
in  considering  a  ferry  right  granted  to  a 
city  :  "  Franchises  of  this  description  are 
partly  of  a  public  and  partly  of  a  private 
nature.  So  far  as  the  accommodation  of 
passengers  is  concerned,  they  are  publici 
juris ;  so  far  as  they  require  capital  and 
produce  revenue,  they  are  privati  juris. 
Certain  duties  and  burdens  are  imposed 
upon  the  grantees,  who  are  compensated 
therefor  by  the  privilege  of  levying  ferri- 
age, and  security  from  spoliation  arising 
from  the  irrevocable  nature  of  the  grant. 
The  State  may  legislate  touching  them, 
so  far  as  they  are  publici  juris.  Thus,  laws 
may  be  passed  to  punish  neglect  or  mis- 
conduct in  conducting  the  ferries,  to  se- 
cure the  safety  of  passengers  from  danger 
and  imposition,  &c.  But  the  State  can- 
not take  away  the  ferries  themselves,  nor 
deprive  the  city  of  their  legitimaie  rents 
and  profits."  And  see  People  v.  Mayor, 
&c.  of  New  York,  32  Barb.  102, 116;  Com- 
monwealth v.  Pennsylvania  Canal  Co.,  66 
Pa.  St.  41 ;  Hegeman  v.  Western  R.  R., 
13  N.  Y.  9.  FJPowers  granted  to  corpora- 
tions are  to  be  narrowly  construed  where 
their  exercise  is  inimical  to  the  public 


welfare,  and  a  power  granted  by  charter 
to  one  railroad  "  to  connect  with  any  rail- 
road running  in  the  same  direction  with 
this  road,  and  where  there  may  be  any 
portion  of  another  road  which  may  be 
used  by  this  company  "  does  not  author- 
ize the  consolidation  of  two  parallel  and 
competing  lines,  and  a  subsequently  en- 
acted constitutional  prohibition  of  such 
consolidation  does  not  impair  the  obliga- 
tion of  a  contract,  even  if  it  could  be  held 
that  the  deprivation  of  a  long  granted  but 
yet  unused  power  were  such  impairment. 
Pearsall  v.  Great  N.  R.  Co.,  161  U.  S.  646, 
16  Sup.  Ct.  Rep.  705,  and  Louisville  &  N. 
R.  Co.  v.  Kentucky,  161  U.  S.  677,  16 
Sup.  Ct.  Rep.  714,  aff.  97  Ky.  675,  31 
S.  W.  476.  State  may  compel  insur- 
ance companies  doing  business  within  its 
borders  to  make  full  reports  concerning 
their  business  and  their  financial  condi- 
tion. Eagle  Ins.  Co.  v.  Ohio,  153  U.  S. 
446,  14  Sup.  Ct.  Rep.  868.]  After  the 
organization  of  a  company  for  electric 
communication,  it  may  be  required  to 
obtain  the  approval  of  its  plans  by  city 
commissioners  before  laying  wires  in  the 
streets.  People  v.  Squire,  107  N.  Y.  593, 
14  N.  E.  820.  A  provision  that  an  insur- 
ance policy  referring  to  the  application 
shall  not  be  received  in  evidence  unless 
such  application  is  attached  to  it,  is  valid 
as  to  policies  issued  thereafter  by  an  ex- 
isting company.  New  Era  Life  Ins.  Co. 
v.  Musser,  120  Pa.  St.  384,  14  Atl.  155. 

2  Pingry  v.  Washburn,  1  Aiken,  264. 
Of  course  the  charter  reserved  no  right 
to  make  such  an  amendment. 


CH.  XVI.] 


THE   POLICE   POWER  OF   THE   STATES. 


839 


namely,  the  right  to  tolls,  and  conferred  upon  individuals  that 
which  before  they  had  not,  namely,  the  privilege  to  pass  over  the 
road  free  of  toll.  "  Powers,"  it  is  said  in  another  case,  "  which 
can  only  be  justified  on  this  specific  ground  [that  they  are  police 
regulations],  and  which  would  otherwise  be  clearly  prohibited  by 
the  Constitution,  can  be  such  only  as  are  so  clearly  necessary  to 
the  safety,  comfort,  and  well-being  of  society,  or  so  imperatively 
required  by  the  public  necessity,  as  to  lead  to  the  rational  and 
satisfactory  conclusion  that  the  framers  of  the  Constitution  could 
not,  as  men  of  ordinary  prudence  and  foresight,  have  intended  to 
prohibit  their  exercise  in  the  particular  case,  notwithstanding  the 
language  of  the  prohibition  would  otherwise  include  it."1  And  it 
was  therefore  held  that  an  act  subsequent  to  the  charter  of  a 
plank-road  company,  and  not  assented  to  by  the  corporators,  which 
subjected  them  to  a  total  forfeiture  of  their  franchises  for  that 
which  by  the  charter  was  cause  for  partial  forfeiture  only,  was 
void  as  impairing  the  obligation  of  contracts.2  And  even  a  pro- 
vision in  a  corporate  charter,  empowering  the  legislature  to  alter, 
modify,  or  repeal  it  would  not  authorize  a  subsequent  act  which, 
on  pretence  of  amendment,  or  of  a  police  regulation,  would  have 
the  effect  to  appropriate  a  portion  of  the  corporate  property  to  the 
public  use.3  And  where  by  its  charter  the  corporation  was  em- 


1  Christiancy,  J ,  in  People  v.  Jackson 
&  Michigan    Plank   Road   Co.,   9   Mich. 
'285,   307.     Compare    Commonwealth    v. 
Pennsylvania  Canal  Co.,  66  Pa.   St.  41. 
Where  the  corporation  by  its  charter  has 
the  right  to  fix  its  own  tolls  for  a  speci- 
fied period,  the  legislature  is  without  the 
power  to  regulate  them  till  that  period 
has  expired.     Sloan  v.  Pacific  R.  R.  Co., 
61  Mo.  24,  21  Am.  Rep.  397. 

2  Ibid.    And  see  State  v.   Noyes,  47 
Me.  189. 

8  Detroit  v.  Plank  Road  Co.,  43  Mich. 
140,  5  N.  W.  275.  It  has  been  held  that 
the  reservation  of  a  right  to  amend  or 
repeal  would  not  justify  an  act  requiring 
a  railroad  company  to  cause  a  proposed 
new  street  or  highway  to  be  taken  across 
their  track,  and  to  cause  the  necessary 
embankments,  excavations,  and  other 
work  to  be  done  for  that  purpose  at  their 
own  expense ;  thus  not  only  appropriat- 
ing a  part  of  their  property  to  another 
public  use,  but  compelling  them  to  fit  it 
for  such  use:  Miller  v.  N.  Y.  &  Erie 
R.  R.  Co.,  21  Barb.  513 ;  People  v.  Lake 
Shore,  &c.  Ry.  Co.,  52  Mich.  277,  17 
N.  W.  841 ;  Chicago  &  G.  T.  Ry.  Co.  t;. 


Hough,  61  Mich.  507,  28  N.  W.  532. 
Contra,  Portland  &  R.  R.  R.  Co.  v.  Deer- 
ing,  78  Me.  61,  2  Atl.  670;  even  if  there 
is  no  reservation  in  the  charter  of  the 
right  to  alter,  &c.  Boston  &  M.  11.  R.  Co. 
v.  Com'rs,  79  Me.  386,  10  Atl.  113.  Com- 
panies may  be  compelled  to  put  in  farm 
crossings  at  their  own  expense.  111.  Cent. 
R.  R.  Co.  v.  Willenborg,  117  III.  203,  7 
N.  E.  698.  See  also  Montclair  v.  New 
York,  &e.  Ry.  Co.,  45  N.  J.  Eq.  436,  18 
Atl.  242.  This,  however,  can  scarcely  be 
a  more  severe  exercise  of  the  power  than 
is  the  amendment  to  the  charter  of  a 
railroad  corporation  which  limits  the  rates 
of  fare  and  freight  which  may  be  charged; 
for  the  exercise  of  this  might  be  carried 
to  an  extent  which  would  annihilate  the 
whole  value  of  railroad  property.  The 
power,  however,  is  very  fully  sustained, 
where  the  right  to  amend  is  reserved  in 
the  charter.  Attorney-General  v.  Chi- 
cago, &c.  R.  R.  Co.,  35  Wis.  425 ;  Blake 
r.  Winona,  &c.  R.  R.  Co.,  19  Minn.  418, 
18  Am.  Rep.  345;  Chicago,  &c.  R.  R.  Co. 
v.  Iowa,  94  U.  S.  155;  Piek  v.  Chicago, 
&c.  R.  R.  Co.,  6  Biss.  177.  See  a  like 
rule  applied  to  a  ferry  company  in  Par- 


840 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


powered  to  construct  over  a  river  a  certain  bridge,  which  must 
necessarily  constitute  an  obstruction  to  the  navigation  of  the  river, 
a  subsequent  amendment  making  the  corporation  liable  for  such 
obstruction  was  held  void,  as  in  effect  depriving  the  corporation 
of  the  very  right  which  the  charter  assured  to  it.1  So  where  the 
charter  reserved  to  the  legislature  the  right  of  modification  after 
the  corporators  had  been  reimbursed  their  expenses  in  construct- 
ing the  bridge,  with  twelve  per  cent  interest  thereon,  an  amend- 
ment before  such  reimbursement,  requiring  the  construction  of  a 
fifty-foot  draw  for  the  passage  of  vessels,  in  place  of  one  of  thirty- 
two  feet,  was  held  unconstitutional  and  void.2  So  it  has  been 
held  that  a  power  to  a  municipal  corporation  to  regulate  the  speed 
of  railway  carriages  would  not  authorize  such  regulation,  except 
in  the  streets  and  public  grounds  of  the  city ;  such  being  the  fair 
construction  of  the  power,  and  the  necessity  for  this  police  regu- 
lation not  extending  further.3  But  there  are  decisions  on  this 
point  which  are  the  other  way.4 

On  the  other  hand,  the  right  to  require  existing  railroad  cor- 
porations to  fence  (a)  their  track,  and  to  make  them  liable  for  all 

ker  v.  Metropolitan  R.  R.  Co.,  109  Mass,  late  the  running  of  cars  within  the  cor- 

506.     A  requirement  that  rates  of  fare  porate  limits  would  justify  an  ordinance 

and  freight  shall  be  annually  fixed  and  entirely  prohibiting  the  use  of  steam  for 

published  is  legitimate  as  an  exercise  of  propelling  cars  through  any  part  of  the 

the  police  power.    Railroad  Co.  v.  Fuller,  city.    And  see  Great  Western  R.  R.  Co. 

11  Wall.  560.    For  discussion  of  the  right  v.   Decatur,  33  111.  381 ;  Branson  v.  Phila- 

of  the  State  to  fix  rates,  see  post,  pp.  871-  delphia,    47    Pa.    St.    329 ;    Whitson   v. 

875,  notes.     It  is  no  impairment  of  the  Franklin,   34    Ind.    392.     Affirming    the 

obligation  of  the   charter  of  a  railroad  general  right  to  permit  the  municipalities 

company  to  pass  laws  to  prevent  extor-  to  regulate  the  speed  of  trains,  see  Chi- 


tion  and  unjust  discrimination.  Illinois 
Cent.  R.  R.  Co.  v.  People,  95  111.  313, 
1  Am.  &  Eng.  R.  R.  Cas.  188.  That  the 
issuing  and  taking  up  of  tickets  and  cou- 
pons of  tickets  by  common  carriers  may 
be  regulated  by  statute,  see  Fry  v.  State, 
63  Ind.  552. 

1  Bailey  v.  Philadelphia,  &c.  R.  R.  Co., 
4  Harr.  389.  Compare  Commonwealth  v. 
Pa.  Canal  Co.,  66  Pa.  St.  41,  5  Am.  Rep. 
329. 


cago,  &c.  R.  R.  Co.  v.  Haggerty,  67  111. 
113  ;  Pennsylvania  R.  R.  Co.  v.  Lewis,  79 
Pa.  St.  33 ;  Haas  v.  Chicago,  &c.  R.  R. 
Co.,  41  Wis.  44.  That  the  legislature 
may  compel  railroad  companies  to  carry 
impartially  for  all,  see  Chicago,  &c.  R.  R. 
Co.  v.  People,  67  111.  11 ;  Cincinnati,  &c. 
R.  R.  Co.  v.  Cook  (Ohio),  6  Am.  &  Eng. 
R.  R.  Cas.  317  ;  Louisville,  N.  O.  &  T.  Ry. 
Co.  v.  State,  66  Miss.  662,  6  So.  203 ;  but 
an  act  abrogating  the  requirement  of  im- 


2  Washington  Bridge  Co.  v.  State,  18    partial  carriage  is  void  as  to  inter-state 


Conn.  53. 

8  State  v.  Jersey  City,  29  N.  J.  170. 

4  Crowley  v.  Burlington,  &c.  Ry.  Co., 
65  Iowa,  658,  20  N.  W.  467,  22  N.  W.  918. 


transportation.  The  Sue,  22  Fed.  Rep. 
843.  But  if  the  carriage  is  of  persons 
from  State  to  State,  the  State  has  no  such 
control.  Hall  v.  De  Cuir,  95  U.  S.  485. 


See  Merz  v.  Missouri  P.  Ry.  Co.,  88  Mo.  See  Carton  v.  Illinois  Cent.  R.  R.  Co.,  59 

672.     In  Buffalo  &  Niagara  Falls  R.  R.  Iowa,  148,  13  N.  W.  67,  6  Am.  &  Eng. 

Co.  v.  Buffalo,  5  Hill,  209,  it  was  held  R.  R.  Cas.  305.     See  cases,  post,  pp.  840, 

that  a  statutory  power  in  a  city  to  regu-  873. 

(a)  QOther  landowners  may  be  required  to  fence  their  lands  also,  and  may  be 
denied  the  right  to  recover  for  trespasses  by  domestic  animals  unless  their  lands  are 


OH.  XVI.] 


THE    POLICE   POWER   OF   THE   STATES. 


841 


beasts  killed  by  going  upon  it,  has  been  sustained  on  two  grounds  : 
first,  as  regarding  the  division  fence  between  adjoining  proprie- 
tors, and  in  that  view  being  but  a  reasonable  provision  for  the 
protection  of  domestic  animals ;  and  second,  and  chiefly,  as  essen- 
tial to  the  protection  of  persons  being  transported  in  the  railway 
carriages.1  Having  this  double  purpose  in  view,  the  owner  of 


1  Thorpe  v.  Rutland  &  Burlington 
R.  R.  Co.,  27  Vt.  140;  New  Albany  & 
.  Saletu  R.  R.  Co.  v.  Tilton,  12  Ind.  3; 
Same  v.  Maiden,  12  Ind.  10;  Same  v. 
McNamara,  11  Ind.  543;  Ohio  &  Mis- 
sissippi H.  R.  Co.  v.  McClelland,  25  III. 
140;  Madison  &  Indianapolis  R.  R.  Co. 
v.  Whiteneck,  8  Ind.  217;  Indianapolis 
&  Cincinnati  R.  R.  Co.  v.  Townsend,  10 
Ind.  38  ;  Same  v.  Kercheval,  16  Ind.  84  ; 
Corwin  r.  N.  Y.  &  Erie  R.  R.  Co.,  13 
N.  Y.  42 ;  Horn  v.  Atlantic  &  St.  Law- 
rence R.  R.  Co.,  35  N.  H.  169,  and  86 
N.  H.  440;  Fawcett  v.  York  &  North 
Midland  R.  R.  Co.,  15Jur.  173;  Smith  v. 
Eastern  R.  R.  Co.,  35  N.  H.  356 ;  Bulkley 
v.  N.  Y.  &  N.  H.  R.  R.  Co.,  27  Conn. 
479;  Jones  v.  Galena,  &c.  R.  R.  Co.,  16 
Iowa,  6 ;  Winona,  &c.  R.  R.  Co.  v.  Wal- 
dron,  11  Minn.  513;  Bradley  v.  Buffalo, 
&c.  R.  R.  Co.,  34  N.  Y.  420  ;  Sawyer  v. 
Vermont,  &c.  R.  R.  Co.,  105  Mass.  196; 
Pennsylvanfa  R.  R.  Co.  v.  Riblet,  66 
Pa.  St.  164,  5  Am.  Rep.  360;  Kansas 
Pacific  R.  R.  Co.  v.  Mower,  16  Kan.  573 ; 
Wilder  v.  Maine  Central  R.  R.  Co.,  66 
Me.  332;  Blewette  v.  Wyandotte,  &c. 
11.  R.  Co.,  72  Mo.  583.  [State  may  en- 
force such  regulations  by  making  railroad 
companies  liable  for  all  damages  that  may 
be  suffered  by  any  individual  through 
their  non-compliance.  Minneapolis  &  St. 
L.  R.  Co.  v.  Emmons,  149  U.  S.  364,  13 
Sup.  Ct.  Rep.  870.3  The  Minnesota 
statute  imposes  no  duty  toward  children. 
Fitzgerald  v.  St.  Paul,  &c.  Ry.  Co.,  29 
Minn.  336,  13  N.  W.  168.  As  to  the  de- 
gree of  care  required  of  railroad  com- 
panies in  keeping  up  their  fences,  com- 
pare Antisdel  v.  Chicago,  &c.  R.  R.  Co., 
26  Wis.  145;  Lemmmi  v.  Chicago,  &c. 
R.  R.  Co.,  32  Iowa,  151 ;  Carey  v.  Chi- 
cago, &c.  Ry.  Co.,  61  Wis.  71,  20  N.  W. 
648 ;  Chicago,  &c.  R.  R,  v.  Barrie,  55  111. 


226,  and  cases  cited  therein.  It  is  com- 
petent to  make  the  company  liable  for 
double  the  value  of  stock  killed  in  con- 
sequence of  the  neglect  to  fence.  Mis- 
souri Pac.  Ry.  Co.  v.  Humes,  115  U.  8. 
612,  6  Sup.  Ct.  Rep.  110;  Barnettw.  Rail- 
road Co.,  68  Mo.  56,  30  Am.  Rep.  773; 
Spealman  v.  Railroad  Co.,  71  Mo.  434; 
Tredway  v.  Railroad  Co.,  43  Iowa,  527 ; 
Little  Rock,  &c.  R.  R.  Co.  v.  Payne,  33 
Ark.  816,  34  Am.  Rep.  65;  Cairo,  &c. 
R.  R.  Co.  v.  People,  92  111.  97,  34  Am. 
Rep.  112.  Contra,  Atchison,  &o.  R.  R. 
Co.  v.  Baty,  6  Nev.  37,  29  Am.  Rep.  386. 
A  much  higher  attorney  fee  than  is  al- 
lowed in  other  cases  cannot  be  imposed 
by  law  in  actions  against  a  railroad  for 
stock  killing.  Wilder  v.  Chicago  &  W. 
M.  Ry.  Co.,  70  Mich.  382,  38  N.  W.  289. 
Compare  Peoria,  D.  &  E.  Ry.  Co.  v.  Dug- 
gan,  109  111.  537.  A  statute  making  rail- 
road companies  liable  for  injuries  by  fire 
communicated  by  their  locomotive  en- 
gines was  sustained,  as  to  companies  pre- 
viously in  existence,  in  Lyman  v.  Boston 
&  Worcester  R.  R.  Co.,  4  Cush.  288; 
Rodemacher  v.  Milwaukee,  &c.  R.  R.  Co., 
41  Iowa,  297,  20  Am.  Rep.  592;  Gorman 
v.  Pacific  Railroad,  20  Mo.  441,  [regard- 
less of  the  question  of  negligence.  Mat- 
thews v.  St.  Louis  &  S.  F.  R.  Co.,  121 
Mo.  298,  24  S.  W.  691,  25  L.  R.  A.  161, 
and  note;  aff.  165  U.  S.  1,  17  Sup.  Ct. 
Rep.  243 ;  Grissell  v.  Housatonic  Ry.  Co., 
64  Conn.  447,  9  All.  137,  1  Am.  St.  138. 
A  statute  authorizing  full  recovery  by  a 
passenger  against  a  public  carrier  of 
passengers  for  injuries  resulting  from  the 
carriage  is  constitutional  though  negli- 
gence of  the  carrier  is  not  made  an  ele- 
ment of  the  course  of  action.  Clark  v. 
Russell,  97  Fed.  Rep.  900  ;  St.  Louis,  &c.. 
Ry.  Co.  v.  Matthews,  165  U.  S.  1,  17  Sup. 
Ct.  Rep.  243-3  But  a  statute  making  a 


t  fenced  as  required.  Poindexter  v.  May,  98  Va.  143,  34  S.  E.  971,  47  L.  R.  A.  688. 
And  a  law  permitting  half  of  a  party  wall  to  be  placed  upon  the  land  of  an  adjoining 
proprietor,  even  against  his  will,  is  good.  Swift  v.  Calnan,  102  Iowa,  206,  71  N.  W. 
233,  37  L.  R.  A.  462-3 


842 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  X\7I. 


beasts  killed  or  injured  may  maintain  an  action  for  the  damage 
suffered,  notwithstanding  he  may  not  himself  be  free  from  negli- 
gence.1 But  it  would,  perhaps,  require  an  express  legislative 
declaration  that  the  corporation  should  be  liable  for  the  beasts 
thus  destroyed  to  create  so  great  an  innovation  in  the  common  law. 
The  general  rule,  where  a  corporation  has  failed  to  obey  the  police 
regulations  established  for  its  government,  would  not  make  the 
corporation  liable  to  the  party  injured,  if  his  own  negligence  con- 
tributed with  that  of  the  corporation  in  producing  the  injury.2 

The  State  may  also  regulate  the  grade  of  railways,  and  pre- 
scribe how,  and  upon  what  grade,  railway  tracks  shall  cross  each 
other :  and  it  may  apportion  the  expense  of  making  the  neces- 
sary crossings  between  the  corporations  owning  the  roads.3  And 


railroad  liable  for  cattle  killed  irrespec- 
tive of  negligence  is  bad.  Jensen  v. 
Union  Pac.  Ry.  Co.,  6  Utah,  253,  21  Pac. 
994,  4  L.  R.  A.  724;  Bielenberg  v.  Mon- 
tana, &c.  Ry.  Co.,  8  Mont.  271,  20  Pac. 
314.  And  it  is  not  competent  to  make 
railroad  companies  liable  for  injuries  for 
which  they  are  in  no  way  responsible. 
It  is  therefore  held  that  an  act  imposing 
upon  railroad  companies  the  expense  of 
coroners'  inquests,  burial,  &c.,  of  persons 
who  may  die  on  its  cars,  or  be  killed  by 
collision,  &c.,  is  invalid  as  applied  to 
cases  where  the  company  is  not  in  fault. 
Ohio,  &c.  R.  R.  Co.  c.  Lackey,  78  111.  53. 
That  it  is  as  competent  to  lessen  the 
common-law  liabilities  of  railroad  com- 
panies as  to  increase  them,  see  Kirby  v. 
Pennsylvania  R.  R.  Co.,  76  Pa.  St.  506. 
And  see  Camden  &  Amboy  R.  R.  Co.  v. 
Briggs,  22  N.  J.  623 ;  Trice  v.  Hannibal, 
&c.  R.  R.  Co.,  49  Mo.  438. 

i  Corwin  v.  N.  Y.  &  Erie  R.  R.  Co., 
13  N.  Y.  42 ;  Indianapolis  &  Cincinnati 
R.  R.  Co.  v.  Townsend,  10  Ind.  38 ;  Jef- 
fersonville,  &c.  R.  R.  Co.  v.  Nichols,  30 
Ind.  321;  Same  v.  Parkhurst,  34  Ind. 
601;  Suydam  v.  Moore,  8  Barb.  358; 
Fawcett  v.  York  &  North  Midland  R. 
Co.,  15  Jur.  173;  Waldron  v.  Rensselaer 
&  Schenectady  R.  R.  Co.,  8  Barb.  390; 
Horn  v.  Atlantic  &  St.  Lawrence  R.  R. 
Co.,  35  N.  H.  169 ;  O'Banhon  v.  Louis- 
ville, &c.  R.  R.  Co.,  8  Bush,  348;  Illinois 
Cent.  R.  R.  Co.  v.  Arnold,  47  111.  173 ; 
Hinman  v.  Chicago,  &c.  R.  R.  Co.,  28 
Iowa,  491 ;  Quackenbush  v.  Wisconsin, 
&c.  R.  R.  Co.,  62  Wis.  411,  22  N.  W.  519; 
Burlington  &  M.  R.  R.  Co.  v.  Webb,  18 
Neb.  215,  24  N.  W.  706.  [And  a  State 


may  make  a  railroad  company  liable  for 
all  property  lost  through  fires  arising 
from  its  locomotives,  whether  through  its 
negligence  or  not.  St.  Louis  &  S.  F.  R. 
Co.  v.  Matthews,  165  U.  S.  1,  17  Sup.  Ct. 
Rep.  243,  aff.  121  Mo.  298,  24  S.  W.  591, 
25  L.  R.  A.  161.] 

2  Jackson  v.  Rutland  &  Burlington 
R.  R.  Co.,  25  Vt.  150.  And  see  Marsh  v. 
N.  Y.  &  Erie  R.  R.  Co.,  14  Barb.  364 ; 
Joliet  &  N.  I.  R.  R.  Co.  v.  Jones,  20  III. 
221 ;  Tonawanda  R.  R.  Co.  v.  Munger,  5 
Denio,  255,  and  4  N.  Y.  349 ;  Price  v.  New 
Jersey  R.  R.  Co.,  31  N.  J.  229;  Drake  v. 
Philadelphia,  &c.  R.  R.  Co.,  51  Pa.  St.  240. 
In  Indianapolis  &  Cincinnati  R.  R.  Co. 
v.  Kercheval,  16  Ind.  84,  it  was  held  that 
a  clause  in  the  charter  of  a  railroad  cor- 
poration which  declared  that  when  the 
corporators  should  have  procured  a  right 
of  way  as  therein  provided,  they  should 
be  seised  in  fee-simple  of  the  right  to  the 
land,  and  should  have  the  sole  use  and  oc- 
cupation of  the  same,  and  no  person,  body 
corporate  or  politic,  should  in  any  way 
interfere  therewith,  molest,  disturb,  or 
injure  any  of  the  rights  and  privileges 
thereby  granted,  &c.,  would  not  take 
from  the  State  the  power  to  establish  a 
police  regulation  making  the  corporation 
liable  for  cattle  killed  by  their  cars. 
[Jensen  v.  Union  P.  R.  Co.,  6  Utah,  253, 
21  Pac.  994,  4  L.  R.  A.  724,  holds  that 
railroad  cannot  in  the  absence  of  negli- 
gence on  its  part  be  made  liable  for  stock 
killed  by  it.] 

8  Fitchburg  R.  R.  Co.  v.  Grand  Junc- 
tion R.  R.  Co.,  1  Allen,  552,  and  4  Allen, 
198;  Pittsburgh,  &c.  R.  R.  Co.  r.  S.  W. 
Pa.  R.  R.  Co.,  77  Pa.  St.  173.  They  may 


CH.  XVI.] 


THE   POLICE   POWER  OF   THE   STATES. 


843 


it  may  establish  regulations  requiring  existing  railways  to  ring 
the  bell  or  blow  the  whistle  of  their  engines  immediately  before 
passing  highways  at  grade,  or  other  places  where  their  approach 
might  be  dangerous  to  travel,1  or  to  station  flagmen  at  such  or 
any  other  dangerous  places.2  And  it  has  even  been  intimated 
that  it  might  be  competent  for  the  State  to  make  railway  corpo- 
rations liable  as  insurers  for  the  safety  of  all  persons  carried  by 
them,  in  the  same  manner  that  they  are  by  law  liable  as  carriers 
of  goods  ;  though  this  would  seem  to  be  pushing  the  police  power 
to  an  extreme.3  But  those  statutes  which  have  recently  become 


be  required  to  put  up  depots  at  railroad 
junctions.  State  v.  Wabash,  &c.  Ry.  Co., 
83  Mo.  144.  Part  of  the  expense  of 
changing  grade  to  overhead  crossings 
may  be  laid  upon  a  town.  Appeal  of 
Westbrook,  57  Conn.  95,  17  All.  368. 
The  legislature  may  regulate  the  speed  at 
highway  and  other  crossings.  Kockford, 
&c.  R.  R.  Co.  v.  Hillmer,  72  111.  235. 
"  While  the  franchise  of  a  railroad  com- 
pany licenses  generally  unlimited  speed, 
power  is  reserved  to  the  legislature  to 
regulate  the  exercise  of  the  franchise  for 
public  security."  Ryan,  Ch.  J.,  in  Horn 
v.  Chicago,  &c.  R.  R.  Co.,  38  Wis.  463. 
The  regulation  is  in  favorem  vitce.  Haas 
v.  Chicago,  &c.  R.  R.  Co.,  41  Wis.  44. 
But  running  at  unlawful  speed  does  not 
impose  an  absolute  liability.  Louisville, 
N.  0.  &  T.  Ry.  Co.  v.  Caster,  —  Miss.  — , 
5  So.  388.  [[The  State,  acting  directly 
or  through  a  city  council,  may  compel 
the  railway  companies  over  whose  tracks 
a  viaduct  extends  to  repair  the  same,  and 
may  apportion  among  them  the  expense 
of  such  repair,  although  the  viaduct  was 
built  at  the  joint  expense  of  the  railway 
companies  and  the  city,  acting  under 
agreement.  Chicago,  B.  &  Q.  R.  Co.  v. 
Nebraska,  170  U.  S.  57,  18  Sup.  Ct.  Rep. 
613,  aff.  47  Neb.  549,  66  N.  W.  624.  A 
railway  company  may  be  required  to  pay 
the  whole  expense  of  change  of  grade  at 
a  crossing.  New  York  &  N.  E.  R.  Co.  ». 
Town  of  Bristol,  161  U.  S.  556, 14  Sup. 
Ct.  Rep.  437,  aff.  62  Conn.  527,  26  Atl. 
122.3 

1  "  The  legislature  has  the  power,  by 
general  laws,  from  time  to  time,  as  the 
public  exigencies  may  require,  to  regu- 
iate  corporations  in  their  franchises,  so  as 
to  provide  for  the  public  safety.  The 
provision  in  question  is  a  mere  police 
regulation,  enacted  for  the  protection  and 


safety  of  the  public,  and  in  no  manner 
interferes  with  or  impairs  the  powers 
conferred  on  the  defendants  in  their  act 
of  incorporation."  Galena  &  Chicago 
U.  R.  R.  Co.  v.  Loomis,  13  111.  648.  And 
see  Stuyvesant  v.  Mayor,  &c.  of  New 
York,  7  Cow.  588 ;  Benson  ».  Mayor,  &c. 
of  New  York,  10  Barb.  223 ;  Bulkley  v. 
N.  Y.  &  N.  H.  R.  R.  Co.,  27  Conn.  486  ; 
Veazie  v.  Mayo,  45  Me.  560 ;  49  Me. 
156  ;  Galena  &  Chicago  U.  R.  R.  Co.  v. 
Dill,  22  111.  264  ;  Same  v.  Appleby,  28  111. 
283;  Ohio  &  Mississippi  R.  R"  Co.  v. 
McClelland,  25  111.  140;  Clark's  Adm'r 
v.  Hannibal  &  St.  Jo.  R.  R.  Co.,  36  Mo. 
202;  Chicago,  &c.  R.  R.  Co.  v.  Triplett, 
38  111.  482;  Commonwealth  v.  Eastern 
R.  R.  Co.,  103  Mass.  254,  4  Am.  Rep. 
555 ;  Kaminitsky  v.  R.  R.  Co.,  25  S.  C. 
63. 

2  Toledo,  &c.  R.  R.  Co.  v.  Jacksonville, 
67  111.  37 ;  Western  &  A.  R.  R.  Co.  v. 
Young,  81  Ga.  397,  7  S.  E.  912.  In  many 
States  now  there  are  railroad  commission- 
ers appointed  by  law,  with  certain  powers 
of  supervision,  more  or  less  extensive.  Re- 
specting these  it  has  been  said  in  Maine  : 
"  Our  whole  system  of  legislative  super- 
vision through  the  railroad  commission- 
ers acting  as  a  State  police  over  railroads 
is  founded  upon  the  theory  that  the  public 
duties  devolved  upon  railroad  corpora- 
tions by  their  charter  are  ministerial,  and 
therefore  liable  to  be  thus  enforced." 
Railroad  Commissioners  v.  Portland,  &c. 
R.  R.  Co.,  63  Me.  269,  18  Am.  Rep.  208. 

8  Thorpe  v.  Rutland  &  Burlington 
R.  R.  Co.,  27  Vt  140:  Carriers,  of  goods 
are  liable  as  insurers,  notwithstanding 
they  may  have  been  guiltless  of  negli- 
gence, because  such  is  their  contract  with 
the  shipper  when  they  receive  his  goods 
for  transportation  ;  but  carriers  of  per- 
sons assume  no  such  obligations  at  the 


844 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVI. 


common,  and  which  give  an  action  to  the  representatives  of  per- 
sons killed  by  the  wrongful  act,  neglect,  or  default  of  another, 
may  unquestionably  be  made  applicable  to  corporations  previously 
chartered,  and  may  be  sustained  as  only  giving  a  remedy  for  a 
wrong  for  which  the  common  law  had  failed  to  make  provision.1 
And  it  cannot  be  doubted  that  there  is  ample  power  in  the  legis- 
lative department  of  the  State  to  adopt  all  necessary  legislation 
for  the  purpose  of  enforcing  the  obligations  of  railway  companies 
as  carriers  of  persons  and  goods  to  accommodate  the  public  im- 
partially, and  to  make  every  reasonable  provision  for  carrying 
with  safety  and  expedition.2 


common  law,  and  where  a  company  of 
individuals  receive  from  the  State  a  char- 
ter which  makes  them  carriers  of  persons, 
and  chargeable  as  such  for  their  own  de- 
fault or  negligence  only,  it  may  well  be 
doubted  if  it  be  competent  for  the  legisla- 
ture afterwards  to  impose  upon  their 
contracts  new  burdens,  and  make  them 
respond  in  damages  where  they  have 
been  guilty  of  no  default.  In  other  words, 
whether  that  could  be  a  proper  police 
regulation  which  did  not  assume  to  regu- 
late the  business  of  the  carrier  with  a 
view  to  the  just  protection  of  the  rights 
and  interests  of  others,  but  which  im- 
posed a  new  obligation,  for  the  benefit  of 
others,  upon  a  party  guilty  of  no  neglect 
of  duty.  But  perhaps  such  a  regulation 
would  not  go  further  than  that  in  Stanley 
v.  Stanley,  26  Me.  191,  where  it  was  held 
competent  for  the  legislature  to  pass  an 
act  making  the  stockholders  of  existing 
banks  liable  for  all  corporate  debts  there- 
after created  ;  or  in  Peters  v.  Iron  Moun- 
tain R.  R.  Co.,  23  Mo.  107,  and  Grannahan 
v.  Hannibal,  &c.  R.  R.  Co.,  80  Mo.  546, 
where  an  act  was  sustained  which  made 
companies  previously  chartered  liable  for 
the  debts  of  contractors  to  the  workmen 
whom  they  had  employed.  [[That  a 
statute  creating  such  absolute  liability  is 
valid,  is  held  in  Chicago,  R.  I.  &  P.  Ry. 
Co.  v.  Zernecke,  59  Neb.  689,  82  N.  W.  26, 
55  L  R.  A.  610.] 

1  Southwestern  R.  R.  Co.  v.  Paulk,  24 
Ga.  356;  Coosa  River  Steamboat  Co.  v. 
Barclay,  30  Ala.  120.  In  Boston,  Con- 
cord, and  Montreal  R.  R.  v.  State,  32 
N.  H.  215,  a  statute  making  railroad  cor- 
porations liable  to  indictment  and  fine,  in 
case  of  the  loss  of  life  by  the  negligence 
or  carelessness  of  the  proprietors  or  their 


servants,  was  adjudged  constitutional,  as 
applicable  to  corporations  previously  in 
existence.  To  an  indictment  or  action 
under  a  like  Massachusetts  act  contribu- 
tory negligence  is  no  defence.  Com.  v. 
Boston,  &c.  R.  R.,  134  Mass.  211;  Merrill 
v.  Eastern  R.  R.,  139  Mass.  238,  1  N.  E. 
548,  139  Mass.  252,  29  N.  E.  666 

2  Railroad  employees  may  be  required 
to  be  examined  to  test  their  fitness,  and 
for  color-blindness.  Smith  v.  Alabama, 
124  U.  S.  465,  8  Sup.  Ct.  Rep.  564 ;  Mc- 
Donald v.  State,  81  Ala.  279 ;  Nashville, 
C.  &  St.  L.  Ry.  Co.  v.  State,  83  Ala.  71, 
3  So.  702,  128  U.  S.  96,  9  Sup.  Ct.  Rep. 
28.  fJThe  entire  expenses  of  the  State 
railroad  commission,  including  salaries 
of  commissioners,  may  be  assessed  upon 
the  railroad  companies  operating  within 
the  State  in  proportion  to  their  operated 
track  mileage.  Charlotte,  C.  &  A.  R.  Co. 
v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct.  Rep. 
255,  aff  27  S.  C.  385,  4  S.  E.  49;  Louis- 
ville &  N.  R.  Co.  v.  Baldwin,  85  Ala.  619, 
5  So.  311,  7  L.  R.  A.  266,  contra.^  On  this 
subject  in  general,  see  Redf.  on  Railw. 
c.  32,  sec.  2 ;  Louisville,  &c.  R.  R.  Co.  v. 
Burke,  6  Cold.  45  ;  New  Albany  &  Salem 
R.  R.  Co.  v.  Tilton,  12  Ind.  3;  Buckley 
v.  N.  Y.  &  N.  H.  R.  R.  Co.,  27  Conn  479  ; 
Ohio  &  Mississippi  R.  R.  Co.  v.  McClel- 
land, 25  III.  140 ;  Bradley  v.  Buffalo,  &c. 
R.  R.  Co.,  34  N.  Y.  427 ;  Boston,  C.  & 
M.  R.  R.  Co.  v.  State,  32  N.  H.  215  ;  Penn- 
sylvania R.  R.  Co.  v.  Riblet,  66  Pa.  St. 
164,  5  Am.  Rep.  360.  And  see  other 
cases  cited,  ante,  pp.  839,  840,  notes. 
[That  telephone  companies  are  common 
carriers  and  must  render  their  services 
impartially  to  all  who  may  apply  for 
them,  see  Nebraska  Telephone  Co.  v. 
State,  55  Neb.  627,  76  N.  W.  171,  46 


CH.  XVI.] 


THE    POLICE    POWER   OF   THE   STATES. 


845 


Restraints  on  Sale  of  Liquors.  Those  statutes  which  regulate 
or  altogether  prohibit  the  sale  of  intoxicating  drinks  as  a  bever- 
age have  also  been,  by  some  persons,  supposed  to  conflict  with 
the  federal  Constitution.  Such  of  them,  however,  as  assume  to 
regulate  merely,  and  to  prohibit  sales  by  other  persons  than  those 
who  are  licensed  by  the  public  authorities,  have  not  suggested 
any  serious  question  of  constitutional  power.  They  are  but  the 
ordinary  police  regulations,  such  as  the  State  may  make  in  re- 
spect to  all  classes  of  trade  or  employment.1  But  those  which 
undertake  altogether  to  prohibit  the  manufacture  and  sale  of 
intoxicating  drinks  as  a  beverage  have  been  assailed  as  violating 
express  provisions  of  the  national  Constitution,  and  also  as  sub- 
versive of  fundamental  rights,  and  therefore  not  within  the  grant 
of  legislative  power. 

That  legislation  of  this  character  was  void,  so  far  as  it  affected 
imported  liquors  or  such  as  might  be  introduced  from  one  State 
into  another,  because  in  conflict  with  the  power  of  Congress  over 
commerce,  was  strongly  urged  in  the  License  Cases  before  the 
Supreme  Court  of  the  United  States  ;  but  that  view  did  not  obtain 
the  assent  of  the  court.  Opinions  were  expressed  by  a  majority 


L.  R.  A.  113.  Upon  power  to  regulate 
the  consolidation  of  competing  railroads, 
see  State  v.  Montana  Ity.  Co.,  21  Mont. 
221,  53  Pac.  623,  4~>  L.  R.  A.  271,  and 
note  thereto  in  L.  11.  A.  Upon  duty  of 
a  railroad  company  to  furnish  cars  to 
shippers,  see  Houston,  E.  &  W.  T.  R.  Co. 
r.  Campbell,  91  Tex.  551,  45  S.  W.  2,  43 
L.  R.  A.  225,  and  note.  Carriers  of  goods 
may  be  compelled  to  forward  within  a 
certain  time  after  receiving  them.  Bagg 
v.  Wilmington,  C.  &  A.  R.  Co.,  109  N.  C. 
279,  14  S.  E.  79,  14  L.  R.  A.  596.  Street 
railways  may  be  required  to  provide 
screens  for  protection  of  motormen. 
State  v.  Whitaker,  160  Mo.  59,  60  S.  W. 
1068  ;  State  v.  Nelson,  52  Ohio  St.  88,  39 
N.  E.  22,  26  L.  R.  A.  317;  State  v.  Hos- 
kins,  58  Minn.  35,  59  N.  W.  545,  25  L.  R.  A.- 
759,  and  note.] 

1  Bode  v.  State,  7  Gill,  326  ;  Bancroft 
?).  Dumas,  21  Vt.  456;  Thomasson  v. 
State,  15  Ind.  449  ;  License  Cases,  5  How. 
504;  Metropolitan  Board  of  Excise  v. 
Barrie,  34  N.  Y.  657;  Goddard  v.  Jack- 
sonville, 1 5  111.  588  ;  Kettering  v.  Jackson- 
ville, 50  111.  39 ;  State  v.  Allmond,  2  Houst 
612.  [JPlumb  v.  Christie,  103  Ga.  686,  30 
S.  E.  759,  42  L.  R.  A.  181.]  That  a  terri- 
tory may  make  such  laws  :  Terr.  v.  Con- 


nell,  —  Ariz.  — ,  16  Pac.  209.  That  such 
laws  may  be  applied  to  corporations  char- 
tered to  manufacture  liquors,  as  well  as 
to  others,  see  Commonwealth  v.  Intoxica- 
ting Liquors,  115  Mass.  153;  Beer  Com- 
pany v.  Massachusetts,  97  U.  S.  25.  That, 
when  the  prohibition  is  total,  even  a  drug- 
gist cannot  sell  as  medicine  on  a  physi- 
cian's prescription,  see  Woods  v.  State, 
36  Ark.  36,  38  Am.  Rep.  22.  [And  a  li- 
censed pharmacist  may  be  required  to 
take  out  a  special  liquor  license  before  he 
shall  be  permitted  to  use  spirituous 
liquors  in  the  preparation  of  pharmacist's 
compounds.  Gray  v.  Connecticut,  159 
U.  S.  74,  15  Sup.  Ct.  Rep.  985;  Com. 
v.  Fowler,  96  Ivy.  166,  28  S.  W.  786,  33 
L.  R.  A.  839.  Upon  constitutionality  of 
laws  regulating  sale  of  liquors,  see  note 
to,  28  L.  ed.  U.  S.  696.  Sale  of  other 
commodities  in  rooms  where  sale  of 
liquors  is  authorized  may  be  prohibited. 
State  D.  Gerhard t,  145  Ind.  439,  44  N.  E. 
469,  33  L.  R.  A.  313.]  Sales  within  cer- 
tain hours  may  be  forbidden.  Hedderich 
v.  State,  101  Ind.  664.  A  farmer  may  be 
forbidden  to  give  cider  on  Sunday  to  an 
intoxicated  person.  Altenburg  v.  Com., 
126  Pa.  St.  602,  17  All.  799. 


846  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVI. 

of  the  court  that  the  introduction  of  imported  liquors  into  a 
State,  and  their  sale  in  the  original  packages  as  imported,  could 
not  be  forbidden,  because  to  do  so  would  be  to  forbid  what  Con- 
gress, in  its  regulation  of  commerce,  and  in  tiie  levy  of  imposts, 
had  permitted ; J  but  it  was  conceded  by  all,  that  when  the  origi- 
nal package  was  broken  up  for  use  or  for  retail  by  the  importer, 
and  also  when  the  commodity  had  passed  from  his  hands  into  the 
hands  of  a  purchaser,  it  ceased  to  be  under  Congressional  protec- 
tion as  an  import,  or  a  part  of  foreign  commerce,  and  became 
subject  to  the  laws  of  the  State,  and  might  be  taxed  for  State 
purposes,  and  the  sale  regulated  by  the  State  like  any  other 
property.2  It  was  also  decided,  in  these  cases,  that  the  power  of 
Congress  to  regulate  commerce  between  the  States  did  not  ex- 
clude regulations  by  the  States,  except  so  far  as  they  might  come 
in  conflict  with  those  established  by  Congress ;  and  that,  conse- 
quently, as  Congress  had  not  undertaken  to  regulate  commerce 
in  liquors  between  the  States,  a  law  of  New  Hampshire  could  not 
be  held  void  which  punished  the  sale,  in  that  State,  of  gin  pur- 
chased in  Boston  and  sold  in  New  Hampshire,  notwithstanding 
the  sale  was  in  the  cask  in  which  it  was  imported,  but  by  one  not 
licensed  by  the  selectmen.3  The  authority  of  the  License  Cases  is, 
however,  seriously  impaired  by  late  decisions  of  the  same  court. 
Upon  the  principle,  now  well  settled,4  that  the  failure  of  Congress 
to  act  as  to  matters  directly  affecting  interstate  commerce  is 
equivalent  to  a  declaration  that  it  shall  be  free,  it  is  held  a  State 
has  no  power  to  prevent  the  bringing  of  liquor  into  it  from  another 

1  Taney,  Ch.  J.,  5  How.  504,  574 ;  Me-  41  N.  W.  671 ;  Leisy  v.  Hardin,  78  Iowa, 
Lean,  J.,  5  How.  689 ;  Catron,  J.,  5  How.  286,  43  N.  W.  188.    QSame  case,  135  U.  S. 
608.     And  see   Brown   v.   Maryland,   12  100,  10  Sup.  Ct.  Rep.  681J     See  Water- 
Wheat.  419;  License  Tax  Cases,  5  Wall,  bury  v.  Newton,  50  N.  J.  L.  534,  14  Atl. 
462 ;  Cook  v.  Pennsylvania,  97  U.  S.  566 ;  604  ;  People  v.  Lyng,  74   Mich.  579,  42 
Tiernan  v.  Rinker,  102  U.  S.  123;  Lin-  N.  W.  139,  rev.  in  135  U.  S.  161,  10  Sup. 
coin  v.  Smith,  27  Vt.  328,  335 ;  Bradford  Ct.  Rep.  725.     See  also  Bode  v.  State,  7 
v.  Stevens,  10  Gray,  379 ;  States  Robin-  Gill,  326;  Jones  v.  People,  14  111.  196; 
son,  49  Me.  285.  State  c.  Wheeler,  25  Conn.  290;  Santo  v. 

2  Daniel,  J.,   held  that  the   right  to  State,  2  Iowa,  165,  202 ;  Commonwealth 
regulate  was  not  excluded,   even  while  v.  Clapp,  5  Gray,  97 ;  Metropolitan  Board 
the  packages  remained  in   the  hands  of  r.  Barrie,  34  N.  Y.  657  ;  Beer  Company  v. 
the  importer  unbroken  (p.  612).    See  also  Massachusetts,  97  U.  S.  25;  Jones  v.  Sur- 
the  views  of  Grier,  J.  (p.  631).     [See,  in  prise,  64  N.  H.  243,  9  Atl.  384  ;  Lang  v. 
this   connection,  Re  Wilson,   8   Mackey  Lynch,  38  Fed    Rep.   489;  State  ».  Co- 
(D.  C.),  341,  12  L.  R.  A.  624.     While  the  baugh,  78  Me.  401,  6  Atl.  4.    In  Iowa  it  is 
liquor  is  yet  in  the  original  package,  the  held  competent  to  except  from  the  gen- 
State  may  prohibit  and  punish  its  sale  to  eral  prohibition  of  the  sale  of  wines  all 
a  person  of  known   intemperate   habits,  those  made  from  fruit  grown  in  the  State. 
Com.  v.  Zelt,  138  Pa.  615,  21  Atl.  7,  11  State  v.  Stucker,  68  Iowa,  496,  12  N.  W. 
L.  R.  A.  602.]  483.   But  this  seems  not  in  harmony  with 

s  This  rule  has  lately  been  followed     Tiernan  v.  Rinker,  102  U.  S.  123. 
in  Iowa.     Collins  v.  Hills,  77  Iowa,  181,         *  See  p.  688,  note  2. 


CH.  XVI.] 


THE    POLICE   POWER    OF   THE   STATES. 


847 


State,  and  that  it  cannot  prohibit  the  sale  within  it  of  liquor  in 
the  original  package  by  a  non-resident.1     But  the  manufacture  of 


1  Bowman  v.  Chicago  &  N.  W.  Ry.  Co., 
125  U.  S.  465,  8  Sup.  Ct.  Rep.  689,  1062; 
Leisy  v.  Hardin,  135  U.  S.  100,  10  Sup.  Ct. 
Rep.  681.  In  the  former  case  a  majority 
of  the  court  held  that  the  statute  could 
not  be  upheld  as  an  inspection  law  nor  as 
a  sanitary  law  ;  that  it  was  a  regulation 
of  commerce,  although  its  purpose  was  to 
perfect  the  policy  of  the  State  as  to  intem- 
perance ;  and  left  undecided  the  question 
of  the  right  of  the  State  to  forbid  the  sale 
of  the  liquor  when  imported.  In  the  lat- 
ter case  this  point  is  distinctly  ruled,  so 
far  as  the  case  of  the  sale  by  a  foreigner 
or  non-resident  in  the  original  package 
is  concerned,  Qhe  court  holding  that  the 
State  is  powerless  to  prohibit  or  regulate 
the  sale  by  the  importer  in  the  original 
package,  fol.  Brown  v.  Maryland,  12 
Wheat.  419-3  For  the  State  rulings  upon 
it,  see  cases  p.  846,  note  3,  supra.  |T)i- 
rectly  after  the  decision  of  Leisy  v.  Har- 
din, 135  U.  S.  100,  10  Sup.  Ct.  Rep.  681, 
Congress  enacted  the  so-called  Wilson 
Bill,  providing  that  "  All  fermented,  dis- 
tilled, or  other  intoxicating  liquors  or 
liquids  transported  into  any  State  or  ter- 
ritory, or  remaining  therein  for  use,  con- 
sumption, sale,  or  storage  therein,  shall 
upon  arrival  in  such  State  or  territory  be 
subject  to  the  operation  and  effect  of  the 
laws  of  such  State  or  territory  enacted  in 
the  exercise  of  its  police  powers,  to  the 
same  extent  and  in  the  same  manner  as 
though  such  liquids  or  liquors  had  been 
produced  in  such  State  or  territory,  and 
shall  not  be  exempt  therefrom  by  being 
introduced  therein  in  original  packages  or 
otherwise."  26  Stat.  at  Large,  313,  chap. 
728.  In  re  Rahrer,  140  U.  S.  545, 11  Sup. 
Ct.  Rep  865,  it  was  held  that  this  enact- 
ment permitted  the  law  of  Kansas,  pro- 
hibiting and  penalizing  the  manufacture, 
sale,  or  barter  of  "  any  spirituous,  malt, 
vinous,  fermented,  or  other  intoxicating 
liquors "  to  extend  to  all  such  liquors 
imported  into  the  State.  In  Scott  r. 
Donald,  165  U.  S.  58,  17  Sup.  Ct.  Rep. 
265,  was  considered  the  validity  of  the 
State  Dispensary  Law  of  South  Carolina, 
which,  as  it  then  stood,  required  that 
"  no  wines  or  liquors,  except  domestic 
wines,  should  be  manufactured  or  sold, 
except  through  the  agency  of  a  State 


board  of  control,  a  commissioner  and  cer- 
tain county  dispensers,  and  after  an  in- 
spection by  a  State  chemist.  Packages 
of  wines  and  liquors  made  in  other  States 
and  imported  by  a  resident  of  the  State 
for  his  own  use,  and  in  the  possession  of 
railroad  companies  which,  as  common 
carriers,  had  brought  the  packages  within 
the  State,  were  seized  and  confiscated  as 
contraband  by  constables  of  the  State." 
The  court  held  "  that  when  a  State  recog- 
nizes the  manufacture,  sale,  and  use  of 
intoxicating  liquors  as  lawful,  it  cannot 
discriminate  against  the  bringing  of  such 
articles  in,  and  importing  them  from 
other  States  ;  that  such  legislation  is  void 
as  a  hindrance  to  interstate  commerce, 
and  an  unjust  preference  of  the  products 
of  the  enacting  State  as  against  similar 
products  of  the  other  States,"  and  that 
therefore  "  as  respected  residents  of  the 
State  of  South  Carolina  desiring  to  import 
foreign  wines  and  liquors  for  their  own 
use,  the  act  in  question  in  that  case  was 
void."  The  statute  was  thereupon  modi- 
fied in  such  manner  as  to  permit  the 
importation,  but  to  require  that  before 
any  such  importation  the  intending  im- 
porter should  "  first  certify  to  the  [official] 
chemist  .  .  .  the  quantity  and  kind  of 
liquor  proposed  to  be  imported,  together 
with  the  name  and  place  of  business  of 
the  person,  firm,  or  corporation  from 
whom  it  is  desired  to  purchase,  accom- 
panying such  certificate  with  the  state- 
ment that  the  proposed  consignor  has 
been  requested  to  forward  a  sample  of 
such  liquor  to  the  said  chemist. .  .  .  Upon 
the  receipt  of  said  sample,  the  said  chem- 
ist shall  immediately  proceed  to  test  the 
same,  and  .  .  .  [upon  finding  it  pure,  &c.] 
shall  issue  a  certificate  to  that  effect," 
which  should  be  attached  to  the  consign- 
ment. Any  package  imported  without 
such  certificate  was  to  be  confiscated  and 
destroyed.  This  provision  was  consid- 
ered in  Vance  v.  Vandercook  Co.,  170 
U.  S.  438,  18  Sup.  Ct.  Rep.  674,  and  held 
invalid  as  an  unlawful  interference  with 
interstate  commerce.  In  Rhodes  v.  Iowa, 
170  U.  S.  412,  18  Sup.  Ct.  Rep.  664,  it 
was  held  that  the  importation  was  not 
completed  until  the  goods  had  been  de- 
livered to  the  consignee,  or  at  any  rate 


848 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVI. 


intoxicating  liquor  within  the  State  may  be  forbidden  although 
intended  solely  for  exportation. l 


until  the  carrier  ceased  to  hold  them  as 
carrier.  The  Iowa  law  forbidding  trans- 
portation from  place  to  place  within  the 
State  did  not  apply  to  the  station  agent 
who  unloaded  a  box  containing  whiskey 
from  a  freight  car  and  wheeled  it  into 
the  railway  company's  freight  warehouse, 
there  to  await  delivery  to  the  consignee. 
And  in  State  v.  Holleyman,  55  S.  C.  207, 
31  S.  E.  362,  33  S.  E.  366,  45  L.  B.  A.  667, 
it  was  held  that,  despite  the  Dispensary 
Law,  a  person  might  purchase  liquors 
outside  the  State  and  himself  transport 
them  from  the  place  of  purchase  to  his 
home,  and  there  keep  them  for  his  own 
use,  because  such  act  was  interstate  com- 
merce, and  the  Wilson  Law  did  not  per- 
mit the  State  law  to  attach  until  the 
liquors  had  reached  their  destination. 
For  other  cases  on  South  Carolina  Dis- 
pensary Law,  see  State  r.  Aiken,  42  S.  C. 
222,  20  S.  E.  221,  26  L.  R.  A.  345  ;  Mc- 
Cullough  v.  Brown,  41  S.  C.  220,  19  S.  E. 
458,  23  L.  R.  A.  410.  For  a  construction 
of  the  Alabama  Dispensary  Law,  see 
Sheppard  i;.  Dowling,  127  Ala.  1,  28  So. 
791,  85  Am.  St.  68.  Upon  interstate  sales 
of  intoxicating  liquors  and  State  regula- 
tion thereof,  see  a  valuable  note  to  42  L. 
ed.  U.  S.  1089.  Upon  liquor  legislation 
generally,  see  Foster  v.  Kansas,  112  U.  S., 
205,  6  Sup.  Ct.  Rep.  8,  97 ;  Re  Caswell, 
18  R.  I.  835,  29  Atl.  259,  27  L.  R.  A.  82, 
85,  and  note;  State  v.  Creeden,  78  Iowa, 
656,  43  N.  W.  673,  7  L.  R.  A.  296 ;  Lemly 
v.  State,  70  Miss.  241, 12  So.  22, 20  L.  R.  A. 
645,  and  note ;  Tragesser  v.  Gray,  73  Md. 
260,  20  Atl.  905,  9  L.  R.  A.  780,  and  note ; 
and  Veon  v.  Creaton,  138  Pa.  48,  20  Atl. 
865,  9  L.  R.  A.  814,  and  note.  Upon  what 
is  an  original  package,  see  Austin  v.  Ten- 
nessee, 179  U.  S.  343,  21  Sup.  Ct.  Rep. 
132,  in  which  it  was  held  that  a  cigarette 
package  three  inches  long,  and  an  inch 
and  a  half  wide,  containing  ten  cigarettes, 
was  not  an  original  package  where  many 
such  were  deposited  by  the  shipper  in  a 
basket  owned  by  the  express  company 
and  by  that  company  carried  to  consignee 


in  the  same  basket  and  poured  out  on  con- 
signee's counter ;  whether,  if  each  small 
package  had  been  addressed  to  consignee, 
the  holding  would  have  been  otherwise, 
qucere ;  see  concurring  opinion  by  Mr. 
Justice  White.  For  a  similar  holding 
with  regard  to  cigarette  packages,  see 
McGregor  v.  Cone,  104  Iowa,  465,  73 
N.  W.  1041,  39  L.  R.  A.  484.  See  also 
State  v.  Chapman,  1  S.  I).  414,  47  N.  W. 
411,  10  L.  R.  A.  432;  Keith  v.  State,  91 
Ala.  2,  8  So.  353,  10  L.  R.  A.  430.  Upon 
the  Constitutional  protection  of  the 
"  original  package,"  see  65  Cent.  L. 
Jour.  342,  and  35  Am.  L.  Rev.  669. 
For  further  cases  upon  interstate  com- 
merce, see  Fuqua  v.  Pabst  Brewing  Co., 
90  Tex.  298,  38  S.  VV.  29,  750,  35  L.  R.  A. 
241;  Ohio  &  M.  R.  Co.  v.  Taber,  98  Ky. 
603,  32  S.  W.  168,  36  S.  W.  18,  34  L.  R.  A. 
685;  Houston  Direct  Navigation  Co.  r. 
Ins.  Co.  of  N.  A.,  89  Tex.  1,  32  S.  W.  889, 
30  L.  R.  A.  713 ;  State  v.  Wheelock,  95 
Iowa,  577,  64  N.  W.  620,  30  L.  R.  A.  429 ; 
Hopkins  v.  Lewis,  84  Iowa,  690,  51  N.  W. 
256,  15  L.  R.  A.  397  (original  package) ; 
Lang  v.  Lynch,  38  Fed.  Rep.  489,  4  L.  R. 
A.  831.]  After  a  railroad  has  stored  such 
liquor  in  its  warehouse  for  several  days, 
it  ceases  to  be  a  carrier  and  becomes 
amenable  to  the  law.  State  v.  Creeden, 
78  Iowa,  556, 43  N.  W.  673.  See  also  State 
v.  O'Neil,  58  Vt.  140,  2  Atl.  686;  [aff. 
144  U.  S.  323,  12  Sup.  Ct.  Rep.  693.  A 
State  may  not  prohibit  the  sale  within  its 
borders  of  oleomargarine  manufactured  in 
another  State,  so  long  as  such  substance 
is  recognized  by  Congress  as  a  legitimate 
article  of  commerce.  Schollenberger  v. 
Pennsylvania,  171  U.  S.  1,  18  Sup.  Ct. 
Rep.  767.  On  oleomargarine  in  original 
packages,  see  Re  Goocli,  44  Fed.  Rep. 
276,  10  L.  R.  A.  830.  Nor  is  it  permitted 
to  indirectly  accomplish  such  prohibition 
by  requiring  all  oleomargarine  sold  within 
its  borders  to  be  colored  pink  or  other- 
wise adulterated.  Collins  v.  New  Hamp- 
shire, 171  U.  S.  30,  18  Sup.  Ct.  Rep.  768. 
Upon  prohibition  of  sale  of  oleomargarine, 


1  Kidd  v.  Pearson,  128  U.  S.  1,  9  Sup. 
Ct.  Rep.  6.  "  The  manufacture  of  intoxi- 
cating liquors  in  a  State  is  none  the  less 
a  business  within  that  State,  because  the 


manufacturer  intends,  at  his  convenience, 
to  export  such  liquors  to  foreign  coun- 
tries or  to  other  States."  Lamar,  J.,  p.  24. 


CH.  XVI.] 


THE   POLICE   POWER   OF  THE   STATES. 


849 


These  State  laws,  known  as  Prohibitory  Liquor  Laws,  the  pur- 
pose of  which  is  to  prevent  altogether  the  manufacture  and  sale 
of  intoxicating  drinks  as  a  beverage,  so  far  as  legislation  can 
accomplish  that  object,  cannot  be  held  void  as  in  conflict  with  the 
fourteenth  amendment.1  And  in  several  cases  it  has  been  held 
that  the  fact  that  such  laws  may  tend  to  prevent  or  may  abso- 
lutely preclude  the  fulfilment  of  contracts  previously  made  is  no 
objection  to  their  validity.2  Any  change  in  the  police  laws,  or 
indeed  in  any  other  laws,  might  have  a  like  consequence. 

The  same  laws  have  also  been  sustained,  when  the  question  of 
conflict  with  State  constitutions,  or  with  general  fundamental 
principles,  has  been  raised.  They  are  looked  upon  as  police 
regulations  established  by  the  legislature  for  the  prevention  of 
intemperance,  pauperism,  and  crime,  and  for  the  abatement  of 
nuisances.3  It  has  also  been  held  competent  to  declare  the  liquor 


see  Com.  v.  Miller,  131  Pa.  118,  18  Atl. 
938,  6  L.  R.  A.  633,  and  note.  State  may 
prohibit  the  sale  within  its  borders  of 
adulterated  articles  designed  to  defraud 
the  consumer,  e.  g.  oleomargarine  colored 
to  imitate  butter.  Plumley  v.  Massachu- 
setts, 155  U.  S.  461,  15  Sup.  Ct.  Rep.  154, 
aff.  156  Mass.  236,  30  N.  E.  1127,  15  L.  R. 
A.  839;  see  also  State  v.  Capital  Cy. 
Dairy  Co.,  62  Ohio,  350,  57  N.  E.  62, 
McCann  u.  Cora.,  198  Pa.  609,  48  Atl. 
470,  State  v.  Rogers,  95  Me.  94,  49  Atl. 
664.  Use  of  oleomargarine  in  a  soldiers' 
home  which  is  under  the  exclusive  juris- 
diction of  Congress  is  not  subject  to  con- 
trol by  the  State.  Ohio  v.  Thomas,  173 
U.  S.  276,  19  Sup.  Ct.  Rep.  453.] 

1  If  the  State  ^o  determines,  it  may 
forbid  the  manufacture,  sale,  and  use  of 
liquor  as  prejudicial  to  public  health, 
safety,  and  morals,  even  though  thereby 
existing  property  is  depreciated  in  value 
without  compensation.  Mugler  v.  Kan- 
sas, 123  U.  S.  623,  8  Sup.  Ct.  Rep.  273 ; 
Kidd  v.  Pearson,  128  U.  S.  1,  9  Sup.  Ct. 
Rep.  6.  See  also  Bartemeyer  v.  Iowa,  18 
Wall.  129;  Foster  v.  Kansas,  112  U.  S. 
201,  5  Sup.  Ct.  Rep.  8,  97  ;  Prohibitory 
Am.  Cases,  24  Kan.  700;  Re  Intox.  Li- 
quors, 25  Kan.  751,  37  Am.  Rep.  284. 
Nor  is  permission  for  sale  by  druggists, 
and  no  others,  class  legislation.  /(/.  See 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 
pn  Noel  v.  State,  187  111.  587,  68  N.  E. 
616,  52  L.  R.  A.  287,  it  is  held  that  a  law 
restricting  the  sale  of  patent  medicines 
by  others  than  registered  pharmacists 
was  void.] 


2  People  v.  Hawley,  3  Mich.  330  ;  Rey- 
nolds v.  Geary,  26  Conn.  179.  Contracts 
cannot  hamper  or  impede  the  State  power 
of  police.  Beer  Company  v.  Massachu- 
setts, 97  U.  S.  25. 

8  Commonwealth  v.  Kendall,  12  Cush. 
414 ;  Commonwealth  v.  Clapp,  5  Gray, 
97  ;  Commonwealth  v.  Howe,  13  Gray,  26 ; 
Santo  v.  State,  2  Iowa,  202;  Our  House 
v.  State,  4  Greene  (Iowa),  172  ;  Zumlioff 
v.  State,  4  Greene  (Iowa),  526  ;  State  v. 
Donehey,  8  Iowa,  396  ;  State  v.  Wheeler, 
25  Conn.  290;  Reynolds  v.  Geary,  26 
Conn.  179  ;  Oviatt  v.  Pond,  29  Conn.  479 ; 
People  v.  Hawley,  3  Mich.  330 ;  People 
v.  Gallagher,  4  Mich.  244 ;  Jones  v.  Peo- 
ple, 14  III.  196  ;  State  v.  Prescott,  27  Vt. 
194 ;  Lincoln  v.  Smith,  27  Vt.  328 ;  Gill 
v.  Parker,  31  Vt.  610.  Compare  Beebe  v. 
State,  6  Ind.  501 ;  Meshmeier  u.  State,  11 
Ind.  484;  Wynehamerv.  People,  13  N.  Y. 
378.  See  State  v.  Kennedy,  16  R.  I.  409, 
17  Atl.  51.  So  of  local  prohibitory  laws. 
Whitney  v.  Township  Board,  71  Mich. 
234, 39  N.  W.  40  ;  State  w.  Berlin,  21  S.  C. 
292 ;  Burnside  v.  Lincoln  Co.  Ct.,  86  Ky. 
423,  6  S.  W.  276 ;  Ex  parte  Campbell,  74 
Cal.  20,  15  Pac.  318.  The  territories 
may  pass  such  laws.  Terr.  v.  O'Connor, 
5  Dak.  397, 41  N.  W.  746 ;  Terr.  v.  Guyot, 
9  Mont.  46,  22  Pac.  134.  But  the  mere 
keeping  of  liquor  for  another  cannot  be 
made  a  crime.  State  v.  Oilman,  33  W. 
Va.  146,  10  S.  E.  283.  In  Reynolds  v. 
Geary,  26  Conn.  179 ;  Jones  v.  Surprise, 
64  N.  H.  243,  9  Atl.  384 ;  Lang  v.  Lynch, 
38  Fed.  Rep.  489,  the  State  law  forbid- 
ding suits  for  the  price  of  liquors  sold  out 


850  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

kept  for  sale  a  nuisance,  and  to  provide  legal  process  for  its  con- 
demnation and  destruction,  and  to  seize  and  condemn  the  build- 
ing occupied  as  a  dram-shop  on  the  same  ground.1  And  it  is 
only  where,  in  framing  such  legislation,  care  has  not  been  taken 
to  observe  those  principles  of  protection  which  surround  the  per- 
sons and  dwellings  of  individuals,  securing  them  against  unrea- 
sonable searches  and  seizures,  and  giving  them  a  right  to  trial 
before  condemnation,  that  the  courts  have  felt  at  liberty  to  de- 
clare that  it  exceeded  the  proper  province  of  police  regulation.2 
Perhaps  there  is  no  instance  in  which  the  power  of  the  legislature 
to  make  such  regulations  as  may  destroy  the  value  of  property, 
without  compensation  to  the  owner,  appears  in  a  more  striking 
light  than  in  the  case  of  these  statutes.  The  trade  in  alcoholic 
drinks  being  lawful,  and  the  capital  employed  in  it  being  fully 
protected  by  law,  the  legislature  then  steps  in,  and  by  an  enact- 
ment based  on  general  reasons  of  public  utility,  annihilates  the 
traffic,  destroys  altogether  the  employment,  and  reduces  to  a 
nominal  value  the  property  on  hand.  Even  the  keeping  of  that, 
for  the  purposes  of  sale,  becomes  a  criminal  offence  ;  and,  with- 
out any  change  whatever  in  his  own  conduct  or  employment,  the 
merchant  of  yesterday  becomes  the  criminal  of  to-day,  and  the 
very  building  in  which  he  lives  and  conducts  the  business  which 
to  that  moment  was  lawful  becomes  the  subject  of  legal  proceed- 
ings, if  the  statute  shall  so  declare,  and  liable  to  be  proceeded 
against  for  a  forfeiture.3  A  statute  which  can  do  this  must  be 

of  the  State  to  evade  the  State  law,  was  N.  W.  606.   A  statute  providing  for  the  ap- 

sustained   and   applied    notwithstanding  pointment  of  guardians  for  drunkards  is 

the  contract  was  valid  where  made.    The  competent  under  the  police  power,  and 

general  rule  is,  however,  that  if  the  con-  its  operation  would  npt  be  an  unlawful 

tract  is  valid   where  made,   it   is   valid  deprivation  of  property.    Pevin  v.  Scott, 

ever}' where.     See  Sortwell  v.  Hughes,  1  34  Ind.  67.     ^Possession  of  opium  with- 

Curtis,   244  ;    Adams   v.    Coulliard,    102  out  having  license  therefor  may  be  made 

Mass.  167  ;  Hill  v.  Spear,  50  N.  H.  253 ;  a  crime.    Mon  Luck  v.  Sears,  29*  Oreg.  421, 

Kling  v.  Fries,  33  Mich.  275;  Roethke  v.  44  Pac.  693,  32  L.  R.  A.  738.] 
Philip  Best  Brewing  Co.,  33  Mich.  340;         2  Hibbard   v.    People,   4    Mich.    125; 

Webber    v.    Donnelly,    33    Mich.    469;  Fisher  v.   McGirr,   1   Gray,  1;    State  v. 

^Miller  v.  Ammon,   145  U.   S.  421,  12  O'Neil,  58  Vt.  140,  2  Atl.  586;  ante,  431, 

Sup.  Ct.  Rep.  884.]  note.     Compare   Meshmeier  v.  State,  11 

1  American  Fur  Co.  v.  United  States,  Ind.  484  ;  Wynehamer  v.  People,  13  N.  Y. 

2  Pet.  358  ;  Our  House  v.  State,  4  Greene  378. 

(Iowa),  172;    Lincoln   v.  Smith,  27   Vt.         3  See  Mugler  v.  Kansas,  123  U.  S.  623, 

328;    State  v.  Wheeler,  25   Conn.   290;  8  Sup.  Ct.  Rep.  273 ;  Kaufman  v.  Dostal, 

Oviatt  v.  Pond,  29  Conn.  479;  State  v.  73  Iowa,  691,  36  N.  W.  643 ;  Whitney  v. 

Robinson,  33  Maine,  668;  License  Cases,  Township  Board,  71  Mich.  234,  39  N.  W. 

6  How.  504  ;  State  v.  Barrels  of  Liquor,  40 ;  Tanner  v.  Alliance,  29  Fed.  Rep.  196 ; 

47  N.  H.  369;   Commonwealth  v.  Intoxi-  Menken   v.  Atlanta,  78  Ga.  658,  2  S.  E. 

eating  Liquors,  107  Mass.  396  ;  Pearson  559.     In  a  number  of  the  States,  statutes 

v.  Distill.  Co.,  72  Iowa,  348,  34  N.  W.  1 ;  have  recently  been  passed  to  make  the 

Craig  v.  Werthmueller,  78  Iowa,  698,  43  owners  of  premises  on  which  traffic  in  in- 


CII.  XVI.]       THE  POLICE  POWER  OF  THE  STATES.  851 

justified  upon  the  highest  reasons  of  public  benefit;  but,  whether 
satisfactory  or  not,  the  reasons  address  themselves  exclusively  to 
the  legislative  wisdom. 

Taxing  Forbidden  Occupations.  Questions  have  arisen  in  re- 
gard to  these  laws,  and  other  State  regulations,  arising  out  of  the 
imposition  of  burdens  on  various  occupations  by  Congress,  with  a 
view  to  raising  revenue  for  the  national  government.  These  bur-- 
dens  are  imposed  in  the  form  of  what  are  called  license  fees  ;  and 
it  has  been  claimed  that,  when  the  party  paid  the  fee,  he  was 
thereby  licensed  to  carry  on  the  business,  despite  the  regulations 
which  the  State  government  might  make  upon  the  subject.  This 
view,  however,  has  not  been  taken  by  the  courts,  who  have  re- 
garded the  congressional  legislation  imposing  a  license  fee  as 
only  a  species  of  taxation,  without  the  payment  of  whicli  the  busi- 
ness could  not  lawfully  be  carried  on,  but  which,  nevertheless, 
did  not  propose  to  make  any  business  lawful  which  was  not  lawful 
before,  or  to  relieve  it  from  any  burdens  or  restrictions  imposed 
by  the  regulations  of  the  State.  The  licenses  give  no  authority, 
and  are  mere  receipts  for  taxes.1 

Other  Regulations  affecting  Commerce.  Numerous  other  illus- 
trations might  be  given  of  the  power  in  the  States  to  make  regu- 
lations affecting  commerce,  which  are  sustainable  as  regulations 
of  police.2  Among  these,  quarantine  regulations  and  health  laws 

toxicating  liquors  is  carried  on  respon-  53  Mich.  367,  19  N.  W.  38;    Frankfort  v. 

sible  for  all  damages  occasioned  by  such  Aughe,  114  Ind.  77,  15  N.  E.  802. 
traffic.     It  is  believed  to  be  entirely  com-         See  remarks  of  Grier,  J.,  in  License 

petent  for  the  legislature   to  pass   such  Cases,  5  How.  504,  632 ;   Meeker  v.  Van 

statutes.     Bertholf  v.  O'Reilly,  74  N.  Y.  Rennselaer,  15  Wend.  397.     A  liquor  law 

509.    But  whether    they   can   apply    in  may  annul  a  previous  license,  and  not  be 

cases  where  leases  have  previously  been  invalid  on  that  grpurid.     See  ante,  p.  400, 

made  must  be  a  serious  question.  note.     Under  the  police  power,  the  deal- 

1  License  Tax  Cases,  5  Wall.  462;  Pur-  ing  in  liquors  even  for  lawful  purposes 

vear  v.  Commonwealth,  5  Wall.  475;  Com-  may  be  restricted  to  persons  approved  for 

monwealth  v.   Holbrook,  10  Allen,  200;  moral  character.     In  re  Ruth,  32  Iowa, 

Block  v.  Jacksonville,  36  111.  301 ;  Terr.  250.     Compare  People  v.  Haug,  68  Mich. 

v.  O'Connor,  5  Dak.  397,  41  N.  W.  746;  649,  37  N.  W.  21. 

They  are  not  contracts.  Martin  v.  State,  2  As  to  the  right  to  fix  rates  for  rail- 
23  Neb.  371,  36  N.  W.  554.  Nor  does  their  road  transportation,  see  cast-s,  pp.  b73- 
payment  preclude  enforcement  of  penal-  875,  post.  rjBut  it  is  not  open  to  a  State 
ties  for  selling  in  the  Indian  country,  to  compel  "  through  trains  "  carrying  in- 
United  States  v.  Forty-three  Gallons  of  terstate  commerce  to  stop  at  every 
Whiskey,  108  U.  S.  491,  2  Sup.  Ct.  Rep.  county-seat  through  which  they  pass, 
906.  A  StatC may  tax  a  business  not-  provided  "local  trains"  furnish  ample 
withstanding  the  State  constitution  for-  accommodation  for  the  traffic  of  such 
bids  its  being  licensed.  Youngblood  v.  places.  C.  C.  C.  &  St.  L.  Ry.  Co.  v.  Illi- 
Sexton,  32  Mich.  406,  20  Am.  Rep.  654.  nois,  177  U.  S.  514,  20  Sup.  Ct.  Rep.  7'22, 
As  to  when  license  fees  are  taxes,  see  rev.  175  111.359,  51  N.  E.  842;  Illinois 
ante,  p.  283,  and  note.  State  taxation  Cent.  R.  Co.  v.  Illinois,  163  U.  S.  142,  16 
does  not  forbid  further  municipal  tax-  Sup.  Ct.  Rep.  1096,  rev.  143  111.  434,  33 
ation  for  regulation.  Wolf  v.  Lansing,  N.  E.  173,  19  L.  R.  A.  119.  See,  in  this 


852 


CONSTITUTIONAL   LIMITATIONS. 


[cir.  xvi. 


of  every  description  will  readily  suggest  themselves,  and  these 
are  or  may  be  sometimes  carried  to  the  extent  of  ordering  the 


connection,  State  v.  Gladson,  57  Minn. 
385,  59  N.  W.  487,  24  L.  R.  A.  602 ;  aff. 
166  U.  S.  427,  17  Sup.  Ct.  Rep.  627. 
Upon  regulations  of  commerce  by  State 
laws,  see  notes  to  39  L.  ed.  U.  S.  311,  38  L. 
ed.  U.  S.  1041, 37  L.  ed.  U.  S.  216,  32  L.  ed. 
U.  S.  229,  24  C.  C.  A.  13,  and  13  L.  R.  A. 
107.  A  State  may  compel  a  railroad 
operating  within  its  limits  and  engaged 
in  interstate  commerce  to  stop  at  least 
three  trains  each  way  (if  so  many  run) 
each  day  at  each  town  of  three  thousand  or 
more  inhabitants  on  its  line  long  enough 
to  take  on  and  let  off  passengers.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Ohio,  173  U.  S. 
285,  19  Sup.  Ct.  Rep.  465.  And  it  may 
compel  every  passenger  train  whose  route 
lies  entirely  within  the  State  to  stop  at 
every  county-seat,  even  though  the  train 
carries  mail  and  its  road  is  a  land  grant 
road.  Gladson  v.  Minnesota,  166  U.  S.  427, 
17  Sup.  Ct.  Rep.  627,  aff.  57  Minn.  385,  59 
N.  W.  487,  24  L.  R.  A.  602.  A  State  may 
make  a  common  carrier  contracting  to 
carry  property  between  any  two  points, 
whether  within  or  without  the  State,  liable 
for  any  injury  to  such  property  that  may 
arise  through  its  negligence  or  that  of  any 
connecting  carrier  to  whom  it  may  deliver 
such  property  in  order  to  complete  the 
performance  of  the  contract.  Missouri, 
K.  &  T.  R.  Co.  v.  McCann  &  Smizer,  174 
U.  S  580,  19  Sup.  Ct.  Rep.  755,  aff.  133 
Mo.  59, 33  S.  W.  71,  35  L.  R.  A.  110.  And 
when  the  loss  or  injury  occurs  beyond  the 
carrier's  own  line,  he  may  still  be  made 
liable  "  unless  within  a  reasonable  time 
after  demand  made,  he  shall  give  satis- 
factory proof  to  the  consignor  that  the 
loss  or  injury  did  not  occur  while  the 
thing  was  in  his  charge."  Richmond  & 
A.  R.  Co.  v.  Patterson  Tobacco  Co..  169 
U.  S.  311,  18  Sup.  Ct.  Rep.  335.  Upon 
State  taxes  and  penalties  as  affecting 
commerce,  see  Bangor  v.  Smith,  83  Me. 
422,  22  All.  379,  13  L.  R.  A.  688,  and 
note.  A  State  may  regulate  the  extent 
to  which  a  common  carrier  may  by  con- 
tract relieve  himself  from  his  common- 
law  liabilities.  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Solan,  169  U.  S.  133,  18  Sup.  Ct.  Rep. 
289.  Upon  such  contracts,  see  note  to 
42  L.  ed.  U.  S.  688,  in  which  the  cases  are 
collected.  Upon  interstate  and  foreign 


transportation,  see  Mo.  P.  R.  Co.  v.  Sher- 
wood, 84  Tex.  125,  19  S.  W.  455,  17 
L.  R.  A.  643,  and  note  ;  and  as  to  whether 
shipments  between  two  points  within  the 
same  State  can  ever  be  interstate  com- 
merce, see  Houston  D.  Nav.  Co.  v.  Ins. 
Co.  of  N.  A.,  89  Tex.  1,  32  S.  W.  889,  30 
L.  R.  A.  713.  In  the  absence  of  Congres- 
sional regulation,  a  S'tate  may  prohibit 
the  running  of  all  freight-trains  (includ- 
ing interstate)  on  Sunday.  Hennington 
v.  Georgia,  163  U.  S.299, 16  Sup.Ct.  Rep. 
1086,  aff.  90  Ga.  396,  17  S.  E.  1009.  State 
may  prohibit  the  consolidation  of  parallel 
and  competing  lines.  Pearsall  v.  Grt. 
N.  R.  Co.,  161  U.  S.  646, 16  Sup.  Ct.  Rep. 
705,  and  Louisville  &  N.  R.  Co.  v.  Ken- 
tucky, 161  U.  S.  677,  16  Sup.  Ct.  Rep. 
714,  aff.  97  Ky.  675,  31  S.  W.  476.  May 
by  penalty  in  the  absence  of  Congres- 
sional regulation  enforce  the  delivery  of 
telegrams  to  addresses  within  its  bor- 
ders. W.  U.  Tel.  Co.  »>.  James,  162  U.  S. 
650,  16  Sup.  Ct.  Rep.  934,  aff.  90  Ga.  254, 
17  S.  E.  83;  but  not  beyond  its  borders. 
W.  U.  Tel.  Co.  v.  Pendleton,  122  U.  S. 
347,  7  Sup.  Ct.  Rep.  1126,  1  Inters.  Com. 
R.  306.  State  may  make  it  an  offence  to 
have  in  one's  possession  game  intended 
to  be  shipped  beyond  the  borders  of  the 
State,  such  game  having  been  killed 
within  the  State,  even  though  within  the 
open  season.  Geer  v.  Connecticut,  161 
U.  S.  519,  16  Sup.  Ct.  Rep.  600,  aff  61 
Ct.  144,  22  Atl.  1012,  13  L.  R.  A.  804, 
3  Inters.  Com.  R.  732.  Upon  relation 
between  State  police  power  and  Federal 
commerce  power,  see  note  to  38  L.  ed. 
U.  S.  1041.  State  may  regulate  the  fish- 
eries within  a  marine  league  of  its  shores. 
Manchester  v.  Massachusetts,  139  U.  S. 
240, 11  Sup.  Ct.  Rep.  559.  In  the  absence 
of  Congressional  regulation,  a  State  may 
make  it  an  offence  to  solicit  a  seaman  to 
desert  from  any  vessel  within  its  juris- 
diction. Re  Young,  36  Greg.  247,  59  Pac. 
707,  48  L.  R.  A.  153 ;  Handel  v.  Chaplin, 
111  Ga.  800,  36  S.  E.  979,  61  L.  R.  A.  720. 
State  may  absolutely  prohibit  sale  within 
its  borders  of  specified  kinds  of  game  and 
fish  during  specified  seasons  of  year. 
People  v.  O'Neil,  110  Mich.  324,  68  N.  W. 
227,  33  L.  R.  A.  696.  May  make  it  a 
criminal  offence  to  send  money  outside 


CH.  XVI.] 


THE    POLICE    POWER   OF   THE   STATES. 


853 


destruction  of  private  property  when   infected  with  disease  or 
otherwise  dangerous.1     These  regulations  have  generally  passed 


the  State  to  be  wagered  upon  a  horse- 
race. Ex  parte  Lacy,  93  Va.  159,  24  S.  E. 
930,  31  L.  R.  A.  822.  May  make  inter- 
state telegraph  company  responsible  for 
negligence  within  the  State  in  transmis- 
sion of  interstate  message.  W.  U.  Tel. 
Co.  v.  Howell,  95  Ga.  194,  22  S.  E.  286, 
30  L.  R.  A.  158.  Where  corporation  de- 
rives its  franchise  from  the  State  it  is 
subject  to  State  law  in  regard  to  exempt- 
ing itself  by  contract  from  liabilities  of 
common  carrier,  even  though  the  contract 
relates  to  interstate  commerce.  St.  Jos. 
&  G.  Id.  R.  Co.  v.  Palmer,  38  Neb.  463, 
56  N.  W.  957,  22  L.  R.  A.  335.  State  may 
regulate  pressure  of  natural  gas  trans- 
ported through  pipes  to  other  States. 
Jamieson  v.  Indiana  N.  Gas  &  Oil  Co.,  128 
Ind.  555,  28  N.  E.  76,  12  L.  R.  A.  652. 
But  cannot  forbid  its  exportation.  State 
v.  Indiana  &  O.  Oil  G.  &  M.  Co.,  120  Ind. 
575,  22  N.  E.  778,  6  L.  R.  A.  579,  and  note. 
For  other  cases  upon  State  laws  and  in- 
terstate commerce,  see  Burrows  v.  Delta 
Transportation  Co.,  106  Mich.  682,  64 
N.  W.  501,  29  L.  R.  A.  468  ;  State  v.  W.  U. 
Tel.  Co.,  113  N.  C.  213, 18  S.  E.  389,  22 
L.  R.  A.  570 ;  State  v.  Indiana  &  I.  S.  R. 
Co.,  133  Ind.  69,  32  N.  E.  817,  18  L.  R.  A. 
502;  Re  Sanders,  52  Fed.  Rep.  802,  18 
L.  R.  A.  549;  Mo.  Pac.  R.  Co.  v.  Sher- 
wood, 84  Tex.  125,  19  S.  W.  455,  17 
L.  R.  A.  643,  and  note  ;  Dwyer  v.  Gulf, 
C.  &  S  F.  R.  Co.,  75  Tex.  572,  12  S.  W. 
1001,  7  L.  R.  A.  478,  and  cases  cited  note 
1,  post,  864.  Agent  of  non-resident  organ 
company  who  travels  with  an  organ,  sell- 
ing it  when  he  can  or  taking  orders  for 
others  and  delivering  them  when  re- 
ceived, is  engaged  in  interstate  commerce 
and  not  liable  to  State  peddler's  tax. 
French  v.  State,  —  Tex.  Crim.  App.  — , 
58  S.  W.  1016,  52  L.  R.  A.  160.  Goods 
manufactured  in  another  State  to  fill 
orders  taken  by  travelling  salesman,  and 
shipped  into  the  State,  consigned  to  the 
maKer,  and  delivered  by  the  agent  to  the 
person  ordering,  are  the  subject  of  inter- 
state commerce,  and  the  agent  cannot  be 
subjected  to  a  State  license  tax  in  the 
State  where  delivered.  Wyoming  v.  Wil- 
lingharn,  9  Wyo.  290,  62  Pac.  797,  52  L. 
R.  A.  198.  See  also  Adkins  v.  Richmond, 
98  Va.  91,  34  S.  E.  967,  81  Am.  St.  705, 
47  L.  R.  A.  583.] 


1  It  is  usual,  either  by  general  law  or 
by  municipal  charters,  to  confer  very 
extensive  powers  upon  local  boards  of 
health,  under  which,  when  acting  in  good 
faith,  they  may  justify  themselves  in  tak- 
ing possession  of,  purifying,  or  even  de- 
stroying the  buildings  or  other  property 
of  the  citizen,  when  the  public  health  or 
comfort  demands  such  strong  measures. 
See  Harrison  v.  Baltimore,  1  Gill,  204; 
Van  Wormer  v.  Albany,  15  Wend.  262; 
Coe  v.  Shultz,  47  Barb.  64 ;  Raymond  v. 
Fish,  61  Conn.  80.  QHurst  v.  Warner, 
102  Mich.  238,  60  N.  W.  440,  26  L.  K.  A. 
484,  and  see  also  note  in  L.  R.  A.  upon 
quarantine  regulations  by  health  author- 
ities. See  also  Rasmussen  v.  Idaho,  181 
U.  S.  198,  21  Sup.  Ct.  Rep.  694,  aff.  — 
Idaho,  — ,  59  Pac.  933,  62  L.  R.  A.  78. 
State  may  regulate  the  heating  apparatus 
used  in  passenger  cars,  and  may  exempt 
from  such  regulations  railroad  lines  less 
than  fifty  mile*  long.  N.  Y.,  N.  H.  &  H. 
R.  Co.  v.  New  York,  165  U.  S.  628,  17 
Sup.  Ct.  Rep.  418.  But  a  State  cannot 
compel  a  railroad  company  to  furnish 
double-decked  cars  for  sheep  shipped  in. 
interstate  commerce,  nor  can  it  regu- 
late the  transportation  charges  on  such 
shipments.  Stanley  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  100  Mo.  435, 13  S.  W.  709,  8  L.  R.  A. 
649.  A  statute  of  Louisiana  empowered 
the  State  Board  of  Health  to  exclude 
healthy  persons  from  entering  localities 
where  disease  was  prevalent,  whether  com- 
ing from  within  or  without  the  State.  The 
question  was  raised  by  the  Board  re- 
fusing emigrants  from  France  a  landing. 
The  authority  was  upheld.  Compagnie 
Fran9aise  v.  Louisiana  St.  Bd.  of  Health, 
186  U.  S.  380,  22  Sup.  Ct.  Rep.  81 1.  See 
34  Am.  L.  Rev.  722.] 

Thej'  may  forbid  offensive  trades  be- 
ing carried  on  in  populous  districts.  Ex 
parte  Shrader,  33  Cal.  279;  Metropolitan 
Board  v.  Heister,  37  N.  Y.  661;  Live 
Stock,  &c.  Association  v.  Crescent  City, 
&c.  Co.,  16  Wall.  36 ;  Wynehamer  v.  Peo- 
ple, 13  N.  Y.  378  ;  Coe  v.  Shultz,  47  Barb. 
64  ;  Ashbrook  v.  Commonwealth,  1  Bush, 
139;  Taunton  v.  Taylor,  116  Mass.  254; 
Fertilizing  Co.  v.  Hyde  Park,  97  U.  S. 
659 ;  Dillon,  Mun.  Corp.  §  95 ;  Potter's 
Dwarris  on  Stat.  458.  See  State  v.  Board 
of  Health,  16  Mo.  App.  8.  The  disinfec- 


854 


CONSTITUTIONAL   LIMITATIONS. 


[CM.  xvi. 


unchallenged.  The  right  to  pass  inspection  laws,  and  to  levy 
duties  so  far  as  may  be  necessary  to  render  them  effectual,  is  also 
undoubted,  and  is  expressly  recognized  by  the  Constitution.1 


tion  of  all  imported  rags  at  the  expense 
of  the  shipper  may  be  required.  Train 
v.  Boston  Disinfecting  Co.,  144  Mass. 
523,  11  N.  E.  929.  QState  may  prohibit 
the  bringing  in  of  cattle  affected  with 
contagious  disease  (Texas  fever),  and 
may  make  shipper  and  carrier  liable  for 
all  loss  arising  from  importation  of  such 
cattle.  Missouri,  K.  &  T.  R.  Co.  v.  Haber, 
169  U.  S.  613,  18  Sup.  Ct.  Rep.  488,  878, 
aff.  56  Kan.  694,  44  Pac.  632.  See,  upon 
Texas  cattle  acts,  Grimes  v.  Eddy,  126 
Mo.  168,  28  S.  W.  756,  26  L.  R.  A.  638, 
and  note.  See  also  Idaho  v.  Rasmussen, 
—  Idaho,  — ,  59  Pac.  933,  52  L.  R.  A.  78, 
aff.  181  U.  S.  198,  21  Sup.  Ct.  Rep.  594, 
and  Smith  v.  St.  Louis  &  S.  W.  Ry.  Co., 
181  U.  S.  248,  21  Sup.  Ct.  Rep.  603,  aff. 
20  Tex.  Civ.  App.  451,  49  S.  W.  627. 
This  last  case  is  authority  for  the  general 
doctrine  that  reasonable  quarantine  regu- 
lations of  the  State  do  not  conflict  with 
the  power  of  the  federal  government  to 
regulate  commerce.]  That  the  business 
is  lawful  in  itself,  and  proper  to  be  carried 
on  somewhere,  is  no  objection  to  the 
regulation.  Watertown  r.  Mayo,  109 
Mass.  315 ;  Beer  Co.  v.  Massachusetts, 
97  U.  S.  25. 

If  they  forbid  the  keeping  of  swine  in 
certain  parts  of  a  city,  their  regulations 
will  be  presumed  reasonable  and  needful. 
Commonwealth  v.  Patch,  97  Mass.  221, 
citing  with  approval  Pierce  v.  Bartrum, 
Cowp.  269.  And  though  they  cannot  be 
vested  with  authority  to  decide  finally 
upon  one's  right  to  property  when  they 
proceed  to  interfere  with  it  as  constitut- 
ing a  danger  to  health,  yet  they  are 
vested  with  quasi  judicial  power  in  decid- 
ing upon  what  constitutes  a  nuisance, 
and  all  presumptions  favor  their  actions. 
See  Van  Wormer  v.  Albany,  15  Wend. 
262;  Kennedy  v.  Phelps,  10  La.  Ann. 
227;  Metropolitan  Board  v.  Heister,  37 
N.  Y.  661 ;  Raymond  v.  Fish,  51  Conn.  80. 
And  they  may  unquestionably  be  vested 
with  very  large  power  to  establish  pest- 
houses,  and  make  very  stringent  regula- 
tions to  prevent  the  spread  of  contagious 
diseases.  As  to  the  power  of  the  public 
authorities  to  establish  a  public  slaughter- 
house, or  to  require  all  slaughtering  of 


beasts  to  be  done  at  one  establishment, 
see  Milwaukee  v.  Gross,  21  Wis  241  ; 
Live  Stock,  &c.  Association  v.  Crescent 
City,  &c.  Co.,  16  Wall.  36.  Compare,  as 
to  right  to  establish  monopolies,  Gale  r. 
Kalamazoo,  23  Mich.  344.  £A  Stare 
cannot  require  all  sheep  to  be  dipped 
before  being  brought  within  its  borders, 
without  regard  to  whether  they  are  dis- 
eased or  not.  State  v.  Duckworth,  — 
Idaho,  — ,  51  Pac.  456,  39  L.  R.  A.  365.] 
The  license  of  a  board  of  health  is  not  a 
defence  to  an  indictment  for  a  nuisance. 
Garrett  v.  State,  49  N.  J.  L.  94,  7  All.  29. 

A  regulation  forbidding  the  growing 
of  rice  within  a  city,  on  the  ground  of  in- 
jurious effect  upon  health,  was  held  valid 
in  Green  v  Savannah,  6  Ga.  1.  (^Blow- 
ers may  be  required  to  be  furnished  upon 
dry  emery  wheels.  People  v.  Smith,  108 
Mich.  527,  66  N.  W.  382,  32  L.  R.  A.  853, 
and  upon  power  to  protect  health  of 
employees,  see  note  hereto  in  L.  R.  A. 
Orders  of  boards  of  health  must  .be 
reasonable,  and  an  order  prohibiting  all 
persons  until  further  order  from  getting 
off  any  train  or  boat  within  the  State  is 
void,  though  made  as  a  quarantine  regu- 
lation against  yellow  fever  prevalent  in 
some  places,  because  applicable  as  well 
to  persons  from  non-infected  as  from  in- 
fected districts.  Wilson  v.  Alabama  G.  S. 
Ry.  Co.,  77  Miss.  714,  28  So.  567,  52 
L.  R.  A.  357.  See  on  compulsory  vacci- 
nation, 4  Law  Notes,  224,  54  Cent.  L. 
Jour.  361.] 

1  Art.  1,  §  10,  clause  2.  See  Turner  v. 
Maryland,  107  U.  S.  38,  2  Sup.  Ct.  Rep. 
44 ;  Hospes  v.  O'Brien,  24  Fed.  Rep.  145. 
A  prohibition  of  the  sale  of  meat  unless 
inspected  by  State  officers  twenty-four 
hours  before  the  slaughter  of  the  animal 
is  void  as  excluding  dressed  beef  brought 
from  other  States.  Minnesota  v.  Barber, 
136  U.  S.  313, 10  Sup.  Ct.  Rep.  862  ;  Swift 
v.  Sutphin,  39  Fed.  Rep.  630;  In  re 
Christian,  Jd.  636 ;  Ex  parte  Kieffer,  40 
Fed.  Rep.  399.  £A  State  may  prohibit 
the  sale  within  its  borders  of  fertilizers 
and  fertilizing  materials  that  have  not 
been  officially  inspected,  and  may  collect 
a  reasonable  charge  for  inspection  by  its 
official  inspector.  A  charge  of  25  cents 


:H.  XVI.]  THE   POLICE    POWER   OF   THE    STATES.  855 

But  certain  powers  which  still  more  directly  affect  commerce  may 
sometimes  be  exercised  where  the  purpose  is  not  to  interfere  with 
congressional  legislation,  but  merely  to  regulate  the  times  and 
manner  of  transacting  business  with  a  view  to  facilitate  trade,  ! 
secure  order,  and  prevent  confusion. 

An  act  of  the  State  of  New  York  declared  that  the  harbor- 
masters appointed  under  the  State  laws  should  have  authority  to 
regulate  and  station  all  ships  and  vessels  in  the  stream  of  the 
East  and  North  rivers,  within  the  limits  of  the  city  of  New  York, 
and  the  wharves  thereof,  and  to  remove  from  time  to  time  such 
vessels  as  were  not  employed  in  receiving  and  discharging  their 
cargoes  to  make  room  for  such  others  as  required  to  be  more 
immediately  accommodated,  for  the  purpose  of  receiving  and  dis- 
charging theirs ;  and  that  the  harbor-masters  or  either  of  them 
should  have  authority  to  determine  how  far  and  in  what  instances 
it  was  the  duty  of  the  masters  and  others,  having  charge  of  ships 
or  vessels,  to  accommodate  each  other  in  their  respective  situa- 
tions ;  and  it  imposed  a  penalty  for  refusing  or  neglecting  to 
obey  the  directions  of  the  harbor-masters  or  either  of  them. 
In  a  suit  brought  against  the  master  of  a  steam  vessel,  who  had 
refused  to  move  his  vessel  a  certain  distance  as  directed  by  one 
of  the  harbor-masters,  in  order  to  accommodate  a  new  arrival,  it 
was  insisted  on  the  defence  that  the  act  was  an  unconstitutional 
invasion  of  the  power  of  Congress  over  commerce,  but  it  was 
sustained  as  being  merely  a  regulation  prescribing  the  manner  of 
exercising  individual  rights  over  property  employed  in  commerce.1 

a  ton  for  such  inspection  is  not  unreason-  regulations,  in  such  cases,  are  sustain- 
able. Patapsco  Guano  Co.  v.  Board  of  able :  "  It  seems  to  me  the  power  exer- 
Agr.  of  N.  C.,  171  U.  S.  345,  18  Sup.  Ct.  cised  in  this  case  is  essentially  necessary 
Rep.  862.  Upon  State  inspection  laws,  for  the  purpose  of  protecting  the  rights  of 
see  note  to  11  L.  R.  A.  179.  But  power  all  concerned.  It  is  not,  in  the  legitimate 
of  inspection  cannot  be  made  a  pretext  sense  of  the  term,  a  violation  of  any  right, 
for  discrimination  against  products  of  but  the  exercise  of  a  power  indispensably 
other  States.  Voightu.  Wright,  141  U.  S.  necessary,  where  an  extensive  commerce 
62,  11  Sup.  Ct.  Rep.  855;  Brimmer  v.  is  carried  on.  If  the  harbor  is  crowded 
Rebman,  138  U.  S.  78,  11  Sup.  Ct.  Rep.  with  vessels  arriving  daily  from  foreign 
213.  Nor  can  it  embarrass  interstate  parts,  the  power  is  incident  to  such  a 
commerce  by  its  police  regulations  and  state  of  things.  Disorder  and  confusion 
inspection  laws,  even  though  such  are  would  be  the  consequence,  if  there  was 
expressly  applicable  to  its  domestic  com-  no  control.  .  .  .  The  right  assumed  un- 
merce  also.  Minnesota  v.  Barber,  136  der  the  law  would  not  be  upheld,  if  ex- 
U.  S.  313,  10  Sup.  Ct.  Rep.  862.  A  erted  beyond  what  may  be  considered 
State  cannot  require  convict-made  goods  a  necessary  police  regulation.  The  line 
brought  from  other  States  to  be  so  between  what  would  be  a  clear  invasion 
marked.  People  v.  Hawkins,  157  N.  Y.  of  right  on  the  one  hand,  and  regulations 
1,  61  N.  E.  257,  42  L.  R.  A.  490.]  not  lessening  the  value  of  the  right,  and 
1  Vanderbilt  v.  Adams,  7  Cow.  349,  calculated  for  the  benefit  of  all,  must 
351.  Woodworth,  J.,  in  this  case,  states  be  distinctly  marked.  .  .  .  Police  regula- 
very  clearly  the  principle  on  which  police  tions  are  legal  and  binding,  because  for 


or  THE 


r>  IT" w      ! 


856 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


The  line  of  distinction  between  that  which  constitutes  an  inter- 
ference with  commerce,  and  that  which  is  a  mere  police  regula- 
tion, is  sometimes  exceedingly  dim  and  shadowy,  and  it  is  not 
to  be  wondered  at  that  learned  jurists  differ  when  endeavoring 
to  classify  the  cases  which  arise.  It  is  not  doubted  that  Congress 
has  the  power  to  go  beyond  the  general  regulations  of  commerce 
which  it  is  accustomed  to  establish,  and  to  descend  to  the  most 
minute  directions,  if  it  shall  be  deemed  advisable ; 1  and  that  to 
whatever  extent  ground  shall  be  covered  by  those  directions, 
the  exercise  of  State  power  is  excluded.  Congress  may  establish 
police  regulations,  as  well  as  the  States  ;  confining  their  opera- 
tion to  the  subject  over  which  it  is  given  control  by  the  Constitu- 
tion.2 But  as  the  general  police  power  can  better  be  exercised 


the  general  benefit,  and  do  not  proceed  to 
the  length  of  impairing  any  right,  in  the 
proper  sense  of  that  term.  The  sover- 
eign power  in  a  community,  therefore, 
may  and  ought  to  prescribe  the  manner 
of  exercising  individual  rights  over  prop- 
erty. It  is  for  the  better  protection  and 
enjoyment  of  that  absolute  dominion 
which  the  individual  claims.  The  power 
rests  on  the  implied  right  and  duty  of  the 
supreme  power  to  protect  all  by  statutory 
regulations  ;  so  that,  on  the  whole,  the 
benefit  of  all  is  promoted.  Every  public 
regulation  in  a  city  may,  and  does  in 
some  sense,  limit  and  restrict  the  absolute 
right  that  existed  previously.  But  this 
is  not  considered  as  an  injury.  So  far 
from  it,  the  individual,  as  well  as  others, 
is  supposed  to  be  benefited.  It  may, 
then,  be  said  that  such  a. power  is  inci- 
dent to  every  well-regulated  society,  and 
without  which  it  could  not  well  exist." 
See  Cooley  v.  Board  of  Wardens,  12  How. 
299  ;  Owners  of  the  James  Gray  v.  Owners 
of  the  John  Frazer,  21  How.  184 ;  Ben- 
edict v.  Vanderbilt,  1  Robertson,  194 ; 
Steamship  Co.  v.  Jolifle,2  Wall.  450;  Wil- 
son v.  McNamee,  102  U.  S.  572;  Port 
Wardens  v.  The  Ward,  14  La.  Ann.  289 ; 
Oilman  v.  Philadelphia,  3  Wall.  713,  731 ; 
Cisco  v.  Roberts,  36  N.  Y.  292.  QState 
may  require  all  coal-boats  and  barges  to 
be  gauged,  and  may  appoint  official 
gaugers  and  prescribe  their  fees.  Pitts- 
burg  &  S.  Coal  Co.  v.  Louisiana,  156  U.  S. 
590,  15  Sup.  Ct.  Rep.  460.] 

1  Gloucester    Ferry  Co.    v.    Pennsyl- 
vania,  114  U.  S.  215,  5  Sup.  Ct.  Rep. 
826. 
2  See,  for  the  distinction  between  the 


general  regulation  of  commerce,  which 
is  under  the  exclusive  control  of  Congress, 
and  the  local  regulations  which  are  mere 
aids  to  commerce,  and  are  generally  left 
to  the  States,  Mobile  v.  Kimball,  102  U.  S. 
691,  per  Field,  J.,  and  cases,  pp.  688- 
691,  ante.  £And  see  Harmon  v.  Chicago, 
147  U.  S.  396,  13  Sup.  Ct.  Rep.  o06,  and 
note  thereto  in  37  L.  ed.  U.  S.  216.  State 
may  require  intersecting  railroads  to  es- 
tablish facilities  for  interchange  of  traffic 
at  junction  points,  and  to  establish  joint 
rates  via  such  points,  even  though  inter- 
state commerce  be  thereby  affected. 
Wisconsin  M.  &  P.  R.  Co.  v.  Jacobson, 
179  U.  S.  287,  21  Sup.  Ct.  Rep.  115,  aff. 
71  Minn.  519,  74  N.  W.  893,  40  L.  R.  A. 
389.  A  statute  of  the  State  of  Kentucky 
with  a  long  and  short  haul  provision  was 
held  to  apply  to  commerce  within  the 
State  and  not  to  contravene  the  com- 
merce clause  of  the  Federal  Constitution, 
though  the  enforcement  of  the  statute 
might  in  some  measure  affect  commerce 
generally.  But  this  effect  is  incidental, 
not  direct.  "  Interference  with  the  com- 
mercial power  of  the  general  government 
to  be  unlawful  must  be  direct  and  not 
merely  the  incidental  effect  of  the  en- 
forcement of  the  police  power  of  the 
State."  Louisville  &  N.  Ry.  Co.  v.  Ken- 
tucky, 183  U.  S.  503, 22  Sup.  Ct.  Rep.  95, 
and  cases  cited  in  the  opinion.  The 
statute  construed  in  Louisville  &  N.  Ry. 
Co.  v.  Kentucky,  just  cited,  was  before 
the  Federal  Supreme  Court  again  in  Lou- 
isville &  N.  Ry.  Co.  v.  Eubank,  184  U.  S. 
27,  22  Sup.  Ct.  Rep.  277,  in  which  it  is 
held  that  as  applied  to  inter-state  com- 
merce the  statute  is  invalid.]]  A  State 


CH.  XVI.]  THE   POLICE    POWER   OF  THE   STATES.  857 

under  the  supervision  of  the  local  authority,  and  mischiefs  are  not 
likely  to  spring  therefrom  so  long  as  the  power  to  arrest  collision 
resides  in  the  national  courts,  the  regulations  which  are  made  by 
Congress  do  not  often  exclude  the  establishment  of  others  by  the 
State  covering  very  many  particulars.  Moreover,  the  regulations 
of  commerce  are  usually,  and  in  some  cases  must  be,  general  and 
uniform  for  the  whole  country  ;  while  in  some  localities,  State 
and  local  policy  will  demand  peculiar  regulations  with  reference 
to  special  and  peculiar  circumstances. 

The  State  of  Maryland  passed  an  act  requiring  all  importers  of 
foreign  goods,  by  the  bale  or  package,  &c.,  to  take  out  a  license, 
for  which  they  should  pay  fifty  dollars,  and,  in  case  of  neglect  or 
refusal  to  take  out  such  license,  subjected  them  to  certain  forfeit- 
ures and  penalties.  License  laws  are  of  two  kinds :  those  which 
require  the  payment  of  a  license  fee  by  way  of  raising  a  revenue, 
and  are  therefore  the  exercise  of  the  power  of  taxation  ;  and  those 
which  are  mere  police  regulations,  and  require  the  payment  only 
of  such  license  fee  as  will  cover  the  expense  of  the  license  and  of 
enforcing  the  regulation.1  The  Maryland  act  seems  to  fall  prop- 
erly within  the  former  of  these  classes,  and  it  was  held  void  as  in 
conflict  with  that  provision  of  the  Constitution  which  prohibits  a 
State  from  laying  any  impost,  &c.,  and  also  with  the  clause  which 
declares  that  Congress  shall  have  the  power  to  regulate  com- 
merce. The  reasoning  of  the  court  was  this :  Sale  is  the  object 
of  all  importation  of  goods,  and  the  power  to  allow  importation 
must  therefore  imply  the  power  to  authorize  the  sale  of  the  thing 
imported  ;  that  consequently  a  penalty  inflicted  for  selling  an  ar- 
ticle in  the  character  of  importer  was  in  opposition  to  the  act  of 
Congress,  which  authorized  importation  ;  that  a  power  to  tax  an 
article  in  the  hands  of  the  importer  the  instant  it  was  landed  was 
the  same  in  effect  as  a  power  to  tax  it  whilst  entering  the  port ; 
that  consequently  the  law  of  Maryland  was  obnoxious  to  the 

law   may  require    all    locomotive   engi-  Baldwin,  85  Ala.  619,  6  So.  311.     Sunday 

neers  to  be  examined  and  licensed,  even  trains   may   be   forbidden    by  a    State, 

those  engaged  in  inter-state  transporta-  State  v.  Railroad  Co,  24  W.  Va.  783. 

tion.     Such   a  law   imposes   no   burden  See  also  W.  U.   Tel.  Co.  v.  Mayor,  38 

upon   inter-state  commerce,  and  is  valid  Fed.  Rep.  652.     £A  bridge  spanning  the 

in  the  absence  of  Congressional  regula-  Ohio  river  at  Cincinnati  and  Covington 

tion.     Smith  v.  Alabama,  124  U.  S.  465,  is  an  instrument  of  inter-state  commerce, 

8  Sup.  Ct.  Rep.  564.     The  same  principle  and  neither  Ohio  nor  Kentucky  lias  power 

applies   to   an   act  requiring  an    exam-  to  fix  the  tolls  to  be  demanded  for  passage 

ination  of  railroad  employees  for  color  over  it.     Covington  &  C.  Bridge  Co.  v. 

blindness,  to  be  paid  for  by  the  railroad  Kentucky,  154  U.  S.   204,  14  Sup.   Ct. 

company.     Nashville,  C.  &  St.  L.  Ry.  Co.  Rep.  1087. 

v.  Alabama,  128  U.  S.  96,  9  Sup.   Ct.         l  Ash  v.  People,  11  Mich.  347.    See 

Rep.  28.     Contra,  as  to  payment  by  the  ante,  p.  283.     Also  Dillon,   Mun.    Corp. 

company.     Louisville  &  N.  R.  R.  Co.  v.  §§  291-2U4,  and  notes. 


858 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVI. 


charge  of  unconstitutional  ty,  on  the  ground  of  its  violating  the  two 
provisions  referred  to.1  And  a  State  law  which  required  the 
master  of  every  vessel  engaged  in  foreign  commerce  to  pay  a  cer- 
tain sum  to  a  State  officer,  on  account  of  every  passenger  brought 
from  a  foreign  country  into  the  State,  or  before  landing  any  alien 
passenger,  was  held  void  for  similar  reasons.2  Nor  can  a  State 
forbid  the  conduction  from  it  of  natural  gas  in  pipes.3 

On  the  other  hand,  a  law  of  the  State  of  New  York  was  sus- 
tained which  required,  under  a  penalty,  that  the  master  of  every 
vessel  arriving  from  a  foreign  port  should  report  to  the  mayor  or 
recorder  of  the  city  of  New  York  an  account  of  his  passengers ; 
the  object  being  to  prevent  New  York  from  being  burdened  by  an 
influx  of  persons  brought  thither  in  ships  from  foreign  countries 
and  the  other  States,  and  to  that  end  to  require  a  report  of  the 
names,  places  of  birth,  <fec.,  of  all  passengers,  that  the  necessary 
steps  might  be  taken  by  the  city  authorities  to  prevent  them  from 
becoming  chargeable  as  paupers.4  And  a  State  regulation  of  pilots 
and  pilotage  was  held  unobjectionable,  though  it  was  conceded 
that  Congress  had  full  power  to  make  regulations  on  the  same 
subject,  which,  however,  it  had  not  exercised.6  These  several 


1  Brown  v.  Maryland,  12  Wheat.  419. 
See  Tiernan  v.  Rinker,  102  U.  S.  123,  and 
cases  pp.    688-691,  846,   ante.     A  State 
cannot  enforce  a  penalty  upon  a  telegraph 
company  for  failure  to  deliver  a  message 
sent  from  it  to  another  State.     Western 
U.  Tel.  Co.  v.  Pendleton,  122  U.  S.  347,  7 
Sup.  Ct.  Rep.  1126.    That  a  penalty  may 
he  imposed  upon   one  selling  from  the 
original   package  oleomargarine  colored 
to  deceive,  though  brought  from  another 
State,  such  sale  being  prohibited  by  local 
law,  see  Waterbury  v.  Newton,  60 N.  J.  L. 
634,  14  Atl.  604  ;  QPlumley  v,  Massachu- 
setts, 155  U.  S.  461,  15  Sup.  Ct.  Rep.  154, 
and  see  French  v.  State,  —  Tex.  Cr.  App. 
— ,  68  S.  W.  1015,  52  L.  R.  A.  160 ;  State 
r.  Willingham,  9  Wyo.  290,  62  Pac.  797, 
62  L.  R.  A.  198.] 

2  Passenger  Cases,  7  How.  283 ;  Peo- 
ple v.   Compagnie  Gen.,  107  U.  S.  69,  2 
Sup.  Ct.   Rep.  87 ;  Head   Money  Cases, 
112  U.  S.  680,  5  Sup.  Ct.  Rep.  247.     See 
also  Lin  Sing  r.  Washburn,  20  Cal.  634, 
where  a  State  law  imposing  a  special  tax 
on  every  Chinese  person   over  eighteen 
years  of  age  for  each  month  of  his  resi- 
dence in  the  State  was  held  unconstitu- 
tional, as  in  conflict  with  the  power  of 
Congress    over  commerce.    In  Canada, 


provincial  legislation  on  commerce  is 
void;  the  authority  being  with  the  Do- 
minion Parliament.  Severn  u.  The  Queen, 
2  Sup.  Ct.  Rep.  (Ont.)  70. 

8  State  v.  Indiana  &  0.  G.  &  M.  Co., 
120  Ind.  575,  22  N.  E.  778;  [[Manufac- 
turer's Gas  &  Oil  Co.  v.  Indiana-  Natural 
Gas  &  O.  Co.,  156  Ind.  679,  59  N.  E.  169, 
60  N.  E.  1080,  53  L.  R  A.  134.] 

*  City  of  New  York  v.  Miln,  11  Pet. 
192.  See  also  State  v.  The  Constitution, 
42  Cal.  678.  QBut  an  act  which  requires 
a  carrier  who  brings  into  the  State  a  non- 
resident, who  within  one  year  thereafter 
becomes  a  pauper,  to  remove  him  if  so 
requested  by  the  State  officers,  or  to  pay 
for  his  support,  is  void.  Bangor  v.  Smith, 
83  Me.  422,  22  Atl.  379,  13  L.  R.  A.  686, 
and  note.] 

6  Cooleyv.  Board  of  Wardens,  12  How. 
299.  See  Barnaby  v.  State,  21  Ind.  450; 
Steamship  Co.  v.  Joliffe,  2  Wall.  460; 
Cisco  v.  Roberts,  36  N.  Y.  292 ;  Wilson  v. 
McNamee,  102  U.  S.  572.  As  to  State 
control  of  harbors,  see  Mobile  v.  Kimball, 
102  U.  S.  691.  [Until  Congress  acts  in 
the  matter,  there  is  no  Federal  objection 
to  a  city's  regulation  of  the  speed  of  rail- 
way trains  (even  when  they  are  engaged 
iu  inter-state  commerce)  within  the  city 


CH.  XVI.]  THE    POLICE    POWER   OF   THE    STATES. 


850 


cases,  and  the  elaborate  discussions  with  which  the  decisions  in 
each  were  accompanied,  together  with  the  leading  case  of  Gibbons 
v.  Ogden,1  may  be  almost  said  to  exhaust  the  reasoning  upon  the 
subject,  and  to  leave  little  to  be  done  by  those  who  follow  be- 
yond the  application  of  such  rules  for  classification  as  they  have 
indicated. 

Sunday  Laws.  We  have  elsewhere  referred  to  cases  in  which 
laws  requiring  all  persons  to  refrain  from  their  ordinary  callings 
on  the  first  day  of  the  week  have  been  held  not  to  encroach  upon 
the  religious  liberty  of  those  citizens  who  do  not  observe  that 
day  as  sacred.  Neither  are  they  unconstitutional  as  a  restraint 
upon  trade  and  commerce,  or  because  they  have  the  effect  to  destroy 
the  value  of  a  lease  of  property  to  be  used  on  that  day,  or  to  make 
void  a  contract  for  Sunday  services.2  There  can  no  longer  be  any 
question,  if  any  there  ever  was,  that  such  laws  may  be  supported 
as  regulations  of  police.3 


limits.  Erb.  v.  Morasch,  177  U.  S.  684, 
20  Sup.  Ct.  Rep.  819.  But  a  city  caunot 
levy  a  license  tax  upon  tugs  engaged  in 
towing  vessels  engaged  in  inter-state  com- 
merce. Harmon  v.  Chicago,  147  U.  S. 
306, 13  Sup.  Ct.  306;  and  see  note  to  this 
case  in  37  L.  ed.  U.  S.  216,  upon  State 
control  of  inter-state  commerce.] 

1  9   Wheat.    1.     And   see   Oilman  v. 
Philadelphia,  3  Wall.  713. 

2  Lindenmuller   v.   People,   33   Barb. 
518.     Forbidding  Sunday   transportation 
of  freight  is  not  void  though  incidentally 
affecting  inter-state  traffic.    State  v.  Rail- 
road Co.,  24  W.  Va.  783.     [This  in  the 
absence     of     Congressional    regulation. 
Hennington  v.  Georgia,  163  U.  S.  299,  16 
Sup.  Ct.  Rep.  1086,   aff.  90  Ga.  396,  17 
S.  E.  1009.     See  also  Norfolk  &  W.  R. 
Co.  v.  Com.,  93  Va.  749,  24  S.  E.  837,  34 
L.  R.  A.  105;  Dugan  v.  State,  125  Ind. 
130,  25  N.  E.  171,  9  L.  R.  A.  321.]     And 
see  Ex  parte  Andrews,  18  Cal.  678;  Ex 
parte  Bird,  19  Cal.  130;  ante,  p.  688,  and 
notes. 

3  Specht    v.    Commonwealth,    8   Pa. 
St.   312;    Commonwealth     v.  Jeandelle, 
2  Grant,  506 ;    City  Council  v.  Benjamin, 
2  Strob.  508;  State  v.  Ambs,  20  Mo.  214; 
St.  Louis  v.  Cafferata,  24  Mo.  94 ;  Kurtz 
v.  People,  33  Mich.  279 ;  Vogelesong  v. 
State,   9  Ind.   112;    Schlict   v.  State,  31 
Ind.   246  ;   Foltz  v.   State,  33  Ind.  215; 
Sliover  v.  State,  10  Ark.  259 ;  Bloom  v. 
Richards,  2  Ohio  St.  387  ;  Lindenmuller  v. 
People,  33  Barb.  548;  Ex  parte  Andrews, 


18  Cal.  078;  Ex  parte  Bird,  19  Cal.  ISO; 
Hudson  v.  Geary,  4  R.  I.  485 ;  Frolick- 
stein  vs  Mobile,  40  Ala.  725;  State  v. 
Barker,  18  Vt.  105;  Commonwealth 
v.  Colton,  8  Gray,  488;  Commonwealth 
v.  Hyneman,  101  Mass.  30;  Common- 
wealth r.  Has,  122  Mass.  40;  Augusta, 
&c.  R.  R.  Co.  v.  Renz,  55  Ga.  126  ;  [State 
v.  Hogriever,  152  Ind.  652,  53  N.  E.  921, 
45  L.  R.  A.  504  (prohibiting  playing 
baseball  where  fee  is  charged) ;  State  v. 
Powell,  58  Ohio  St.  324,  50  N .  E.  flOO, 
41  L.  R.  A.  854  (prohibiting  playing  base- 
ball).] The  statutes  forbidding  ordinary 
employments  on  Sunday  make  excep- 
tions for  cases  of  necessity  and  charity. 
The  execution  of  a  will  is  not  "  work, 
labor,  or  business,"  and  therefore  not  for- 
bidden by  the  Sunday  laws.  Bennet  v. 
Brooks,  9  Allen,  118;  George  v.  George, 
47  N.  H.  27.  As  to  what  are  works  of 
necessity  or  charity,  see  Stanton  v.  Metro- 
politan R.  R.  Co.,  14  Allen,  485;  McClary 
v.  Lowell,  44  Vt.  116 ;  Logan  v.  Matthew.*, 
6  Pa.  St.  417;  Connolly  v.  Boston,  117 
Mass.  64,  19  Am.  Rep.  396 ;  Yonoski  v. 
State  (Ind.),  6  Am.  &  Eng.  R.  R.  Cas.  40, 
and  note,  p.  42,  where  the  authorities  are 
collected ;  Commonwealth  v.  Louisville, 
&c.  R.  R.  Co.,  80  Ky.  291 ;  Stone  v. 
Graves,  145  Mass.  353,  13  N.  E.  906; 
Com.  v.  Marzynski,  149  Mass.  68,  21 
N.  E.  228;  Unarericlit  v.  State,  119  Ind. 
319,  21  N.  E.  1082;  Hennersdorf  v.  State, 
25  Tex.  App  597,  8  S.  W.  926;  Nelson 
v.  State,  25  Tex.  App.  599,  8  S.  W.  927 ; 


860 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVI. 


Law  of  the  Road.  The  highways  within  and  through  a  State 
are  constructed  by  the  State  itself,  which  has  full  power  to  pro- 
vide all  proper  regulations  of  police  to  govern  the  action  of  persons 
using  them,  and  to  make  from  time  to  time  such  alterations  in 
these  ways  as  the  proper  authorities  shall  deem  proper.1  A  very 
common  regulation  is  that  parties  meeting  shall  turn  to  the  right ; 
the  propriety  of  which  none  will  question.  So  the  speed  of  travel 
may  be  regulated  with  a  view  to  safe  use  and  general  protection, 
and  to  prevent  a  public  nuisance.2  So  beasts  may  be  prohibited 
from  running  at  large,  under  the  penalty  of  being  seized  and  sold.3 
And  it  has  been  held  competent  under  the  same  power  to  require 
the  owners  of  urban  property  to  construct  and  keep  in  repair  and 
free  from  obstructions  the  sidewalks  in  front  of  it,  and  in  case  of 
their  failure  to  do  so  to  authorize  the  public  authorities  to  do  it  at 
the  expense  of  the  property,4  the  courts  distinguishing  this  from 


Handy  v.  St.  Paul,  &c.  Pub.  Co.,  41  Minn. 
188,  42  N.  W.  872;  Splane  v.  Com.,— 
Pa.  St.  — ,  12  Atl.  431 ;  [Tetit  v.  Minne- 
sota, 177  U.  S.  164,  20  Sup.  Ct.  Rep.  666, 
and  note  on  "  Constitutionality  of  statutes 
making  it  unlawful  for  barbers  to  carry  on 
their  business  on  Sunday,"  in  44  L.  ed. 
U.  S.  716.  See  also  People  v.  Bellet,  99 
Mich.  151,  67  N.  W.  1094,  22  L.  R.  A.  696 ; 
Judefind  v.  State,  78  Md.  610,  28  Atl. 
405,  22  L.  R.  A.  721,  and  note ;  Quarles 
r.  State,  65  Ark.  10,  17  S.  W.  269,  14 
L.  R.  A.  192,  and  note;  Com.  v.  Wald- 
man,  140  Pa.  89,  21  Atl.  248,  11  L.  R.  A. 
663 ;  Ex  parts  Kennedy,  —  Tex.  Cr.  — , 
56  S.  W.  921,  51  L.  R.  A.  270-3 

1  As  to  the  right  to  change  the  grade 
of  a  street  from  time  to  time  without  lia- 
bility to  parties  incidentally  injured,  see 
ante,  p.  295. 

2  Commonwealth  v.  Worcester,  3  Pick. 
462  ;  Commonwealth  v.  Stodder,  2  Cash. 
562 ;  Day  v.  Green,  4  Cush.  433 ;  People 
v.  Jenkins,  1   Hill,  469;  People  v.  Roe, 
1   Hill,  470;    Washington   v.  Nashville, 
1    Swan,  177;  State  v.  Foley,  31  Iowa, 
5'J7 ;  fJState  may  regulate  the  placing  of 
electric   wires  in  streets   and    subways. 
New  York  v.  Squire,   145  U.  S.  175,  12 
Sup.  Ct.  Rep.  880,  aff.  107  N.  Y.  693,  14 
N.  E.  820,  14  Daly,  154,  166J 

8  McKee  v.  McKee,  8  B.  Monr.  433 ; 
Municipality  r.  Blanc,  1  La.  Ann.  385; 
Whitfield  v.  Longest,  6  Tred.  268  ;  Gosse- 
link  v.  Campbell,  4  Iowa,  296;  Roberts  v. 
Ogle,  30  111.  459;  Commonwealth  v.  Cur- 
tis, 9  Allen,  266;  Brophy  v.  Hyatt,  10 


Col.  223,  15  Pac.  399 ;  £Haigh  r  BeU) 
41  W.  Va.  19,  23  S.  E.  666,  31  L.  R.  A. 
131.]  This  applies  to  beasts  of  non-resi- 
dents. Mayor  of  Cartersville  v.  Lanham, 

67  Ga.  753;  Rose  v.  Hardie,  98  N.  C.  44, 
4  S.  E.  41.     The  payment  of  a  fine  by  the 
owner  cannot  be  required  as  a  condition 
of   their  release,  under   general   charter 
power  of  this  kind.     Wilcox  v.  Hamming, 

68  Wis.  144,  15  N.  W.  435. 

4  Godard,  Petitioner,  16  Pick.  604; 
Bonsall  v.  Mayor  of  Lebanon,  19  Ohio, 
418 ;  Paxson  v .  Sweet,  1  Green  (N.  J.),  196 ; 
Lowell  f.  Hadley,  8  Met.  180 ;  Washing- 
ton v.  Mayor,  &c.  of  Nashville,  1  Swan, 
177;  Mayor,  &c.  v.  Maberry,  6  Humph. 
368  ;  Woodbridge  t>.  Detroit,  8  Mich.  274, 
309,  per  Christiancy,  J. ;  Matter  of  Dor- 
ranee  St.,  4  R.  I.  230 ;  Deblois  v.  Barker, 
4  R.  I.  445 ;  Hart  v.  Brooklyn,  36  Barb. 
226 ;  Sands  v.  Richmond,  31  Gratt.  571, 
31  Am.  Rep.  742 ;  Palmer  v.  Way,  6  Col. 
106.  And  see  Macon  v.  Patty,  57  Miss. 
378,  34  Am.  Rep.  451 ;  Smith  v.  Kingston, 
120  Pa.  St.  357,  14  Atl.  170.  In  Minne- 
sota this  right  is  exercised  under  the  tax- 
ing power.  Hennepin  Co.  v,  Bartleson, 
37  Minn.  343,  34  N.  W.  222.  In  Arkan- 
sas the  duty  may  be  enforced  by  a  fine. 
James  v.  Pine  Bluff,  49  Ark.  199,  4  S.  W. 
760.  Compare  Port  Huron  v.  Jenkinson, 
77  Mich.  414,  43  N.  W.  923.  In  Penn- 
sylvania it  has  been  held  competent  to 
require  the  owners  of  city  lots,  in  front 
of  which  sewers  are  constructed,  to  pay 
the  expense  thereof  in  proportion  to  the 
street  front.  Philadelphia  v.  Tryon,  35 


CH.  XVI.] 


THE   POLICE   POWER   OF   THE   STATES. 


861 


taxation,  on  the  ground  of  the  peculiar  interest  which  those  upon 
whom  the  duty  is  imposed  have  in  its  performance,  and  their  pecu- 
liar power  and  ability  to  perform  it  with  the  promptness  which 
the  good  of  the  community  requires.1 

Navigable  Waters.  Navigable  waters  are  also  a  species  of  public 
highway,  and  as  such  come  under  the  control  of  the  States.  The 
term  "  navigable,"  at  the  common  law,  was  only  applied  to  those 
waters  where  the  tide  ebbed  and  flowed,  but  all  streams  which 
were  of  sufficient  capacity  for  useful  navigation,  though  not  called 
navigable,  were  public,  and  subject  to  the  same  general  rights 
which  the  public  exercised  in  highways  by  land.2  In  this  country 
there  has  been  a  very  general  disposition  to  consider  all  streams 
public  which  are  useful  as  channels  for  commerce  wherever  they 
are  found  of  sufficient  capacity  to  float  to  market  the  products  of 
the  mines,  of  the  forests,  or  of  the  tillage  of  the  country  through 
which  they  flow.3  And  if  a  stream  is  of  sufficient  capacity  for  the 
floating  of  rafts  and  logs  in  the  condition  in  which  it  generally  ap- 
pears by  nature,  it  will  be  regarded  as  public,  notwithstanding 
there  may  be  times  when  it  becomes  too  dry  and  shallow  for  the 
purpose.  "  The  capacity  of  a  stream,  which  generally  appears  by 
the  nature,  amount,  importance,  and  necessity  of  the  business 


Pa.  St.  401 ;  Stroud  v.  Philadelphia,  61 
Pa.  St.  255.  And  see  Boston  v.  Shaw, 
1  Met.  130;  Hildreth  v.  Lowell,  11  Gray, 
345;  Cone  v.  Hartford,  28  Conn.  363; 
States.  Jersey  City, 5 Dutch.  441.  [And 
a  street-railway  company  may  be  re- 
quired to  pave  the  street  for  a  reasonable 
width  along  its  tracks,  even  though  the 
power  to  make  such  requirement  was  not 
reserved  when  the  company  was  author- 
ized to  occupy  the  streets  with  its  tracks. 
Sioux  City  St.  R.  Co.  v.  Sioux  City,  138 
U.  S.  98,  11  Sup.  Ct.  Rep.  226;  Storrie 
v.  Houston  City  St.  R.  Co.,  92  Tex.  129, 
46  S.  W.  796,  44  L.  R.  A.  716.  Upon 
liability  of  street-railways  for  paving  as- 
sessments, see  note  to  46  L.  R.  A.  193.] 

1  See  especially  the  case  of  Godard, 
Petitioner,  16  Pick.  504,  for  a  clear  and 
strong  statement  of  the  grounds  on  which 
such  legislation  can  be  supported.  Also 
Dillon,  Mun.  Corp.  §  637;  Cooley  on 
Taxation,  398.  In  Illinois  it  seems  not 
to  be  competent  to  compel  the  building 
of  sidewalks  or  the  keeping  of  them  free 
of  snow  by  the  owners  of  abutting  lots 
under  the  police  power.  Ottawa  v.  Spen- 
cer, 40  111.  211 ;  Gridley  v.  Bloomington, 
88  111.  554,  30  Am.  Rep.  566.  [Likewise 


in  New  Hampshire.  State  v.  Jackman, 
69  N.  H.  318,  41  All.  347,  42  L.  R.  A, 
438.] 

2  Lorman  v.  Benson,  8  Mich.  18  ;  Mor- 
gan v.  King,  18  Barb.  277. 

8  Brown  v.  Cliadbourne,  31  Me.  9; 
Knnx  i-'.  Clialoner,  42  Me.  150;  Lancey  v. 
Clifford,  54  Me.  487 ;  Gerrish  v.  Brown, 
51  Me.  256  ;  Scott  v.  Willson,  3  N.  H.  321 ; 
Shaw  r.  Crawford,  10  Johns.  236 ;  Mun- 
son  v.  Hungerford,  6  Barb.  265;  Browne 
v.  Scofield,  8  Barb.  239 ;  Morgan  v.  King, 
18  Barb.  284,  30  Barb.  9,  and  35  N.  Y. 
454;  Cates  r.  Wadlington,  1  McCord,  580; 
Commonwealth  v.  Cliapin,  5  Pick.  199  ; 
Moore  v.  Sanborne,  2  Mich.  519;  Lorman 
v.  Benson,  8  Mich.  18 ;  Depew  v.  Board 
of  Commissioners,  &c.,  5  Ind.  8 ;  Board  of 
Commissioners  v.  Pidge,  5  Ind.  13 ;  Stuart 
r.  Clark,  2  Swan,  9;  Elder  v.  Barnes,  6 
Humph.  3">8;  Dalrymple  v.  Mead,  1 
Grant's  Cases,  197 ;  Commissioners  of 
Homochitto  River  v.  Withers,  29  Miss. 
21 ;  Rhodes  v.  Otis,  33  Ala.  578 ;  Walker 
v.  Allen,  72  Ala.  456;  Little  Rock,  M. 
&c.  Ry.  Co.  v.  Brooks,  39  Ark.  403 ;  Mc- 
Manus  v.  Carmichael,  3  Iowa,  1  ;  Weise 
v.  Smith,  3  Oreg.  445,  8  Am.  Rep.  621. 


862  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVI. 

done  upon  it,  must  be  the  criterion.  A  brook,  although  it  might 
carry  down  saw-logs  for  a  few  days,  during  a  freshet,  is  not  there- 
fore a  public  highway.  But  a  stream  upon  which  and  its  tribu- 
taries saw-logs  to  an  unlimited  amount  can  be  floated  every  spring, 
and  for  the  period  of  from  four  to  eight  weeks,  and  for  the  distance 
of  one  hundred  and  fifty  miles,  and  upon  which  unquestionably 
many  thousands  will  be  annually  transported  for  many  years  to 
come,  if  it  be  legal  so  to  do,  has  the  character  of  a  public  stream 
for  that  purpose.  So  far  the  purpose  is  useful  for  trade  and  com- 
merce, and  to  the  interests  of  the  community.  The  floating  of 
logs  is  not  mentioned  by  Lord  Hale  [in  De  Jure  Maris],  and  prob- 
ably no  river  in  Great  Britain  was,  in  his  day,  or  ever  will  be,  put 
to  that  use.  But  here  it  is  common,  necessary,  and  profitable, 
especially  while  the  country  is  new ;  and  if  it  be  considered  a  law- 
ful mode  of  using  the  river,  it  is  easy  to  adapt  well-settled  prin- 
ciples of  law  to  the  case.  And  they  are  not  the  less  applicable 
because  this  particular  business  may  not  always  continue  ;  though 
if  it  can  of  necessity  last  but  a  short  time,  and  the  river  can  be 
used  for  no  other  purpose,  that  circumstance  would  have  weight 
in  the  consideration  of  the  question.  " 1  But  if  the  stream  was 
not  thus  useful  in  its  natural  condition,  but  has  been  rendered 
susceptible  of  use  by  the  labors  of  the  owner  of  the  soil,  the  right 
of  passage  will  be  in  the  nature  of  a  private  way,  and  the  public 
do  not  acquire  a  right  to  the  benefit  of  the  owner's  labor,  unless 
he  sees  fit  to  dedicate  it  to  their  use.2 

All  navigable  waters  are  for  the  use  of  all  the  citizens ;  and 
there  cannot  lawfully  be  any  exclusive  private  appropriation  of 
any  portion  of  them.3  The  question  what  is  a  navigable  stream 

1  Morgan  v.  King,  18  Barb.  288 ;  Moore  to  the  requirements  of  a  State  statute 

v.  Sanborne,  2  Mich.  519 ;  Brown  v.  Chad-  authorizing  log  booms,  and  is  thus  exempt 

bourne,  31  Me.  9;  Treat  v.  Lord,  42  Me.  from  the  general  prohibition  of  obstruc- 

652;  Weise  v.  Smith,  3  Oreg.  445,  8  Am.  tions   "not   affirmatively   authorized   by 

Rep.  621 ;  Bucki  v.  Cone,  25  Fla.  1,  6  So.  law,"  as  contained  in  the  river  and  harbor 

160;   Gaston  v.  Mace,  33  W.  Va.  14,  10  act  of  1890.  is  a  Federal  question.     United 

S.  E.  60.     Compare  Hubbard  v.  Bell,  54  States  »>.  Bellingham  Bay  Boom  Co.,  176 

HI.  110;  Haines  v.  Hall,  17  Oreg.  165,  20  U.  S.  211,  20  Sup.  Ct.  Rep.  343.     Upon 

Pac.  831.     QThat  a   State   may   create  obstruction  of  navigable  streams  by  log 

boom  companies,  authorize  them  to  im-  booms,  see  note  attached  to  this  case  in 

prove  waterways   and  to  take   tolls  for  44  L.  ed.  U.  S.  437.] 

floating   logs    through   them   in   booms,  2  Wads  worth's  Adm'rv.  Smith,  11  Me. 

even  though  such  regulations  indirectly  278 ;  Ward  v.  Warner,  8  Mich.  508. 

affect  inter-state  commerce  (there  being  8  Commonwealth    v.    Charlestown,    1 

no  Congressional  regulations  hereon),  and  Pick.  180;  Kean  v.  Stetson,  5  Pick.  492  ; 

compel  such  companies  to  submit  to  offi-  Arnold  v.  Mundy,  6  N.  J.  1 ;  Bird  v.  Smith, 

cial  inspection  of  their  booms  and  to  pay  8  Watts,  434.     One  cannot  acquire  a  pre- 

for  such  inspection,  see  Lindsay  &  P.  Co.  scriptive  right  to  impede  floatage.     Col- 

v.  Mullen,  176  U.  S.  126,  20  Sup.  Ct.  Rep.  lins  v.  Howard,  65  N.  H.  190,  18  Atl.  794. 

325.    Whether  a  log  boom  corresponds  They  are  equally  for  the  use  of  the  pub- 


CH.  XVI.]  THE  POLICE   POWER   OF  THE   STATES.  863 

would  seem  to  be  a  mixed  question  of  law  and  fact;1  and  though 
it  is  said  that  the  legislature  of  the  State  may  determine  whether 
a  stream  shall  be  considered  a  public  highway  or  not,2  yet  if  in  fact 
it  is  not  one,  the  legislature  cannot  make  it  so  by  simple  declara- 
tion, since,  if  it  is  private  property,  the  legislature  cannot  appro- 
priate it  to  a  public  use  without  providing  for  compensation.3 

The  general  right  to  control  and  regulate  the  public  use  of 
navigable  waters  is  unquestionably  in  the  State;  but  there  are 
certain  restrictions  upon  this  right  growing  out  of  the  power  of 
Congress  over  commerce.  Congress  is  empowered  to  regulate 
commerce  with  foreign  nations  and  among  the  several  States ; 
and  wherever  a  river  forms  a  highway  upon  which  commerce  is 
conducted  with  foreign  nations  or  between  States,  it  must  fall  under 
the  control  of  Congress,  under  this  power  over  commerce. (a) 
The  circumstance,  however,  that  a  stream  is  navigable,  and  capable 
of  being  used  for  foreign  or  inter-state  commerce,  does  not  exclude 
regulation  by  the  State,  if  in  fact  Congress  has  not  exercised  its 
power  in  regard  to  it ; 4  or  having  exercised  it,  the  State  law  does 

lie  in  the  winter  when  covered  with  ice;  2  Glover  v.  Powell,  10  N.  J.  Eq  211  ; 

and  one  who  cuts  a  hole  in  the  ice  in  an  American  River  Water  Co.  v.  Amsden, 

accustomed  way,  by  means  of  which  one  6  Cal.  443;  Baker  v.  Lewis,   83  Pa.  St. 

passing  upon  the  ice  is  injured,  has  been  801. 

held  liable  to  an  action  for  the  injury.  8  Morgan   v.   King,  18  Barb.  284,  35 

French  v.  Camp,  18  Me.  433.     But  this  N.  Y.  454. 

rule  is  now  modified,  at  least  as  to  the  *  Willson  v.  Black  Bird  Creek  Marsh 
Penobscot  at  Bangor,  upon  the  ground  Co.,  2  Pet.  245.  In  this  case  it  was  held 
that  the  right  of  ice  harvesting  is  at  such  that  a  State  law  permitting  a  creek  navi- 
a  place  superior  to  that  of  travel.  Wood-  gable  from  the  sea  to  be  dammed  so  as  to 
man  v.  Pitman,  79  Me.  456,  10  Atl.  321.  exclude  vessels  altogether,  was  not  op- 
An  obstruction  to  a  navigable  stream  is  posed  to  the  Constitution  of  the  United 
a  nuisance  which  any  one  having  occa-  States,  there  being  no  legislation  by  Con- 
sion  to  use  it  may  abate.  Inhabitants  of  gross  with  which  it  would  come  in  con- 
Arundel  v.  McCulloch,  10  Mass.  70 ;  State  flict.  And  see  Wheeling  Bridge  Case,  13 
v.  Moffett,  1  Greene  (Iowa),  247;  Selman  How.  518,  and  18  How.  421.  By  the  or- 
v.  Wolfe,  27  Tex.  68;  Larson  v.  Furlong,  dinance  of  1787  and  the  enabling  acts 
63  Wis.  323,  23  N.  W.  584.  passed  at  the  admission  of  several  States, 
1  See  Treat  v.  Lord,  42  Me.  552 ;  Weise  it  was  provided  that  navigable  waters 
v.  Smith,  3  Oreg.  445,  8  Am.  Rep.  621;  within  them  should  be  "common  high- 
Olive  v.  State,  86  Ala.  88,  6  So.  653.  ways  and  forever  free."  This  has  been 

(a)  [^Permission  granted  by  Congress  to  use  waters  for  irrigation  of  arid  lands  and 
in  aid  of  mining  industry,  does  not  include  right  to  use  waters  above  point  of  navi- 
gability to  such  an  extent  as  seriously  to  interfere  with  navigability  below  that  point. 
United  States  v.  Rio  Grande  Dam  &  I.  Co.,  174  U.  S.  690,  19  Sup.  Ct.  Rep.  770,  rev. 
9  N.  M.  292,  51  Pac.  674.  But  subject  to  such  qualification,  the  rights  of  riparian 
owners  are  determined  by  the  State  law.  St.  Anthony  Falls  Water  Power  Co.  v.  Bd. 
of  Water  Comm'rs,  168  U.  S.  349,  18  Sup.  Ct.  Rep"  157.  Where  the  waters  are 
capable  of  navigation  only  between  points  within  the  State,  the  State  control  is  com- 
plete. Com.  v.  King,  150  Mass.  221,  22  N.  E.  905,  5  L.  R.  A.  536.  State  may  compel 
construction  of  fishways  in  dams.  State  v.  Meek,  112  Iowa,  338,  84  N.  W.  3,  51 
L.  R.  A.  414.] 


864 


CONSTITUTIONAL   LIMITATIONS. 


[cir.  xvi. 


not  come  in  conflict  with  the  congressional  regulations,  or  inter- 
fere with  the  rights  which  are  permitted  by  them. 

The  decisions  of  the  federal  judiciary  in  regard  to  navigable 
waters  seem  to  have  settled  the  following  points :  — 

1.  That  no  State  can  grant  an  exclusive  monopoly  for  the  navi- 
gation of  any  portion  of  the  waters  within  its  limits  upon  which 
commerce  is  carried  on  under  coasting  licenses  granted  under  the 
authority  of  Congress,1  since  such  a  grant  would  come  directly  in 
conflict  with  the  power  which  Congress  has  exercised.  But  a 
State  law  granting  to  an  individual  an  exclusive  right  to  navigate 
the  upper  waters  of  a  river,  lying  wholly  within  the  limits  of  the 
State,  separated  from  tide  water  by  falls  impassable  for  purposes 
of  navigation,  and  not  forming  a  part  of  any  continuous  track  of 
commerce  between  two  or  more  States,  or  with  a  foreign  country, 
does  not  come  within  the  reason  of  this  decision,  and  cannot  be 
declared  void  as  opposed  to  the  Constitution  of  the  United 
States.2 


repeatedly  held  to  refer  not  to  physical 
obstructions  but  to  the  imposition  of  du- 
ties for  the  right  to  navigate  them,  that 
is,  to  political  regulations  hampering  the 
freedom  of  commerce.  Cardwell  v.  Ainer. 
Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct. 
Rep.  423 ;  Hamilton  v.  Vicksburg,  &c. 
R.  R.  Co.,  119  U.  S.  280,  7  Sup.  Ct.  Rep. 
206;  Huse  v.  Glover,  119  U.  S.  543,  7  Sup. 
Ct.  Rep.  313 ;  Sands  v.  Manistee  R.  Imp. 
Co.,  123  U.  S.  288,  8  Sup.  Ct.  Rep.  113; 
Willamette  Iron  B.  Co.  v.  Hatch,  125 
U.  S.  1,  8  Sup.  Ct.  Rep.  811.  In  the  last 
case,  Bradley,  J.,  says :  "  The  clause  in 
question  cannot  be  regarded  as  establish- 
ing the  police  power  of  the  United  States 
over  the  rivers  of  Oregon,  or  as  giving  to 
the  federal  courts  the  right  to  hear  and 
determine,  according  to  federal  law, 
every  complaint  that  may  be  made  of  an 
impediment  in,  or  an  encroachment  upon, 
the  navigation  of  those  rivers.  We  do 
not  doubt  that  Congress,  if  it  saw  fit, 
could  thus  assume  the  care  of  said 
streams,  in  the  interest  of  foreign  and 
inter-state  commerce;  we  only  say  that, 
in  our  opinion,  it  has  not  done  so  by  the 
clause  in  question.  And  although,  until 
Congress  acts,  the  States  have  the  plen- 
ary power  supposed,  yet  when  Congress 
chooses  to  act,  it  is  not  concluded  by  any- 
thing that  the  States  have  done  from  as- 
suming entire  control  of  the  matter,  and 
abating  any  erections  that  may  have 
been  made,  and  preventing  any  others 


from  being  made  except  in  conformity 
with  such  regulations  as  it  may  impose." 
[[States  may  improve  the  navigability  of 
waters  accessible  to  inter-state  commerce 
in  the  absence  of  repugnant  Congres- 
sional legislation.  Stockton  v.  Powell, 
29  Fla.  1,  10  So.  688,  16  L.  R.  A.  42.] 

1  Gibbons  v.  Ogden,  9  Wheat.  1.     The 
case  was  the  well-known  historical  one, 
involving  the  validity  of  the  grant  by  the 
State  of  New  York  to  Robert  Fulton  and 
his  associates  of  the  exclusive  right  to 
navigate  the  waters  of  that   State  with 
vessels  propelled  by  steam.     This  subject 
is  further  considered  in  Gilman  v.  Phila- 
delphia, 3  Wall.  713;  and  in  The  Daniel 
Ball,  10  Wall.  657,  in  which  the  meaning 
of  the  term   "navigable   waters   of  the 
United    States "    is    defined.     And    see 
Craig  v.  Kline,  65  Pa.  St.  399,  3  Am.  Rep. 
636. 

2  Veazie  v.  Moor,  14  How.  568.     The 
exclusive  right  granted  in  this  case  was 
to  the  navigation  of  the  Penobscot  River 
above  Old  Town,  which  was  to  continue 
for  twenty  years,  in  consideration  of  im- 
provements in  the  navigation  to  be  made 
by  the  grantees.     Below  Old  Town  there 
were  a  fall  and  several  dams  on  the  river, 
rendering  navigation  from  the  sea  impos- 
sible.    And    see    McReynolds   v.  Small- 
house,  8  Bush,  447.    It  is  no  infraction 
of  the  public  right  for  a  city  to  permit 
individuals  to  put  up  sheds  upon  its  piers, 
thereby  excluding  the  general  public,  in 


CH.  XVI.]  THE    POLICE    POWER   OF   THE   STATES.  865 

2.  The    States   have   the   same   power   to   improve   navigable 
waters   which   they   possess  over  other  highways;1   and  where 
money  has  been  expended  in  making  such  improvement,  it  is 
competent  for  the  State  to  impose  tolls  on  the  commerce  which 
passes  through  and  has   the    benefit  of  the  improvement,  even 
where  the  stream  is  one  over  which  the  regulations  of  commerce 
extend. 2 

3.  The  States  may  authorize  the  construction  of  bridges  over 
navigable  waters,  for  railroads  as  well  as  for  every  other  species 
of  highway,  notwithstanding  they  may  to  some  extent  interfere 
with  the  right  of  navigation.3     If  the  stream  is  not  one  which  is 
subject  to  the  control  of  Congress,  the  State  law  permitting  the 
erection  cannot  be  questioned  on  any  ground  of  public  inconven- 
ience.    The   legislature    must  always  have    power  to  determine 
what  public  ways  are  needed,  and  to  what  extent  the  accommoda- 
tion of  travel  over  one  way  must  yield  to  the  greater  necessity 
for  another.     But  if  the  stream  is  one  over  which  the  regulations 
of  Congress  extend,  the  question  is  somewhat  complicated,  and 
it  becomes  necessary  to  consider  whether  such  bridge  will  inter- 
fere with  the  regulations  or  not.     But  the  bridge  is  not  neces- 
sarily   unlawful,   because    of    constituting,   to    some   degree,   an 
obstruction  to  commerce,  if  it  is  properly  built,  and  upon  a  proper 
plan,  and  if  the  general  traffic  of  the  country  will  be  aided  rather 

furtherance    of    commerce.      People    v.  Canal,  5  Ind.  8 ;    Dover  v.  Portsmouth 

Baltimore,  &c.  R.  R.  Co.,  117  N.  Y.  150,  Bridge,  17  N.  H.  200;  Illinois,  &c.  Co.  v. 

22  N.  E.  1026.  Peoria   Bridge,  38  111.  467.     Under  the 

1  The  improvement  of  a  stream   by  Wisconsin  Constitution  a  stream  wholly 
State  authority  will  give  no  right  of  ac-  within  the  State  may  not  be  completely 
tion  to  an  individual  incidentally  injured  obstructed:  Sweeney  v.  Chicago,  &c.  Ry. 
by    the    improvement.     Zimmerman    v.  Co.,  60  Wis.  HO,  18  N.  W.  756 ;  but  one 
Union  Canal  Co.,  1  W.  &  S.   346.     See  between  it  and  Minnesota  may  be  tempo- 
Thunder  Bay,  &c.  Co.  v.  Speechley,  31  rarily,  by  authority  of  the  latter  State. 
Mich.  336.  Keator  L.  Co.  v.  St.  Croix  B.  Corp.,  72 

2  Huse  v.  Glover,  119U.  S.  543,  7  Sup.  Wis.  62,  38  N.  W.  529.     [And  a  State 
Ct.  Rep.  313;    Sands  v.  Manistee  River  may    declare   a  bridge   which   obstructs 
Imp.  Co.,  123  U.  S.  288,  8  Sup.  Ct.  Rep.  navigation  upon  a  river  wholly  within  the 
113;  Palmer  v.  Cuyahoga  Co.,  3  McLean,  State  a  nuisance,  and  order  its  removal 
226 ;  Kellogg  v.  Union  Co.,  12  Conn.  7  ;  or  modification,  although  the  approval  of 
Thames  Bank  v.  Lovell,  18  Conn.  500;  the   Secretary   of  War  may  have  been 
McReynolds  v.  Smallhouse,  8  Bush,  447 ;  given,  under  authority  of  act  of  Congress, 
Illinois,  &c.  Co.  v.  Peoria  Bridge,  38  111.  for  the  erection   of   the    bridge.     Lake 
467 ;    Benjamin  v.  Manistee,  &c.  Co.,  42  Shore  &  M.  S.  R.  Co.  v.  Ohio,  165  U.  8. 
Mich.  628,  4  N.  W.  483 ;  Nelson  v.  Che-  365,  17  Sup.  Ct.  Rep.  357.    But  a  State 
boygan  Nav.   Co.,  44   Mich.  7,  5  N.  W.  has  no  power  to  regulate  tolls  upon  a 
998,  38  Am.  Rep.  222;  Morris  v.  State,  bridge   used   solely  for  inter-state  com- 
62  Tex.  728;   Com'rs   Sinking  Fund  v.  merce.     Covington   &  C.  Bridge  Co.  v. 
Green,  &c.  Nav.  Co.,  79  Ky.  73.  Kentucky,  154  U.  S.  204,  14   Sup.   Ct 

8  See  Commonwealth  v.  Breed,  4  Pick.     Rep.  1087.] 
460;  Depew  v.  Trustees  of  W.  and  E. 

55 


866  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

than  impeded  by  its  construction.  There  are  many  cases  where 
a  bridge  over  a  river  may  be  vastly  more  important  than  the 
navigation ;  and  there  are  other  cases  where,  although  the  traffic 
upon  the  river  is  important,  yet  an  inconvenience  caused  by  a 
bridge  with  draws  would  bo  much  less  seriously  felt  by  the  public, 
and  be  a  much  lighter  burden  upon  trade  and  travel,  than  a  break 
in  a  line  of  railroad  communications  necessitating  the  employment 
of  a  ferry.  In  general  terms  it  may  be  said  that  the  State  may 
authorize  such  constructions,  provided  they  do  not  constitute 
material  obstructions  to  navigation ;  but  whether  they  are  to  be 
regarded  as  material  obstructions  or  not  is  to  be  determined  in 
each  case  upon  its  own  circumstances.  The  character  of  the 
structure,  the  facility  afforded  for  vessels  to  pass  it,  the  relative 
amount  of  traffic  likely  to  be  done  upon  the  stream  and  over  the 
bridge,  and  whether  the  traffic  by  rail  would  be  likely  to  be  more 
incommoded  by  the  want  of  the  bridge  than  the  traffic  by  water 
with  it,  are  all  circumstances  to  be  taken  into  account  in  deter- 
mining this  question.  It  is  quite  evident  that  a  structure  might 
constitute  a  material  obstruction  on  the  Ohio  or  the  Mississippi, 
where  vessels  are  constantly  passing,  which  would  be  unobjection- 
able on  a  stream  which  a  boat  only  enters  at  intervals  of  weeks 
or  months.  The  decision  of  the  State  legislature  that  the  erec- 
tion is  not  an  obstruction  is  not  conclusive;  but  the  final  deter- 
mination will  rest  with  the  federal  courts,  who  have  jurisdiction 
to  cause  the  structure  to  be  abated,  if  it  be  found  to  obstruct 
unnecessarily  the  traffic  upon  the  water.  Parties  constructing 
the  bridge  must  be  prepared  to  show,  not  only  the  State  authority 
and  that  the  plan  and  construction  are  proper,  but  also  that  it 
accommodates  more  than  it  impedes  the  general  commerce.1 

1  See  this  subject  fully  considered  in  inter-state    commerce    and   such    use   is 

the  Wheeling  Bridge  Case,  13  How.  518.  thereby  materially  obstructed.     Cardwell 

See    al<D    Columbus    Insurance    Co.    v.  v.  Amer.  Bridge  Co.,  113  U.  S.  205,  5  Sup. 

Peoria  Bridge  Co.,  6  McLean,  70 ;  Same  Ct.   Rep.  423;    Hamilton  v.   Vicksburg, 

v.   Curtenius,   6   McLean,  209;  Jolly  v.  &e.  R.  R.  Co.,  119  U.  S.  280,  7  Sup.  Ct. 

Terre  Haute  Drawbridge  Co.,  6  McLean,  Rep.  206 ;  Escanaba  Co.  v.  Chicago,  107  . 

237  ;     United    States    v.    New    Bedford  U.  S.  678,  2  Sup.  Ct.  Rep.  185 ;  Willam- 

Bridge,  1  W.  &  M.  401 ;  Commissioners  ette  Iron  B.  Co.  v.  Hatch,  125  U.  S.  1, 

of  St.  Joseph  Co.  v.  Pidge,  5  Lid.  13.  8  Sup.  Ct.  Rep.  811.     In  this  hist  case, 

It  is,  perhaps,  doubtful  in  view  of  late  a  quotation   from   which    is   on   p.   854, 

decisions  of  the  same  court  whether  the  supra,  though   the  decision  is   carefully 

Wheeling  Bridge    Case,    involving    the  limited  to   the  case  involved,  —  a  river 

Ohio  River,  is  to  be  given  as  broad   an  wholly  within  the  State  of  Oregon,  but 

effect  as  has  sometimes  been  supposed,  leading  to  a  port  of  entry,  —  the  ruling 

It   has   several  times   since  its  decision  in  the   Wheeling    Bridge   Case    is  also 

been  held  that,  in  the  absence  of  federal  closely  limited  to  the  facts  arising  in  it, 

regulation,  a  bridge  may  be  built  under  and   the  case   at   bar   distinguished.     In 

State   authority   across    a    river   wholly  the  Wheeling  case,  it  is  said  the  court 

within  it,  though  it  be  capable  of  use  in  applied  principles   of  international  law, 


CH.  XVI.] 


THE   POLICE   POWER   OF   THE    STATES. 


867 


4.  The    States   may  lawfully  establish  ferries  over   navigable 
waters,  and  grant  licenses  for  keeping  the  same,  and  forbid  un- 
licensed  persons  from    running   boats    or   ferries    without   such 
license.     This  also  is  only  the  establishment  of  a  public  way,  and 
it  can  make  no  difference  whether  or  not  the  water  is  entirely 
within  the  State,  or,  on  the  other  hand,  is  a  highway  for  inter-state 
or  foreign  commerce.1 

5.  The  States  may  also  authorize  the  constructions  of   dams 
across  navigable  waters ;  and  where  no  question  of  federal  au- 
thority is  involved,  the  legislative  permission  to  erect  a  dam  will 
exempt  the  structure  from  being  considered  a  nuisance,2  and  it 
would  seem  also,  that  it  must  exempt  the  party  constructing  it 
from  liability  to  any  private  action  for  injury  to  navigation,  so 
long  as  he  keeps  within  the  authority  granted,  and  is  guilty  of  no 
negligence.3 

6.  To  the  foregoing  it  may  be  added  that  the  State  has  the 
same  power  of  regulating  the  speed  and  general  conduct  of  ships 
or  other  vessels  navigating  its   water  highways,  that  it  has  to 
regulate  the  speed  and  conduct  of  persons  and  vehicles  upon  the 
ordinary  highway  ;    subject   always   to   the    restriction    that   its 


And  passed  on  the  force  of  a  pre-constitu- 
tional  compact  of  Virginia,  and  from  the 
decision  no  inference  is  to  be  drawn  that 
the  courts  of  the  United  States  claim 
authority  to  regulate  all  bridges  below 
ports  of  entry,  and  to  treat  all  State 
legislation  in  such  cases  as  void. 

1  Conway  v.  Taylor's  Ex'r,  1  Black, 
603  ;  Wiggins  Ferry  Co.  v.  East  St.  Louis, 
107  U.  S.  365,  2  Sup.  Ct.  Rep.  257 ;  Chil- 
vers  v.  People,  11  Mich.  43;  Marshall  v. 
Grimes,  41  Miss.  27 ;  QNixon  v.  Reid, 
8  S.  D.  507,  67  N.  W.  57,  32  L.  R.  A. 
315.]  In  these  cases  the  State  license 
law  was  sustained  as  against  a  vessel  en- 
rolled and  licensed  under  the  laws  of 
Congress.  And  see  Fanning  v.  Gregorie, 
16  How.  524.  But  the  State  may  not  tax 
the  capital  stock  of  a  ferry  company  of 
another  State,  whose  only  business 
within  the  former  State  is  discharging 
and  receiving  persons  and  property  pass- 
ing between  the  States.  Gloucester 
Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196, 
5  Sup.  Ct.  Rep.  826.  Under  a  power  to 
amend  the  charter  of  a  ferry  company, 
the  legislature  may  regulate  the  tolls 
chargeable  by  it.  Parker  v.  Metropoli- 
tan, &<:.  R.  R.  Co.,  109  Mass.  506.  [But 
not  the  tolls  chargeable  on  inter-state  com- 


merce. See  Covington  &  C.  Bridge  Co. 
v.  Kentucky,  154  U.  S.  204,  14  Sup.  Ct. 
Rep.  1087. j  Ferry  rights  may  be  so  reg- 
ulated as  to  rates  of  ferriage,  and  ferry 
franchises  and  privileges  so  controlled  in 
the  hands  of  grantees  and  lessees,  that 
they  shall  not  be  abused  to  the  serious 
detriment  or  inconvenience  of  the  public. 
Where  this  power  is  given  to  a  munici- 
pality, it  may  be  recalled  at  any  time. 
People  v.  Mayor,  &c.  of  New  York,  32 
Barb.  102. 

a  Willson  v.  Black  Bird  Creek  Marsh 
Co.,  2  Pet.  245  ;  Brown  v.  Commonwealth, 
3  S.  &  R.  273  ;  Bacon  v.  Arthur,  4  Watts, 
437  ;  Hogg  o.  Zanesville  Co.,  5  Ohio,  410  ; 
Neaderhouser  v.  State,  28  Ind.  257.  And 
see  Flanagan  v.  Philadelphia,  42  Pa.  St. 
219;  Depew  r.  Trustees  of  W.  &  3. 
Canal,  6  Ind.  8  ;  Woodburn  v.  Kilbourne 
Manuf.  Co.,  1  Bissell,  546,  1  Abb.  U.  S. 
158;  Hinchman  v.  Patterson,  &c.  R.  R.,  17 
N.  J.  Eq.  75 ;  Stoughton  v.  State,  5  Wis. 
291. 

8  See  Bailey  v.  Philadelphia,  &c.  R.  R. 
Co.,  4  Harr.  380;  Roush  v.  Walter,  10 
Watts,  86;  Parker  v.  Cutler  Mill  Dam 
Co.,  21  Me.  353 ;  Zimmerman  v.  Union 
Canal  Co.,  1  W.  &  S.  346;  Depew  v. 
Trustees  of  W.  &  E.  Canal,  6  Ind.  8. 


868  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

regulations  must  not  come  in  conflict  with  any  regulations  es- 
tablished by  Congress  for  foreign  commerce  or  that  between  the 
States.1 

Levees  and  Drains.  Where,'  under  legislative  authority,  the 
construction  of  levees  and  embankments  is  required,  to  protect 
from  overflow  and  destruction  considerable  tracts  of  country, 
assessments  are  commonly  levied  for  the  purpose  on  the  owners 
of  lands  lying  on  or  near  the  streams  or  bodies  of  water  from 
which  the  danger  is  anticipated.  But  if  the  construction  should 
be  imposed  as  a  duty  upon  residents  or  property  owners  in  the 
neighborhood,  so  that  they  should  be  compelled  to  turn  out  peri- 
odically or  in  emergencies,  and  give  personal  attention  and  labor 
to  the  construction  of  the  necessary  defences  against  overflow  and 
inundation,  it  is  not  perceived  that  there  could  be  any  difficulty  in 
supporting  such  a  regulation  as  one  of  police,  or  of  resting  it  upon 
the  same  foundations  which  sustain  the  regulations  in  cities,  by 
which  duties  are  imposed  on  the  occupants  of  buildings  to  take 
certain  precautions  against  fires,  not  for  their  own  protection  ex- 
clusively, but  for  the  protection  of  the  general  public.2  Laws  im- 
posing on  the  owners  the  duty  of  draining  large  tracts  of  land  which 
in  their  natural  condition  are  unproductive,  and  are  a  source  of 
danger  to  health,  may  be  enacted  under  the  same  power,3  though 
in  general  the  taxing  power  is  employed  for  the  purpose ; 4  and 
sometimes  land  is  appropriated  under  the  eminent  domain.5 

1  People  v.  Jenkins,  1  Hill,  469  ;  Peo-  land,  114  U.  S.  606,  5  Sup.  Ct.  Rep.  1086. 
pie  v.  Roe,  1  Hill,  470.     As  to  the  right  The  taking  of  property  for  drainage  pur- 
of  regulation  in  general,  see  Harrigan  v.  poses  is  in  the  exercise  of  this  power. 
Lumber  Co.,  129  Mass.  580,  37  Am.  Rep.  Winslow  ?;.  Winslow,  95  N.  C.  24.   Under 
387.     As  to  the  right  to  regulate  fisheries  it  the  cost  of  such  an  improvement  made 
in  navigable  waters,  see  Gentile  v.  State,  by  the  public  authorities  may  be  imposed 
29  Ind.  409 ;  Phipps  v.  State,  22  Md.  380 ;  upon  the  property  benefited  according  to 
People  v.  Reed,  47  Barb.  235;  Drew  v.  benefits.      Bryant    v.    Robbins,   70  Wis. 
Hilliker,  56  Vt.  641 ;  Chambers  v.  Church,  258,  35  N.  W.  545;  Donnelly  v.  Decker, 
14  R.  I.  398.         .  58  Wis.  461,  17  N.  W.  389.    It  is  com- 

2  Cooley  on  Taxation,  401,  402.     See  petent  to  require  a  lot-owner  to  fill  up  at 
State  v.  Newark,  27  N.  J.  185,  194,  per  his  own  expense  a  lot  which   otherwise 
Elmer,  J. ;  Crowley  v.  Copley,  2  La.  Ann.  would  become  a  nuisance.     Nickerson  v. 
329.    In  Pennsylvania  it  has  been   held  Boston,  131  Mass.  306. 

that  the  State  cannot,  as  a  measure  of  *  Reeves  v.  Treasurer  of  Wood  Co.,  8 

police,  compel  the  owner  of  lands  bounded  Ohio  St.  333;  Sessions  v.  Crunkilton,  20 

on  inland  tide-water  to  construct  embank-  Ohio  St.    349;    Egyptian   Levee   Co.   v. 

ments  to  exclude  the  natural  flow  of  the  Hardin,  27  Mo.  495;  McGehee  v.  Matin's, 

water,  but  that  where  the  State  constructs  21  Ark.  40  ;  Yeatman  ».  Crandall,  11  La. 

them  at  its  own  expense,  and  leaves  them  Ann.  220;  ScufHetown  Fence  Co.  v.  Mc- 

in  possession  of  the  owner,  it  may  impose  Allister,  12  Bush,  312  ;  Davidson  v.  New 

on  him  the  duty  of  repair.     Philadelphia  Orleans,  96  U.  S.  97. 

v.  Scott,  81  Pa.  St.  80.  5  Commissioners  who  are  empowered 

8  See  State  v.  City  Council  of  Charles-  to  straighten  a  river  to  protect  a  country 

ton,  12  Rich.  702,  733 ;  Wurts  v.  Hoag-  against  inundation  are  not  liable  person- 


CII.  XVI.] 


THE    POLICE   POWER   OF  THE    STATES. 


869 


Regulations  of  Civil  Rights  and  Privileges.  Congress,  to  give 
full  effect  to  the  fourteenth  amendment  to  the  federal  Constitu- 
tion, passed  an  act  in  1875,  which  provided  that  all  persons  within 
the  jurisdiction  of  the  United  States  shall  be  entitled  to  the  full 
and  equal  enjoyment  of  the  accommodations,  advantages,  facili- 
ties, and  privileges  of  inns,  public  conveyances  on  land  and  water, 
theatres  and  other  places  of  public  amusement,  subject  only  to 
the  conditions  and  limitations  established  by  law,  and  applicable 
alike  to  citizens  of  every  race  and  color,  regardless  of  any  pre- 
vious condition  of  servitude.1  As  the  general  power  of  police  is 
in  the  States,  and  not  in  the  federal  government,  the  power  of 
Congress  to  make  so  sweeping  a  provision  may  possibly  be  brought 
in  question ; 2  but  as  the  States  have  undoubted  right  to  legislate 
for  the  purpose  of  securing  impartiality  in  the  accommodations 
afforded  by  innkeepers  and  common  carriers,  and  as  the  pro- 
prietors of  theatres  and  other  places  of  public  amusement  are 
always  subject  to  the  license  and  regulation  of  the  law,  a  cor- 
responding enactment  by  the  State  would  seem  to  be  competent, 
and  has  been  sustained  as  a  proper  regulation  of  police.3 


ally  for  incidental  injuries  to  individuals. 
Neither  is  there  any  claim  against  the 
public.  Green  i>.  Swift,  47  Cal.  536; 
Green  v.  State,  73  Cal.  29,  11  Pac.  002, 
14  Pac.  610. 

1  Laws  of  1875,  c.  114. 

2  In  1883  the  act  was  held  unconstitu- 
tional.      The    Fourteenth    Amendment, 
says  Bradley,  J.,  does  not  "  invest  Con- 
gress with  power  to  legislate  upon  sub- 
jects   which  are    within    the   domain   of 
State  legislation,  but  to  provide  modes  of 
relief  against  State  legislation  or  State 
action  of  the  kinds  referred  to.     It  does 
not  authorize  Congress  to  create  a  code 
of  municipal  law  for  the  regulation  of 
private  rights ;  but  to  provide   modes  of 
redress   against    the   operation   of   State 
laws  and  the  action  of  State  officers,  ex- 
ecutive   and    judicial,   when    these    are 
subversive   of    the    fundamental    rights 
specified     in     the     amendment."      Civil 
Rights  Cases,  109   U.   S.  3,  3  Sup.   Ct. 
Rep,  18. 

3  Donnell  v.  State,  48  Miss.  661.     FJA 
State   may    require     railroads    operating 
wholly    within    its    borders    to    furnish 
separate  passenger  cars  or  separate  com- 
partments in  a  single  passenger  car  for 
white  persons  and  for  negroes,  and  may 
make   it    a   criminal   offence  for  a  per- 
son of  one  race   to  occupy   the  car  or 


compartment  set  apart  for  the  use  of 
the  other.  Plessy  v.  Ferguson,  163  U.  S. 
637,  16  Sup.  Ct"  Rep.  1138,  aff.  45  La. 
Ann.  80,  11  So.  948,  18  L.  R.  A.  639. 
And  it  seems  that  a  railroad  engaged 
in  inter-state  commerce  may  be  com- 
pelled to  comply  with  such  regulations 
so  far  as  its  domestic  traffic  is  concerned. 
Chesapeake  &  0.  R.  Co.  v.  Kentucky, 
179  U.  S.  388,  21  Sup.  Ct.  Rep.  101. 
That  carriers  of  passengers  may  of  their 
own  motion  make  similar  regulations,  see 
Chilton  v.  St.  Louis  &  I.  M.  R.  Co.,  114 
Mo.  88,  21  S.  W.  457,  19  L.  R.  A.  269. 
See  also  Anderson  v.  Louisville  &  N.  Ry. 
Co.,  91  Tenn.  44,  17  S.  W.  803.  In 
Younger  v.  Judah,  111  Mo.  303,  19  S.  W. 
1109,  33  Am.  St.  527,  16  L.  R  A.  558,  it 
was  held  that  the  proprietor  of  a  theatre 
might,  in  the  absence  of  a  State  statute 
forbidding,  prohibit  colored  persons  from 
attending  his  theatre,  except  they  took 
seats  in  the  balcony.  The  principle  ap- 
plied was  that  under  the  Civil  Rights 
Cases,  109  U.  S.  3,  3  Sup.  Ct.  Rep.  18; 
the  Fourteenth  Amendment  did  not  con- 
trol the  conduct  of  private  persons,  but 
the  action  of  the  State,  and  was  not  ap- 
plicable to  a  regulation  established  by  a 
private  person  for  the  conduct  of  his  busi- 
ness though  of  a  quasi  public  character. 
In  Cisco  v.  School  Board,  161  N.  Y.  598, 


870  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

Regulation  of  Business  Charges.  In  the  early  days  of  the  com- 
mon law  it  was  sometimes  thought  necessary,  in  order  to  prevent 
extortion,  to  interfere,  by  royal  proclamation  or  otherwise,  and 
establish  the  charges  that  might  be  exacted  for  certain  com- 
modities or  services.  The  price  of  wages  was  oftener  regulated 
than  that  of  anything  else,  the  local  magistrates  being  generally 
allowed  to  exercise  authority  over  the  subject.  The  practice  was 
followed  in  this  country,  and  prevailed  to  some  extent  up  to  the 
time  of  independence.  Since  then  it  has  been  commonly  supposed 
that  a  general  power  in  the  State  to  regulate  prices  was  incon- 
sistent with  constitutional  liberty.  It  has  nevertheless  been  con- 
ceded that  in  some  cases  this  might  be  done,  and  the  question 
of  the  bounds  to  legislative  power  has  been  made  prominent  in 
what  are  known  as  the  Chicago  Warehouse  Cases.  The  legisla- 
ture of  Illinois,  on  the  supposition  that  warehouse  charges  at 
Chicago  were  excessive  and  unfair,  undertook  to  limit  them  to  a 
maximum.  They  also  required  warehousemen  to  take  out  licenses 
and  observe  various  regulations,  which,  are  not  important  here, 
and  imposed  certain  penalties  for  a  refusal  to  observe  the  stat- 
ute. The  validity  of  the  legislation  was  affirmed  by  the  State 
court,  which  overruled  various  objections  made  on  constitutional 
grounds,  among  which  was,  that  in  effect  it  deprived  warehouse- 
men of  their  property  without  due  process  of  law.  The  ware- 
housemen denied  wholly  the  right  of  the  legislature  to  prescribe 
charges  for  private  services,  or  for  the  use  of  private  property, 
and  it  was  urged  by  them  that,  if  admitted  at  all,  no  bounds  could 
be  set  to  it.  The  court,  in  sustaining  the  power,  placed  it  upon, 
the  same  ground  with  the  right  to  regulate  the  charges  of  hack- 
men,  draymen,  public  ferrymen,  and  public  millers.1  The  case 
being  removed  to  the  federal  Supreme  Court,  the  decision  of  the 
State  court  was  affirmed,  and  the  principle  fully  approved.  The 

/  ground  of  the  decision  appears  to  be  that  the  employment  of  these 
warehousemen  is  a  public  or  quasi  public  employment;  that  their 

)  property  in  the  business  is  "  affected  with  a  public  interest,"  and 
thereby  brought  under  that  general  power  of  control  which  the 
/State  possesses  in  the  case  of  other  public  employments.  Says 
Mr.  Chief  Justice  Waite :  "  Under  these  powers  the  government 
regulates  the  conduct  of  its  citizens  one  towards  another,  and  the 
manner  in  which  each  shall  use  his  own  property,  when  such 
regulation  becomes  necessary  for  the  public  good.  In  their  ex- 
ercise it  has  been  customary  in  England  from  time  immemorial, 

66  N.  E.  81,  it  was  held  that  the  State  1  Munn  v.  People,  69  111.  80.  In  this 
may  provide  separate  schools  for  white  case,  Justices  McAllister  and  Scott  dis- 
and  black  pupils  3  sented. 


CH.  XVI.]  THE    POLICE   POWER   OF   THE   STATES.  871. 

and  in  this  country  from  its  first  colonization,  to  regulate  ferries, 
common  carriers,  hackmen,  bakers,  millers,  wharfingers,  <fcc.,  and 
in  so  doing  to  fix  a  maximum  of  charge  to  be  made  for  services 
rendered,  accommodations  furnished,  and  articles  sold.  To  this 
day  statutes  are  to  be  found  in  many  of  the  States  upon  some  or 
all  these  subjects,  and  we  think  it  has  never  yet  been  successfully 
contended  that  such  legislation  came  within  any  of  the  constitu- 
tional prohibitions  against  interference  with  private  property."1 
Some  of  the  cases  here  referred  to  seem  plain  enough.  Ferries 
are  public  highways,  and  when  individuals  are  permitted  to  es- 
tablish-them,  they  are  allowed  the  sovereign  prerogative  of  charg- 
ing and  collecting  tolls ;  and  tolls  can  never  be  taken  except  by 
permission  of  the  State,  which  generally  ought  to  and  does  pre- 
scribe their  limits.  A  hackman  exercises  a  public  employment 
in  the  public  street  ;  one  which  affords  peculiar  opportunities  for 
impositions  and  frauds,  and  requires  special  supervision,  insomuch 
that  it  is  commonly  thought  necessary  to  prohibit  one  making 
himself  such  except  with  permission  of  the  State,  and  the  number 
is  sometimes  limited  so  as  in  effect  to  give  special  privileges. 
The  rates  of  toll,  when  mills  grind  for  toll,  are  usually  fixed  by 
law  ;  (a)  but  there  is  nothing  exclusive  in  this :  the  parties  may 
make  their  own  bargains,  and  the  legislative  rate  only  controls 
where  the  parties  by  implication  have  apparently  acted  in  refer- 
ence to  it.  In  England,  formerly,  the  lords  of  manors,  as  mill- 
owners,  had  exclusive  rights  ;  and  where  an  exclusive  right  exists 
in  one's  favor,  to  compel  the  public  to  deal  with  him,  there  can 
be  no  doubt  of  the  right  in  the  State  to  compel  him  to  deal 
fairly  with  the  public.  Such  a  right  existed  in  the  English  ware- 
house case  of  Alnutt  v.  Inglis,2  in  which  the  Court  of  King's 
Bench  denied  the  right  of  the  warehousemen  to  fix  their  own 
charges  at  discretion,  when  the  public,  under  exclusive  privileges 
which  the  warehousemen  possessed,  were  compelled  to  deal  with 
them.3 

i  Munn  v.  Illinois,  94  U.  S.  113,  125.  2  12  East,  527. 

In  this   case,  Justices  Field  and  Strong  8  In   Munn  v.   People,  60  III.  89,  91, 

dissented.     This  case  is  followed  in  New  Chief  Justice  Breese,  in  speaking  of  the 

York  with  reference  to  the  grain  eleva-  power  to  "  make  all  needful   rules  and 

tors  at   Buffalo.      People   v.  Budd,  117  regulations  respecting  the  use  and  enjoy- 

N.  Y.  1,  22  N.  E.  670,  682,  5  L.  R.  A.  559,  meut  of  property,"  speaks  of  familiar  in- 

and  note,  two  judges  dissenting.     fJSus-  stances  in  which  the  exercise  of  it  in  the 

tained  in  Budd  v.  New  York,  143  U.  S.  State  has  been  unquestioned,  and  among 

517,  12  Sup.  Ct.  Rep.  468.    Principle  re-  them,  "in  delegating  power  to  municipal 

affirmed  in   Brass  v.  North  Dakota,  153  bodies  to  regulate  charges  of  hackmen 

U.  S.  391,  14  Sup.  Ct.  Rep.  857,   aff.  2  and  draymen,  and  the  weight  and  price 

N.  D.  482,  52  N.  W.  408.]  of  bread."      Regulating  the    weight  of 

(a)  fJSee,  e.  g.,  State  v.  Edwards,  86  Me.  102,  29  Atl.  947,  25  L.  R.  A.  504-3 


CONSTITUTIONAL   LIMITATIONS. 


[CH.    XVI. 


What  circumstances  shall  affect  property  with  a  public  interest 
is  not  very  clear.     The  mere  fact  that  the  public  have  an  interest 


bread  is  common,  and  necessary  to  pre- 
vent imposition  ;  but  regulating  the  price 
of  bread  we  should  suppose  would  now 
meet  with  such  lesistance  anywhere,  as 
would  require  a  distinct  determination 
upon  its  constitutional  rightfulness.  How 
the  baker  can  have  the  price  of  that  which 
he  sells  prescribed  for  him,  and  not  the 
merchant  or  the  day-laborer,  is  not  ap- 
parent. Indeed,  to  admit  the  power  seems 
to  render  necessary  the  recognition  of  the 
principle  that  there  is  and  can  be  no  limit 
to  legislative  interference  but  such  as  leg- 
islative discretion  from  time  to  time  may 
prescribe.  £But  all  such  regulations  must 
not  be  unreasonable,  —  i.  e.  they  must  not 
amount  to  a  taking  of  property  without 
"due  process,"  or  to  a  deprival  of  the 
"  equal  protection  of  the  laws."  Chicago, 
M.  &  St.  P.  R.  Co.  v.Tompkins,  170  U.  S. 
167,  20  Sup.  Ct.  Rep.  836,  and  especially 
the  cases  cited  in  note  to  44  L.  ed.  U.  S. 
417.  And  see  Reagan  v.  F.  L.,  &  Trust 
Co.,  154  U.  S.  362,  14  Sup.  Ct.  Rep.  1047 ; 
San  Diego  Water  Co.  v.  San  Diego,  118 
Cal.  556,  50  Pac.  633,  38  L.  R.  A.  460,  a 
very  valuable  opinion  ;  Brymer  i;.  Butler 
Water  Co.,  179  Pa.  231,  36  Atl.  249,  36 
L.  R.  A.  260  ;  Spring  Valley  Water  Works 
v.  San  Francisco,  82  Cal.  286,  22  Pac.  910, 
1046,  6  L.  R.  A.  756 ;  Cedar  Rapids  Water 
Co.  i:  Cedar  Rapids,  —  Iowa,  —,91  N.  W. 
1081 ;  San  Diego  Water  Co.  o.  San  Diego, 
118  Cal.  556,  50  Pac.  633,38  L.  R.  A.  460, 
62  Am.  St.  297,  and  Mr.  Freeman's  note 
to  this  case  in  62  Am.  St.  297.  See 
further,  upon  control  of  the  rates  of  public 
service  companies,  15  Harvard  L.  Rev. 
249  and  353.  In  Cotting  v.  Kansas  City 
Stock  Yards  Co.,  183  U.  S.  79,  22  Sup. 
Ct.  Rep.  30,  Justice  Brewer  discusses  at 
some  length  the  status  of  this  law  on 
the  regulation  of  rates  as  established  by 
the  decisions  of  the  Supreme  Court  of  the 
United  States,  distinguishing  between  the 
business  of  a  "  public  character  "  and  that 
not  strictly  of  a  "public  character"  but 
in  which  "  the  public  have  an  interest." 
He  says,  "  The  present  scope  of  the  decis- 
ions of  this  court  in  respect  to  the  power 
of  the  legislature  in  regulating  rates  "  is  : 
"  As  to  those  individuals  and  corporations 
who  have  devoted  their  property  to  a  use 
in  which  the  public  Las  an  interest, 


although  not  engaged  in  a  work  of  a 
confessedly  public  character,  there  has 
been  no  further  ruling  than  that  the  State 
may  prescribe  and  enforce  reasonable 
charges.  What  shall  be  the  test  of  rea- 
sonableness in  those  charges  is  absolutely 
undisclosed."  "  As  to  parties  engaged  in 
performing  a  public  service  while  the 
power  to  regulate  has  been  sustained, 
negatively  the  court  has  held  that  the 
legislature  may  not  prescribe  rates  which, 
if  enforced,  would  amount  to  a  confisca- 
tion of  property.  But  it  has  not  held 
affirmatively  that  the  legislature  may  not 
enforce  rates  which  stop  only  this  side  of 
confiscation  and  leave  the  property  in  the 
hands  and  under  the  care  of  the  owners 
without  any  remuneration  for  its  use." 
"  It  has  declared  that  the  present  value 
of  the  property  is  the  basis  .by  which  the 
test  of  reasonableness  is  to  be  determined, 
although  the  actual  cost  is  to  be  consid- 
ered, and  that  the  value  of  the  services 
rendered  to  each  individual  is  also  to  be 
considered.  It  has  also  ruled  that  the 
determination  of  the  legislature  is  to  be 
presumed  to  be  just,  and  must  be  upheld 
unless  it  clearly  appears  to  result  in 
forcing  unreasonable  and  unjust  rates." 
See  also  note  to  5  L.  R.  A.  559.  What 
regulations  are  reasonable  in  a  particular 
case  must  be  determined  from  a  consid- 
eration of  the  particular  case.  Hardly 
any  general  rule  can  be  laid  down,  except 
that  rates  so  low  as  not  to  cover  running 
expenses  are  always  unreasonably  low. 
Covington  &  L.  Turnp.  Road  Co.  v. 
Sandford,  164  U.  S.  578,  17  Sup.  Ct.  Rep. 
198.  Nor  can  any  such  regulation  pre- 
scribed by  a  State  be  made  to  apply  to 
inter-state  commerce.  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Hefley  &  Lewis,  158  U.  S.  98,  15 
Sup.  Ct.  Rep.  802;  upon  State  control 
over  railroads,"  see  Baltimore  &  O.  R.  Co. 
v.  Maryland,  21  Wall.  456,  22  L.  ed.  U.  S. 
678,  and  note.  The  reasonableness  of 
rates  is  to  be  determined  by  considering 
their  effect  upon  the  traffic  of  the  entire 
system,  and  not  merely  upon  some  par- 
ticular portion  of  it.  St.  Louis  &  S.  F.  R. 
Co.  v.  Gill,  156  U.  S  649,  15  Sup.  Ct. 
Rep.  484.  The  State's  power  to  regulate 
rates  which  affect  only  internal  commerce 
is  not  affected  by  the  fact  that  the  carrier 


CH.  XVI.] 


THE   POLICE   POWER   OF   THE   STATES. 


873 


in  the  existence  of  the  business,  and  are  accommodated  by  it, 
cannot  be  sufficient,  for  that  would  subject  the  stock  of  the  mer- 
chant, and  his  charges,  to  public  regulation.  The  public  have  an 
interest  in  every  business  in  which  an  individual  offers  his  wares, 
his  merchandise,  his  services,  or  his  accommodations  to  the  pub- 
lic ;  but  his  offer  does  not  place  him  at  the  mercy  of  the  public 
in  respect  to  charges  and  prices.  If  one  is  permitted  to  take 
upon  himself  a  public  employment,  with  special  privileges  which 
only  the  State  can  confer  upon  him,  the  case  is  clear  enough ; 
and  it  seems  to  have  been  the  view  of  both  courts  in  this  case, 
that  the  circumstances  were  such  as  to  give  the  warehousemen  in 
Chicago,  who  were  the  only  persons  affected  by  the  legislation,  a 
"  virtual "  monopoly  of  the  business  of  receiving  and  forwarding 
the  grain  of  the  country  to  and  from  that  important  point,  and  by 
the  very  fact  of  monopoly  to  give  their  business  a  public  character, 
affect  the  property  in  it  with  a  public  interest,  and  render  regula- 
tion of  charges  indispensable.1 


is  chartered  by  Congress.  Reagan  v. 
Mercantile  Trust  Co.,  154  U.  S.  413,  14 
Sup.  Ct.  Rep.  1060.  The  prescribed  rates 
will  not  be  pronounced  unreasonable  in 
a  suit  be!  ween  friendly  contestants  upon 
an  agreed  statement  of  facts.  Chicago  & 
G.  T.  R.  Co.  v.  Wellman,  143  U.  S.  339,  12 
Sup.  Ct.  Rep.  400.  The  determination  of 
the  rates  to  be  charged  is  a  legislative 
function  and  cannot  be  undertaken  by 
the  courts.  Nebraska  Telephone  Co.  v. 
State,  55  Neb.  627,  76  N.  W.  171,  45 
L.  R.  A.  113.  But  as  the  courts  will  not 
enforce  a  rate  unreasonably  low,  neither 
will  they  enforce  one  that  is  unreasonably 
high,  nor  will  any  person  carrying  on  a 
business  affected  with  a  public  interest 
be  allowed  to  make  arbitrary  discrimina- 
tions in  rates  between  patrons.  Griffin 
r.  Goldsboro  Water  Co.,  122  N.  C.  206, 
30  S.  E.  319,  41  L.  R.  A.  240.  Rates  pre- 
scrihed  will  not  be  pronounced  unreason- 
ably low  where  there  is  no  proof  that  they 
will  cause  a  diminution  of  dividends. 
Winchester  &  L.  T.  Road  Co.  v.  Croxton, 
98  Ky.  739,  34  S.  W.  518,  33  L.  R.  A. 
177;  and  upon  legislative  power  to  con- 
trol rates,  see  note  thereto  in  L.  R.  A. 
Canals  used  for  the  distribution  of  irriga- 
tion waters  for  hire  are  subject  to  State 
regulation.  White  v.  Farmers'  Highline 
Canal  &  R.  Co.,  22  Col.  191,  43  Pac. 
1028,  31  L.  R.  A.  828.  Where  rates  are 
determined  by  earnings  it  is  proper  to 
include  earnings  from  inter-state  traffic, 


as  the  rates  fixed  apply  only  to  State 
traffic.  Osborn  v.  Wabash  R.  Co,  126 
Mich.  113,  85  N.  W.  466,  s.  c.  123  Mich. 
669,  82  N.  W.  526.  For  other  cases  upon 
regulation  of  rates,  see  Chicago,  B.  &  Q. 
R.  Co.  v.  Jones,  149  111.  361,  37  N.  E  247, 
24  L.  R.  A.  141 ;  St.  Louis  &  S.  F.  R.  Co. 
v.  Gill,  54  Ark.  101,  15  S.  W.  18,  11 
L.  R.  A.  452,  and  note,  aff.  156  U.  S.  649, 
15  Sup.  Ct.  Rep.  484;  Steenerson  v. 
Great  Northern  Ry.  Co.,  69  Minn.  353,  72 
N.  W.  713.  For  other  cases  upon  powers 
of  railroad  commissions,  see  Atlantic  Ex. 
Co.  v.  Wilmington  &  W.  R.  Co.,  Ill 
N.  C.  463,  16  S.  E.  393,  18  L.  R.  A. 
393;  Burlington,  C.  R.  &  N.  R.  Co.  v. 
Dey,  82  Iowa,  312,  48  N.  W.  98,  12 
L.  R.  A.  436,  and  note ;  Chicago,  M.  & 
St.  P.  Ry.  Co.  v.  Minnesota,  134  U.  S. 
418,  10  Sup.  Ct.  Rep.  462,  702  ;  Beardsley 
v.  Erie  Ry.  Co.,  162  N.  Y.  230,  56  N.  E. 
488-3 

1  See  what  is  said  by  Breese,  Ch.  J.,  in 
69  111.  88-89,  and  by  Waite,  Ch.  J.,  in  94 
U.  S.  131.  In  Attorney-General  v.  Chi- 
cago, &c.  R.  R.  Co.,  35  Wis.  425,  589, 
Chief  Justice  Ryan,  in  his  very  able  opin- 
ion affirming  the  right  to  fix  railroad 
charges  by  amendment  to  charters  which 
reserved  the  power  of  amendment,  inti- 
mated decided  views  in  favor  of  the  au- 
thority under  the  general  power  of  police. 
That  riaht  would  probably  be  claimed 
on  the  ground  that  railroads  receive  spe- 
cial privileges  from  the  State ;  the  emi- 


874 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


The  phrase  "  affected  with  a  public  interest "  has  been  brought 
into  recent  discussions  from  the  treatise  De  Portibus  Maris  of  Lord 


nent  domain  being  always  employed  in 
their  favor,  and  sometimes  the  power  of 
taxation. 

The  question  of  the  power  of  the  State 
legislature  to  regulate  the  charges  of 
common  carriers  for  the  transportation 
of  persons  and  property  within  the 
State,  is  fully  determined  in  the  affirm- 
ative by  the  decisions  of  the  federal 
Supreme  Court.  In  Railroad  Company 
v.  Fuller,  17  Wall.  560,  an  act  was 
sustained  which  provided,  1.  That  each 
railroad  company  should  annually,  in  a 
month  named,  fix  its  rates  for  the  trans- 
portation of  passengers  and  freights : 

2.  That  it  should  on  the  first  day  of  the 
next  month  cause  a  printed  copy  of  such 
rates  to  be  put  up  in  all  its  stations  and 
depots,  and  to  be  kept  up  during  the  year  ; 

3.  That  the  failure  to  comply  with  these 
requirements,  or  the  charging  of  a  higher 
rate  than  was  posted,  should  subject  the 
offending  company  to  penalties.     In  the 
warehouse  case  of  Munn  v.  Illinois,  94 
U.  S.  113,  the  power  to  limit  charges  was 
directly  involved,  and  was  affirmed,  as  it 
was  in  Chicago,  &c.  R.  R.  Co.  v.  Iowa, 
94  U.  S.  155.     The  State  may  limit  the 
amount   of   charges    for   transportation, 
provided  such  regulation  does  not  amount 
to  a  taking  of  property  by  compelling  car- 
rying without  reward,  unless  restrained 
by  contract   in    the    charter.      But   the 
charter  power  to  fix  rates  does  not  for- 
bid   such    regulation.       Railroad    Com. 
Cases,  116  U.  S.  307,  6  Sup.  Ct.  Rep.  334, 
348,  349,  388,  391,  1191;  Dow  v.  Beidel- 
man,  125  U.  S.  680,  8  Sup.  Ct.  Rep.  1028 ; 
Georgia  R.  R.  &  B.   Co.  v.  Smith,  128 
U.  S.  174,  9  Sup.  Ct.  Rep.  47  ;  Pennsyl- 
vania R.  R.  Co.v.  Miller,  132  U.  S. 75/10 
Sup.  Ct.  Rep.  34.     The  charges  for  busi- 
ness done  wholly  within  the  State  may 
thus  be   regulated   although    a  road   af- 
fected may  run  through  several  States. 
Railroad  Com.  Cases,  supra.    The  reason- 
ableness of  charges  is  a  judicial  question. 
QAnd  for  its  determination  the  cost  of 
doing  the  business   must  be  known   as 
well  as  the  gross  earnings  to  be  yielded 
under  the  rates  in  question.     Chicago,  M. 
&  St.  P.  R.  Co.  v.  Tompkins,  176  U.  S. 
167,  20  Sup.  Ct.   Rep.   336.     The   cases 
upon  reasonableness  of  State  limitation 


of  railroad  rates  are  collected  in  a  note  to 
44  L.  ed.  U.  S.  417.  Courts  should  not 
interfere  except  in  a  perfectly  clear  case. 
San  Diego  Land  &  Town  Co.  v.  National 
City,  174  U.  S.  739,  19  Sup.  Ct.  Rep.  804. 
See  also  Smyth  v.  Ames,  169  U.  S.  466, 
18  Sup.  Ct.  Rep.  418,  mod.  in  171  U.  S. 
361,  18  Sup.  Ct.  Rep.  888  ;  Reagan  v. 
Farmers' L.  &  T.  Co.,  154  U.  S.  362,  14 
Sup.  Ct.  Rep.  1047.  State  cannot  require 
railway  company  to  carry  shipper  of  live 
stock  free  from  transportation  charges. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Campbell, 
61  Kan.  439,  59  Pac.  1051,  78  Am.  St. 
328.]  A  State  cannot  empower  a  com- 
mission to  fix  rates  finally  without  oppor- 
tunity for  a  judicial  hearing  on  the 
question  or  their  reasonableness.  Chi- 
cago, M.  &  St.  Paul  Ry.  Co.  v.  Minnesota, 
134  U.  S.  418,  10  Sup.  Ct.  Rep.  402,  702. 
But  in  Camden,  &c.  R.  R.  Co.  v.  Briggs, 
22  N.  J.  623,  and  Phila.,  &c.  R.  R.  Co.  v. 
Bowers,  4  Houst.  500,  it  was  held  that 
there  was  no  power  to  regulate  rates 
where  no  such  authority  was  reserved  in 
the  charter,  and  see  cases  at  end  of  note. 
In  these  cases  no  question  arose  of  the 
application  of  the  power  to  contracts,  for 
transportation  through  the  State,  or  from 
or  to  points  within  a  State  and  other 
points  outside;  but  in  Peik  v.  Chicago, 
&c.  R.  R.  Co.,  94  U.  S.  164,  it  was  decided 
that  the  State  had  power  to  prescribe  a 
maximum  of  charges  to  be  made  by  rail- 
road companies,  not  only  for  transport- 
ing persons  or  property  within  the  State, 
but  also  persons  or  property  taken  up 
outside  the  State  and  brought  within  it, 
or  taken  up  inside  and  carried  without. 
Note  was  made  in  the  case  that  Congress 
had  established  no  regulation  with  which, 
the  State  statute  would  conflict.  But  this 
case  is  substantially  overruled  as  to  this 
point  by  Wabash,  St.  L.  &  P.  Rv.  Co.  v. 
Illinois,  118  U.  S.  557,  7  Sup.  Ct".  Rep.  4, 
where  the  Illinois  statute  forbidding  a 
greater  charge  for  a  shorter  than  for  a 
longer  haul  in  the  same  direction  was 
held  inapplicable  to  the  case  of  a  con- 
tinuous voyage  from  a  point  within  to  a 
point  without  the  State,  as  an  interference 
with  inter-state  commerce.  Like  rulings 
have  been  made  in  several  cases.  Carton 
v.  111.  Cent.  R.  R.  Co.,  59  Iowa,  148,  13 


CH.  XVI.] 


THE   POLICE   POWER   OF   THE    STATES. 


875 


Hale,  where  the  important  passage  is  as  follows :  "  A  man  for  his 
own  private  advantage  may,  in  a  port  or  town,  set  up  a  wharf  or 


N.  W.  67 ;  State  v.  Chicago,  &c.  Ry.  Co., 
70  Iowa,  162,  30  N.  W.  398;  Com.  v. 
Housatonic  11.  R.,  143  Mass.  264,  9  N.  E. 
647 ;  Hardy  v.  Atchison,  &c.  R.  H.  Co., 
32  Kan.  698,  5  Pac.  6.  Nor  may  the 
State  control  rates  between  two  points 
within  it,  if  the  transit  is  in  part  through 
another  State.  State  v.  Chicago,  &c.  Ry. 
Co.,  40  Minn.  267,41  N.  W.  1047;  Stern- 
berger  ».  Railroad  Co.,  —  Ga.  — ,  7  S.  E. 
836.  See  Cotton  Exchange  v.  Ry.  Co., 
2  I.  S.  C.  R.  375.  Contra,  Com.  v.  Lehigh 
V.  R.  R.  Co.,  —  Pa.  St.  — ,  17  Atl.  179 ; 
[Campbell  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  86  Iowa,  587,  53  N.  W.  351,  17 
L.  R.  A.  443J  See  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  State,  72  Tex.  404,  10  S.  W.  81. 
[State  cannot  regulate  tolls  upon  inter- 
state commerce.  Covington  &  C.  Bridge 
Co.  v.  Kentucky,  154  U.  S.  204,  14  Sup. 
Ct.  Rep.  1087.3 

See  further  Providence  Coal  Co.  v. 
Prov.  &  W.  R.  R.  Co.,  15  R.I.  303,  4  Atl. 
394;  Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Becker,  32  Fed  Rep.  849;  Parker  v. 
Metropolitan  R.  R.  Co,  109  Mass.  506; 
People  v.  Boston,  &c.  R.  R.  Co.,  70  N.  Y. 
569;  Chicago,  &c.  R.  R.  Co.  v.  People,  67 
111.  1 ;  Ruggles  v.  People,  91  111.  256 ; 
Fuller  v.  Chicago,  &c.  R.  R.  Co.,  31  Iowa, 
188;  Council  Bluffs  v.  Kansas  City,  &c. 
R.  R.  Co.,  45  Iowa,  338;  Attorney-Gen- 
eral v.  Railroad  Companies,  35  Wis.  425  ; 
Peik  v.  Chicago,  &c.  R.  R.  Co.,  6  Biss. 
177;  Blake  v.  Winona,  &c.  R.  R.  Co.,  19 
Minn.  418, 18  Am.  Rep.  345,  s.  c.  in  error, 
94  U.  S.  180 ;  Chicago,  &c.  R.  R.  Co.  v. 
Ackley,  94  U.  S.  179.  [While  a  State 
may  restrict  a  railroad  to  reasonable 
rates,  it  cannot  compel  lower  rates  to  one 
class  of  persons  than  another,  nor  can  it 
fix  in  advance  a  period  during  which  the 
prescribed  rates  shall  be  observed.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Smith,  173  U.  S. 
684,  19  Sup.  Ct.  Rep.  565,  rev.  114  Mich. 
460,  72  N.  W.  328.  But  where  the  railroad 
receives  its  franchises  after  the  adoption 
of  a  statute  requiring  such  companies  to 
issue  1000  mile  tickets  at  specified  re- 
duced rates,  it  is  bound  to  obey.  It  can- 
not complain  that  it  is  thereby  deprived 
of  property  without  due  process.  Nor 
does  such  a  law,  where  the  tickets  are 
good  only  within  the  State  operate  as  a 


regulation  of  inter-state  commerce,  al- 
though the  road  is  engaged  in  such  com- 
merce. Purdy  v.  Erie  R.  Co.,  162  N.  Y. 
42,  56  N.  E.  508,  48  L.  R.  A.  669  ;  State  v. 
Omaha  &  Council  Bluffs  Ry.  &  Bridge 
Co.,  113  Iowa,  30, 84  N.  W.  983, 52  L.  R.  A. 
315.  An  act  of  the  New  York  legislature 
requiring  railway  companies  to  issue 
mileage  tickets  was  held  invalid,  as 
being  neither  the  exercise  of  the  power 
to  fix  rates,  or  of  the  power  of  police  re- 
gulation, in  Beardsley  v.  N.  Y.,  L.  E.  & 
W.  Ry.  Co.,  162  N.  Y.  230,  56  N.  E.  488. 
A  statute  requiring  one  railway  company 
to  accept  mileage  issued  by  another  is 
invalid  for  requiring  one  company  to  ac- 
cept passengers  on  the  credit  of  another. 
Attorney-General  v.  Boston  &  Albany 
Ry.  Co.,  160  Mass.  62,  35  N.  E.  252. 
Reasonableness  of  rates  must  be  deter- 
mined upon  consideration  of  facts  exist- 
ing at  the  time  such  rates  are  to  be 
enforced.  Smyth  v.  Ames,  171  U.  S. 
361,  18  Sup.  Ct.  Rep.  888,  mod.  decrees 
in  169  U.  S.  466,  18  Sup.  Ct.  Rep.  418. 
Upon  regulation  of  rates  by  statute  see 
Winchester  &  L.  T.  Road  Co.  v.  Croxton, 
93  Ky.  739,  34  S.  W.  518,  33  L.  R.  A. 
177,  and  note,  and  Louisville  &  N.  R.  Co. 
v.  Kentucky,  99  Ky.  132,  35  S.  W.  129, 
33  L.  R.  A  209,  and  note ;  also  Cleve- 
land, C.  C.  &  I.  R.  Co.  v.  Closser,  126  Ind. 
348,  26  N.  E.  159,  9  L.  R.  A.  754,  and  note, 
and  St.  Louis  &  S.  F.  R.  Co.  v.  Gill,  54 
Ark.  101,  15  S.  W.  18,  11  L.  R.  A.  452, 
and  note;  aff  156  U.  S.  649,  16  Sup.  Ct. 
Rep.  484.  The  reasonable  value  of  the 
property  at  the  time  is  to  be  considered 
rather  than  its  original  cost.  San  Diego 
Land  &  Town  Co.  v.  National  City,  174 
U.  S.  739,  19  Sup.  Ct.  Rep.  804.  Toll 
roads  come  under  the  same  principles  as 
railroads.  Covington  &  L.  Turnp.  Road 
Co.  v.  Sandford,  164  U.  S.  678, 17  Sup.  Ct. 
Rep.  198.  A  State  cannot,  under  its  general 
power  to  prevent  discrimination  among 
shippers,  compel  a  railroad  to  permit  pri- 
vate persons  to  erect  an  elevator  adjacent 
to  its  sidings  and  upon  its  lands,  where 
sucli  elevator  would  be  used  by  these  per- 
sons and  others  for  the  storage  of  their 
own  grain,  even  though  the  railroad  has 
granted  such  privilege  to  other  shippers. 
Such  action  would  be  a  taking  of  private 


876  CONSTITUTIONAL    LIMITATIONS.  [CH.  XVI. 

crane,  and  may  take  what  rates  he  and  his  customers  can  agree 
for  cranage,  wharfage,  housellage,  pesage ;  for  lie  doth  no  more 
than  is  lawful  for  any  man  to  do,  viz.,  makes  the  most  of  his  own. 
If  the  king  or  subject  have  a  public  wharf  unto  which  all  per- 
sons that  come  to  that  port  must  come  and  unlade  or  lade  their 
goods  as  for  the  purpose,  because  they  are  the  wharves  only 
licensed  by  the  queen,  or  because  there  is  no  other  wharf  in  that 
port,  as  it  may  fall  out  where  a  port  is  newly  erected  ;  in  that 
case  there  cannot  be  taken  arbitrary  and  excessive  duties  for 
cranage,  wharfage,  pesage,  &c.,  neither  can  they  be  enhanced  to 
an  immoderate  rate  ;  but  the  duties  must  be  reasonable  and  mod- 
erate, though  settled  by  the  king's  license  or  charter.  For  now  the 
wharf,  crane,  and  other  conveniences  are  affected  with  a  public  in- 
terest, and  they  cease  to  be  juris  privati  only  ;  as  if  a  man  set  out 
a  street  in  new  building  on  his  own  land  ;  it  is  now  no  longer  bare 
private  interest,  but  is  affected  by  a  public  interest." 

If  the  case  of  a  street  thrown  open  to  the  public  is  an  apt 
illustration  of  the  public  interest  Lord  Hale  had  in  mind,  the  in- 
terest is  very  manifest.  It  will  be  equally  manifest  in  the  case  of 
the  wharf,  if  it  is  borne  in  mind  that  the  title  to  the  soil  under 
navigable  water  in  England  is  in  the  Crown,  and  that  wharves  can 
only  be  erected  by  express  or  implied  license,  and  can  only  be 
made  available  by  making  use  of  this  public  property  in  the  soil. 
If,  then,  by  public  permission,  one  is  making  use  of  the  public 
property,  and  he  chances  to  be  the  only  one  with  whom  the  pub- 
lic can  deal  in  respect  to  the  use  of  that  property,  it  seems  entirely 
reasonable  to  say  that  his  business  is  affected  with  a  public  interest 
which  requires  him  to  deal  with  the  public  on  reasonable  terms. 

In  the  following  cases  we  should  say  that  property  in  business 
was  affected  with  a  public  interest :  1.  Where  the  business  is  one 
the  following  of  which  is  not  of  right,  but  is  permitted  by  the 
State  as  a  privilege  or  franchise.  Under  this  head  would  be  com- 
prised the  business  of  setting  up  lotteries,  of  giving  shows,  &c.,  of 

property  for  private  uses.     Missouri  Pac.  L.  R.  A.  711 ;   State  v.  Scott,  98  Tenn. 

K.  Co.  v.  Nebraska,  164  U.  S.  403, 17  Sup.  254,  39  S.  W.  1,  36  L.  R.  A.  461;  Fuqua 

Ct.  Rep.  130.     Company  having  franchise  r.  Pabst  Brewing  Co.,  90  Tex.  298,  38 

to  lay  gas-pipes  in  street  may  be  restricted  S.  W.  29,  750,  35  L.  R.  A.  241  ;  McCann 

to  reasonable  rates  and  compelled  to  ab-  v.   Eddy,  133  Mo.  59,  33  S.  W.  71,   35 

stain  from  discrimination  among  patrons.  L.  R.  A.  110;  aff.  170  U.  S.  580,  19  Sup. 

Rushville  v.  Rushville  Nat.  Gas  Co.,  132  Ct.  Hep.  755.     Singer  Mfg.  Co.  v.  Wright, 

Ind.  575,  28  N.  E.  853,  15  L.   R.  A.  321,  97  Ga.  114,  25  S.  E.  249,  35  L.  R.  A.  497 ; 

and  note.     For  various  State  cases  pass-  Lafarier  v.  Grand  Trunk  R.  Co.,  84  Me. 

ing  upon  question  of  inter-state  commerce,  286,  24  All.  848,  17  L.  R.  A.  Ill;  Mobile 

see  State  v.  Stripling,  113  Ala   120,  21  So.  &  0.  R.  Co.  v.  Dismukes,  94  Ala.  131,  10 

409,  36  L.  R.  A.  81 ;  W.  Union  Tel.  Co.  So.  289,  19  L.  R.  A.  113;  State  v.  Hicks, 

Eubank,  100  Ky.  591,  38  S.  W.  1068,  36  44  La.  Ann.  770,  11  So.  74J 


CH.  XVI.]  THE   POLICE    POWER   OF   THE   STATES.  877 

keeping  billiard-tables  for  hire,  and  of  selling  intoxicating  drinks 
when  the  sale  by  unlicensed  parties  is  forbidden;  also  the  cases 
of  toll-bridges,  &c.  2.  Where  the  State,  on  public  grounds, 
renders  to  the  business  special  assistance,  by  taxation  or  other- 
wise, (a)  3.  Where,  for  the  accommodation  of  the  business,  some 
special  use  is  allowed  to  be  made  of  public  property  or  of  a  public 
easement.  4.  Where  exclusive  privileges  are  granted  in  con- 
sideration of  some  special  return  to  be  made  to  the  public.  Pos- 
sibly there  may  be  other  cases. 

Miscellaneous  Cases.  It  would  be  quite  impossible  to  enumerate 
all  the  instances  in  which  the  police  power  is  or  may  be  exercised, 
because  the  various  cases  in  which  the  exercise  by  one  individual 
of  his  rights  may  conflict  with  a  similar  exercise  by  others,  or  may 
be  detrimental  to  the  public  order  or  safety,  are  infinite  in  num- 

(<T)  £As  by  granting  the  power  of  eminent  domain.  Where  a  corporation  has 
such  special  privileges  it  must  serve  the  public  without  discrimination.  Inter-Ocean 
Publishing  Co.  v.  Associated  Press,  184  111.  438,  56  N.  E.  822,  48  L.  R.  A.  568 ;  Haugen 
v.  Albina  Light  &  W.  Co.,  21  Oreg.  411,  28  Pac.  214,  14  L.  K.  A.  424 ;  Richmond  N. 
Gas  Co.  v.  Clawson,  155  Ind.  659,  58  N.  E.  1049,  51  L.  R.  A.  744.  See  also  People 
v.  Chicago  Gas  Trust  Co.,  130  111.  268,  22  N.  E.  798.  8  L.  R.  A.  497.  Where  no  espe- 
cial privilege  or  aid  is  received,  the  corporation  must  be  left  free  to  contract  as  it 
pleases.  State  v.  Associated  Press,  159  Mo.  410,  60  S.  W.  91.  The  legislature  can- 
not fix  by  statute  the  measure  of  compensation  to  be  paid  by  a  city  for  labor  or  other 
services  it  may  be  compelled  to  employ.  This  principle  applied  in  a  case  where  the 
statute  provided  that  the  same  rate  of  wages  must  be  paid  on  city  contracts  as  labor- 
ers in  like  occupation  received  in  the  same  locality.  People  ex  rel.  Rodgers  v.  Coler, 
16G  N.  Y.  1,  59  N.  E.  716,  52  L.  R.  A.  814,  82  Am.  St.  605.  For  other  cases  involving 
similar  principles,  see  Com.  v.  Perry,  155  Mass.  117,  28  N.  E.  1126,  14  L.  R.  A.  325, 
81  Am.  St.  533,  declaring  invalid  an  act  forbidding  withholding  of  wages  for  imper- 
fection in  work :  Ramsey  ».  People,  142  111.  380,  32  N.  E.  364, 17  L.  R.  A.  853,  holding 
tiiat  an  act  relating  to  the  payment  of  wages  to  miners  upon  basis  of  quantity  of  coal 
mine  1  was  invalid  :  Godcharles  v.  Wigeman,  113  Pa.  431,  6  Atl.  354  ;  State  v.  Good- 
will, 33  W.  Va.  179,  10  S.  E.  285,  6  L.  R.  A.  621,  25  Am.  St.  863,  are  cases  in  which 
acts  to  secure  coal  miners,  and  others  laboring  in  certain  factories,  the  payment 
of  their  wages  at  regular  intervals  and  in  lawful  money  only,  were  held  void.  Con- 
tra, Hancock  v.  Yaden,  121  Ind.  366,  23  N.  E.  253,  6  L.  R.  A.  576 ;  Avent-Beattyville 
Coal  Co.  v.  Comm.,  96  Ky.  218,  23  S.  W.  502,  28  L.  R.  A.  273;  Agee  v.  Smith, 
7  Wash.  471,  35  Pac.  370,  and  see  note  to  State  v.  Goodwill,  supra,  25  Am.  St.  870, 
on  the  Fourteenth  Amendment  considered  with  relation  to  Special  Privileges,  Bur- 
dens and  Restrictions.  Other  cases  on  the  subject  are,  State  v.  Fire  Creek,  C.  &  C. 
Co.,  33  W.  Va.  188,  10  S.  E.  288,  6  L.  R.  A.  359,  25  Am.  St.  891  ;  Frorer  v.  People, 
141  III.  171,  31  N.  E.  395,  16  L.  R.  A.  492  ;  Braceville  Coal  Co.  v.  People,  147  III.  66, 
35  N.  E.  62,  22  L.  R.  A.  340,  37  Am.  St.  206 ;  State  v.  Lootnis,  115  Mo.  307,  22  S.  W. 
350,  21  L.  R.  A.  789;  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  22  Sup.  Ct.  v 
Rep.  1,  aff.  103  Tenn.  421,  53  S.  W.  955,  76  Am.  St  682.  In  this  last  case  a  statute 
of  Tennessee  requiring  the  redemption  in  cash  of  store  orders  or  other  evidences  of 
indebtedness  issued  by  employers  in  payment  of  wages  earned  by  employees  is  held 
to  be  constitutional.  Followed  in  Dayton  Coal  and  Iron  Co.  t;.  Barton,  183  U.  S.  23, 
22  Sup.  Ct.  Rep.  5.  The  case  of  People  ex  rel.  Rodgers  v.  Coler,  supra,  is  authority 
for  the  doctrine  that  a  municipal  corporation,  as  to  matters  affecting  its  property  and 
private  contracts,  has  the  same  status  as  private  corporations  and  individuals. 
Clark  v.  State,  142  N.  Y.  101,  36  N.  E.  817,  is  distinguished.] 


878  CONSTITUTIONAL   LIMITATIONS.  [oil.  XVI. 

ber  and  in  variety,  (a)  And  there  are  other  cases  where  it  be- 
comes necessary  for  the  public  authorities  to  interfere  with  the 
control  by  individuals  of  their  property,  and  even  to  destroy  it, 
where  the  owners  themselves  have  fully  observed  all  their  duties 
to  their  fellows  and  to  the  State,  but  where,  nevertheless,  some 
controlling  public  necessity  demands  the  interference  or  destruc- 
tion. A  strong  instance  of  this  description  is  where  it  becomes 
necessary  to  take,  use,  or  destroy  the  private  property  of  individ- 
uals to  prevent  the  spreading  of  a  fire,  the  ravages  of  a  pestilence, 
the  advance  of  a  hostile  army,  or  any  other  great  public  calamity.1 
Here  the  individual  is  in  no  degree  in  fault,  but  his  interest  must 
yield  to  that  "  necessity  "  which  "  knows  no  law."  The  establish- 
ment of  limits  within  the  denser  portions  of  cities  and  villages, 
within  which  buildings  constructed  of  inflammable  materials  shall 
not  be  erected  or  repaired,  may  also,  in  some  cases,  be  equivalent 
to  a  destruction  of  private  property  ;  but  regulations  for  this  pur- 
pose have  been  sustained  notwithstanding  this  result.2  Wharf 
lines  may  also  be  established  for  the  general  good,  even  though 
they  prevent  the  owners  of  water-fronts  from  building  out  on  soil 
which  constitutes  private  property.3  And,  whenever  the  legisla- 

1  Saltpetre  Case,  12  Coke,  13 ;  Mayor,  Wadleigh  v.  Oilman,  12  Me.  403,  28  Am. 
&c.  of  New  York  v.  Lord,  18  Wend.  126;  Dec.  188;  Brady  v.  Northwestern  Ins.  Co., 
Russell  v.  Mayor,  &c.  of  New   York,  2  11  Mich.  425;  Monroe  v.  Hoffman,  29  La. 
Denio,  461 ;  Sorocco  v.  Geary,  3  Cal.  69 ;  Ann.   651,    29  Am.    Rep.    345;   King   v. 
Hale  i:  Lawrence,  21  N.  J.  714;  American  Davenport,  98  111.  305,  38  Am.  Rep.  89 ; 
Print  Works  v.  Lawrence,  21  N.  J.  248  ;  Klingler  v.  Bickel,  117  Pa.  St.  326, 11  Atl. 
Meeker  r.  Van  Rensselaer,  15  Wend.  397  ;  555 ;  McCloskey  v.  Kreling,  76  Cal.  511, 
McDonald  v.   Redwing,    13    Minn.    38;  18  Pac.  433.    See  cases,  ante,  p.  284,  note. 
Philadelphia  v.  Scott,  81  Pa.  St.  80 ;  Dil-  [Milch  cows  infected  with  tuberculosis 
Ion,   Mun.  Corp.  §§  756-759 ;  [Aitken  v.  may  be  destroyed  without  compensation 
Wells  River,  70  Vt.  308,  40  Atl.  829,  41  to  owner.     Error  on  part  of  inspector  Miid 
L.  R.  A.  666  ]     And  see  Jones  v.  Rich-  consequent  destruction   of  healthy  cows 
mond,  18  Gratt.  517,  for  a  case  where  the  does  not  give  owner  any  claim  against 
municipal  authorities  purchased  and  took  the  State-.    Houston  v.  State,  98  Wis.  481, 
possession  of  the  liquor  of  a  city  about  to  74  N.  W.  Ill,  42   L.  R.  A.  39.     Peach 
be  occupied  by  a  capturing  military  force,  trees  infected  with   yellows   may  be  de- 
and  destroyed  it  to  prevent  the  disorders  stroyed.     State  r.  Main,  69  Conn.  123,  37 
that  might  be  anticipated  from  free  access  Atl.  80,  36  L.  R.  A.  623.     Milk  of  a  quality 
to  intoxicating  drinks  under  the  circum-  below  a  prescribed  standard  may  be  de- 
stances.     [But  this  case  is  overruled  in  stroyed.     Deems    v,   Baltimore,  80   Md. 
Wallace  v.    Richmond,   94  Va.   204,   26  164,  30  Atl.  648,  26  L.  R.  A.  641.J 

S.  E.  586,  36  L.  R.  A.  554.]     And  as  to  8  Commonwealth  v.  Alger,  7  Cush.  53. 

appropriation  by  military  authorities,  see  See  Hart  v.   Mayor,   &c.    of  Albany,   9 

Harmony  c.  Mitchell,  1  Blatch.  549 ;  s.  c.  Wend.  571,  24  Am.  Dec.  165.    [Height 

in  error,  18  How.  115.  of  buildings  fronting  on  Copley  Square, 

2  Respublica  v.  Duquet,  2  Yeates,  493  ;  Boston,  may  be  limited  to   ninety  feet. 

• 

(a)  [Compulsory  education  laws  are  upheld  as  within  the  police  power  of  the 
State.  State  v.  Jackson,  —  N.  H.  — ,  63  Atl.  1021  ;  State  v.  Bailey,  157  Ind.  324,  61 
N.  E.  730,  69  L.  R.  A.  435.] 


CH.  XVI.] 


THE    POLICE    POWER   OF   THE    STATES. 


879 


ture  deem  it  necessary  to  the  protection  of  a  harbor  to  forbid  the 
removal  of  stones,  gravel,  or  sand  from  the  beach,  they  may  es- 
tablish regulations  to  that  effect  under  penalties,  and  make  them 
applicable  to  the  owners  of  the  soil  equally  with  other  persons. 
Such  regulations  are  only  "a  just  restraint  of  an  injurious  use  of 
property,  which  the  legislature  have  authority  "  to  impose.1 


Atty.-Genl.  ».  Williams,  178  Mass.  330,  59 
N.  E.  812,  aff.  18—  U.  S.  — ,  23  Sup.  Ct. 
Rep.  363.] 

1  Commonwealth  v.  Tewksbury,  11 
Met.  55.  A  statute  which  prohibited  the 
having  in  possession  of  game  birds  after 
a  certain  time,  though  killed  within  the 
lawful  time,  was  sustained  in  Phelps  v. 
Racey,  60  N.  Y.  10.  But  such  statute  is 
held  in  Michigan  not  to  cover  a  case 
where  the  birds  were  killed  out  of  the 
State.  People,  v.  O'Neil,  71  Mich.  325, 
89  N.  W.  1.  That  the  State  may  prohibit 
the  sale  of  arms  to  minors,  see  State  v. 
Callicut,  1  Lea,  714.  QAlso  the  carrying 
of  dangerous  weapons,  Miller  v.  Texas, 
153  U.  S.  535,  14  Sup.  Ct.  Rep.  874  ;  State 
v.  Workman,  35  W.  Va.  367 ;  14  S.  E.  9, 
14  L.  R.  A.  600,  and  note  ;  State  may  reg- 
ulate the  taking  of  fish,  and  may  sum- 
marily confiscate  nets  and  seines  used  in 
fishing  in  violation  of  its  regulations. 
Lawton  v.  Steele,  152  U.  S.  133,  14  Sup. 
Ct.  Rep.  499,  aff.  119  N.  Y.  226,  23  N.  E. 
878,  7  L.  R.  A.  134.  State  control  of 
fisheries  in  high  seas  extends  one  marine 
league  from  shore.  Manchester  v.  Massa- 
chusetts, 139  U.  S.  240,  11  Sup.  Ct.  Rep. 
559.  State  may  require  guides  in  its 
woods  and  through  its  lakes  to  be  licensed 
and  to  report  upon  condition  of  its  game 
and  forests.  State  v.  Snowman,  94  Me. 
99,  46  Atl.  815,  50  L.  R.  A.  544,  80  Am. 
St.  380.  Fact  that  game  was  lawfully 
killed  on  an  Indian  reservation  and  is  to 
be  shipped  to  another  State  does  not  ex- 
empt it  from  State  police  regulations  after 
it  leaves  the  reservation  and  before  it 
passes  out  of  the  State.  Selkirk  v.  Ste- 
vens, 72  Minn.  335,  75  N.  W.  386,  40  L.  R. 
A.  759.  Cold-storage  of  game  lawfully 
killed  and  intended  to  be  kept  until  next 
open  season  and  then  sold  is  a  wrongful 
having  in  possession,  and  law  punishing 
same  is  constitutional.  Haggerty  v.  St. 
Louis  Ice  Mfg.  &  Storage  Co.,  143  Mo. 
238,  44  S.  W.  1114,  40  L.  R.  A.  151.  Upon 
governmental  control  over  right  of  fish- 
ery, see  People  v.  Truckee  Lumber  Co., 


116  Cal.  397,  48  Pac.  374,  39  L.  R.  A.  581, 
and  note.  State  may  absolutely  prohibit 
sale  of  specified  game  and  fish  within  its 
borders  during  specified  seasons  of  year. 
People  v.  O'Neil,  110  Mich.  324,  68  N.  W. 
227,  33  L.  R.  A.  696.  May  control  the 
taking  of  game  by  a  person  upon  his  own 
lands.  Peters  v.  State,  96  Tenn.  682,  36 
S.  W.  399,  33  L.  R.  A.  114,  People  v.  Van 
Pelt,  129  Mich.  — ,  90  N.  W.  424.  For 
other  cases  sustaining  game  laws,  see 
State  v.  Chapel,  64  Minn.  130,  66  N.  W. 
205,  32  L.  R.  A.  131 ;  State  v.  Mrozinski, 
59  Minn.  465,  61  N.  W.  560,  27  L.  R.  A. 
76;  Com.  v.  Gilbert,  160  Mass.  157,  35 
N.  E.  454,  22  L.  R,  A.  4'39 ;  State  v.  Lewis, 
134  Ind.  250,  33  N.  E.  1024,  20  L.  R,  A. 
52;  People  v.  Bridges,  142  111.  30,  31  N.E. 
115,  16  L.  R.  A.  684;  State  v.  Geer,  61 
Conn.  144,  22  Atl.  1012,  13  L.  R.  A.  804, 
and  note;  aff.  161  U.  S.  519,  16  Sup.  Ct. 
Rep.  600 ;  Am.  Exp.  Co.  v.  People,  133  111. 
649,  24  N.  E.  758,  9  L.  R.  A.  138  ;  James 
v.  Wood,  82  Me.  173,  19  Atl.  160,  8  L.  R. 
A.  448,  and  note ;  Smith  v.  State,  155  Ind. 
611,  68  N.  E.  1044,  51  L.  R.  A.  404;  Com. 
v.  Chase-Davidson  Co  ,  22  Ky.  L.  727,  58 
S.  W.  609 ;  State  v.  Dow,  70  N.  H.  286, 
47  Atl.  734,  53  L.  R.  A.  314.  Game  laws 
cannot  authorize  seizure  of  carcasses  or 
parts  thereof  in  course  of  inter-state  trans- 
portation. Bennett  v.  Am.  Exp.  Co.,  83 
Me.  236,  22  Atl.  159,  13  L.  R.  A.  33.  Nor 
can  they  prohibit  the  exportation  of  fish 
while  permitting  commerce  in  them  at 
home.  Territory  v.  Evans,  2  Idaho,  627, 
23  Pac.  232,  7  L.  R.  A.  288.  Nor  can 
they  affect  the  right  to  import  and  deal 
in  fish  imported  from  foreign  countries. 
People  o  Buffalo  Fish  Co.,  164  N.  Y.  93, 
58  N.  E.  34,  52  L.  R.  A.  803.  Ordinance 
making  mere  possession  of  a  lottery  ticket 
a  misdemeanor  is  valid.  Ex  parte  Mc- 
Clain,  134  Cal.  110,  66  Pac.  69,  64  L.  R. 
A.. 779.  A  statute  making  the  herding 
•of  sheep  within  two  miles  of  an  inhabited 
dwelling  unlawful  is  a  valid  exercise  of 
the  police  power.  Sifers  v.  Johnson,— 
Idaho— ,65  Pac.  709,  64  L.  R.  A.  785. 


880  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVI. 

So  a  particular  use  [or  disposition  (a)]  of  property  may  some- 
times he  forbidden,  where,  by  a  change  of  circumstances,  and 
without  the  fault  of  the  owner,  that  which  was  once  lawful,  proper, 
and  unobjectionable  has  now  become  a  public  nuisance,  endanger- 
ing the  public  health  or  the  public  safety.  (6)  Mill-dams  are 
sometimes  destroyed  upon  this  ground ; l  and  churchyards  which 

A  statute  prohibiting  sale  of  game  out  of  hibited,  and  a  riparian   owner   who   has 

season  is  valid  as  applied  to  game  im-  long  been  accustomed  to  deposit  therein 

ported  into  the  State.     Ex  parte  Maier,  sawdust  from  his  mill  cannot  claim  that 

103  Cal.  476,  37  Pac.  402,  42  Am.  St.  129.  by  such  regulation  he  is  deprived  of  his 

1  Miller    v.   Craig,    11  N.  J.  Eq.  175.  property  without  compensation.    States. 

And    offensive    manufactures    may     be  Griffin,  69  N.  H.  1,  39  Atl.  260,  41  L.  R. 

stopped.     Coe   v.   Schultz,  47  Barb.  64.  A.  177;  Peoples.  Truckee  Lumber  Co.. 

Public  wells  may  be  filled  up.     Ferren-  116  Cal.  397,  48  Pac.  374, 39  L.  R.  A.  581.] 

bach  r.  Turner,  86  Mo.  416.     [Deposit  See  League  v.  Journeay,  26  Tex.  172; 

of  sawdust  in  lake  from  which  the  water-  ante,  p.  850,  and  cases  ciled  in  note, 
supply  of  a  city  is  derived  may  be  pro- 

(«)  [The  owners  of  lands  may  be  prevented  from  allowing  natural  gns  to  waste  or 
escape  from  wells  which  he  has  sunk  for  oil.  Ohio  Oil  Co.  r.  Indiana,  177  U.  S.  190, 
20  Sup.  Ct.  Rep.  576  ,  aff.  150  Ind.  698,  50  N.  E.  1125.  See  note  on  "  Property  in 
petroleum  oil  or  gas  "  in  44  L.  ed.  U.  S.  729.  See  also  State  v.  Ohio  Oil  Co.,  150 
Ind.  21,  49  N.  E.  809,  47  L.  R.  A.  627 ;  Townsend  v.  State,  147  Ind.  624,  47  N.  E. 
19,  37  L.  R.  A.  294.  Fish  commissioners  may  place  fish  in  streams  flowing  over  pri- 
vate lands,  and  fishing  therein  may  be  prohibited  for  three  years  thereafter.  State 
v.  Theriault,  70  Vt.  617,  41  Atl.  1030,  43  L.  R.  A.  290.  But  a  solvent  debtor  cannot 
be  denied  the  right  to  transfer  property  to  a  preferred  creditor.  Third  Nat.  Bk.  v. 
Divine  Grocery  Co.,  97  Tenn.  603,  37  S.  W.  390,  34  L.  R.  A.  445.  Mine  operator  may 
be  compelled  to  stop  excavating  five  feet  from  boundary  of  his  lands  unless  he  secures 
written  consent  of  adjoining  proprietor.  Mapel  v.  John,  42  W.  Va.  30,  24  S.  E.  608, 
32  L.  R.  A.  800.] 

(ft)  FJ  Administrative  boards  may  be  empowered  to  exclude  unvaccinated  pupils 
from  the  public  schools  when  there  is  reason  to  fear  the  outbreak  of  a  small-pox 
epidemic.  Blue  r.  Beach,  155  Ind.  121,  56  N.  E.  89,  50  L.  R.  A.  64.  May  be  author- 
ized to  require  all  persons  to  be  vaccinated  unless  some  rule  of  the  Constitution  for- 
bids. State  v.  Hay,  126  N.  C.  999,  35  S.  E.  459,  49  L.  R.  A.  588,  78  Am.  St.  691 ; 
Morris  v.  Columbus,  102  Ga.  792,  30  S.  E.  850,  42  L.  R.  A.  175;  Bissell  v.  Davison,  65 
Conn.  183,  32  Atl.  348,  29  L.  R.  A.  251.  See  Mathews  v.  Bd.  of  Education,  127  Mich. 
530,  86  N.  W.  1036,  54  L.  R.  A.  736,  and  State  v.  Burdge,  95  Wis.  390,  70  N.  W.  347, 
37  L.  R.  A.  157,  where  it  is  held  that  this  requirement  in  the  absence  of  imminent 
danger  is  void.  Duffield  v.  School  Dist.,  162  Pa.  476,  29  Atl.  742,  25  L.  R.  A.  152. 
And  a  municipal  corporation  in  enforcing  compulsory  vaccination  is  not  liable  for 
damage  arising  from  the  unintentional  use  of  impure  vaccine.  Wyatt  v.  Rome,  105 
Ga.  312,  31  S.  E.  188,  42  L.  R.  A.  180.  State  may  compel  placing  and  maintenance 
of  water-closets  in  habitations  capable  of  connection  with  sewer.  Com.  v.  Roberts, 
165  Mass.  281,  29  N.  E.  522,  16  L.  R.  A.  400.  Owners  of  tenement-houses  may  be 
compelled  to  furnish  city  water  on  each  floor.  Health  Dept.  v.  Rector  of  Trinity 
Church,  145  N.  Y.  32,  39  N.  E.  833,  27  L.  R.  A.  710.  Operators  of  electric  street-car 
lines  may  be  compelled  to  provide  screens  for  the  protection  of  their  motor-men. 
State  v.  Nelson,  52  Ohio  St.  88,  39  N.  E.  22,  26  L.  R.  A.  317  ;  State  v.  Hoskins,  58 
Minn.  So,  59  N.  W.  545,  25  L.  R.  A.  759,  and  note ;  State  v.  Whitaker,  160  Mo.  69, 
60  S.  VV.  1068.  Statute  forbidding  lodging  house  keepers  to  permit  more  than  a 
specified  number  of  persons  from  occupying  the  same  room  is  void  as  discriminating 
against  them  and  in  favor  of  the  keepers  of  other  places  of  public  entertainment. 
Bailey  v.  The  People,  190  111.  28,  60  N.  E.  98,  54  L.  R.  A.  838,  83  Am.  St.  116-3 


CH.  XVI.] 


THE   POLICE   POWER   OF   THE   STATES. 


881 


prove,  in  the  advance  of  urban  population,  to  be  detrimental  to  the 
public  health,  or  in  danger  of  becoming  so,  are  liable  to  be  closed 
against  further  use  for  cemetery  purposes.1  The  keeping  of  gun- 
powder in  unsafe  quantities  in  cities  or  villages ; 2  the  sale  of  poison- 
ous drugs,  unless  labelled  ;  allowing  unmuzzled  dogs  to  be  at  large 
when  danger  of  hydrophobia  is  apprehended; 3  or  the  keeping  for  sale 


1  Brick  Presbyterian  Church  v.  Mayor, 
&c.  of  New  York,  5  Cow.  538 ;  Coates  v. 
Mayor,  &c.  of  New  York,  7  Cow.  604  ; 
Kino-aid's  Appeal,  66  Pa.  St.  411,  5  Am. 
Rep.  377.  As  to  the  general  power  of 
regulation  of  places  of  burial,  see  Wood- 
lawn  Cemetery  v.  Everett,  118  Mass.  354; 
Lake  View  v.  Rose  Hill  Cemetery  Co., 
70  111.  191 ;  Upjohn  v.  Board  of  Health, 

46  Mich.  542,  9  N.  W.  845.    And  see  ante, 
pp.  284,  851-855,  notes.      The  legislature 
may  authorize  a  municipal  corporation  to 
remove  the  dead  from  a  cemetery  within 
it.     Craig  v.  First  Presb.  Church,  88  Pa. 
St.  42,  32  Am.  Hep.  417.    QBut  if  owners 
of  cemetery  lots   are   permitted   to   use 
them  for  burial  purposes,  other  persons 
cannot  be    prohibited    from    purchasing 
such  lots  and  using  them  for  such  pur- 
poses.    Matter  of  Bolien,  115  Cal.   372, 

47  Pac.  55,  36  L.   R.    A.    618.      Munici- 
pality may  be  prohibited  further  use  of 
its  lands  for  burial  purposes.     Newark  v. 
Watson,  56  N.  J.  L.  667,  29  Atl.  487,  24 
L.  R.  A.  843.] 

2  Foote  v.  Fire  Department,  5  Hill,  99 ; 
Williams  v.  Augusta,  4  Ga.  509;   Daven- 
port L\  Richmond,  81  Va.  636.     And  see 
License   Cases,    5    How.    504,   589,   per 
McLean,  J. ;    Fisher  v.  McGirr,  1  Gray, 
127,  per  Shaw,  Ch.  J. 

3  Morey   v.    Brown,   42  N.    H.    373; 
Washington  v.  Meigs,  1  MacArthur,  53. 
Dogs  are  subject  to  such  regulations  as 
the   legislature  may  prescribe,  and  it  is 
not   unconstitutional    to   authorize  their 
destruction,  without   previous    adjudica- 
tion, when  found  at  large  without  being 
licensed  and  collared    according  to   the 
statutory  regulation.     Blair  v.  Forehand, 
100  Mass.  136;    QWalker  v.  Towle,  156 
Ind.  639,  59  N.  E.  20,  53  L.  R.  A.  749 ; 
Gibson  v.  Harrison,  69  Ark.  385,  63  S.  W. 
999,  54  L.  R.  A.  268 ;]  State  v.  Topeka,  36 
Kan.  76,  12  Pac.  310.     And  see  Carter  v. 
Dow,  16  Wis.  298 ;  Morey  v.  Brown,  42 
N.  II.  373  ;  Ex  parte  Cooper,  3  Tex.  A  pp. 
489,  30  Am.  Rep.  152.     As  a  measure  of 
internal  police,  the  State  has  the  power 

56 


to  encourage  the  keeping  of  sheep,  and 
to  discourage  the  keeping  of  dogs,  by  im- 
imposing  a  penalty  upon  the  owner  of  a 
dog  for  keeping  the  same.     Mitchell  v. 
Williams,  27  Ind.  62.     Or  by  imposing 
a  dog  tax  for  a  fund  to  indemnify  sheep 
owners   for   losses   suffered    from    dogs. 
Van    Horn   v.   People,  46  Mich.  183,  9 
N.    VV.   246.     fJOr  to   limit  the  amount 
which  can  be  recovered  for  injury  to  them 
or  destruction  of  them  to  the  amount  at 
which  they  were  returned  for  taxation  in 
the   last    preceding    annual    assessment 
Sentell  v.  N.  O.  &  C.  R.  Co.,  16(3  U.  S. 
698, 17  Sup.  Ct.  Rep.  693.    An  ordinance 
compelling  a  person  to  kill  his  dog  on  a 
finding  of  a  justice  of  the  peace  that  he 
"  is  satisfied  that  the  dog  has  attacked  a 
person  and  is  dangerous  "  is  void.    Peo- 
ple ex  rel.  Shand  v.  Tighe,  30  N.  Y.  Sup. 
368.~|    A  person  may  be  forbidden  to  keep 
more  than  two  cows  within  a  certain  part 
of  a  city.     In  re  Linehan,  72  Cal.  114, 
13  Pac.  170.   A  law  prohibiting  the  bring- 
ing of  Texas  and  Cherokee  cattle  into  the 
State  because  of  the  tendency  to  com- 
municate a  dangerous  and  fatal  disease 
to  other  cattle,  was  sustained  in  Yeazel 
?,-.  Alexander,  58  111.  254.     It  has  since, 
however,  been  questioned,  and  in   Rail- 
road Company  v.  Husen,  95  U.  S.   465, 
such  an  act  was  held  to  be  an  invasion 
of  the  power  of  Congress  over  inter-state 
commerce.     See  also  Hall  v.  De  Cuir,  95 
U.  S.  485.     But  a  statute  is  valid  which 
makes  one  who  has  in  his  possession  in 
Iowa  Texas  cattle,  which  have  not  win- 
tered in  the  North,  liable  for  damage  done 
by  them  to  other  cattle.  Kimmish  v.  Ball, 
129  U.  S.  217,  9  Sup.  Ct.  Rep.  277.    See 
Missouri  Pac.  Ry.  Co.  v.  Finley,  3S  Kan. 
550,  16  Pac.  951;  [^Grimes  v.  Eddy,  126 
Mo.  168,  28  S.  W.  756,  26  L.  R.  A.  638, 
and  note  upon  validity  and  construction 
of  statutes  concerning  infected  animals. 
Idaho  v.  Rasmusson,  —  Idaho,  — ,  59  Pac. 
933,  52  L.  R.  A.  78,  .iff.  181  U.  S.  198,  21 
Sup.  Ct.  Rep.  594.     Peach  trees  infected 
with  yellows  may  be  destroyed.     State  v. 


882 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


unwholesome  provisions,  or  other  deleterious  substances,  —  are  all 
subject  to  be  forbidden  under  this  power.1  And,  generally,  it  may 
be  said  that  each  State  has  complete  authority  to  provide  for  the 
abatement  of  nuisances,  whether  they  exist  by  the  fault  of  individ- 


Main,  69  Conn.  123, 37  Atl.  80,  36  L.  R.  A. 
623.;] 

1  The  manufacture  and  sale  of  any 
oleaginous  substance  designed  to  take  the 
place  of  butter  may  be  forbidden,  though 
it  is  healthful  and  marked  "  oleomarga- 
rine butter."  Such  provision  is  a  valid 
exercise  of  the  police  power.  Powell  v. 
Pennsylvania,  127  U.  S.  678,  8  Sup.  Ct. 
Rep.  992,  1257,  aff.  114  Pa.  St.  265,  7  Atl. 
913 ;  Bntler  v.  Chambers,  36  Minn.  69,  30 
N.  W.  308.  So  of  the  sale  of  oleomar- 
garine colored  to  deceive.  Waterbury  v. 
Newton,  50  N.  J.  L.  534,  14  Atl.  604.  In 
New  York  an  act  like  the  Pennsylvania 
statute  was  held  bad  as  prohibiting  an 
industry  because  it  competed  with  an- 
other. People  v.  Marx,  99  N.  Y.  377,  2 
N.  E.  29.  But  a  later  act  was  sustained, 
as  aimed  to  prevent  deception,  which  for- 
bade the  sale  of  a  like  product  made  in 
imitation  or  semblance,  or  designed  to 
take  the  place  of  natural  butter.  People 
v.  Arensberg,  105  N.  Y.  123,  11  N.  E.  277. 
Oleomargarine  may  be  required  to  be 
stamped :  Pierce  v.  Maryland,  63  Md. 
592;  or  colored  pink:  State  c.  Marshall, 
64  N.  H.  549, 15  Atl.  210.  [But  not  when 
brought  from  another  State.  Collins  v. 
New  Hampshire,  171  U.  S.  30, 18  Sup.  Ct. 
Rep.  7»S8,  rev.  State  v.  Myers,  42  W.  Va. 
822,  26  S  E.  539.  For  many  other  cases 
on  oleomargarine,  see  note,  p.  847.  See 
also  State  v.  Capital  City  Dairy  Co.,  62 
Ohio  St.  350.  57  X.  E.  62,  57  L.  R.  A.  181, 
and  cases  cited  in  note.]  The  sale  of 
milk  below  a  certain  standard  of  purity 
may  be  forbidden,  though  it  be  mixed 
with  pure  water.  Com.  t;.  Waite,  11 
Allen,  264 ;  People  v.  Cipperly,  101  N.  Y. 
634,  4  N  E.  107  ;  State  v.  Campbell,  64 
N  H.  402,  13  Atl.  585;  State  v.  Smyth, 
1-4  11.  I.  100;  [State  n.  Schlenker.  112 
Iowa,  612,  84  N.  W.  698,  61  L.  H.  A.  347, 
84  Am.  St.  360.  And  herds  of  cows  sup- 
plying milk  for  public  consumption  may 
he  compelled  to  be  registered,  and  they 
and  the  premises  whereon  they  are  kept 
to  be  inspected  and  kf-pt  in  a  sanitary 
condition.  State  v.  Broadbelt,  89  Md. 
665,  43  Atl.  771,  45  L.  R.  A.  433.  Milk 


offered  for  sale,  if  below  a  prescribed 
standard,  may  be  summarily  destro3?ed. 
Deems  v.  Baltimore,  80  Md.  164,  30  Atl. 
648,  26  L.  R.  A.  541 ;  see  in  this  connec- 
tion, State  v.  Du  Paquier,  46  La.  Ann. 
577,  15  So.  502,  26  L.  R.  A.  162.  The 
addition  of  any  adulterant,  even  though 
it  be  harmless  and  be  added  to  preserve 
the  milk,  may  be  prohibited.  State  v. 
Schlenker,  112  Iowa,  642,  84  N.  W.  698, 
51  L.  R.  A.  347,  84  Am.  St.  360.  Statute 
prohibiting  sale  of  cream  as  cream  which 
contains  less  than  twenty  per  cent  of  fat, 
is  valid.  State  v.  Crescent  City  Cream- 
ery Co.,  83  Minn.  284,  86  N.  W.  107,  54 
L.  R.  A.  466,  85  Am.  St.  464.  A  statute 
prohibiting  the  manufacture  and  sale  of 
"any  substance  or  compound  made  in 
imitation  of  yellow  butter  ".and  not  made 
"  wholly  of  cream  or  milk,"  is  constitu- 
tional. State  r.  Rogers,  95  Me.  .94,  49 
Atl.  564,  85  Am.  St.  395;  People  v. 
Rotter,  —  Mich.  — ,  91  N.  W.  167,  seem- 
ing to  overrule  Northwestern  Manufact- 
uring Co.  v.  Judge,  58  Mich.  381,  25  N.  W. 
372,  55  Am.  Kep.  693.  The  opinion  in 
People  v.  Rotter  collects  the  authorities 
on  this  question.  See  also  People  v. 
Biesecker,  169  N.  Y.  53,  61  N.  E.  990,  88 
Am.  St.  534,  57  L.  R.  A.  178.  The  legis- 
lature of  the  State  may  declare  that  a 
nuisance,  which  is  such  in  fact,  and  may 
create  a  commission  with  power  to  deter- 
mine whether  the  conditions  defined  by 
the  act  exist.  Los  Angeles  County  v. 
Spencer,  126  Cal.  670,  59  Pac.  202,  77 
Am.  St.  217-3  Tne  sale  of  fertilizers 
may  be  regulated  to  prevent  deception. 
Steiner  v.  Ray,  84  Ala.  93,  4  So.  172. 
[And  baking-powder  manufacturers  may 
be  compelled  to  publish  upon  the  labels 
of  the  cans  in  which  they  pack  their 
powders  a  list  of  the  ingredients  of  such 
powders.  State  v.  Sherod,  80  Minn.  446, 
83  N.  W.  417,  50  L.  R.  A.  660.  Sale  of 
alum  baking-powders  may  be  prohibited. 
State  v.  Layton,  160  Mo.  474,  61  S.  W. 
171.  On  "  Summary  Abatement  of  Nui- 
sances by  Boards  of  Health,"  see  2  Co- 
lumbia L.  Rev.  203J 


CH.  XVI.]  THE    POLICE    POWER   OF   THE    STATES. 


883 


uals  or  not,1  and  even  though  in  their  origin  they  may  have  been, 
permitted  or  licensed  by  law.2 


1  See  Miller  v.  Craig,  11  N.  J.  Eq.  175; 
Weeks  v.  Milwaukee,  10  Wis.  242 ;  Water- 
town  v.  Mayo,  109  Mass.  315.  One  of 
the  powers  most  comnjonly  conferred 
upon  municipal  corporations  is  that  to 
declare  and  abate  nuisances.  The  gen- 
eral authority  is  commonly  given  to  the 
common  council  or  other  legislative  body, 
but  so  far  as  the  nuisances  are  supposed 
to  be  injurious  to  the  public  health,  juris- 
diction in  respect  to  them  is  likely  to  be 
conferred  upon  boards  of  health.  Where 
nuisances  are  spoken  of  in  statutes  dele- 
gating this  authority,  public  nuisances 
must  be  understood  as  intended,  and  for 
whatever  is  merely  a  private  nuisance  in- 
dividuals must  seek  their  own  remedy. 
The  delegation  of  this  authority  over 
nuisances  is  very  apt  to  raise  troublesome 
questions,  and  the  authority  itself  is  likely 
to  be  taken  to  be  broader  than  it  is.  It 
is  first  to  be  understood  that  nothing  is  a 
public  nuisance  which  the  law  itself — 
either  common  or  statute  —  authorizes. 
Pittsburgh,  &c.  R.  11.  Co.  v.  Brown,  67 
Ind.  45,  33  Am.  Rep.  73;  Chicago,  &c. 
R.  R.  Co.  v.  Joliet,  79  III.  25.  And  there- 
fore if  the  municipal  authority  should 
assume  to  declare  something  which  was 
entirely  lawful  by  the  law  of  the  State  to 
be  a  nuisance,  the  declaration  would  be  a 
mere  nullity  because  in  conflict  with  the 
superior  law.  An  illustration  is  found  in 
a  case  where  a  city  declared  the  occupa- 
tion by  a  railroad  company  of  certain 
grounds  where  it  had  been  lawfully  lo- 
cated to  be  a  nuisance,  and  forbade  its 
longer  continuance.  Chicago,  &c.  R.  R. 
Co.  v.  Joliet,  79  111.  25.  Whether  any  par- 
ticular thing  or  act  is  or  is  not  permitted 
by  the  law  of  the  State  must  always  be  a 
judicial  question,  and  therefore  the  ques-. 
tion  what  is  and  what  is  not  a  public 
nuisance  must  be  judicial,  and  it  is  not 
competent  to  delegate  it  to  the  local  legis- 
lative or  administrative  boards.  Yates 
v.  Milwaukee,  10  Wall.  497 ;  Wreford  r. 
People,  14  Mich.  41 ;  State  v.  Street 
Commissioners,  36  N.  J.  283;  Everett  v. 
Council  Bluffs,  46  Iowa,  66;  Hutton  r. 


Camden,  39  N.  J.  122, 23  Am.  Rep.  203 ;  St. 
Louis  v.  Schnuckelberg,  7  Mo.  App.  536. 
The  local  declaration  that  a  nuisance  ex- 
ists is  therefore  not  conclusive,  and  the 
party  concerned  may  contest  the  fact  in 
the  courts.  Ex  parte  O'Leary,  65  Miss. 
80,  3  So.  144;  Hennessy  v.  St.  Paul,  37 
Fed.  Rep.  665 ;  QEvansville  v.  Miller, 
146  Ind.  613,  45  N.  E.  1054,  38  L.  R.  A. 
lOl.]  There  being  no  charter  power  to 
declare  a  nuisance,  an  ordinance  declar- 
ing dense  smoke  a  nuisance  is  void.  St. 
Paul  v.  Gilfillan,  36  Minn.  298,  31  N.  W. 
49;  QSt.  Louis  v.  Heitzeberg  P.  &  P.  Co., 
141  Mo.  375,  42  S.  W.  954,  39  L.  R.  A. 
551.3  So  as  to  a  prohibition  of  all  lime- 
kilns in  a  city :  State  v.  Mott,  61  Md.  297  ; 
and  of  all  laundries.  In  re  Sam  Kee,  31 
Fed.  Rep.  680.  All  picnics  cannot  be 
made  nuisances.  Poyer  v.  Des  Plaines, 
18  III.  App.  225.  In  Kennedy  v.  Board  of 
Health,  2  Pa.  St.  366,  it  was  held  compe- 
tent for  the  legislature  to  make  such  loca- 
declaration  conclusive ;  but  this  seems 
questionable.  It  is  entirely  competent, 
however,  to  confer  upon  the  municipali- 
ties the  authority  to  supersede  the  gen- 
eral law  in  respect  to  those  matters  which 
are  found  to  be  injurious  in  their  locality, 
and  to  create  as  to  them  a  new  class  of 
public  offences.  Thus,  under  proper  leg- 
islation, a  municipal  council  may  make 
the  selling  of  spirituous  liquors  within 
their  jurisdiction  a  nuisance  :  Goddard  v. 
Jacksonville,  15  III.  588 ;  QMcManus  v. 
State,  —  Kan.  — ,  70  Pac.  700;  Davis  r. 
Auld,  96  Me.  559,  53  Atl.  118 ;]  or  the 
selling  of  goods  on  Sunday  :  McPherson 
v.  Chebanse,  114  III.  46,  28  N.  E.  454;  or 
the  keeping  of  a  bowling  alley  for  hire: 
Tanner  v.  Albion,  5  Hill,  121 ;  or  an  offen- 
sive manufactory:  Kennedy  v.  Phelps, 
10  La.  Ann.  227 ;  or  a  slaughter-house 
within  certain  specified  limits :  Metro- 
politan Board  of  Health  v.  Heister,  37 
N.  Y.  661  ;  Q>r  the  maintenance  of  a 
privy  vault  on  premises  adjoining  a  pub- 
lic sewer:  Harrington  v.  Providence,  20 
R.  I.  233,  38  Atl.  1,  38  L.  R.  A.  305:]  or 
a  private  hospital :  Milne  v.  Davidson,  5 


2  See  Beer  Company  v.  Massachusetts, 
97  U.  S.  25  ;  Fertilizing  Co.  v.  Hyde  Park, 
97  U.  S.  659 ;  ante,  p.  400,  and  note ;  Mug- 


ler  v.  Kansas,  123  U.  S.  623,  8  Sup.  Ct. 
Rep.  273;  Davenport  v.  Richmond,  81 
Va.  636. 


884 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


The  State  has  also  a  right  to  determine  what  employments  shall 
be  permitted,  and  to  forbid  those  which  are  deemed  prejudicial  to 
the  public  good.  Under  this  right  it  forbids  the  keeping  of  gam- 
bling houses,  and  other  places  where  games  of  chance  or  skill  are 
played  for  money,  the  keeping  for  sale  of  indecent  books  and  pic- 
tures, the  keeping  of  houses  of  prostitution,  (a)  and  the  resort 
thereto,  and  in  some  States  the  sale  of  intoxicating  drinks  as  a 


Mart.  N.  s.  409,  16  Am.  Dee.  189 ;  or  the 
erection  of  wooden  buildings :  King  v. 
Davenport,  98  III.  305;  or  tlie  running  at 
large  of  swine:  Roberts  v.  Ogle,  30  III. 
459;  Wiiitfield  v.  Longest,  6  Ired.  208; 
Crosby  <>.  Warren,  1  Rich.  385;  or  the  un- 
reasonable occupation  of  public  waters  : 
Tourne  v.  Lee,  8  Mart.  N.  s.  548,  20  Am. 
Dec.  260 ;  or  the  use  of  steam  as  motive 
power  for  cars  in  the  streets  :  North  Chi- 
cago C.  R.  Co.  v.  Lake  View,  105  111. 
207 ;  or  the  emitting  of  dense  smoke  in 
the  city  :  Harmon  v.  Chicago,  110  111.  400. 
And  if  in  any  of  these  cases  there  was 
doubt  whether  what  was  forbidden  was  a 
nuisance  at  the  common  law,  the  munici- 
pal declaration  would,  as  to  the  future, 
resolve  the  doubt,  but  could  not  operate 
retrospectively.  If  a  municipal  corpora- 
tion proceeds  to  abate  a  nuisance,  it  pos- 
sesses for  that  purpose  only  the  rights  of 
any  private  person,  and  if  injury  results 
to  an  individual,  it  must  justify  its  action 
by  showing  that  a  nuisance  existed  in 
fact.  Wood  on  Nuisances,  §§  738,  739; 
Welch  r.  Stowell,  2  Doug.  (Mich.)  332; 
Brightmnn  v.  Bristol,  65  Me.  426,  20  Am. 
Rep.  711;  Mayor  of  Americus  v.  Mitch- 
ell, 79  Ga.  807,  5  S.  E.  201.  [Except  as 
to  such  things  as  are  nuisances  per  se,  or 
in  their  very  nature,  a  person  charged 
with  maintaining  them  is  entitled  to  he 
heard  upon  the  question  of  whether  it  be 
a  nuisance.  Western  &  A.  Ry.  Co.  r. 
City  of  Atlanta,  113  Ga.  537,  38  S.  E. 
996,  54  L.  R.  A.  294.]  But  a  municipal 
corporation  may  order  the  removal  of  a 
nuisnnce  at  the  expense  of  the  person 
creating  or  responsible  for  it.  Salem  r. 
Eastern  R.  R.  Co.,  98  Mass.  431.  And 
this  is  frequently  done  in  the  case  of 
city  lots  which  are  a  nuisance  in  their 

(a)  [Prostitutes  may  be  restricted  to  a  limited  area  of  a  town.  L'Hote  r.  New 
Orleans,  177  U.  S.  587,  20  Sup.  Ct.  Rep.  788,  aff.  51  La.  Ann.  93,  44  L.  R.  A.  90,  24 
So.  608.  As  to  power  of  a  city  over  houses  of  prostitution,  see  State  r.  Karsiandiek, 
49  La.  Ann.  1621,  22  So.  845,  39  L.  R.  A.  520,  and  People  v.  Hanrahan,  75  Mich.  611, 
42  N.  W.  1124,  4  L.  R.  A.  751.] 


natural  condition,  or  have  become  so  by 
the  act  or  neglect  of  the  owner.  The 
municipal  order  for  removal  is  conclusive : 
Baker  v.  Boston,  12  Pick.  421,  22  Am. 
Dec.  421 ;  though  when  it  is  to  be  done  at 
the  cost  of  the  owner  he  is  not  concluded 
as  to  the  cost  by  the  action  of  the  corpora- 
tion, but  has  a  right  to  be  heard  as  to  the 
items  :  Salem  v.  Eastern  R.  R.  Co.,  98 
Mass.  431  ;  and  in  Kentucky  on  the  ques- 
tion of  nuisance.  Joyce  v.  Woods,  78 
Ky.  386.  If  the  corporation  is  itself 
chargeable  with  creating  the  nuisance, 
the  cost  of  abating  it  cannot  be  imposed 
upon  the  owner.  Weeks  v.  Milwaukee, 
10  Wis.  242;  Hannibal  v.  Richards,  82, 
Mo.  380.  See  Banning  v.  Commonwealth, 
2  Duv.  95.  If  it  has  expressly  permitted 
it,  it  can  abate  only  after  a  judicial  de- 
cision. Everett  v.  Marqtiette,  53  Mich. 
450,  19  N.  W.  140.  The  abatement  must 
be  made  by  the  removal  of  that  in  which 
the  nuisance  consists.  King  r.  Rosewell, 
2  Salk.  459;  Ely  r.  Supervisors  of  Niag- 
ara, 36  N.  Y.  297;  State  v.  Keenan,  5 
R.  I.  497 ;  Miller  v.  Birch,  32  Tex.  208. 
And  it  must  be  done  without  inflicting 
unnecessary  injury.  Babcockr.  Buffalo, 
56  N.  Y.  268 ;  Weil  v.  Ricord,  24  N.  J. 
Eq.  169.  See  Ferguson  v.  Selma,  43  Ala. 
398 ;  and  on  the  subject  in  general,  Fer- 
tilizing Co.  v.  Hyde  Park,  97  U.  S.  659. 
[Upon  municipal  power  over  nuisances 
affecting  safety,  health,  and  personal 
comfort,  see  note  to  38  L.  R.  A.  305 ; 
over  buildings  and  other  structures  as 
nuisances,  note  to  38  L.  R.  A.  161.  To 
the  effect  that  private  persons  may  not 
abate  a  common  nuisance,  so  declared  by 
statute,  see  State  v.  Stark,  63  Kan.  629, 
66  Pac.  243,  54  L.  R.  A.  910.] 


CH.  XVI.] 


THE   POLICE    POWER   OF   THE    STATES. 


885 


beverage.1  These  several  kinds  of  business  have  a  tendency 
which  is  injurious  and  demoralizing  ;  and  this  tendency  is  recog- 
nized even  in  States  where  they  are  not  forbidden,  and  they  are 
subjected  to  regulations  with  a  view  to  reducing  their  evils  to  a 
minimum.  The  regulation  is  likely  to  take  the  form  of  a  license, 
for  which  a  fee  is  exacted  to  cover  the  expense  of  supervision,  and 
the  days  and  hours  when  the  business  shall  be  suffered  will  per- 
haps also  be  prescribed,  (a)  Where  an  occupation  like  gaming 
or  the  sale  of  demoralizing  articles  is  altogether  prohibited,  it  is 
not  uncommon  to  provide  that  whatever  is  kept  for  use  or  sale  in 
violation  of  the  law  shall  be  forfeited  by  the  owner,  and,  after 
judicial  hearing,  condemned  and  destroyed.2  And  taxes  are  some- 


1  The  sale  of  opium  may  be  forbidden. 
State  v.  Ah  Chew,  16  Nev.  50.  Where 
sale  of  liquors  is  allowed,  it  is  common  to 
require  closing  of  places  of  sale  on  Sun- 
day ;  and  it  is  held  competent  to  enact 
that  the  lighting  up  of  such  a  place  on 
that  day  shall  be  prima  facie  evidence  of 
guilt.  Piqua  v.  Zimmerlin,  35  Ohio  St. 
507.  Where  a  municipal  ordinance  per- 
mits sales,  the  license  may  be  forfeited 
for  violation  of  the  ordinance.  Ottumwa 
v.  Schwab,  52  Iowa,  515,  3  N.  W.  529. 
Municipal  authorities  empowered  to  close 
drinking  places  "temporarily"  cannot 
order  them  closed  "  till  further  order," 
but  must  define  the  time.  State  v. 
Strauss,  49  Md.  288.  The  keeping  open 
after  hours  cannot  be  made  a  breach 
of  the  peace  allowing  arrest  without  a 
warrant.  People  v.  Haug,  68  Mich.  549, 
37  N.  W.  21.  FJA  State  has  no  power 
to  bind  itself  to  permit  lotteries  to  be 
carried  on.  Douglas  v.  Kentucky,  168 
U.  S.  488,  18  Sup.  Ct.  Rep.  199,  follow- 
ing Stone  ?.'.  Mississippi,  101  U.  S.  814. 
But  it  cannot  prohibit  a  gift  enterprise 
in  connection  with  merchandising  where 
there  is  no  element  of  chance  involved. 
Long  v.  State,  73  Md.  527,  21  All.  683, 
12  L.  R.  A.  89,  74  Md.  565,  22  Atl.  4,  12 
L.  R.  A.  425.  For  trading  stamp  legisla- 
tion held  constitutional,  see  State  v.  Dai- 
ton,  22  R.  I.  77,  46  Atl.  234,  84  Am.  St. 
818,  48  L.  R.  A.  775.  Upon  power  to 
regulate  liquor-selling,  see  Giozza  r.  Tier- 
nan,  148  U.  S.  657, 13  Sup.  Ct.  Rep.  1047  ; 


Crowley  v.  Christensen,  137  U.  S.  86,  11 
Sup.  Ct.  Rep.  13.  State  may  forbid  the 
making  of  options  for  the  sale  of  com- 
modities, even  though  the  parties  actually 
contemplate  a  transfer  of  the  commodi- 
ties. Booth  c.  People,  186  111.  43, 57  N.  E. 
798,  50  L.  R.  A.  762,  78  Am.  St.  229,  aff. 
184  U.  S.  425,  22  Sup.  Ct.  Rep.  425. 
Regulate  sale  of  intoxicating  liquors, 
and  grant  or  refuse  licenses  therefor. 
De  Walt's  Appeal,  190  Pa.  577,  42  Atl. 
1117,  45  L.  R.  A.  399.  Prohibit  keep- 
ing of  a  place  where  money  is  received 
to  be  bet  on  horse-races,  even  though 
place  is  kept  by  agent  of  inter-state  tele- 
graph company  and  money  is  transmitted 
by  telegraph  to  another  State.  State  ». 
Harbourne,  70  Conn.  484,  40  Atl.  179,  40 
L.  R.  A.  607.  Regulate  horse-racing  and 
the  use  of  race-tracks  therefor.  State  v. 
Roby,  142  Ind.  108,  41  N.  E.  145,  33 
L.  R.  A.  213.  Liquor-selling  may  be  re- 
stricted to  citizens  of  the  United  States, 
and  applicants  for  license  may  be  re- 
quired to  required  to  secure  approval  of 
specified  commissioners.  Tragesser  v. 
Gray,  73  Md.  250,  20  Atl.  905,  9  L.  R.  A. 
780,  and  note.  See  further  on  control  of 
liquor-traffic,  Altenburgh  v.  Com.,  126 
Pa.  602,  17  Atl.  799,  4  L.  R  A.  543.J 

2  Ante,  p.  849,  note.  QSuch  machines 
may  be  summarily  seized  and  destroyed. 
Bd.  of  Police  Comm'rs  v.  Wagner,  93 
Md  182,  48  Atl.  455;  and  see  Lawton  v. 
Steele  and  other  cases,  in  note  2,  page 
878.] 


(a)  FJWhere  there  is  no  regulation,  the  fee  imposed  is  not  a  license-fee  but  a  tax, 
and  if  it  does  not  conform  to  the  constitutional  requirements  for  a  tax  the  imposi- 
tion is  void.  State  v.  Moore,  113  N.  C.  697,  18  S.  E.  342,  22  L.  R.  A.  472.  See  also 
Jacksonville  v.  Ledwith,  26  Fla.  163,  7  So.  885,  9  L.  R.  A.  69J 


886 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


times  imposed  with  a  view  to  discourage  occupations  which  are 
injurious  in  their  tendency,  but  which  the  State  does  not  venture 
to  prohibit.1 

So  the  most  proper  business  may  be  regulated  to  prevent  its  be- 
coming offensive  to  the  public  sense  of  decency,2  or  for  any  other 
reason  injurious  or  dangerous;3  and  rules  for  the  conduct  of  the 


1  Youngblood    v.    Sexton,   32    Mich. 
406. 

2  Like  the  keeping  and  exhibition  of 
stallions  and  bulls  in  public  places.     Nolin 
v.  Franklin,  4  Yerg.  163. 

8  Watertown  v.  Mayo,  109  Mass.  315  ; 
Blydenburg  v.  Miles,  39  Conn.  484;  Tay- 
lor v.  State,  35  Wis.  298.  The  sale  of  any 
pistol  except  the  navy  pistol  may  be  for- 
bidden. Dabbs  v.  State,  39  Ark.  353. 
One  operating  a  co-operative  cheese  fac- 
tory may  be  required  to  give  bonds. 
Hawthorn  v.  People,  109  111.  302.  The 
sale  of  goods,  except  at  one's  regular 
place  of  business,  near  camp  meeting 
grounds  may  be  forbidden.  Meyers  v. 
Baker,  120  111.  567,  12  N.  E.  79;  Com.  v. 
Bearse,  133  Mass.  542.  An  inn-keeper 
may  be  required  to  take  out  a  license. 
Bostick  v.  State,  47  Ark.  126,  14  S.  W. 
476.  But  the  manufacture  of  tobacco 
on  any  floor  of  a  tenement  house,  if  such 
floor  is  used  as  a  residence,  may  not  be 
forbidden.  In  re  Jacobs,  98  N.  Y.  98. 
QState  may  regulate  the  occupation  or 
business  of  barbers,  and  may  require 
barbers  to  pass  an  examination  and  pay 
a  reasonable  license-fee  therefor,  in  order 
to  insure  proper  degree  of  competency 
and  to  protect  the  health  of  their  patrons. 
State  v.  Zeno,  79  Minn.  80,  81  N.  W.  748, 
48  L.  R.  A.  88.  But  such  regulations  as 
limit  the  right  of  a  citizen  to  contract 
with  reference  to  his  own  property  must 
have  some  recognizable  tendency  to  pro- 
mote the  public  welfare.  They  cannot 
be  purely  arbitrary.  Dennis  v.  Moses, 
18  Wash.  537,  52  Pac.  333,  40  L.  R.  A. 
302;  State  v.  Wagener,  77  Minn.  483,  80 
N.  W.  633,  778,  1134,  46  L.  R.  A.  442. 
Manufacturers  may  be  compelled  to  pay 
their  employees  their  wages  weekly  in 
Massachusetts.  Re  House  Bill  No.  1230, 
163  Mass.  589,  40  N.  E.  713,  28  L.  R.  A. 
344  ;  and  upon  power  to  regulate  time  of 
payment  of  wages,  see  note  to  this  case 
in  L.  R.  A.,  also  upon  requirement  that 
wages  be  paid  in  lawful  money,  note  to 
28  L.  R.  A.  273,  and  Dixon  v.  Poe,— 


Ind.  — ,  65  N.  E.  518.  In  Pennsylvania 
it  is  held  that  insurance  business  may 
be  confined  to  corporations.  Common- 
wealth v.  Vrooman,  164  Pa.  306,  30  Atl. 
217,  25  L.  R.  A.  250.  State  may  provide 
that  answer  by  applicant  for  insurance 
shall  not  bar  recovery  unless  wilfully 
false,  material,  and  made  without  agent's 
knowledge  of  falsity,  and  unless  it  in- 
duced the  company  to  issue  the  policy. 
J.  Hancock  M.  L.  Ins.  Co.  v.  Warren,  59 
Ohio  St.  45,  51  N.  E.  546,  aff.  in  181  U.  S. 
73,  21  Sup.  Ct.  Rep.  535.  Statute  pro- 
viding that  if  insurance  company  shall 
fail  to  pay  loss  when  due  it  shall  be  liable 
for  12  per  cent  additional  is  held  valid  in 
Fidelity  and  Casualty  Co.  v.  Allibone,  90 
Tex.  660,  39  S.  W.  632.  But  see  Railway 
Co.  v.  Ellis,  165  U.  S.  150, 17  Sup.  Ct.  Rep. 
255,  where  similar  statute  as  to  contracts 
between  railway  companies  and  their 
employees  is  held  void.  Upon  power  to 
regulate  insurance,  see  State  v.  Stone, 
118  Mo.  388,24  S.  W.  164,  25  L.  R.  A.  243, 
and  Noble  &  W.  v.  Mitchell,  100  Ala.  519, 
14  So.  581,  25  L.  R.  A.  238,  and  note. 
Ticket  brokerage  may  be  prohibited. 
Burdick  v.  People,  149  111.  600,  36  N.  E. 
948,  24  L.  R.  A.  152,  and  note;  State  v. 
Corbett,  57  Minn.  345,  59  N.  W.  317,  24 
L.  R.  A.  498;  Com.  v.  Keary,  198  Pa. 
500,  48  Atl.  472.  But  all  regulations  of 
business  that  is  not  in  itself  deleterious 
to  the  general  good  must  be  reasonable. 
They  cannot  be  arbitrary,  and  if  they  are 
so  the  courts  will  set  them  aside.  Ex 
parte  Whitwell,  98  Cal.  73,  32  Pac.  870, 
19  L.  R.  A.  727.  An  act  forbidding  one 
not  a  registered  pharmacist  to  sell  patent 
medicines  is  void  as  unreasonable.  Noel 
v.  People,  187  111.  587,  58  N.  E.  616,  62 
L.  R.  A.  287.  Plumbers  may  be  required 
to  procure  a  certificate  of  competency 
from  a  State  board  of  examiners,  and 
to  be  registered.  Singer  v.  State,  72  Md. 
464,  19  Atl.  1044,  8  L.  R.  A.  651 ;  People 
v.  Warden,  144  N.  Y.  529,  39  N.  E.  686, 
27  L.  R.  A.  718.3 


CH.  XVI.] 


THE   POLICE    POWER   OF   THE   STATES. 


887 


most  necessary  and  common  occupations  are  prescribed  when 
from  their  nature  they  afford  peculiar  opportunities  for  imposition 
and  fraud.1  Cities  commonly  provide  markets  where  provisions 
may  be  exposed  for  sale;  and  these  are  subjected  to  careful  regu- 
lations, and  furnished  with  official  inspectors  to  whom  every 
dealev  may  be  required  to  exhibit  his  stock,  (a)  Dealers  may  also 
be  compelled  to  take  out  a  license,  and  the  license  may  be  refused 
to  a  person  of  bad  reputation,  or  taken  away  from  a  party  detected 
in  dishonest  practices.2  For  dealings  in  the  markets,  weights 


1  E.  g  ,  the  business  of  insuring  lives 
or  property.  Ward  z;.  Farwell,  97  111. 
693  ;  Lothrop  v.  Steadman,  42  Conn.  583. 
FJThat  of  itinerant  vendors.  State  v. 
Foster,  21  R.  I.  251, 43  All.  66,  50  L.  R.  A. 
339.  State  may  require  that  coal  mined 
shall  be  weighed  before  being  screened, 
and  that  miners  shall  be  paid  accord- 
ing to  weights  thus  determined,  where  the 
parties  are  left  free  to  determine  by  con- 
tract the  rate  to  be  paid.  State  v.  Wilson, 
61  Kan.  32,  58  Pac.  981,  47  L.  R.  A. 
71.  See  further  on  statutes  requiring 
weighing  of  coal  before  screening,  lie 
Preston,  63  Ohio,  428,  59  N.  K.  101,  52 
L.  R.  A.  523,  81  Am.  St.  642,  and  cases 
cited  in  the  opinion.  Statute  forbidding 
discharge  of  an  employee  because  of 
membership  in  a  labor  organization  is 
invalid.  State  v.  Kreutzberg,  114  Wis. 
530,  90  N.  W.  1098  ;  State  v.  Julow,  129 
Mo.  163,  31  S.  W.  781,  29  L.  R.  A.  257, 
60  Am.  St.  443 ;  Gillespie  v.  People,  188 
111.  176,  58  N.  E.  1007,  80  Am.  St.  176. 
That  commission  merchants  dealing  in 
farm  produce  shall  take  out  licenses, 
have  their  business  inspected,  give  bonds 
for  due  performance  of  their  duties  to 
consignors,  &c. ;  State  v.  Wagener,  77 
Minn.  483,  80  N.  W.  633,  778,  1134,  46 
L.  R.  A.  442 ;  contra,  People  v.  Coolidge, 
124  Mich.  664,  83  N.  W.  594,  50  L.  R.  A. 
493.  State  may  regulate  the  practice 
of  dentistry.  State  v.  Vandersluis,  42 
Minn.  129,  43  N.  W.  789,  6  L.  R.  A.  119. 
But  regulations  of  the  practice  of  the 
professions  cannot  make  arbitrary  dis- 
criminations. State  v.  Pennoyer,  65 
N.  H.  113,  18  Atl.  878,  5  L.  R.  A.  709. 


General  buyers  of  wheat  at  elevators 
situated  on  or  alongside  any  railway  may 
be  required  to  take  out  licenses.  Cargill 
Co.  v.  Minnesota,  180 U.  S.  452,21  Sup.  Ct. 
Rep.  423,  aff.  77  Minn.  223,  79  N.  W.  962. 
Sale  of  railway  tickets  may  be  restricted 
to  authorized  agents  of  railway  compa- 
nies. Com.  v.  Keary,  198  Pa.  500, 48  Atl. 
472 ;  Burdick  v.  People,  149  111.  600,  36 
N.  E.  948,  24  L.  R.  A.  152,  and  note  ; 
State  v.  Corbett,  57  Minn.  345,  59  N.  W. 
317,  24  L.  R.  A.  498J 

2  See,  in  general,  Nightingale's  Case, 
11  Pick.  168;  Buffalo  v.  Webster,  10 
Wend.  99 ;  Bush  v.  Seabury,  8  Johns. 
418;  Ash  v.  People,  11  Mich.  347;  State 
v.  Leiber,  11  Iowa,  407  ;  Le  Claire  v.  Dav- 
enport, 13  Iowa,  210;  White  v.  Kent,  11 
Ohio  St.  550  ;  Bowling  Green  v.  Carson, 
10  Bush,  64  ;  New  Orleans  v.  Stafford,  27 
La.  Ann.  417.  QAn  act  requiring  ped- 
dlers in  a  certain  county  to  take  out  a 
license  and  exempting  from  its  operation 
merchants,  persons  selling  to  merchants, 
and  persons  selling  property  raised  or 
manufactured  by  them,  is  held  invalid  in 
Com.  v.  Snyder,  182  Pa.  St.  630,  38  Atl. 
356 ;  State  v.  Wagener,  69  Minn.  206,  72 
N.  W.  67,  38  L.  R.  A.  677.  But  see  Ros- 
enbloom  v.  State,  —  Neb.  —  ,  89  N.  W. 
1053,  67  L.  R.  A.  922,  and  note,  in  which 
case  it  is  held  that  a  regulation  requiring 
license  from  dealers  in  merchandise  which 
exempted  those  selling  their  own  produc- 
tions is  valid.  A  regulation  limiting  re- 
quirement for  license  to  transients  only  is 
void  ;  McGraw  v.  Marion,  98  Ky.  673, 34  S. 
W.  18,  47  L.  R.  A.  593.  See  also  Kniscly 
v.  Cotterel,  196  Pa.  614,  46  Atl.  861,  60 


(a)  QUpon  police  powers  over  markets,  see  Jacksonville  v.  Ledwith,  26  Fla.  163, 
7  So.  885,  9  L.  11.  A.  69  ;  State  v.  Sarradat,  46  La.  Ann.  700,  15  So.  87,  24  L.  R.  A. 
684,  and  note ;  City  of  New  Orleans  v.  Faber,  105  La.  208,  29  So.  607,  63  L.  R.  A. 
165.  Fresh  meats  may  be  required  to  be  sold  only  in  public  markets.  Newson  ». 
Galveston,  76  Tex.  669,  13  S.  W.  368,  7  L.  R.  A.  797-3 


888 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVI. 


and  measures  are  established,  and  parties  must  conform  to  the 
fixed  standards  under  penalty.1  It  is  also  common  to  require 
draymen,  hackmen,  pawnbrokers,  and  auctioneers  to  take  out 
licenses,  and  to  conform  to  such  rules  and  regulations  as  seem 
important  to  the  public  convenience  and  protection.2  So  for  the 
protection  of  youth  in  institutions  of  learning,  and  for  the-  good 
discipline  of  schools,  the  sale  of  liquors  in  their  vicinity  may  be 
prohibited  when  allowed  generally,3  and  credit  for  livery  to  pupils, 
without  the  consent  of  the  college  authorities,  may  be  subjected 
to  penalty.4  So,  for  the  protection  of  laborers  against  the  oppres- 
sion of  employers,  it  is  hold  competent  to  forbid  their  being  paid 
in  anything  else  than  legal-tender  funds.5  And  under  its  general 


L.  R.  A.  86,  and  note ;  Carrollton  v.  Ba- 
zette,  159  III.  284,42  N.  E.  837,  31  L.  R.  A. 
622  ;  State  v.  Harrington,  68  Vt.  622,  35 
Atl.  515,  34  L.  li.  A.  100;  Brownback  v. 
North  Wales,  191  Pa.  60'),  45  Atl.  6(50,  49 
L.  R.  A.  446 ;  State  v.  Foster,  22  R.  I. 
1C3,  46  Atl.  833,  50  L.  R.  A  339-3  The 
power  is  continuing,  and  markets  once 
established  may  be  changed  at  the  option 
of  the  authorities,  and  they  cannot  even 
by  contract  deprive  themselves  of  this 
power.  Gale  v.  Kalamazoo,  23  Mich. 
344;  Gall  v.  Cincinnati,  18  Ohio  St.  563; 
Cougot  v.  New  Orleans,  16  La.  Ann.  21. 
Sales  outside  of  public  markets  may  be 
prohibited.  Gossigi  v.  New  Orleans,  41 
La.  Ann.  522,  6  So.  534  ;  Ex  parte  Byrd, 
84  Ala.  17,  4  So.  397. 

1  Guillotte  v.  New  Orleans,  12  La. 
Ann.  432;  Page  v.  Fazackerly,  36  Barb. 
392 ;  Raleigh  v.  Sqrrell,  1  Jones  (N.  0.), 
49;  Gaines  v.  Coats,  51  Miss.  335;  Dil- 
lon, Mun.  Corp.  §§  323,  324,  and  cases 
cited.  Sales  of  food  may  not  be  forbid- 
den merely  because  prizes  or  gifts  are  part 
of  the  inducement.  People  v.  Gillson,  109 
N.  Y.  389,  17  N.  E.  343.  As  to  market 
regulations  in  general,  see  Wartman  v. 
Philadelphia,  33  Pa.  St.  202;  Spaulding 
v.  Lowell,  23  Pick.  71 ;  Gall  U.Cincinnati, 
18  Ohio  St.  563;  Municipality  v.  Cutting, 
4  La.  Ann.  336;  State  v.  Fisher,  62  Mo. 
174.  £Upon  powers  of  municipalities 
over  markets,  see  State  v.  Sarradat,  46 
La.  Ann.  700,  15  So.  87,  24  L.  R.  A.  584, 
and  note;  Jacksonville  v.  Ledwith,  26 
Fla.  163,  7  So.  885,  9  L.  R.  69.  Ingredi- 
ents of  compound  or  adulterated  lard 
may  be  required  to  be  disclosed  upon 
the  wrapper  of  the  package.  State  v. 
Snow,  81  Iowa,  642,  47  N.  W.  777,  11 


L.  R.  A.  355.  Sale  of  certain  classes  of 
provisions  may  be  restricted  to  public 
markets.  New  Orleans  v.  Faber,  105 
La.  208,  29  So.  507,  53  L.  R.  A.  165.] 

2  Commonwealth  v.  Stodder,  2  Cush. 
662;  Morrell  v.  State,  38  Wis.  428;  20 
Am.  Rep.  12  ;  Dillon,  Mun.  Corp.  §§291- 
296.  One  who  lets  his  horse  and  wagon 
for  the  hirer  to  use  himself  is  not  a  dray- 
man. State  v.  Robinson,  42  Minn.  107, 
43  N.  \V.  833,  6  L.  R.  A.  339.  As  to 
license  fees,  and  when  they  are  taxes, 
see  ante,  pp.  283,  706 ;  Mayor,  &c.  of 
Mobile  v.  Yuille,  3  Ala.  137. 

8  State  r.  Ranscher,  1  Lea,  96 ;  Boyd 
v.  Bryant,  35  Ark.  69,  37  Am.  Rep.  A 
See  Bronson  v.  Oberlin,  41  Ohio  St.  476. 

*  Soper  v.  Harvard  College,  1  Pick. 
177,  11  Am.  Dec.  159.  In  Common- 
wealth v.  Bacon,  13  Bush,  210,  26  Am. 
Rep.  189,  it  was  held  not  competent  to 
forbid  any  one  carrying  on  stabling 
within  a  specified  distance  of  a  named 
agricultural  society  during  its  fairs. 

6  Shaffer  v.  Union  Mining  Co.,  55  Md. 
74.  ("And  for  the  protection  of  the  health 
of  miners  and  the  avoidance  of  unneces- 
sary danger  to  their  lives  and  limbs,  the 
State  may  compel  the  ventilation  of 
mines  and  the  erection  of  structures  to 
facilitate  their  escape  in  case  of  accident. 
The  cost  of  the  necessary  inspections 
may  be  levied  upon  the  owners  of  the 
mines.  Chicago,  W.  &V.  Coal  Co.  v.  Peo- 
ple, 181  III.  270,  54  N.  E.  961 ;  48  L.  R.  A. 
554  ;  Consolidated  Coal  Co.  v.  People,  186 
111.  134,  57  N.  E.  880.  And  the  State 
may  require  railway  companies  to  com- 
.  pensate  all  employees  for  injuries  caused 
by  negligence  of  any  of  their  servants  in 
charge  of  particular  branches  of  their 


CH.  XVI.] 


THE   POLICE    POWEK    OF   THE    STATES. 


889 


right  to  require  merchandise  to  be  submitted  to  public  inspection 
and  regulation,  the  State  may  prescribe  the  size  of  packages 
and  place  of  inspection  for  the  shipment  of  tobacco  to  foreign 
countries,  and  impose  penalties  for  failure  to  conform  to  the 
regulations.1 

The  general  rule  undoubtedly  is,  that  any  person  is  at  liberty 
to  pursue  any  lawful  calling,  and  to  do  so  in  his  own  way,  not 
encroaching  upon  the  rights  of  others.  This  general  right  can- 
not be  taken  away.  It  is  not  competent,  therefore,  to  forbid  any 
person  or  class  of  persons,  whether  citizens  or  resident  aliens, 
offering  their  services  in  lawful  business,  or  to  subject  others  to 
penalties  for  employing  them.2  But  here,  as  elsewhere,  it  is 
proper  to  recognize  distinctions  that  exist  in  the  nature  of  things, 
and  under  some  circumstances  to  inhibit  employments  to  some 
one  class  while  leaving  them  open  to  others.  Some  employments, 
for  example,  may  be  admissible  for  males  and  improper  for 
females,  and  regulations  recognizing  the  impropriety  and  forbid- 
ding women  engaging  in  them  would  be  open  to  no  reasonable 
objection.3  The  same  is  true  of  young  children,  whose  employ- 


service.  Such  legislation  being  justified 
upon  the  ground  that  it  is  for  the  pro- 
tection of  persons  engaged  in  an  extra- 
hazardous  occupation.  Indianapolis  U. 
Ry.  Co.  v.  Houlihan,  157  Ind.  494,  60 
N.  E.  943,  54  L.  R.  A.  787.  See  construc- 
tion of  statute  forbidding  the  assignment 
of  wages  not  due  and  declaring  invalid 
agreements  relieving  an  employer  from 
paying  wages  weekly  in  International 
T.  B  Co.  v.  Weissinger,  —  Ind.  — ,  65 
N.  E.  521.  ] 

1  Turner  v.  State,  55  Md.  240,  aff.  107 
U.  S.  38,  2  Sup.  Ct.  Rep.  44. 

2  Baker  v.  Portland,  5   Sawyer,  566. 
FJIt  is  unlawful  to  require  an   applicant 
for  a  license  to  follow  the  occupation  of 
a  barber  to  be  a  citizen  of  the  United 
States :    Templar  v.   Examining   Bd.   of 
Barbers,  —  Mich.  — ,  90  N.  W.  1058.   See 
Tragresser  v.  Gray,  73  Md.  250,  20  Atl. 
905, 9  L.  R.  A  .780,  holding  that  liquor-sell- 
ing mny  be  restricted  to  citizens  of  the 
United  States.     Police  regulations  cannot 
be   purely  cirbitrary  nor  purely  for  the 
promotion  of  private  interests.     It  must 
appear  that  the  general  welfare  is  to  be 
in  some  degree  promoted.     A  statute  re- 
quiring railroads  and  transportation  com- 
panies to  turn  over  to  a  storage  company 
or    public   warehouseman    all    property 
which  the  consignee  fails  to  call  for  or 


receive  within  twenty  days  after  notice 
of  its  arrival,  is  unconstitutional.  State 
r.  Chicago,  M.  &  St.  P.  R.  Co.,  68  Minn. 
381, 71  N.  W.  400,  38  L.  R.  A.  672.  But  in 
Pennsylvania  it  is  held  that  the  business 
of  insurance  may  be  confined  to  corpora- 
tions. Com.  v.  Vrooman,  164  Pa.  306,  30 
Atl.  217,  25  L.  R.  A.  250.  A  gift  enter- 
prise carried  on  by  a  merchant  in  connec- 
tion with  his  business  and  involving  no 
element  of  chance  cannot  be  prohibited. 
Long  v.  State,  73  Md.  527,  21  Atl.  683,  12 
L.  R.  A.  527,  74  Md.  565,  22  Atl.  4,  12 
L.  R  A.  425.  And  see  State  t>.  Dalton, 
22  R.  I.  77,  46  Atl.  234,  84  Am.  St.  818, 
48  L.  R.  A.  775.] 

8  It  has  been  held  that  a  constitutional 
provision  forbidding  the  General  Assem- 
bly granting  "  to  any  citizen,  or  class  of 
citizens,  privileges  or  immunities  which 
upon  the  same  terms  shall  not  equally 
belong  to  all  citizens,"  does  not  preclude 
restricting  the  licensing  of  the  sale  of 
intoxicating  drinks  to  males.  Blair  n.  Kil- 
patrick,  40  Ind.  312.  The  people  of  Cali- 
fornia deemed  it  wise  to  provide  by  their 
constitution  that  "no  person  shall  on  ac- 
count of  sex  be  disqualified  from  entering 
upon  or  pursuing  any  lawful  business, 
vocation,  or  profession  ;  "  and  it  has  been 
held  that  the  legislature  is  now  deprived 
of  the  power  to  prohibit  the  employment 


890 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVI. 


ment  in  mines  and  manufactories  is  commonly,  and  ought  always, 
to  be  regulated.1  And  some  employments  in  which  integrity 
is  of  vital  importance  it  may  be  proper  to  treat  as  privileges 
merely,  and  to  refuse  the  license  to  follow  them  to  any  who  are 
not  reputable.2 

Whether  the  prohibited  act  or  omission  shall  be  made  a  crimi- 
nal offence,  punishable  under  the  general  laws,  or  subject  to  pun- 
ishment under  municipal  by-laws,  or,  on  the  other  hand,  the  party 
be  deprived  of  all  remedy  for  any  right  which,  but  for  the  regu- 
lation, he  might  have  had  against  other  persons,  are  questions 
which  the  legislature  must  decide.  It  is  sufficient  for  us  to  have 
pointed  out  that,  in  addition  to  the  power  to  punish  misdemeanors 
and  felonies,  the  State  has  also  the  authority  to  make  extensive 
and  varied  regulations  as  to  the  time,  mode,  and  circumstances 
in  and  under  which  parties  shall  assert,  enjoy,  or  exercise  their 
rights  without  coming  in  conflict  with  any  of  those  constitutional 
principles  which  are  established  for  the  protection  of  private 
rights  or  private  property.3 


of  females  in  drinking-cellars  and  other 
places  where  liquors  are  kept  for  sale. 
Matter  of  Maguire,  57  Cal.  604.  £Sale 
of  wines  and  liquors  in  dance-cellars  and 
the  like  places  frequented  by  women  may 
be  forbidden.  Ex  parte  Hayes,  98  Cal. 
655,  33  Pac.  337,  20  L.  R.  A.  701-3  That 
such  employment  might  otherwise  be 
prohibited  on  good  reasons,  few  persons 
will  doubt.  See  Matter  of  Quong  Woo, 
13  Fed.  Rep.  229.  And  in  Ohio  this  may 
be  forbidden  under  power  to  regulate 
saloons.  Bergman  v.  Cleveland,  39  Ohio 
St.  651. 

1  See     Commonwealth    v.    Hamilton 
Manufacturing  Co.,  120  Mass.  383.   [[Em- 
ployment of  girls  less  than  fourteen  years 
old  in  public  theatrical  exhibitions,  &c., 
may  be  forbidden  under  penalty.   People 
v.  Ewer,  141   N.  Y.  129,  36  N.  E.  4,  25 
L.  R.  A.  794,  and  note.] 

2  The  legislature  may  prescribe  the 
qualifications  for  the  practice  of  dentistry : 
Wilkins  v.  State,  113  Ind.  514,  16  N.  E. 
192  ;  State  v.  Vandersluis,  42  Minn.  129, 
43  N.  W.  789,  6  L.  R.  A.  119  ;  Gosnell  v. 
State,  52  Ark.  228,  12  S.  W.  392  ;  or  med- 
icine.    State  v.  Dent,  25  W.  Va.  1 ;  aff. 
129  U.  S.  114,  9  Sup.  Ct.  Rep.  231 ;  East- 
man v.  State,  109  Ind.  278,  10  N.  E.  97 ; 
People  v.  Phippin,  70  Mich.  6,  37  N.  W. 
888.   QAnd  after  license  granted  the  State 
may  revoke  it  for  a  cause  existing  at 


time  of  grant  and  then  known,  and  it  may 
make  new  regulations  and  provide  pen- 
alties for  breach  thereof,  even  though 
such  regulations  amount  under  the  cir- 
cumstances to  a  deprival  of  the  right  to 
practise.  Hawker  v.  New  York,  170  U.  S. 
189,  18  Sup.  Ct.  Rep.  673.  Upon  validity 
of  regulations  of  practice  of  medicine, 
see  note  to  14  L.  R.  A.  579.  State  may 
restrict  practice  of  law  to  males.  Ex 
parte  Lockwood,  154  U.  S.  116,  14  Sup. 
Ct.  Rep.  1082.  But  it  rests  with  the 
courts  to  determine  what  qualifications 
are  necessary  to  admission  to  the  bar. 
Re  Day,  181  111.  73,  54  N.  E.  646,  50 
L.  R.  A.  619.  State  may  compel  all 
practising  physicians  to  take  out  new 
licenses,  and  to  pass  examinations  there- 
for. State  v.  Webster,  150  Ind.  607,  50 
N.  E.  750 ;  41  L.  R.  A.  212J  The  right 
to  practise  cannot  be  refused  without 
giving  the  applicant  an  opportunity  to 
be  heard.  State  v.  State  Med.  Ex. 
Board,  32  Minn.  324,  20  N.  W.  238; 
Gage  v.  Censors,  63  N.  H.  92.  [See 
Reetz  v.  Michigan,  —  U.  S.  — ,  23  Sup. 
Ct.  Rep.  390.]  Physicians  may  be  re- 
quired to  report  births  and  deaths.  Rob- 
inson v.  Hamilton,  60  Iowa,  134,  14  N.  W. 
202. 

8  Upon  the  general  right  of  the  State 
to  regulate  trades  and  occupations,  see 
further,  Pierce  v.  Kimball,  9  Me.  64,  23 


CH.  XVI.] 


THE  POLICE   POWER   OF  THE   STATES. 


891 


Am.  Dec.  537 ;  Shepherd  v.  Commission- 
ers, f>9  Ga.  5o5  ;  State  e.  Calliout,  1  Lea, 
716 ;  Fry  v.  State,  6:5  Ind.  652.  [[Where 
the  constitution  directs  that  "  the  legisla- 
ture shall  pass  laws  to  provide  for  the 
health  and  safety  of  employees  in  fac- 
tories, smelters,  and  mines,"  the  legisla- 
ture is  competent  to  enact  that  "  except 
in  cases  of  emergency  where  life  or  prop- 
erty is  in  imminent  danger  "  "the  period 
of  employment  of  workingmen  in  all  un- 
derground mines  or  workings  "  and  "  in 
smelters  and  all  other  institutions  for  the 
reduction  or  refining  of  ores  or  metals 
shall  be  eight  hours  per  day,"  and  that 
the  violation  of  any  such  provision  by 
"  any  person,  body  corporate,  agent,  man- 
ager or  employer,"  shall  be  a  misde- 
meanor. Holden  v.  Hardy,  169  U.  S. 
366,  18  Sup.  Ct.  Rep.  383,  aff.  14  Utah, 
71,  96,  46  Pac.  756,  1105,  37  L.  R.  A.  103, 
108.  The  case  in  the  United  States  Su- 
preme Court  cites  many  cases  bearing 
upon  the  subject,  and  discusses  very 
thoroughly  the  effect  of  the  Fourteenth 
Amendment  upon  the  police  powers  ot 
the  States.  See  also  Short  v.  Bullion, 
B.  &  C.  Mining  Co.,  20  Utah,  20,  57 
Pac.  720,  45  L.  R.  A.  603,  where  effect 
of  this  act  upon  contracts  for  pay  for 
overtime  is  considered.  That  such  regu- 
lation cannot  be  made  under  the  ordi- 
nary constitution,  see  Re  Morgan,  26 
Colo.  415,  58  Pac.  1071,  47  L.  R.  A.  52, 
77  Am.  St.  269.  In  Fiske  v.  People,  188 
111.  206,  58  N.  E.  985,  52  L.  R.  A.  291,  it  is 
held  that  an  ordinance  providing  for  pro- 
visions in  city  contracts  limiting  hours  of 
labor  upon  city  works  to  eight  hours  was 
unconstitutional  as  infringing  freedom  to 
contract.  For  other  cases  upon  the  right 
to  limit  or  regulate  hours  of  labor,  see 


People  v.  Phyfe,  136  N7.  Y.  554,  32  N.  E. 
978,  ly  L.  li.  A.  141 ;  Re  Dalton,  61  Kan. 
257,  59  Pac.  336,  47  L.  R.  A.  380 ;  Seattle • 
v.  Smyth,  22  Wash.  327,  60  Pac.  1120,  79 
Am.  St.  939 ;  of  females  upheld  in  Wen- 
ham  v.  State,  —Neb.  — ,  91  N.  W.  421,  68 
L.  R.  A.  825;  Cleveland  v.  Clement  Bros. 
Const.  Co.,  —  Ohio  — ,  66  N.  E.  885.  59 
L.  R.  A.  775;  State  v.  Buchanan,  — 
Wash.  — ,  70  Pac.  52,  59  L.  R.  A.  342 
(forl)idding  employment  of  women  more 
than  ten  hours  a  day).  See  further  upon 
power  of  State  to  limit  hours  of  labor,  63 
Cent.  L.  Jour.  384.  Upon  protection  of 
health  of  employees,  see  People  v.  Smith, 
108  Mich.  527,  66  N.  W.  382,  32  L.  R.  A. 
853,  and  note;  protection  of  health  within 
State,  State  v.  Schlemmer,  42  La.  An. 
1166,  8  So.  307;  10  L.  R.  A.  135,  and 
note;  relation  of  States  to  general  gov- 
ernment in  regard  to  police  power,  con- 
tracts, &c.,  note  to  Baldwin's  View,  9  L. 
ed.  U.  S.  873.  In  Indianapolis  U.  Ry.  Co. 
v.  Houlihan,  157  Ind  494,  60  N.  E.  943,  64 
L.  R.  A.  787,  a  statute  making  railway 
companies  liable  to  employees  for  in- 
juries caused  by  negligence  of  other  em- 
ployees of  specified  grade,  was  upheld  as 
valid  exercise  of  police  power.]  Where  a 
municipality  is  given  power  to  license  oc- 
cupations which  are  proper  in  themselves 
and  not  subject  to  special  evils  —  e.g. 
that  of  a  laundry  —  the  license  cannot  be 
made  conditional  on  obtaining  consent  of 
residents  of  the  neighborhood,  as  this  in 
effect  would  be  a  delegation  of  its  power 
to  license.  Matter  of  Quong  Woo,  13  Fed. 
Rep.  229.  The  functions  of  a  fertilizer 
inspector  must,  except  by  statutory  per- 
mission, be  exercised  within  the  State. 
Hammond  v.  Wilcher,  79  Ga.  421,  6  S.  E. 
113. 


892  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVIL 


CHAPTER  XVII. 

THE    EXPRESSION   OP   THE   POPULAR   WILL. 

ALTHOUGH  by  their  constitutions  the  people  have  delegated  the 
exercise  of   sovereign  powers   to  the  several  departments,  they 
have  not  thereby  divested  themselves  of  the  sovereignty.     They 
retain  in  their  own  hands,  so  far  as  they  have  thought  it  needful 
to  do  so,  a  power  to  control  the  governments  they  create,  and  the 
three  departments  are  responsible  to  and  subject  to  be  ordered, 
directed,  changed,  or  abolished  by  them.     But  this  control  and 
direction  must  be  exercised  in  the  legitimate  mode  previously 
agreed  upon.     The  voice  of  the  people,  acting  in  their  sovereign 
capacity,  can  be  of  legal  force  only  when  expressed  at  the  times 
and  under  the  conditions  which  they  themselves  have  prescribed 
and  pointed  out  by  the  constitution,  or  which,  consistently  with 
the  constitution,  have  been  prescribed  and  pointed  out  for  thcrn^ 
by  statute  ;  and  if  by  any  portion  of  the  people,  however  large, 
an  attempt  should  be  made  to  interfere  with  the  regular  working 
of  the  agencies  of  government  at  any  other  time  or  in  any  other 
I  mode  than  as  allowed   by  existing  law,  either  constitutional  or 
,'    statutory,  it  would  be   revolutionary  in  character,  and  must  be 
j   resisted  and  repressed  by  the  officers  who,  for  the  time  being, 
I/  represent  legitimate  government.1 

1  "  The  maxim  which  lies  at  the  foun-  There  are  a  number  of  provisions  in 

dation  of  our  government  is  that  all  po-  different   State   constitutions   which    re- 

litical  power  originates  with  the  people,  quire  that  certain  specified  propositions 

But   since  the  organization   of  govern-  — such,  for  example,  as  the  amendment 

ment  it  cannot  be  claimed  that  either  the  of  the  constitution  or  the  removal  of  a 

legislative,  executive,  or  judicial  powers,  county  seat  —  shall   be  carried   only  by 

either   wholly   or  in  part,  can  be  exer-  a  majority  vote  of  the  electors,  or  per- 

cised   by   them.     By   the    institution   of  haps  by  a  two-thirds  majority.     Whether 

government  the    people    surrender    the  by   majority   in   these    provisions   is   in- 

exercise  of  all  these  sovereign  functions  tended  a  majority  of  all  who  took  part  in 

of  government  to  agents  chosen  by  them-  the  election,  by  voting  on  any  proposition 

selves,  who  at  least  theoretically  represent  then  submitted,  or  by  voting  for  any  offi- 

the  supreme  will  of  their  constituents,  cer  then  to  be  chosen,  or  only  a  majority 

Thus  all  power  possessed  by  the  people  of  those  <who   voted   on   the   particular 

themselves  is  given  and  centred  in  their  proposition,  has  sometimes  been  made  to 

chosen  representatives."     Davis,  Cli.  J.,  turn  on  the  peculiar  phraseology  of  the 

in   Gibson   v.   Mason,   6  Nev.   283,   291.  constitutional  provision  ;  but  it  must  be 

See  Luther  v.  Borden,  7  How.  1 ;  Koehler  confessed  that  it  is  impossible  to  harmo- 

v.  Hill,  60  Iowa,  617,  14  N.  W.  738,  16  nize  the  cases,  and  we  give  references  to 

N.  W.  609 ;  State  v.  Tufly,  19  Nev.  391,  them  without  attempting  it.     Taylor  v. 

12  Pac.  885.  Taylor,  10  Minn.  107 ;  Bayard  v.  Klinge, 


CH.  XVII.]    THE  EXPKESSION  OF  THE  POPULAR  WILL.         893 

The  authority  of  the  people  is  exercised  through  elections,  (a) 
by  means  of  which  they  choose  legislative,  executive,  and  judicial 

16   Minn.  249 ;   Gillespie   v.   Palmer,  20  469 ;   Belknap  v.  Louisville,  99  Ky.  474, 

Wis.  544;  State  v.  Winkelmeier,  35  Mo.  86  S.  W.  1118,  34  L.  R.  A.  256;  State  v. 

105;    State  v.  Mayor,   &c.,  37  Mo.  270;  Langlie,  5  N.  D.  594,  67  N.  W.  958,  32 

State  v.  Binder,  38  Mo.   450;    State  v.  L.   11.  A.  723;    People  v.  Berkeley, 'l02 

Sutterfield,  54  Mo.  391 ;   State  v.  Brass-  Cal.  298,  36  Pac.  691,  23  L.  R.  A.  838-3 

field,  67  Mo.  331 ;  State  v.  St.  Louis,  73  In  respect  to  municipal  and  other  corpo- 

Mo.  435;  State  v.  Francis,  95  Mo.  44,  8  rate  bodies  the  general  rule  is  that  if  a 

S.  W.  1;  People  v.  Brown,  11  111.  478;  quorum  is  present  when  an  election  is  to 

Dunnovan  v.  Green,  57  111.  63;  Chestnut-  be  made,  or  other  corporate  action  taken, 

wood  v.  Hood,  68  111.  132  ;  State  ??.  Swift,  and  the  minority  for  any  reason  refuse  to 

69  Ind.  505;  State  v.  Lancaster  County,  vote,  they  must  be  deemed  to  acquiesce 

6  Neb.  474 ;  State  v.  Anderson,  26  Neb.  in  tire  action  of  those  who  do  vote.     Old- 

617,  42  N.  W.  421 ;  Prohibitory  Amend-  know  v.  Wainwright,  or  Rex  v.  Foxcroft, 

ment  Cases,  24  Kan.  700;  State  v.  Echols,  Burr.  1017;   First  Parish  v.  Stearns,  21 

41  Kan.  115,  20  Pac.  523;  Cass  County  Pick.  148;   Booker  v.  Young,  12  Gratt. 

v.  Johnson,  95  U.  S.  360 ;  Walker  v.  Os-  303 ;    State   v.   Green,  37  Ohio  St.   227. 

wald,  68  Md.  146,  11  Atl.  711;   Braden  [Citizens  &  Taxpayers  of  De  Soto  Parish 

v.    Stumph,    16    Lea,    681.      [Bryan    v.  v.  Williams,  49  La.  Ann.  422,  21  So.  647, 

Stephenson,  50  Neb.  620,  70  N.  W.  252,  37  L.   R.   A.   761.     But   see    People    v. 

35  L.  R.  A.  752;  Zeiler  v.  Central  R.  Co.,  Berkeley,  102  Cal.  298,  36  Pac.  591,  23 

84  Md.  304  ;  35  Atl.  932 ;  34  L.  R.  A.  L.  R.  A.  838.] 

(a)  [Several  States  have  recently  enacted  laws  for  the  prevention  of  bribery,  in- 
timidation, fraud,  and  other  corrupt  practices  at  elections.  Such  are  generally  called 
Corrupt  Practices  Acts.  In  Mason  v.  State,  58  Ohio  St.  30,  50  N.  E.  6,  41  L.  R.  A. 
291,  M.  was  ousted  from  the  office  of  probate  judge  for  having  attempted  to  influ- 
ence the  votes  of  sundry  persons  by  promising  that  in  case  of  his  election  lie  would 
use  his  influence  to  secure  them  various  appointments  to  office,  and  the  right  to  jury 
trial  was  denied  since  the  action  was  merely  one  to  try  title  to  office.  In  State  v. 
Bland,  144  Mo.  534,  46  S.  W.  440,  41  L.  R.  A.  297,  a  somewhat  similar  statute,  it  was 
held,  should  be  strictly  construed ;  B.  was  charged  with  paying  money  and  promis- 
ing appointments  to  subordinate  offices  in  order  to  secure  the  withdrawal  of  a  rival 
candidate,  to  which  charge  he  demurred,  and  the  demurrer  was  sustained  on  the 
ground  that  the  offence  prohibited  was  the  act  of  corruptly  influencing  the  vote  of 
any  voter,  and  not  that  of  securing  the  withdrawal  of  an  opposing  candidate.  It 
must  be  confessed  that  in  the  present  case  where  B.  induces  his  opposing  candidate 
N.  to  withdraw  by  promising  that  in  case  he  is  elected  he  will  attempt  to  secure  N.'s 
appointment  to  a  lucrative  position,  the  circumstances  being  such  that  his  attempt 
is  practically  certain  to  succeed,  the  distinction  between  inducing  N.  to  withdraw  in 
favor  of  B.  and  attempting  to  induce  N.  to  vote  for  B.  seems  more  subtle  than  sub- 
stantial. Where  oath  of  office  is  prescribed  with  provision  that  no  other  oath  or 
qualification  shall  ever  be  required,  the  candidate  cannot  be  required  to  make  oath 
as  to  expenditures.  Bradley  v.  Clark,  133  Cal.  196,  65  Pac.  395.  Where  the  Con- 
stitution prohibits  more  than  one  election  a  year,  special  elections  cannot  be  held, 
but  the  special  matters  must  be  submitted  at  a  general  election.  Belknap  v.  Louis- 
ville, 99  Ky.  474,  36  S.  W.  1118,  34  L.  R.  A.  256.  Where  an  appointment  to  fill 
a  vacancy  lasts  until  "the  next  election  by  the  people,"  the  appointee  holds  for 
the  remainder  of  the  regular  term  and  not  merely  until  the  next  general  election. 
People  v.  Budd,  114  Cal.  168,  45  Pac.  1060,  34  L.  R.  A.  46.  The  provision  that  all 
the  qualified  electors  in  a  city  "  shall  have  the  right  to  vote  for  mayor  and  the  other 
elective  officers  "  does  not  prevent  a  division  of  the  city  into  wards  so  that  each 
elector  in  a  ward  is  restricted  to  voting  for  an  alderman  from  his  ward.  State  v. 
McAllister,  88  Tex.  284,  31  S.  W.  187,  28  L.  R.  A.  523.  But  where  the  members  of 
assembly  are  to  be  elected  "  by  the  legal  voters  of  the  county  respectively,"  and  each 
assemblyman  must  be  an  inhabitant  of  "the  county  for  which  he  shall  be  chosen," 


894 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


officers,  to  whom  are  to  be  entrusted  the  exercise  of  powers  of 
government.1     In  some  cases  also  they  pass  upon  other  questions 


1  [The  act  of  voting  is  an  exercise  of 
sovereignty  and  cannot  be  compelled. 
Kansas  City  v.  Whipple,  136  Mo.  475,  38 
S.  W.  295, 35  L.  It.  A.  747  ;  but  why  not  1 
It  certainly  is  not  an  act  of  the  sovereign, 
for  there  are  many  voters  but  there  can 
be  only  one  sovereign  in  any  state. 
That  a  citizen  properly  qualified  and 
selected  may  be  compelled  to  serve  as  an 
officer,  see  People  v.  Williams,  145  111. 
573,  33  N.  E.  849,  24  L.  R.  A.  492,  and 
note.]  Where  neither  by  constitution  nor 
by  statute  are  the  qualifications  for  office 
prescribed,  any  one  is  eligible  who  pos- 
sesses the  elective  franchise.  It  may  hap- 
pen, therefore,  that  one  may  be  an  officer 
who  is  not  a  citizen  of  the  United  States  ; 
for  in  a  number  of  the  States  aliens 
who  have  declared  their  intention  to  be- 
come citizens,  and  have  the  qualification 
of  residence  are  given  the  franchise.  Mc- 
Carthy c.  Froelke,  63  Ind.  507.  Whether 
the  converse  is  true,  —  that  one  not  an 
elector  cannot  hold  office,  —  in  the  ab- 
sence of  written  law  on  the  subject,  is 
possibly  open  to  question.  In  Barker  v. 
People,  3  Cow.  686,  703,  the  Chancellor 
said :  "  Eligibility  to  office  belongs  not 
exclusively  or  specially  to  electors  en- 
joying the  right  of  suffrage.  It  belongs 
equally  to  all  persons  whomsoever  not 
excluded  by  the  Constitution."  So,  State 
v.  George,  23  Fla.  585,  3  So.  81.  [And  see 
Steusoff  v.  State,  80  Tex.  428,  15  S.  W. 
1100,  12  L.  R.  A.  364.]  But  in  Wis- 
consin it  is  held  that  only  an  elector  can 
hold  an  office;  State  v.  Smith,  14  Wis. 
497 ;  State  v.  Murray,  28  Wis.  96 ;  and 
this  is  probably  the  general  understand- 
ing. [JSo  held  in  Oren  v.  Abbott,  121 
Mich.  540,  80  N.  W.  372,  47  L.  R.  A. 
93,  where  the  question  arose  whether 
a  woman  otherwise  duly  qualified  and 
elected  may  hold  the  office  of  prosecuting 
attorney ;  also  in  State  v.  Van  Beek,  87 
Iowa,  569,  54  N.  W.  525, 19  L.  R.  A.  622.3 
The  question  is  not  very  important,  as 
State  constitutions  or  statutes  generally 
lay  down  that  rule,  in  some  cases  adding 
further  requirements.  QWhere  it  is  re- 
quired that  judges  be  "learned  in  the 
law,"  this  requires  that  they  shall  have 


been  admitted  to  practise  law  in  the 
courts  of  the  State.  Jamieson  v.  Wiggin, 
12  S.  D.  16,  80  N.  W.  137,  46  L.  R.  A. 
317.]  One  holding  a  consulate  abroad 
does  not  cease  to  be  a  qualified  elector. 
Wheat  v.  Smith,  6  Ark.  266,  7  S.  W. 
161.  See  Hannon  v.  Grizzard,  89  N.  C. 
115.  A  provision  that  only  a  qualified 
elector  shall  hold  office  does  not  prevent 
making  payment  of  taxes  a  qualification 
for  election  as  alderman.  Darrow  v. 
People,  8  Col.  417,  8  Pac.  661.  It  is  suf- 
ficient if  a  disability  is  removed  before 
taking  office,  though  existing  at  the  time 
of  election.  Privett  v.  Bickford,  26  Kan. 
52;  [JDemaree  v.  Scales,  50  Kan.  275,  32 
Pac.  1123,  20  L.  R.  A.  97;  State  t-.Van 
Beek,  87  Iowa,  569,  54  N.  W.  525,  19 
L.  R.  A.  562.  But  see  State  v.  Sullivan, 
45  Minn.  309,  47  N.  W.  802,  11  L.  R.  A. 
272,  and  note;  this  case  holds  that  the 
intention  to  become  naturalized  must  be 
declared  before  election.  Upon  general 
subject  of  "  Eligibility  to  Office,  as  of 
What  Time  Determined,"  see  1  Mich. 
Law  Rev.  17,  a  paper  by  Floyd  R.  Me- 
chem.]  Under  constitutional  provisions 
that  no  other  cath  or  test  shall  be  re- 
quired as  a  qualification  for  holding  office 
than  the  oath  of  allegiance  to  the  consti- 
tution, political  ties  cannot  be  made  a 
prerequisite.  Att'y-Gen.  v.  Detroit  Com. 
Council,  58  Mich.  213,  24  N.  W.  887; 
Evansville  v.  State,  118  Ind.  426,21  N.  E. 
267,  4  L.  R.  A.  93;  State  v.  Denny,  118 
Ind.  449,  21  N.  E.  274,  4  L.  R.  A.  65. 
Contra,  as  to  election  officers.  People  v. 
Hoffman,  116  III.  587,  5  N.  E.  596,  8  N.  E. 
788.  [See  further  Com.  v.  Plaisted,  148 
Mass.  375,  19  N.  E.  224,  12  Am.  St.  566, 
2  L.  R.  A.  142 ;  Rogers  v.  Buffalo,  123 
N.  Y.  173,  25  N.  E.  274,  9  L.  R.  A.  579] 
See  In  re  Wortman,  2  N.  Y.  S.  324. 
There  are  some  implied  disqualifica- 
tions. One  of  these  is  that  a  person 
shall  not  hold  incompatible  offices  ;  if 
he  accepts  an  office  incompatible  with 
one  already  held  by  him,  the  other  is 
vacated:  Milward  v.  Thatcher,  2  T.  R. 
81 ;  The  King  v.  Tizzard,  9  B.  &  C.  418; 
People  v.  Carrigue,  2  Hill,  93 ;  People  v. 
Nostrand,  46  N.  Y.  375 ;  People  v.  Hani- 


the  county  cannot  be  divided  into  two  or  more  single-membered  districts. 
Wrightson,  56  N.  J.  L.  126,  28  Atl.  56,  22  L.  R.  A.  548.] 


State  v. 


CH.  XVII.]          THE   EXPRESSION   OF   THE    POPULAR   WILL. 


895 


specially  submitted  to  them,  and  adopt  or  reject  a  measure  ac- 
cording as  a  majority  may  vote  for  or  against  it.     It  is  obviously 


fan,  96  111.  420;  State  v.  Hutt,  2  Ark. 
282 ;  Stubbs  v.  Lea,  64  Me.  95 ;  but  see 
De  Turk  v.  Com.,  129  Pa.  St.  151,  18  Atl. 
757 ;  and  if  he  is  elected  to  both  at  the 
same  time,  he  declines  one  when  he  ac- 
cepts the  other.  Cotton  v.  Phillips,  50 
N.  H.  219.  £But  where  his  first  office  is 
such  that  he  cannot  resign  it  at  will 
(e.  (j.,  tax-collector),  he  is  incapable  of  ac- 
cepting an  incompatible  office  until  his 
resignation  of  the  former  has  been  ac- 
cepted. Attorney-General  v.  Marston,  06 
N.  H.  485,  22  Atl.  500,  13  L.  R.  A.  670. 
Where  an  officer  is  prohibited  from  hold- 
ing any  other  office  during  the  term  for 
which  he  is  elected,  his  resignation  does 
not  remove  the  disability.  State  v.  Sut- 
ton,  63  Minn.  147,  65  N.  W.  262,  30  L.  R. 
A.  630/]  Incompatibility  between  two 
offices  is  an  inconsistency  in  the  functions 
of  the  two,  —  as  judge  and  clerk  of  the 
same  court ;  officer  who  presents  his  per- 
sonal account  for  audit,  and  officer  who 
passes  upon  it,  &c. :  People  v.  Green,  58 
N.  Y.  495;  sheriff  and  justice  of  the 
peace :  State  Bank  v.  Curran,  10  Ark. 
142  ;  Stubbs  v.  Lea,  64  Me.  195;  Wilson 
v.  King.  3  Lit.  457,  14  Am.  Dec.  84;  State 
v.  Guff,  15  R.  I.  505,  9  Atl.  226;  governor 
and  member  of  the  legislature  ;  justice 
of  the  peace  and  judge  of  the  appellate 
court,  &c.  See  Commonwealth  v.  Binns, 
17  S.  &  R.  221 ;  State  v.  Clarke,  3  Nev. 
566;  State  v.  Feibleman,  28  Ark.  424; 
Mohan  v.  Jackson,  52  Ind.  599 ;  State  v. 
Weston,  4  Neb.  234 ;  Re  District  Attorney, 
&c.,  1 1  Phila.  695 ;  Sublett  v.  Bidwell,  47 
Miss.  2(16,  12  Am.  Rep.  338 ;  Barnum  v. 
Gilrnan,  27  Minn.  466,  8  N.  W.  375,  38 
Am.  Rep.  304 ;  McNeil!  v.  Somers,  96  N. 
C.  467,  2  S.  E.  161.  [[Attorney-General 
v.  Common  Council  of  Detroit,  112  Mich. 
145,  70  N.  W.  450,  37  L.  R.  A.  211.  See 
also  Chambers  v.  State,  127  Ind.  365,  26 
N.  E.  893,  11  L.  R.  A.  613,  and  note.]  In 
Indiana  a  judge»is  ineligible  to  a  non- 
judicial  office  whose  term  begins  before 
tiie  judicial  term  expires.  Vogel  v. 
State,  107  Ind.  374,  8  N.  E.  164.  See 
Smith  v.  Moore,  90  Ind.  294.  It  is  also 
sometimes  provided  that  no  person  shall 
hold  offices  in  two  departments  of  the 
government  at  the  same  time,  or  two 
lucrative  offices ;  as  to  which  see  Dailey 


v.  State,  8  Blackf.  329;  Creighton  v. 
Piper,  14  Ind.  182 ;  Kerr  v.  Jones,  19  Ind. 
351;  People  v.  Whitman,  10  Cal.  38; 
Crawford  y.  Dunbar,  52  Cal.  36;  Howard 
v.  Shoemaker,  35  Ind.  115  ;  State  v.  Kirk, 
44  Ind.  401 ;  Foltz  v.  Kerlin,  105  Ind.  221, 
4  N.  E.  439,  5  N.  E.  672 ;  People  v.  San- 
derson, 30  Cal.  160.  Or  hold  both  a 
federal  and  a  State  office.  Rodman  v. 
Harcourt,  4  B.  Monr.  224,  499;  Hoglan 
v.  Carpenter,  4  Bush,  89;  Re  Corliss,  11 
R.  I.  638;  State  v.  De  Gress,  53  Tex. 
387 ;  Davenport  v.  Mayor,  67  N.  Y.  45(5 ; 
People  v.  Brooklyn  Common  Council,  77 
N.  Y.  503,  33  Am.  Rep.  659;  State  v. 
Clarke,  3  Nev.  566 ;  People  v.  Leonard, 
73  Cal.  230,  14  Pac.  853;  but  a  federal 
watchman  may  be  an  alderman.  Doyle 
v.  Raleigh,  89  N.  C.  133.  Or  be  eligible 
to  re-election  to  an  office  after  holding  it 
for  a  specified  period.  See  Gonell  v.  Bier, 
15  W.  Va.  311;  Carson  v.  McPheteridge, 
15  Ind.  327 ;  Horton  v.  Watson,  23  Kan. 
229.  Or  be  eligible  while  a  public  de- 
faulter. See  Hoskins  v.  Brantley,  57 
Miss.  814;  Cawley  v.  People,  95  III.  249. 
Or  that  he  shall  be  disqualified  for  using 
money  corruptly  to  procure  election. 
Commonwealth  v.  Walter,  86  Pa.  St.  15. 
Or  for  bribery  at  a  nominating  conven- 
tion. Leonard  v.  Com.,  112  Pa.  St.  607, 
4  Atl.  220.  See  Re  Nomination  of  Public 
Officers,  9  Col.  629,  21  Pac.  474  ;  though 
a  mere  promise  to  serve  for  less  than  law- 
ful fees  is  not  a  disqualification,  where 
one  has  not  been  convicted  for  it  as  for 
an  offence  against  the  law.  State  v. 
Humphreys,  74  Tex.  466,  12  S.  W.  99. 
See  also,  Meredith  v.  Christy,  64  Cal.  95, 
27  Pac.  863;  People  v.  Goddard,  8  Col. 
432,  7  Pac.  301.  Or  by  or  for  being  a 
party  to  a  duel.  Cochran  v.  Jones,  14 
Am.  Law  Reg.  222. 

As  to  who  are  "  officers  "  within  the 
meaning  of  that  term  in  provisions  exam- 
ined, see  Butler  v.  Board  of  Regents,  32 
Wis.  124;  Brown  v.  Turner,  70  N.  C.  93; 
Eliason  v.  Coleman,  86  N.  C .,235;  State 
v.  Wilson,  29  Ohio  St.  347;  Throop  v. 
Langdon,  40  Mich.  673;  State  v.  Wil- 
mington City  Council,  3  Harr.  294 ;  Dick- 
son  v.  People,  17  111.  191  ;  Shurbun  v. 
Hooper,  40  Mich.  503. 

It  was  held  in  Olive  v.  Ingram,  Strange, 


896  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

impossible  that  any  considerable  people  should  in  general  meeting 
consider,  mature,  and  adopt  their  own  laws  ;  but  when  a  law  has 
been  perfected,  and  it  is  deemed  desirable  to  take  the  expression 
of  public  sentiment  upon  it,  or  upon  any  other  single  question, 
the  ordinary  machinery  of  elections  is  adequate  to  the  end,  and 
the  expression  is  easily  and  without  confusion  obtained  by  sub- 
mitting such  law  or  such  question  for  an  affirmative  or  negative 
vote.  In  this  manner  constitutions  and  amendments  thereof  are 
adopted  or  rejected,  and  matters  of  local  importance  in  many 
cases,  such  as  the  location  of  a  county  seat,1  the  contracting  of  a 
local  debt,  the  erection  of  a  public  building,  the  acceptance  of  a 
municipal  charter,  and  the  like,  are  passed  upon  and  determined 
by  the  people  whom  they  concern,  under  constitutional  or  statu- 
tory provisions  which  require  or  permit  it.2 

It  is  supposed  when  laws  are  framed  for  the  conduct  of  elec- 
tions that  their  requirements  will  be  observed ;  that  the  persons 
chosen  to  perform  official  duties  will  possess  the  legal  qualifica- 
tions, and  that  they  will  take  any  oath  and  give  any  bond  that 
may  be  required  of  them  by  law,  and  be  regularly  inducted  into 
office.  But  from  accident,  mistake  of  law,  forgetfulness,  or  other 
inadvertence,  and  sometimes  for  less  excusable  reasons,  it  often 
happens  that  some  one  is  found  in  possession  and  performing  the 
duties  of  a  public  office  who  cannot  defend  his  incumbency  by  the 
strict  letter  of  the  law.  The  fact  renders  necessary  a  classifica- 
tion of  officers  as  de  jure  and  de  facto,  (a) 

1114,  that  a  woman,  being  a  voter,   at  "  office "  which  only  a  qualified   elector 

parish  elections,  might  be  chosen  sexton,  may  hold.     Jeffries  v.  Harrington,  11  Col. 

Women  may  by  law  be  school  officers  in  191,  17  Pac.  505.     Infants  as  well  as  wo- 

Massachusetts.     Opinion  of  Judges,  115  men  may  be  appointed  deputies  to  such 

Mass.  602.     And  in  Iowa.     Huffy.  Cook,  ministerial  officers  as  are  entitled  to  act 

44  Iowa,  639.     Also  in  many  other  States,  by  deputy.     QSee  Jamesville  &  W.  II  Co. 

They  are  also  appointed  notaries  public  v.  Fisher,  109  N.  C.  1,  13  S.  E.  698,  13  L. 

in  several  States,  are  State  librarians  in  R.  A.  721,  and  note.] 
some,  and  members  of  State  charitable          1  Where   the   constitution  leaves  the 

boards.     QBut  a  woman  cannot  be  no-  location  of  a  county  seat  to  a  local  vote, 

tary  public  in  Ohio.     State  v.  Adams,  58  the  legislature  has  no  power  to   decide 

Ohio  St.  612,  51  N.  E.  135,  41  L.  R.  A.  upon   it.      Stuart  v.   Blair,   8  Bax.  141 ; 

727.     Nor  in  Massachusetts.     Opinion  of  Verner  v.  Simmons,  33  Ark.  212. 
Justices,  165  Mass.  599,  43  N.  E.  927,  32         *  It  is  not  competent  for  the  legislature 

L.  R.  A.  350.     She  may  be  county  clerk  to  confer  the  selection  of  a  public  officer 

in  Missouri.     State  v.  Hostetter,  137  Mo.  upon  a  voluntary  association  of  private 

636,  39  S.  W.  270,  38  L.  R.  A.  208;   see  individuals.     Therefore  a  statute  giving 

note  to  this  case  in  L.  R.  A.  upon  right  to  the  members  of  a  voluntary  detective 

of  woman  to  hold   office.]     In  Illinois  a  association   the   powers  of  constables  is 

woman    may   be    master    in    chancery :  void.     Abels  v.  Supervisors  of  Ingham, 

Schuchardt  v.  People,  99  111.  501 ;  and  "in  42  Mich.  526,  4  N.  W.  206. 
Colorado,  a  deputy  clerk.     It  is  not  an 

(u)  [[Upon  officers  de  jure  and  de  facto  and  their  relations,  see  State  i>.  Carr,  129 
Ind.  41,  28  N.  E.  88,  13  L.  R.  A.  177,  and  note.  Where  the  governor  dejure  is  present 


CH.  XVII.]          THE  EXPRESSION   OF   THE   POPULAR   WILL.  897 

An  officer  de  jure  is  one  who,  possessing  the  legal  qualifica- 
tions, has  been  lawfully  chosen  to  the  office  in  question,  and  has 
fulfilled  any  conditions  precedent  to  the  performance  of  its  duties. 
By  being  thus  chosen  and  observing  the  precedent  conditions,  such 
a  person  becomes  of  right  entitled  to  the  possession  and  enjoyment 
of  the  office,  and  the  public,  in  whose  interest  the  office  is  created, 
is  entitled  of  right  to  have  him  perform  its  duties.  If  he  is  ex- 
cluded from  it,  the  exclusion  is  both  a  public  offence  and  a  private 
injury. 

An  officer  de  jure  may  be  excluded  from  his  office  by  either  an 
officer  de  facto  or  an  intruder.  An  officer  de  facto  is  one  who  by 
some  color  of  right  is  in  possession  of  an  office  and  for  the  time 
being  performs  its  duties  with  public  acquiescence,  though  having 
no  right  in  fact.1  His  color  of  right  may  come  from  an  elec- 
tion or  appointment  made  by  some  officer  or  body  having  colorable 
but  no  actual  right  to  make  it;2  or  made  in  such  disregard  of 
legal  requirements  as  to  be  ineffectual  in  law  ;  or  made  to  fill  the 
place  of  an  officer  illegally  removed ; 3  or  made  in  favor  of  a 
party  not  having  the  legal  qualifications ;  or  it  may  come  from 
public  acquiescence  in  the  officer  holding  without  performing  the 
precedent  conditions,  or  holding  over  under  claim  of  right  after 

1  One  who  has  the  reputation  of  being  There  can  be  no  de  facto  incumbent  of  an 

the  officer  he  assumes  to  be,  and  yet  is  office  in  the    possession   of   an    officer, 

not  a  good  officer  in  point  of  law.   Parker  Cohn   v.   Beal,  61   Miss.    398  ;    State  v. 

v.  Hett,  Ld.  Raym.  658  ;  King  v.  Bedford  Blossom,  19  Nev.  312,  10  Pac.  430.     One 

Level,  6  East,  356,  368.     One  who  conies  who  is  in  hiding  cannot  be  a  de  facto  offi- 

in  by  claim  or  color  of  right,  or  who  ex-  cer.     Williams  v.  Clayton,  6  Utah,  86,  21 

ercises  the  office  with  such  circumstances  Pac.  398. 

of  acquiescence  on  the  part  of  the  public  2  As  where  the  appointing  body  is 
as  at  least  afford  a  strong  presumption  of  acting  under  an  unconstitutional  law. 
right,  but  by  reason  of  some  defect  in  his  Strang,  Ex  pane,  21  Ohio  St.  610;  Corn- 
title,  or  of  some  informality,  omission,  or  monwealth  v.  McCombs,  66  Pa.  St.  436  ; 
want  of  qualification,  or  by  reason  of  the  Cole  v.  Black  River  Falls,  57  Wis.  110, 
expiration  of  his  term  of  service,  is  un-  14  N.  W.  906 ;  Yorty  v.  Paine,  62  Wis. 
able  to  maintain  his  possession  when  154,  22  N.  W.  137.  See  Leach  v.  People, 
called  upon  by  the  government  to  show  122  111.  420,  12  N.  E.  726.  Compare  Nor- 
by  what  title  he  holds  it.  Blackwell  on  ton  v.  Shelby  Co.,  118  U.  S.  425,  6  Sup. 
Tax  Titles,  92,  93.  One  who  exercises  Ct.  Rep.  1121. 

the   duties   of  an  office  under  color  of         3  Watkins  v.  Inge,  24  Kan.  612.     See 

election  or  appointment  to  that  office.  Meadev.  County  Treasurer,  36  Mich.  416. 
Plymouth  v.  Painter,  17  Conn.  685,  688. 

at  the  seat  of  government  and  attempting  to  exercise  the  powers  of  his  office,  he  is 
also  governor  de  facto,  and  no  other  person  can  be  governor  de  facto  at  the  same 
time.  Powers  v.  Com.,  22  Ky.  L.  1807,  61  S.  W.  735.  An  officer  whose  prescribed 
term  has  a  stated  duration  and  further  until  his  successor  is  elected  and  qualified  is 
de  jure  until  such  qualification,  and  where  the  time  for  election  of  his  successor  as 
prescribed  in  the  Constitution  has  elapsed,  the  officer's  term  lasts  until  the  recur- 
rence of  the  regular  time  for  election  of  his  successor.  State  v.  Bulkeley,  61  Conn. 
287,  23  Atl.  186,  14  L.  R.  A.  657-3 

67 


898  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVIL 

his  legal  right  has  been  terminated ; l  or  possibly  from  public 
acquiescence  alone  when  accompanied  by  such  circumstances  of 
official  reputation  as  are  calculated  to  induce  people,  without  in- 
quiry, to  submit  to  or  invoke  official  action  on  the  supposition 
that  the  person  claiming  the  office  is  what  he  assumes  to  be.2 
An  intruder  is  one  who  attempts  to  perform  the  duties  of  an  office 
without  authority  of  law,  and  without  the  support  of  public 
acquiescence. 

No  one  is  under  obligation  to  recognize  or  respect  the  acts  of 
an  intruder,  and  for  all  legal  purposes  they  are  absolutely  void.8 
But  for  the  sake  of  order  and  regularity,  and  to  prevent  confusion 
in  the  conduct  of  public  business  and  insecurity  of  private  rights, 
the  acts  of  officers  de  facto  are  not  suffered  to  be  questioned  be- 
cause of  the  want  of  legal  authority  except  by  some  direct  pro- 
ceeding instituted  for  the  purpose  by  the  State  or  by  some  one 
claiming  the  office  de  jure,  or  except  when  the  person  himself 
attempts  to  build  up  some  right,  or  claim  some  privilege  or  emol- 
ument, by  reason  of  being  the  officer  which  he  claims  to  be.4  In 
all  other  cases  the  acts  of  an  officer  de  facto  are  as  valid  and 
effectual,  while  he  is  suffered  to  retain  the  office,  as  though  he 
were  an  officer  by  right,  and  the  same  legal  consequences  will 
flow  from  them  for  the  protection  of  the  public  and  of  third 
parties.5  This  is  an  important  principle,  which  finds  concise 

1  As  when  one  continues  to  perform     cess  after  his  term   has   expired,   must 
the  duties  of  judge  after  having  accepted     show    his    capacity   de  jure.      Grace  v. 
a  seat  in   the  legislature.     Woodside  ».     Teague,  81  Me.  659. 

Wagg,  71  Me.  207.    Or  a  constable  con-  5  Tucker  v.  Aiken,  7  N.  H.  113;  Tay- 

tinues  to  act  after  removal  from  his  town,  lor  v.  Skrine,   3    Brev.  516;    Fowler  v. 

Case  v.  State,  69  Ind.  46;  Wilson  v.  King,  Beebe,  9  Mass.  231,  6  Am.  Dec.  62 ;  Hil- 

3  Litt.  457,  14  Am.  Dec.  84.  dreth  v.  Mclntyre,  1  J.  J.  Marsh.  206,  19 

2  State  v.  Carroll,  38  Conn.  449,  471,  Am.  Dec.  61;  Wilcox  v.  Smith,  5  Wend. 
9  Am.  Rep.  409;  Petersilea  «>.  Stone,  119  231,  21  Am.  Dec.  213;  People  v.  Kane,  23 
Mass.  465;  People  v.  Terry,  108  N.  Y.  1,  Wend.  414;  In  re  Kendall,  85  N.  Y.  302; 
14  N.  E.  815.  Brown   v.  Lunt,  37  Me.   423  ;    State  v. 

8  Plymouth  v.  Painter,  17  Conn.  585;  Carroll,  38  Conn.  449;  Stater.  Bloom,  17 
Peck  w.  Holcombe,  3  Port.  329;  Peter-  Wis.  521;  People  v.  Bangs,  24  111.  184; 
silea  v.  Stone,  119  Mass.  465.  There  can  Sharp  v.  Thompson,  100  111.  447  ;  Clark 
be  no  officer  de  facto  when  there  is  no  v.  Commonwealth,  29  Pa.  St.  129;  Kim- 
office.  Carlton  v.  People,  10  Mich.  250;  ball  v.  Alcorn,  45  Miss.  151;  Burke  v. 
In  re  Hinkle,  31  Kan.  712,  3  Pac.  531.  If  Elliott,  4  Ired.  855 ;  Gibb  v.  Washington, 
there  is  by  reason  of  the  unconstitution-  1  McAll.  430;  Bailey  v.  Fisher,  38  Iowa, 
ality  of  a  law  no  office  de  jure,  to  fill,  there  229;  Ex  parte  Norris,  8  S.  C.  408; 
can  be  no  officer  de  facto.  Norton  v.  Threadgill  v.  Railroad  Co.,  73  N.  C.  178 ; 
Shelby  Co.,  118  U.  S.  425,  6  Sup.  Ct.  McLean  v.  State,  8  Heisk.  22 ;  Kreidlerr. 
Hep.  1121;  [contra,  Parker  v.  State,  133  State,  24  Ohio  St.  22;  Cocke  v.  Halsey, 
Ind.  178,  32  N.  E.  186,  83  N.  E.  119,  18  16  Pet.  71.  A  de  facto  constable  stands 
L.  R.  A.  567.]  Compare  Leach  v.  People,  upon  the  same  ground  as  one  de  jure  as 
122  111.  420,  12  N.  E.  726.  regards  his  liability  for  killing  a  person 

*  Thus  a  justice,  sued  for  issuing  pro-  resisting  arrest    State  v.  Dierberger,  90 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR  WILL. 

expression  in  the  legal  maxim  that  the  acts  of  officers  de  facto 
cannot  be  questioned  collaterally. 

The  Right  to  Participate  in  Elections,  (a) 

In  another  place  we  have  said  that,  though  the  sovereignty  is 
in  the  people,  as  a  practical  fact  it  resides  in  those  persons  who 

Mo.  369, 2  S.  W.  286.     [When  the  Con-  hold    office    until    their    successors    are 

stitution  prohibits  lengthening  the  term  elected  and  qualified  operates  to  lengthen 

of  a  public   officer,   a  statute   deferring  the   time  during   which   the  incumbent 

the  time  of  election  of  his  successor  is  occupies  the  office.     State   v.   Menaugh, 

not  thereby  made  void,  even  though  the  151  Ind.  260,  278,  51  N.  E.  117,  357,  43 

Constitutional  provision  that  officers  shall  L.  R.  A.  408,  418.] 

(a)  £The  importance  of  regulating  primary  elections  and  nominations  to  office 
has  of  recent  years  become  somewhat  widely  recognized.  The  right  of  a  party  to 
hold  a  nominating  convention  cannot  be  denied  it  on  account  of  its  smallness,  nor 
can  it  be  compelled  to  admit  every  voter  who  desires  to  attend  its  primaries  without 
regard  to  his  political  beliefs.  Britton  v.  Election  Comm'rs,  129  Cal.  337,  61  Pac. 
1115,  51  L.  R.  A.  115.  Nominations  by  petition  are  now  generally  provided  for.  In 
State  r.  Poston,59  Ohio  St.  122,  52  N.  E.  196,  43  L.  R.  A.  90,  the  requirement  that 
such  petition  "  shall  contain  a  provision  to  the  effect  that  eacli  signer  thereto  pledges 
himself  to  support  and  vote  for  the  candidate  or  candidates  whose  nominations  are 
therein  requested,"  was  held  valid  as  not  interposing  any  unreasonable  impediment 
to  the  exercise  of  the  elective  franchise.  In  Rtephenson  v.  Bd.  of  Election  Comm'rs, 
118  Mich.  396,  76  N.  W.  914,  42  L.  R.  A.  214,  it  was  held  that  a  political  convention 
might  organize  itself  and  determine  the  rights  of  contesting  delegations  to  seats,  and 
that  in  case  of  nominations  by  rival  factions,  both  sets  of  nominees  must  be  listed  on 
the  official  ballot  under  the  part}-  name  and  emblem.  See  also  Marcum  v.  Ballot 
Comm'rs,  42  W.  Va.  263,  26  S.  E.  281,  36  L.  R.  A.  296 ;  State  v.  Arms,  24  Mont.  447, 
63  Pac.  401.  In  Phillips  i-.  Gallagher,  73  Minn.  528,  76  N.  W.  285,  42  L.  R.  A.  222, 
the  power  of  a  convention  to  control  its  own  procedure  was  recognized,  and  the  con- 
vention was  permitted  to  reject  a  vote  alleged  to  be  erroneous,  although  the  error 
was  not  sufficient  to  overcome  the  majority  of  a  candidate,  and  thereafter  to  vote 
again  upon  the  nomination  for  the  particular  office,  which  latter  vote  taken  on  a 
later  d;iy  resulted  in  the  nomination  of  a  person  not  named  in  the  first  vote.  Fraud 
or  oppression  was  declared  unnecessary  to  cause  the  court  to  intervene.  White  z\ 
Sanderson,  74  Minn.  118,  76  N.  W.  1021,  42  L.  R.  A.  231,  recognizes  the  right  of  a  con- 
vention to  delegate  to  a  committee  power  to  name  candidates  and  certify  them  to  the 
proper  public  officer  in  order  that  their  names  may  be  printed  upon  the  official  ballot. 
Hutchinson  v.  Brown,  122  Cal.  189,  54  Pac.  738,42  L.  R.  A.  232,  recognizes  the  con- 
verse right  to  delegate  to  a  committee  power  to  withdraw  candidates  for  the  pur- 
pose of  effecting  a  fusion.  In  Kearns  v.  How  ley,  188  Pa.  116,  41  Atl.  273, 42  L.  R.  A. 
235,  an  injunction  against  adding  to  or  striking  from  a  political  party  committee 
was  refused  on  the  ground  that  no  property  interests  were  involved,  and  that  any 
irregularities  could  be  corrected  by  the  party  itself.  In  State  v.  Poston,  58  Ohio  St. 
620,  51  N.  E.  150,  42  L.  R.  A.  237,  the  statutory  requirement  that  nominees  of  parties 
polling  in  the  last  preceding  election  less  than  one  per  cent  of  the  total  vote  could  be 
nominated  only  by  petition  was  sustained.  See  also  De  Walt  v.  Bartley,  146  Pa. 
529,  24  Atl.  185,  15  L.  R.  A.  771,  sustaining  requirement  of  three  per  cent ;  State  »>. 
Black,  54  N.  J.  L.  446,  24  Atl.  489,  1021,  16  L.  R.  A.  769,  five  per  cent.  Statute 
prohibiting  name  of  candidate  nominated  by  two  or  more  parties  for  same  office  from 
being  entered  more  than  once  on  the  official  ballot  is  valid.  State  v.  Anderson,  100 
Wis.  523,  76  N.  W.  482,42  L.  R.  A.  239.  Where  the  Secretary  of  State  is  required 
to  arrange  the  party  lists  of  candidates  in  the  order  of  the  average  numbers  of  votes 
received  by  the  candidates  of  the  various  parties  in  the  preceding  election,  and  in 


900  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

by  the  constitution  of  the  State  are  permitted  to  exercise  the  elec- 

that  election  two  parties  "  fused  "  upon  the  entire  list,  the  Secretary  will  be  allowed 
to  exercise  his  best  judgment  in  determining  the  order  of  the  party  lists,  and  in  the 
absence  of  fraud,  prejudice,  and  partiality,  the  courts  will  not  interfere  witli  his  dis- 
cretion. Higgins  v.  Berg,  74  Minn.  11,  76  N.  W.  788,  42  L.  R.  A.  245.  Where  pri- 
mary elections  are  regulated  by  law  and  conducted  at  public  expense  they  are  public 
elections,  and  the  qualifications  of  any  voter  thereat  must  be  those  prescribed  in  the 
Constitution.  Spier  v.  Baker,  120  Cal.  370,52  Pac.  659,  41  L.  R.  A.  196.  In  requir- 
ing an  official  ballot,  the  voter  cannot  be  restricted  to  the  candidates  whose  names  are 
thereon  printed.  He  must  be  allowed  to  vote  for  whom  he  pleases.  State  v.  Dillon, 
32  Fla.  645,  14  So.  383,  22  L.  R.  A.  124.  Contra,  State  v.  McElroy,  44  La.  Ann.  796, 
11  So.  133,  16  L.  R.  A.  278.  An  unauthorized  vignette  appearing  upon  all  the  ballots 
and  printed  thereon  in  the  operation  of  printing  the  ballots  is  not  a  distinguishing 
mark.  Lindstrom  v.  Bd.  of  Canvassers,  94  Mich.  467,  54  N.  W.  280,  19  L.  R  A.  171. 
The  State  may  make  reasonable  regulations  concerning  what  names  of  candidates 
shall  be  printed  upon  the  official  ballot,  e.g.,  that  each  candidate  whose  name  is  to 
be  printed  shall  be  nominated  by  a  certain  number  of  petitioners,  or  by  a  party 
having  at  the  last  preceding  election  a  specified  strength.  State  v.  Black,  54 
N.  J.  L.  446,  2.4  All.  489,  1021,  16  L.  R.  A.  769 ;  Murphy  v.  Curry,  137  Cal.  479,  70 
Pac.  461 ;  Todd  v.  Comm'rs,  104  Mich.  474,  62  N.  W.  564,  64  N.  W.  496,  29  L.  R.  A. 
330;  State  v.  Bode,  55  Ohio,  224,  45  N.  E.  195,  60  Am.  St.  696,  34  L.  R.  A.  498  ;  State 
r.  Anderson,  100  Wis.  523,  76  N.  W.  482,  42  L.  R.  A.  239  ;  State  v.  Moore,  —  Minn. 
— ,  92  N.  W.  4.  Courts  will  not  go  back  of  returns  of  authorities  of  the  party  as  to 
who  are  its  nominees.  Moody  v.  Trimble,  22  Ky.  L.  492,  58  S.  W.  504 ;  see  also 
Davis  v.  Hambrick,  22  Ky.  L.  815,  58  S.  W.  779 ;  also  State  ».  Moran,  24  Mont.  433, 
03  Pac.  390;  Addle  v.  Davenport,  —  Idaho,  — ,  62  Pac.  681 ;  State  v.  Hogan,  24  Mont. 
397,  62  Pac.  683.  For  other  cases  arising  under  Australian  Ballot  Laws,  see  Sims 
v.  Daniels,  57  Kan.  552,  46  Pac.  952,  35  L.  R.  A.  146,  partially  overruled  in  Miller  v. 
Clark,  62  Kan.  278,  62  Pac.  6t54 ;  McDonald  v.  Hinton,  114  Cal.  484,  46  Pac.  870,  35 
L.  R.  A.  152;  Breidenthal  v.  Edwards,  57  Kan.  332,  46  Pac.  469,  34  L.  R.  A.  146; 
State  v.  Johnson,  18  Mont.  548,  46  Pac.  533,  34  L.  R.  A.  313;  State  v.  Tooker,  18 
Mont.  540,  46  Pac.  530,  34  L.  R.  A.  315;  State  r.  Burdick,  6  Wyo.  448,  46  Pac.  854, 
34  L.  R.  A.  845 ;  Phelps  v.  Piper,  48  Neb.  724,  67  N.  W.  755,  33  L.  R.  A.  53;  Cole  v. 
Tucker,  164  Mass.  486,  41  N.  E.  681,  29  L.  R.  A.  668;  Moyer  v.  Van  De  Vanter,  12 
Wash.  377,  41  Pac.  60,  29  L.  R.  A.  670 ;  Mansion  v.  Mclntosh,  58  Minn.  525,  60 
N.  W.  672,  28  L.  R.  A.  605;  Stackpole  v.  Hallahan,  16  Mont.  40,  40  Pac.  80,  28 
L.  R.  A.  502  ;  Taylor  v.  Bleakley,  55  Kan.  1,  39  Pac.  1045,  28  L.  R.  A.  683 ;  Re  Con- 
tested Election,  165  Pa.  233,  30  Atl.  955,  27  L.  R.  A.  234  ;  Boyd  v.  Mills,  53  Kan.  594, 
37  Pac.  16,  25  L.  R.  A.  486;  Ellis  r.  May,  99  Mich.  538,  58  N.  W.  483,  25  L.  R.  A. 
325 ;  State  v.  Dillon,  32  Fla.  545,  14  So.  383,  22  L.  R.  A.  124 ;  Sego  v.  Stoddard,  136 
Ind.  297,  36  N.  E.  204,  22  L.  R.  A.  468 ;  Eaton  v.  Brown,  96  Cal.  371,  31  Pac.  250,  17 
L.  R.  A.  697  ;  Bowers  v.  Smith,  111  Mo.  45, 20  S.  W.  101,  16  L.  R.  A.  754,  and  note; 
People  v.  Shaw,  133  N.  Y.  493,  31  N.  E.  512,  16  L.  R.  A.  606;  De  Walt  v.  Bartley, 
146  Pa.  525,  529,  23  Atl.  448,  24  Atl.  185,  15  L.  R,  A.  771;  Allen  v.  Glynn,  17  Col. 
338,  29  Pac.  670,  15  L.  R.  A.  743;  State  v.  Russell,  34  Neb.  116,  51  N.  W.  465,  15 
L.  R.  A.  740;  Parvin  r.  Wimberg,  130  Ind.  561,  30  N.  E.  790,  15  L.  R.  A.  775; 
People  r.  Bd.  of  Co.  Canvassers,  129  N.  Y.  395,  29  N.  E.  327,  14  L.  R.  A.  624 ;  Cook 
v.  State,  90  Tenn.  407,  16  S.  W.  471,  13  L.  R.  A.  183;  Shields  ».  Jacob,  88  Mich.  164, 
60  N.  W.  105,  13  L.  R.  A.  760;  Rutledge  v.  Crawford,  91  Cal.  526,  27  Pac.  779,  13 
L.  R.  A.  761,  and  note;  Fisher  v.  Dudley,  74  Md.  242,  22  Atl.  2,  12  L.  R.  A.  586; 
Fields  c.  Osborne.  60  Conn.  544,  21  Atl.  1070,  12  L.  R.  A.  551 ;  Detroit  v.  Rush,  82 
Mich.  532,  46  N.  W.  951,  10  L.  R.  A.  171,  note  to  10  L.  R.  A.  150;  Price  v.  Lush, 
10  Mont.  61,  24  Pac.  749,  9  L.  R.  A.  467 ;  Re  Ballot  Act,  16  R.  I.  766,  19  Atl.  656,  6 
L.  R.  A.  773  ;  Morris  v.  Bd.  of  Canvassers,  49  W.  Va.  251,  38  S.  E.  500;  Nicholls  v. 
Barrick,  27  Col.  432,  62  Pac.  202 ;  Beckwith  v.  Winters,  28  Col.  96,  62  Pac.  835 ; 
Beckwith  v.  Rucker,  28  Col.  31,  62  Pac.  836 ;  and  several  cases  following  in  same 
report;  State  v.  Falley,  8  N.  D.  90,  76  N.  W.  9960 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR   WILL.  901 

tive  franchise.1  The  whole  subject  of  the  regulation  of  elections, 
including  the  prescribing  of  qualifications  for  suffrage,  is  left  by 
the  national  Constitution  to  the  several  States,  except  as  it  is 
provided  by  that  instrument  that  the  electors  for  representatives 
in  Congress  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  State  legislature,2  and  as  the 
fifteenth  amendment  forbids  denying  to  citizens  the  right  to  vote 
on  account  of  race,  color,  or  previous  condition  of  servitude.3 
Participation  in  the, elective  franchise  is  a  privilege  rather  than  a 
right,  and  it  is  granted  or  denied  on  grounds  of  general  policy ; 
the  prevailing  view  being  that  it  should  be  as  general  as  possible 
consistent  with  the  public  safety.  Aliens  are  generally  excluded,4 
though  in  some  States  they  are  allowed  to  vote  after  residence  for 
a  specified  period,  provided  they  have  declared  their  intention  to 
become  citizens  in  the  manner  prescribed  by  law.  The  fifteenth 
amendment,  it  will  be  seen,  does  not  forbid  denying  the  franchise 
to  citizens  except  upon  certain  specified  grounds,  and  it  is  matter 
of  public  history  that  its  purpose  was  to  prevent  discriminations  in 
this  regard  as  against  persons  of  African  descent.  Minors,  who 
equally  with  adult  persons  are  citizens,  are  still  excluded,  as  are 
also  women,5  and  sometimes  persons  who  have  been  convicted  of 
infamous  crimes.6  In  some  States  laws  will  be  found  in  existence 

1  Ante,  p.  57.   See  article  by  Dr.  Spear,  abrogate  all  provisions  in  State  laws  and 
in  16  Albany  Law  Journal,  272,  in  which,  constitutions  restricting  the  suffrage  to 
among  other  things,  the  force  and  scope  white  persons.      Neal  v.  Delaware,   103 
of  the  new  amendments   to  the  federal  U.  S.  370. 

Constitution  in  their  relation  to  suffrage          4  An  unnaturalized  Indian,  who  has 

are  considered.     Until  recently  the  reg-  surrendered  his  tribal  relations,  is  not  a 

'ulation   and   control   of  all  elections,  in-  citizen  nor  entitled  to  vote,  though  born 

eluding  elections  for  members  of  Congress,  in  the  United  States  and  a  resident  of  a 

and  the  punishment  of  offences   against  State.      Elk   v.  Wilkins,    112    U.    S.  94, 

election  laws,  has  been  left  to  the  States  5  Sup.  Ct.  Rep.  41. 

exclusively.  Congress,  however,  has  6  See  Opinions  of  Justices,  62  Me.  596  ; 
undoubted  authority  to  make  such  reg-  Rohrbacher  v.  Mayor  of  Jackson,  51  Miss. 
ulations  as  shall  seem  needful  to  ensure  a  735 ;  Spencer  v.  Board  of  Registration, 
full  and  fair  expression  of  opinion  in  the  1  MacArthur,  169;  Van  Valkenburg  v. 
election  of  members  of  Congress,  and  Brown,  43  Cal.  43;  Minor  v.  Happersett, . 
also  to  guard  and  protect  all  rights  con-  21  Wall.  162;  Bloomer  v.  Todd,  3  Wash, 
ferred  by  the  recent  amendments  to  the  Ty.  599,  19  Pac.  135 ;  QGougar  v.  Tim- 
federal  Constitution.  Ex  parte  Siebold,  berlake,  148  Ind.  38,  46  N.  E.  339,  37 
100  U.  S.  371 ;  Ex  parte  Clarke,  100  U.  S.  L.  R.  A.  644  ;  Coffin  v.  Thompson,  97 
399;  In  re  Coy,  127  U.  S.  731,  8  Sup.  Ct.  Mich.  188,  56  N.  W.  567,  21  L.  K.  A. 
Rep.  1263;  United  States  v.  Goldman,  662,  and  note.]  But  in  some  States  they 
3  Woods,  187.  [The  power  of  Congress  may  vote  upon  school  matters  only, 
over  State  elections  is  in  Lackey  v.  Brown  v.  Phillips,  71  Wis.  239,  36  N.  W. 
United  States,  107  Fed.  114,  46  C.  C.  A.  242;  State  ».  Cones,  15  Neb.  444,  19 
189,  53  L.  R.  A.  660,  held  to  be  dependent  N.  W.  682;  Belles  v.  Burr,  76  Mich.  1, 
upon  the  fifteenth  amendment  alone.]  43  N.  W.  24. 

2  Art.  1,  §  2.  e  Story  on  Const.  (4th  ed.)  §  1972. 
8  This  amendment  had  the  effect  to 


902 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


which,  either  generally  or  in  particular  cases,  deny  the  right  to 
vote  to  those  persons  who  lack  a  specified  property  qualification, 
or  who  do  not  pay  taxes,  (a)  In  some  States  idiots  and  lunatics 
are  also  expressly  excluded ;  and  it  has  been  supposed  that  these 
unfortunate  classes,  by  the  common  political  law  of  England  and 
of  this  country,  were  excluded  with  women,  minors,  and  aliens 
from  exercising  the  right  of  suffrage,  even  though  not  prohibited 
therefrom  by  any  express  constitutional  or  statutory  provision.1 
Wherever  the  constitution  has  prescribed  the  qualifications  of 
electors,  they  cannot  be  changed  or  added  to  by  the  legislature,2 
or  otherwise  than  by  an  amendment  of  the  constitution. 

One  of  the  most  common  requirements  is,  that  the  party  offer- 
ing to  vote  shall  reside  within  the  district  which  is  to  be  affected 


1  See  Cushing's  Legislative  Assem- 
blies, §  24 ;  also  §  27.  and  notes  referring 
to  legislative  cases  ;  McCrary,  Law  of 
Elections,  §§  50,  73;  Clark  v.  Robinson, 
88  111.  498.  Drunkenness  is  regarded  as 
temporary  insanity.  Ibid.  Idiots  and 
insane  persons  are  excluded  in  Alabama, 
Arkansas,  California,  Delaware,  Florida, 
Iowa,  Kansas,  Louisiana,  Maryland  (pro- 
vided they  are  under  guardianship  as 
such),  Minnesota,  Nebraska,  Nevada,  New 
Jersey,  Ohio,  Oregon,  Rhode  Island, 
South  Carolina,  Virginia,  West  Virginia, 
and  Wisconsin.  Convicted  felons  are  ex- 
cluded in  Alabama,  Arkansas,  California, 
Connecticut,  Delaware,  Florida,  Illinois, 
Iowa,  Kansas,  Kentucky,  Louisiana, 
Maryland,  Minnesota,  Mississippi,  Ne- 
braska, Nevada,  New  Jersey,  North  Caro- 
lina, Oregon,'  Rhode  Island,  Texas, 
Virginia,  West  Virginia,  and  Wisconsin. 
Persons  under  guardianship  are  excluded 
in  Florida,  Kansas,  Maine,  Massachu- 
setts, Minnesota,  Rhode  Island,  and  Wis- 
consin. Paupers  are  excluded  in 
Delaware,  Maine,  Massachusetts  (see 
Justices'  Opinions,  124  Mass.  696),  New 
Jersey,  Rhode  Island,  and  West  Virginia. 
Persons  kept  in  any  poorhouse  or  other 
asylum  at  public  expense  are  excluded  in 
California,  Colorado,  Missouri,  and  South 
Carolina.  Persons  confined  in  public 
prisons  are  excluded  in  California,  Colo- 
rado, Missouri, and  South  Carolina.  Per- 
sons under  interdiction  are  excluded  in 
Louisiana;  and  persons  excused  from 


paying  taxes  at  their  own  request,  in  New 
Hampshire.  Capacity  to  read  is  required 
in  Connecticut;  and  capacity  to  read  and 
write,  in  Massachusetts. 

2  See  Green  v.  Shumway,  39  N.  Y. 
418  ;  Brown  v.  Grover,  6  Bush,  1 ;  Quinn 
v.  State,  35  Ind.  485;  Huber  v.  Reiley,  53 
Pa.  St.  112,  ante,  p.  99,  note;  People 
v.  Canaday,  73  N.  C.  198  ;  State  v.  Tuttle, 
63  Wis.  45,  9  N.  W.  791.  Compare  State 
v.  Neal,  42  Mo.  119.  Where  a  disqualifi- 
cation to  vote  is  made  to  depend  upon 
the  commission  of  crime,  the  election 
officers  cannot  be  made  the  triers  of  the 
offence.  Huber  v.  Reiley,  63  Pa.  St. 
112;  State  «.  Symonds,  69  Me.  161; 
Burkett  r  McCarty,  10  Bush,  758.  It  is 
not  competent  for  the  legislature  to  dis- 
criminate between  voters  and  require 
that  one  class  of  them  shall  be  taxpayers, 
while  not  making  the  same  requirement 
as  to  the  others.  Lyman  v.  Martin, 
2  Utah,  136.  But  voters  at  municipal 
elections  may  be  required  to  pay  taxes 
before  voting.  Buckner  v.  Gordon,  81 
Ky.  665.  Estate  v.  Dillon,  32  Fla.  545, 
14  So.  383,  22  L.  R.  A.  124.]  In  Nevada 
every  male  citizen,  except  convicts  and 
paupers,  having  the  franchise,  Mormons 
cannot  be  excluded  by  registration  laws. 
State  v.  Findley,  20  Nev.  198,  19  Pac. 
241.  It  is  otherwise  in  the  Territories. 
Murphy  i;.  Ramsey,  114  U.  S.  43,  5  Sup. 
Ct  Rep.  747;  Innis  v.  Bolton,  2  Idaho, 
407,  17  Pac.  264. 


(a)  fJSee  Frieszleben  v.  Shallcross,  9  Houst.  (Del.)  1,  19  Atl.  576,  8  L.  R.  A.  337, 
and  note  ] 


CH.  XVII.]          THE   EXPRESSION   OF  THE  POPULAR  WILL.  903 

by  the  exercise  of  the  right.  If  a  State  officer  is  to  be  chosen,  the 
voter  should  be  a  resident  of  the  State  :  and  if  a  county,  city,  or 
township  officer,  he  should  reside  within  such  county,  city,  or 
township.  This  is  the  general  rule  ;  and  for  the  more  convenient 
determination  of  the  right  to  vote,  and  to  prevent  fraud,  It  is  now 
generally  required  that  the  elector  shall  only  exercise  within  the 
municipality  where  he  has  his  residence  his  right  to  participate  in 
either  local  or  general  elections,  (a)  Requiring  him  to  vote  among 
his  neighbors,  by  whom  lie  will  be  likely  to  be  generally  known, 
the  opportunities  for  illegal  or  fraudulent  voting  will  be  less  than 
if  the  voting  were  allowed  to  take  place  at  a  distance  and  among 
strangers.  And  wherever  this  is  the  requirement  of  the  constitu- 
tion, any  statute  permitting  voters  to  deposit  their  ballots  else- 
where must  necessarily  be  void.1 

A  person's  residence  is  the  place  of  his  domicile,  or  the  place 
where  his  habitation  is  fixed  without  any  present  intention  of 
removing  therefrom.2  The  words  "  inhabitant,"  "  citizen,"  and 

1  Opinions  of  Judges,  30  Conn.  691;  actual  service  to  cast  their  votes  where 

Hulseman    v.    Rems,    41    Pa.    St.   396;  they  may  happen  to  be  stationed  at  the 

Chase   v.   Miller,  41   Pa.  St.  403;  Opin-  time  of  voting.     It  may  also  be  allowed 

ions  of  Judges,  44  N.  H.  633 ;  Bourland  in  Ohio.    Lehman  v.  McBride,  15  Ohio, 

v.  Hildretli,  26  Cal.  Ifil ;  People  v.  Blodg-  N.  8.  573. 

ett,  13  Mich.   127;  Opinions  of  Judges,          2  Putnam  v.  Johnson,  10  Mass.  488; 

37  Vt.  665;  Day  v.  Jones,  31  Cal.  261.  Rue  Hitrh's  Casf ,  2  Doug.  (Mich.)  515; 

The  case   of  Morrison    v.   Springer,  15  Fry's  Election  Case,  71  Pa.  St.  302,  10 

Iowa,  304.  is  not  in  harmony  with  those  Am.  Hep.  698 ;  Church  v.  Rowell,  49  Me. 

above  cited.     So  far  as  tlie  election  of  367;  Littlefield  v.  Brooks,  50  Me.  476; 

representatives  in  Congress  and  electors  Parsons  v.  Bangor,  61  Me.  457;  Arnold  v. 

of  president  nnd   vice-president  is   con-  Davis,  8  R.  1.341;  Hannon  v.  Grizzard, 

cerned,   the   State   constitutions    cannot  89  N.  C.  115;  Dale  v.  Irwin,  78  111.  170; 

preclude  the  legislature  from  prescribing  Clark  v.  Robinson,  88  111.  498;  Sturgeon 

the  "  times,  places,  and  manner  of  hold-  v.  Korte,  34  Ohio  St.  625;  Story,  Confl. 

ing  "  the  same,  as  allowed  by  the  national  Laws,   §  43.     As   to   what  residence  is 

Constitution,  —  art.  1,  §  4,  and  art.  2,  §  1,  sufficient,   see   Kellogg  v.    Hickman,    12 

—  and  a  statute  permitting  such  election  Col.  256,  21  Pac.  325;  Kreitz  v.  Behrens- 

to  be  held  out  of  the  State  would  conse-  meyer,  125  111.  141,  17  N.  E.  232.;  QLang- 

quently  not  be  invalid.     Opinions  of  Jus-  hammer  v.  Munter,  80  Md.  518,  31  Atl. 

tices,  45  N.  H.  595;  Opinions  of  Judges,  300,  27  L.  R.  A.  330]     That  one  should 

37  Vt.  665.   There  are  now  constitutional  vote  where  he  eats,  not  where  he  lodges, 

provisions  in  New  York,  Michigan,  Mis-  if  at  different    places,    see    Warren    v. 

souri,   Connecticut,    Maryland,    Kansas,  Board  of  Registration,  72  Mich.  398,  40 

Mississippi,  Nevada,  Rhode  Island,  and  N.  W.  653. 
Pennsylvania,  which  permit  soldiers  in 

(a)  £The  mere  fact  that  one  lives  upon  a  steamer  does  not  give  him  a  voting  resi- 
dence at  her  home  port,  even  though  he  has  no  voting  residence  elsewhere,  and  is 
unmarried.  Howard  v.  Skinner,  87  Md.  556,  40  Atl.  379,  40  L.  R.  A.  753;  Jones  v. 
Skinner,  87  Md.  660,  40  Atl.  381,  40  L.  R.  A.  752.  Residence  is  not  changed  by 
presence  in  and  support  at  and  by  a  state  "  soldiers'  home."  Wolcott  v.  Holcomb, 
97  Mich.  361,  56  N.  W.  837,  23  L.  R.  A.  215,  and  note  on  residence  and  attendance  or 
presence  at  public  institutions ;  see  also  to  same  effect  Powell  v.  Spackman,  — 
Idaho,  — ,  65  Pac.  SOS.] 


904 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVII. 


"resident,"  as  employed  indifferent  constitutions  to  define  the 
qualifications  of  electors,  mean  substantially  the  same  thing ;  and 
one  is  an  inhabitant,  resident,  or  citizen  at  the  place  where  he  has 
his  domicile  or  home.1  Every  person  at  all  times  must  be  consid- 
ered as  having  a  domicile  somewhere,  and  that  which  he  has 
acquired  at  one  place  is  considered  as  continuing  until  another  is 
acquired  at  a  different  place.2  It  has  been  held  that  a  student  in 
an  institution  of  learning,  who  has  residence  there  for  purposes  of 
instruction,  may  vote  at  such  place,  provided  he  is  emancipated 
from  his  father's  family,  and  for  the  time  has  no  home  elsewhere.3 


1  Cushing's  Law  and  Practice  of  Leg- 
islative Assemblies,  §  36;   State  v.  Aid- 
rich,  14  R.  I.  171.     £Where  territory  in 
which  a  voter  has  continuously  resided 
up  to  the  time  of  annexation  to  a  munici- 
pality is  annexed  to  or  incorporated  with 
it,  his  period  of  such  residence  is  to  be 
counted  in   determining    his    residential 
qualification  for  eligibility  to  office.   Gib- 
son v.  Wood,  105  Ky.  740,  49  S.  W.  768, 
43  L.  R.  A.  699.] 

2  That    it  is  not  a  necessary   conse- 
quence of  this  doctrine  that  one  must  al- 
ways be  entitled  to  vote  somewhere,  see 
Kreitz  v.  Behrensmeyer,  125  111.  141,  17 
N.  E.  232. 

8  Putnam  ».  Johnson,  10  Mass.  488 ; 
Lincoln  v.  Hapgood,  11  Mass.  350;  Wil- 
braham  v.  Ludluw,  99  Mass.  587  ;  Perry 
v.  Reynolds,  63  Conn.  527,  3  Atl.  555. 
Compare  Dale  v.  Irwin,  78  111.  170.  A 
different  conclusion  is  arrived  at  in  Penn- 
sylvania. Fry's  Election  Case,  71  Pa. 
St.  302,  10  Am.  Rep.  698.  And  in  Iowa, 
Vanderpoel  v.  O'Hanlon,  63  Iowa,  246, 
6  N.  W.  119,  36  Am.  Rep.  216.  "  The 
questions  of  residence,  inhabitancy,  or 
domicile,  —  for  although  not  in  all  re- 
spects precisely  the  same,  they  are  nearly 
so,  and  depend  much  upon  the  same  evi- 
dence, —  are  attended  with  more  diffi- 
culty than  almost  any  other  which  are 
presented  for  adjudication.  No  exact 
definition  can  be  given  of  domicile ;  it 
depends  upon  no  one  fact  or  combina- 
tion of  circumstances ;  but,  from  the 
whole  taken  together,  it  must  be  deter- 
mined in  each  particular  case.  It  is  a 
maxim  that  every  man  must  have  a 
domicile  somewhere,  and  also  that  he 
can  have  but  one.  Of  course  it  fol- 
lows that  his  existing  domicile  contin- 
ues until  he  acquires  another ;  and  vice 
versa,  by  acquiring  a  new  domicile  he  re- 


linquishes his  former  one.  From  this 
view  it  is  manifest  that  very  slight  cir- 
cumstances must  often  decide  the  ques- 
tion. It  depends  upon  the  preponderance 
of  the  evidence  in  favor  of  two  or  more 
places ;  and  it  may  often  occur  that  the 
evidence  of  facts  tending  to  establish  the 
domicile  in  one  place  would  be  entirely 
conclusive,  were  it  not  for  the  existence 
of  facts  and  circumstances  of  a  stilt  more 
conclusive  and  decisive  character,  which 
fix  it  beyond  question  in  another.  So,  on 
the  contrary,  very  slight  circumstances 
may  fix  one's  domicile,  if  not  controlled 
by  more  conclusive  facts  fixing  it  in  an- 
other place.  If  a  seaman,  without  family 
or  property,  sails  from  the  place  of  his 
nativity,  which  may  be  considered  his 
domicile  of  origin,  although  he  may  re- 
turn only  at  long  intervals,  or  even  be 
absent  many  years,  yet  if  he  does  not  by 
some  actual  residence  or  other  means  ac- 
quire a  domicile  elsewhere,  he  retains  his 
domicile  of  origin."  Shaw,  Ch.  J.,  Thorn- 
dike  v.  City  of  Boston,  1  Met.  242,  245. 
And  see  Alston  «>.  Newcomer,  42  Miss. 
186;  Johnson  v.  People,  94  III.  505.  In 
Inhabitants  of  Abington  v.  Inhabitants  of 
North  Bridgewater,  23  Pick.  170,  it  ap- 
peared that  a  town  line  ran  through  the 
house  occupied  by  a  party,  leaving  a  por- 
tion on  one  side  sufficient  to  form  a  habi- 
tation, and  a  portion  on  the  other  not 
sufficient  for  that  purpose.  Held,  that 
the  domicile  must  be  deemed  to  be  on  the 
side  first  mentioned.  It  was  intimated 
also  that  where  a  house  was  thus  divided, 
and  the  party  slept  habitually  on  one 
side,  that  circumstance  should  be  re- 
garded as  a  preponderating  one  to  fix  his 
residence  there,  in  the  absence  of  other 
proof.  And  see  Rex  v.  St.  Olave's,  1 
Strange,  51. 
By  the  constitutions  of  several  of  the 


CH.  XVII.]          THE    EXPRESSION   OF   THE    POPULAR   WILL. 


905 


Temporary  absence  from  one's  home,  with  continuous  intention  to 
return,  will  not  deprive  one  of  his  residence,  even  though  it  extend 
through  a  series  of  years.1 

Conditions  to  the  Exercise  of  the  Elective  Franchise. 

While  .it  is  true  that  the  legislature  cannot  add  to  the  constitu- 
tional qualifications  of  electors,  it  must  nevertheless  devolve  upon 
that  body  to  establish  such  regulations  as  will  enable  all  persons 
entitled  to  the  privilege  to  exercise  it  freely  and  securely,  and 
exclude  all  who  are  not  entitled  from  improper  participation 
therein.  For  this  purpose  the  times  of  holding  elections,  the 
manner  of  conducting  them  and  of  ascertaining  the  result,  are 
prescribed,  and  heavy  penalties  are  imposed  upon  those  who  shall 
vote  illegally,  or  instigate  others  to  do  so,  or  who  shall  attempt 
to  preclude  a  fair  election  or  to  falsify  the  result.  The  propriety, 
and  indeed  the  necessity,  of  sucli  regulations  are  undisputed.  In 
some  of  the  States  it  has  also  been  regarded  as  important  that 
lists  of  voters  should  be  prepared  before  the  day  of  election,  in 
which  should  be  registered  the  name  of  every  person  qualified  to 
vote.  Under  such  a  regulation,  the  officers  whose  duty  it  is  to 
administer  the  election  laws  are  enabled  to  proceed  with  more 
deliberation  in  the  discharge  of  their  duties,  and  to  avoid  the 
haste  and  confusion  that  must  attend  the  determination  upon 


States,  it  is  provided,  in  substance,  that 
no  person  shall  be  deemed  to  have  gained 
or  lost  a  residence  by  reason  of  his  pres- 
ence or  absence,  while  employed  in  the 
service  of  the  United  States ;  nor  while  a 
student  in  any  seminary  of  learning ;  nor 
while  kept  at  any  almshouse  or  asylum 
at  public  expense  ;  nor  while  confined 
in  any  public  prison.  See  Constitutions 
of  New  York,  Illinois,  Indiana,  Califor- 
nia, Michigan,  Rhode  Island,  Minnesota, 
Missouri,  Nevada,  Oregon,  and  Wiscon- 
sin. A  pauper  inmate  of  a  soldiers'  home 
comes  within  such  provision.  Silvey  v. 
Lindsay,  107  N.  Y.  55,  13  N.  E.  444.  In 
several  of  the  other  States  there  are  pro- 
visions covering  some  of  these  cases,  but 
not  all.  A  provision  that  no  person  shall 
be  deemed  to  have  gained  or  lost  a  res- 
idence by  reason  of  his  presence  or  ab- 
sence in  the  service  of  the  United  States, 
does  not  preclude  one  from  acquiring  a 
residence  in  the  place  where,  and  in  the 
time  while,  he  is  present  in  such  service. 
People  v.  Holden,  28  Cal.  123;  Mooar  v. 
Harvey,  128  Mass.  219.  If  a  man  takes 


up  his  permanent  abode  at  the  place  of 
an  institution  of  learning,  the  fact  of  his 
entering  it  as  a  student  will  iiot  preclude 
his  acquiring  a  legal  residence  there : 
Sanders  v.  Getchell,  76  Me.  158;  Pedigo 
v.  Grimes,  113  Ind.  148, 13  N.  E.  700;  but 
if  he  is  domiciled  at  the  place  for  the 
purposes  of  instruction  only,  it  is  deemed 
proper  and  right  that  he  should  neither 
lose  his  former  residence  nor  gain  a  new 
one  in  consequence  thereof.  Vanderpoel 
v.  O'Hanlon,  53  Iowa,  246,  5  N.  W.  119, 
36  Am.  Rep.  216. 

That  persons  residing  upon  lands 
within  a  State,  but  set  apart  for  some 
national  purpose,  and  subjected  to  the  ex- 
clusive jurisdiction  of  the  United  States, 
are  not  voters,  see  Opinions  of  Judges,  1 
Met.  580;  Sinks  v.  Reese,  19  Ohio  St. 
306  ;  McCrary,  Law  of  Elections,  §  29. 

1  llarbaugh  v.  Cicott,  33  Mich.  241  ; 
Fry's  Election  Case,  71  Pa.  St.  302,  10 
Am.  Rep.  698;  Dennis  v.  State,  17  Fla. 
389;  Wheat  v.  Smith,  50  Ark.  266,  7 
S.  W.  161. 


906 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


election  day  of  the  various  and  sometimes  difficult  questions  con- 
cerning the  right  of  individuals  to  exercise  this  important  fran- 
chise. Electors,  also,  by  means  of  this  registry,  are  notified  in 
advance  what  persons  claim  the  right  to  vote,  and  are  enabled  to 
make  the  necessary  examination  to  determine  whether  the  claim 
is  well  founded,  and  to  exercise  the  right  of  challenge  if  satisfied 
any  person  registered  is  unqualified.  When  the  constitution  has 
established  no  such  rule,  and  is  entirely  silent  on  the  subject,  it 
has  sometimes  been  claimed  that  the  statute  requiring  voters  to 
be  registered  before  the  day  of  election,  and  excluding  from  the 
right  all  whose  names  do  not  appear  upon  the  list,  was  unconsti- 
tutional and  void,  as  adding  another  test  to  the  qualifications  of 
electors  which  the  constitution  has  prescribed,  and  as  having  the 
effect,  where  electors  are  not  registered,  to  exclude  from  voting 
persons  who  have  an  absolute  right  to  that  franchise  by  the  fun- 
damental law.1  This  position,  however,  has  not  been  generally 
accepted  as  sound  by  the  courts.  The  provision  for  a  registry 
deprives  no  one  of  his  right,  but  is  only  a  reasonable  regulation 
under  which  the  right  may  be  exercised.2  Such  regulations  must 


1  See  Page  v.  Allen,  68  Pa.  St.  338. 
And  compare  Clark  v.  Robinson,  88  111. 
498;  Dells  v.   Kennedy,  49  Wis.  555,  6 
N.  W.  246,  381,  35  Am.  Rep.  786;  White 
v.  Multnomah  Co.,  13  Greg.  317,  10  Pac. 
484.     In  State  v.  Corner,  22  Neb.  265,  34 
N.  W.  499,  it  is  said  the  voter  has  the 
right  to  prove  himself  an  elector,  register, 
and  vote   at  any  time   before   the  polls 
close.     The  Supreme  Court  of  Pennsyl- 
vania laid  down  a  rule  in  conflict  with 
these  cases,  in  Patterson  v.  Barlow,  60 
Pa.  St.  54,  which  case  is  in  harmony  with 
those  cited  in  the  next  note. 

2  Capen   v.  Foster,   12  Pick.  485,  23 
Am.  Dec.  632 ;  People  v.  Kopplekom,  16 
Mich.  342;   State  v.  Bond,  38  Mo.  425; 
State  v.  Hilmantel,  21  Wis.  566  ;  State  v. 
Baker,  38  Wis.  71 ;  Byler  v.  Asher,  47 
111.  101 ;    Monroe  v.  Collins,  17  Ohio  St. 
665;  Edmonds  -•.  Banbury,  28  Iowa,  267, 
4  Am.  Rep.  177;  Ensworth  v.  Albin,  46 
Mo.  450 ;    Auld  v.  Walton,  12  La.  Ann. 
129;   In  re  Polling  Lists,  13  R.  I.  729; 
State  v.  Butts,  31  Kan.  637,  2  Pac.  618. 
As  to  the  conclusiveness  of  the  registry, 
see  Hyde  v.  Brush,  34  Conn.  454 ;  Keenan 
v.   Cook,   12   R.   I.   52.     A   law   closing 
registration  three  weeks  before  the  elec- 
tion has   been   upheld.     People  v.  Hoff- 
man, 116  111.  587,  5  N.  E.  596,  8  N.  K. 
788.    Otherwise  as  to  one  closing  it  five 


days  before  :  Daggett  v,  Hudson,  43  Ohio 
St.  648,  3  N.  E.  538 ;  and  ten  days  before. 
State  v.  Corner,  22  Neb.  265,  34  N.  W. 
499.  Registration  may  be  required  at  a 
city  election  when  it  is  not  by  State  law. 
McMahon  v.  Savannah,  66  Ga.  217.  See 
Com.  v .  McClelland,  83  Ky.  686.  QVoter 
m.-iy  be  required  to  exhibit  his  poll-tax 
receipt,  or  make  affidavit  that  he  has  paid 
the  tax  and  lost  or  misplaced  the  receipt. 
State  v.  Old,  95  Tenn.  723,  34  S.  W.  690, 
31  L.  R.  A.  837.  But  a  law  attempting 
to  invalidate  ballots  upon  which  the  in- 
spectors have  neglected  to  mark  their 
initials  is  void  where  the  constitution  pro- 
vides that  all  persons  having  certain 
qualifications  "  shall  be  entitled  to  vote 
at  all  elections."  Moyer  v.  Van  De  Van- 
ter,  12  Wash.  377,  41  Pac.  CO,  29  L.  R.  A. 
670.  Where  statute  provides  that  upon 
voter's  taking  a  specified  oath  "  his  vote 
shall  be  received,"  such  provision  is  man- 
datory. Wolcott  v.  Holcomb,  97  Mich. 
361,  66  N.  W.  837,  23  L.  R.  A.  215.  An 
unregistered  voter  may  be  required  to 
make  affidavit  as  to  his  qualifications, 
stating  them  in  full.  Cusick's  Appeal, 
136  Pa.  459,  20  Atl.  574,  10  L.  R.  A.  228. 
Requirements  in  registration  law  must  be 
reasonable.  Owensboro  v.  Hickman,  90 
Ky.  629,  14  S.  W.  688,  10  L.  R.  A.  224, 
and  note. 


CH.  XVII.]          THE   EXPRESSION   OF  THE   POPULAR   WILL.  907 

always  have  been  within  the  power  of  the  legislature,  unless  for- 
bidden. Many  resting  upon  the  same  principle  are  always  pre- 
scribed, and  have  never  been  supposed  to  be  open  to  objection. 
Although  the  constitution  provides  that  all  male  citizens  twenty- 
one  years  of  age  and  upwards  shall  be  entitled  to  vote,  it  would 
not  be  seriously  contended  that  a  statute  which  should  require  all 
such  citizens  to  go  to  the  established  place  for  holding  the  polls, 
and  there  deposit  their  ballots,  and  not  elsewhere,  was  a  violation 
of  the  constitution,  because  prescribing  an  additional  qualification, 
namely,  the  presence  of  the  elector  at  the  polls.  All  such  reason- 
able regulations  of  the  constitutional  right  which  seem  to  the 
legislature  important  to  the  preservation  of  order  in  elections,  to 
guard  against  fraud,  undue  influence,  and  oppression,  and  to  pre- 
serve the  purity  of  the  ballot-box,  are  not  only  within  the  consti- 
tutional power  of  the  legislature,  but  are  commendable,  and  at 
least  some  of  them  absolutely  essential.  And  where  the  law 
requires  such  a  registry,  and  forbids  the  reception  of  votes  from 
any  persons  not  registered,  an  election  in  a  township  where  no 
sucli  registry  has  ever  been  made  will  be  void,  and  cannot  be 
sustained  by  making  proof  that  none  in  fact  but  duly  qualified 
electors  have  voted.  It  is  no  answer  that  such  a  rule  may  enable 
the  registry  officers,  by  neglecting  their  duty,  to  disfranchise  the 
electors  altogether;  the  remedy  of  the  electors  is  by  proceedings 
to  compel  the  performance  of  the  duty  ;  and  the  statute,  being 
imperative  and  mandatory,  cannot  be  disregarded.1  The  danger, 
however,  of  any  such  misconduct  on  the  part  of  officers  is  com- 
paratively small,  when  the  duty  is  entrusted  to  those  who  are 
chosen  in  the  locality  where  the  registry  is  to  be  made,  and  who 
are  consequently  immediately  responsible  to  those  who  are  in- 
terested in  being  registered. 

All  regulations  of  the  elective  franchise,  however,  must  be  rea- 
sonable, uniform,  and  impartial ;   they  must  not  have  for  their 


1  People  v.  Kopplekom,  16  Mich.  342;  malities  in  a  registry  will  not  vitiate  it, 

Zeiler  v.  Chapman,  64  Mo.  502 ;  Nefzger  and  canvassers   cannot  reject  votes  be- 

v.  Davenport,  &c.  R.  R.  Co.,  36  Iowa,  642 ;  cause  of  them.     State  v.  Baker,  38  Wis. 

Chicago,  &c.  R.  R.  Co.  v.  Mallory,  101  71.     Compare  Barnes  v.  Supervisors,  51 

III.  583.     It  has  nevertheless  been  held  Miss.  305;  Newson  v.  Earnheart,  86  N.  C. 

that  if  the  ballots  of  unregistered  voters  391 ;  De  Berry  v.  Nicholson,  102  N.  C. 

are  received,  they  should  not  be  rejected  465,  9  S.  E.  545.    That  a  board  of  regis- 

in  a  contest.     Dale  v.  Irwin,  78  111.  170;  tration  has  judicial  functions,  see  Fausler 

Kuykendall  v.  Barker,  89  111.  126.     The  v.  Parsons,  6  W.  Va.  486,  20  Am.  Rep. 

law   does   not    become    unconstitutional  431.     Such  board  may  be  civilly  liable 

because  of  the  fact  that,  by  the  neglect  for  wrongful   and   malicious   refusal    to 

of  the  officers  to  attend  to  the  registry,  register  a  person.     Murphy  v.  Ramsey, 

voters  may  be  disfranchised.    Ibid.    Ens-  114  U.  S.  15,  5  Sup.  Ct.  Rep.  747. 
worth  v.  Albin,  46  Mo.  450.    But  infer- 


908 


CONSTITUTIONAL  LIMITATIONS. 


[CII.  XVII. 


purpose  directly  or  indirectly  to  deny  or  abridge  the  constitu- 
tional right  of  citizens  to  vote,  or  unnecessarily  to  impede  its 
exercise  ;  if  they  do,  they  must  be  declared  void.1 

In  some  other  cases  preliminary  action  by  the  public  authori- 
ties may  be  requisite  before  any  legal  election  can  be  held.  If  an 
election  is  one  which  a  municipality  may  hold  or  not  at  its  option, 
and  the  proper  municipal  authority  decides  against  holding  it,  it 
is  evident  that  individual  citizens  must  acquiesce,  and  that  any 
votes  which  may  be  cast  by  them  on  the  assumption  of  right 
must  be  altogether  nugatory.2  The  same  would  be  true  of  an 
election  to  be  held  after  proclamation  for  that  purpose,  and  which , 
must  fail  if  no  such  proclamation  has  been  made.3  Where,  how- 


i  Capen  v.  Foster,  12  Pick.  485, 23  Am. 
Dec.  632;  Monroe  v.  Collins,  17  Ohio 
St.  665.  All  male  citizens  resident  in 
the  State  a  year  and  the  town  six  months 
being  electors,  an  act  is  void  which  for- 
bids to  a  naturalized  person  the  right  to 
be  registered  within  thirty  days  of  natu- 
ralization. Kinneen  v.  Wells,  144  Mass. 
497,  11  N.  E.  916.  Under  the  Constitu- 
tion of  Oliio,  the  right  of  suffrage  is  guar- 
anteed to  "  white  male  citizens,"  and  by  a 
long  series  of  decisions  it  was  settled  that 
persons  having  a  preponderance  of  white 
blood  were  "white"  within  its  meaning. 
It  was  also  settled  that  judges  of  election 
were  liable  to  an  action  for  refusing  to 
receive  the  vote  of  a  qualified  elector.  A 
legislature  unfriendly  to  the  construction 
of  the  constitution  above  -stated  passed 
an  act  which,  while  prescribing  penalties 
against  judges  of  election  who  should  re- 
fuse to  receive  or  sanction  the  rejection 
of  a  ballot  from  any  person,  knowing  him 
to  have  the  qualifications  of  an  elector, 
concluded  with  a  proviso  that  the  act  and 
the  penalties  thereto  "  shall  not  apply  to 
clerks  or  judges  of  election  for  refusing 
to  receive  the  votes  of  persons  having  a 
distinct  and  visible  admixture  of  African 
blood,  nor  shall  they  be  liable  to  dam- 
ages by  reason  of  such  rejection."  Other 
provisions  of  the  act  plainly  discriminated 
against  the  class  of  voters  mentioned,  and 
it  was  held  to  be  clearly  unreasonable, 
partial,  calculated  to  subvert  or  impede 
the  exercise  of  the  right  of  suffrage  by 
this  class,  and  therefore  void.  Monroe  v. 
Collins,  supra.  FJWhere  a  minor  becomes 
qualified  between  the  completion  of  the 
preliminary  registration  and  the  final  re- 
view, if  he  has  offered  his  name  at  the 


preliminary  for  conditional  registration, 
he  can  compel  registration  of  his  name  at 
the  review.  Barret  v.  Taylor,  85  Md. 
173,  36  Atl.  708,  36  L.  R.  A.  129  ;  see  also 
Drake  v.  Drewry,  112  Ga.  308,  37  S.  E. 
432.  Requirement  that  every  voter  who 
has  been  six  months  absent  from  the 
State  since  last  voting  in  it  shall  register 
with  county  clerk  his  claim  to  be  a  legal 
voter  before  he  will  be  permitted  to 
vote  again  is  void  for  unreasonableness. 
Brewer  v.  McClelland,  144  Ind.  423,  32 
N.  E.  209,  17  L.  R.  A.  845;  Morris  v. 
Powell,  125  Ind.  281,  25  N.  E.  221,  9  L.  R. 
A.  326.  A  law  requiring  registration  in 
person,  allowing  but  five  days  for  regis- 
tration, and  making  no  provision  for  sick- 
ness and  unavoidable  absence  on  those 
days  is  void  for  unreasonableness.  At- 
torney-General a.  Detroit,  78  Mich.  545, 
44  N.  W.  388,  7  L.  R.  A.  99,  and  note. 
Registration  for  last  preceding  general 
election  may  be  made  sufficient  for  a 
special  election.  Pickett  v.  Russell,  42 
Fla.  116,  634,  28  So.  764.] 

2  Opinions  of  Judges,  7  Mass.  623 ; 
Opinions  of  Judges,  15  Mass.  537. 

8  People  v.  Porter,  6  Cal.  26;  McKune 
v.  Weller,  11  Cal.  49;  People  v.  Martin. 
12  Cal.  409;  Jones  i>.  State,  1  Kan.  273; 
Barry  v.  Lauck,  5  Cold.  588 ;  Stephens  v. 
People,  89  111.  337.  So  if  notice  is  given 
but  not  as  the  law  requires :  State  r. 
Echols,  41  Kan.  1,  20  Pac.  523 ;  or  if  it 
fails  to  specify  time  and  place.  Morgan 
v.  Gloucester,  44  N.  J.  L.  137.  But  such 
informalities  will  not  vitiate,  if  as  many 
vote  as  usual.  Wheat  v.  Smith,  50  Ark. 
266,  7  S.  W.  161.  [But  where  no  notice 
was  given  and  only  ninety-four  out  of 
one  thousand  two  hundred  voters  vote 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR  WILL. 


909 


ever,  both  the  time  and  the  place  of  an  election  are  prescribed  by 
law,  every  voter  has  a  right  to  take  notice  of  the  law,  and  to 
deposit  his  ballot  at  the  time  and  place  appointed,  notwithstanding 
the  officer,  whose  duty  it  is  to  give  notice  of  the  election,  has 
failed  in  that  duty.  The  notice  to  be  thus  given  is  only  additional 
to  that  which  the  statute  itself  gives,  and  is  prescribed  for  the 
purpose  of  greater  publicity  ;  but  the  right  to  hold  the  election 
comes  from  the  statute,  and  not  from  the  official  notice.  It  has 
therefore  been  frequently  held  that  when  a  vacancy  exists  in  an 
office,  which  the  law  requires  shall  be  filled  at  the  next  general 
election,  the  time  and  place  of  which  are  fixed,  and  that  notice  of 
the  general  election  shall  also  specify  the  vacancy  to  be  filled,  an 
election  at  that  time  and  place  to  fill  the  vacancy  will  be  valid, 
notwithstanding  the  notice  is  not  given  ;  and  such  election  can- 
not be  defeated  by  showing  that  a  small  portion  only  of  the 
electors  were  actually  aware  of  the  vacancy,  or  cast  their  votes  to 
fill  it.1  But  this  would  not  be  the  case  if  either  the  time  or  the 
place  were  not  fixed  by  law,  so  that  notice  became  essential  for 
that  purpose.2 


for  candidates  for  the  particular  office, 
and  then  by  means  of  pasters  on  the 
official  ballots,  the  election  is  void.  Wil- 
son v.  Brown,  22  Ky.  L.  708,  58  S.  W. 
595J 

i  People  v.  Cowles,  13  N.  Y.  850 ;  Peo- 
ple v.  Brenahm,  3  Cal.  477 ;  State  v. 
Jones,  19  Ind.  356;  People  v.  Hartwell, 
12  Mich.  508;  Dishon  v.  Smith,  10  Iowa, 
212;  State  v.  Orvis,  20  Wis.  235;  State 
v.  Goetze,  22  Wis.  363 ;  State  v.  Skirving, 
19  Neb.  497,  27  N.  W.  723;  [Adsit  r. 
Sec.  of  State,  84  Mich.  420,  48  N.  W.  31, 
11  L.  R.  A.  534.]  The  case  of  Foster  v. 
Scarff,  15  Ohio  St.  532,  would  seem  to  be 
contra.  A  general  election  was  to  be 
held,  at  which  by  law  an  existing  va- 
cancy in  the  office  of  judge  of  probate 
was  required  to  be  filled.  The  sheriff, 
however,  omitted  all  mention  of  this 
office  in  his  notice  of  election,  and  the 
voters  generally  were  not  aware  that  a 
vacancy  was  to  be  filled.  Nominations 
were  made  for  the  other  offices,  but  none 
for  this,  but  a  candidate  presented  him- 
self for  whom  less  than  a  fourth  of  the 
voters  taking  part  in  the  election  cast 
ballots.  It  was  held  that  the  election  to 
fill  the  vacancy  was  void.  QWhen  gen- 
eral election  law  requires  all  elections  to 
be  held  at  places  specified  or  described 
therein,  places  need  not  be  specified  in  a 


notice  of  election  to  pass  upon  question 
of  issuing  county  bonds.  Packwood  v. 
Kittitas  County,  15  Wash.  88,  45  Pac. 
640,  33  L.  R.  A.  673.] 

2  State  v.  Young,  4  Iowa,  561.  An 
act  had  been  pnssed  for  the  incorporation 
of  the  city  of  Washington,  and  by  its 
terms  it  was  to  be  submitted  to  the  peo- 
ple on  the  16th  of  the  following  Febru- 
ary, for  their  acceptance  or  rejection,  at 
an  election  to  be  called  and  holden  in  the 
same  manner  as  township  elections  under 
the  general  law.  The  time  of  notice  for 
the  regular  township  elections  was,  by 
law,  to  be  determined  by  the  trustees, 
but  for  the  first  township  meeting  fifteen 
days'  notice  was  made  requisite.  An  elec- 
tion was  holden,  assumed  to  be  under  the 
act  in  question  ;  but  no  notice  was  given 
of  it,  except  by  the  circulation,  on  the 
morning  of  the  election,  of  an  extra  news- 
paper containing  a  notice  that  an  election 
would  be  held  on  that  day  at  a  specified 
place.  It  was  held  that  the  election  was 
void.  The  act  contemplated  some  notice 
before  any  legal  vote  could  be  taken,  and 
that  which  was  given  could  not  be  con- 
sidered any  notice  at  all.  This  case  dif- 
fers from  all  of  those  above  cited,  where 
vacancies  were  to  be  filled  at  a  general 
election,  and  where  the  law  itself  would 
give  to  the  electors  all  the  information 


910 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


The  Manner  of  Exercising  the  Right. 

The  mode  of  voting  in  this  country,  at  all  general  elections,  is 
almost  universally  by  ballot.1  "  A  ballot  may  be  defined  to  be  a 
piece  of  paper  or  other  suitable  material,  with  the  name  written 
or  printed  upon  it  of  the  person  to  be  voted  for ;  and  where  the 
suffrages  are  given  in  this  form,  each  of  the  electors  in  person 
deposits  such  a  vote  in  the  box,  or  other  receptacle  provided  for 
the  purpose,  and  kept  by  the  proper  officers.''  2  The  distinguish- 
ing feature  of  this  mode  of  voting  is,  that  every  voter  is  thus 
enabled  to  secure  and  preserve  the  most  complete  and  inviolable 
secrecy  in  regard  to  the  persons  for  whom  he  votes,  and  thus 
escape  the  influences  which,  under  the  system  of  oral  suffrages, 
may  be  brought  to  bear  upon  him  with  a  view  to  overbear  and 
intimidate,  and  thus  prevent  the  real  expression  of  public 
sentiment.3 


which  was  requisite.  In  this  case,  al- 
though the  time  was  fixed,  the  place  was 
not ;  and,  if  a  notice  thus  circulated  on 
the  morning  of  election  could  be  held 
sufficient,  it  might  well  happen  that  the 
electors  generally  would  fail  to  be  in- 
formed, so  that  their  right  to  vote  might 
be  exercised.  See  also  Barry  r.  Lauck, 
5  Cold.  588;  Secord  v.  Foutch,  44  Mich. 
89,  6  N.  W.  110.  That  where  the  law 
provides  for  holding  an  election  and  one 
is  duly  called,  equity  has  no  authority  to 
enjoin  it,  see  Walton  v.  Develing,  61  111. 
201. 

1  The  ballot  was  also  adopted  in  Eng- 
land in  1872. 

In  municipal  elections  voting  by  ballot 
is  lawful,  but  not  so,  as  to  illiterates,  a 
provision  requiring  the  voter  to  indicate 
by  a  mark  the  candidates  he  wishes  to 
vote  for,  as  it  is  contrary  to  the  guaranty 
that  all  elections  shall  be  free  and  equal. 
Rogers  v.  Jacob,  88  Ky.  602,  11  S.  W. 
613.  fJUse  of  voting  machine  sufficiently 
satisfies  requirement  of  ballot.  Opinion 
of  Justices,  19  R.  I.  729,  36  Atl.  716,  86 
L.  R.  A.  547 ;  Re  House  Bill  No.  1291, 178 
Mass.  605,  60  N.  E.  129,  54  L.  R.  A.  430, 
but  see  dissenting  opinions  in  both  cases 
for  forcible  objections.] 

2  Gush.  Leg.  Assemb.  §  103. 

8  "  In  this  country,  and  indeed  in  every 
country  where  officers  are  elective,  differ- 
ent modes  have  been  adopted  for  the  elec- 
tors to  signify  their  choice.  The  most 
common  modes  have  been  either  by  voting 


viva  voce,  that  is,  by  the  elector  openly 
naming  the  person  he  designates  for  the 
office,  or  by  ballot,  which  is  depositing  in 
a  box  provided  for  the  purpose  a  paper 
on  which  is  the  name  of  the  person  he 
intends  for  the  office.  The  principal 
object  of  this  last  mode  is  to  enable  the 
elector  to  express  his  opinion  secretly, 
without  being  subject  to  be  oveniwed,  or 
to  any  ill-will  or  persecution  ou  account 
of  his  vote  for  either  of  the  candidates 
who  may  be  before  the  public.  The 
method  of  voting  by  tablets  in  Rome  was 
an  example  of  this  manner  of  voting. 
There  certain  officers  appointed  for  that 
purpose,  called  Diribitores,  delivered  to 
each  voter  as  many  tablets  as  there  were 
candidates,  one  of  whose  nnmes  was 
written  upon  every  tablet.  The  voter 
put  into  a  chest  prepared  for  that  pur- 
pose which  of  these  tablets  he  pleased, 
and  they  were  afterwards  taken  out  and 
counted.  Cicero  defines  tablets  to  be 
little  billets,  in  which  the  people  brought 
their  suffrages.  The  clause  in  the  con- 
stitution directing  the  election  of  the 
several  State  officers  was  undoubtedly 
intended  to  provide  that  the  election 
should  be  made  by  this  mode  of  voting 
to  the  exclusion  of  any  other.  In  this 
mode  the  freemen  can  individually  ex- 
press their  choice  without  being  under 
the  necessity  of  publicly  declaring  the 
object  of  tla-ir  choice;  their  collective 
voice  can  be  easily  ascertained,  and  the 
evidence  of  it  transmitted  to  the  place 


CH.  XVII.]          THE    EXPRESSION   OF   THE   POPULAR  WILL. 


911 


111  order  to  secure  as  perfectly  as  possible  the  benefits  antici- 
pated from  this  system,  statutes  have  been  passed,  in  some  of  the 
States,  which  prohibit  ballots  being  received  or  counted  unless 
the  same  are  written  or  printed  upon  white  paper,  without  any 
marks  or  figures  thereon  intended  to  distinguish  one  ballot  from 
another.1  These  statutes  are  simply  declaratory  of  a  constitutional 


where  their  votes  are  to  be  counted,  and 
tiie  result  declared  witli  as  little  incon- 
venience as  possible."  Temple  v.  Mead, 
4  Vt.  535,  541.  In  this  case  it  was  held 
that  a  printed  ballot  was  within  the  mean- 
ing of  the  constitution  which  required  all 
ballots  for  certain  State  officers  to  be 
"  fairly  written."  To  the  same  effect 
is  Henshaw  o.  Foster,  9  Pick.  312.  FJV 
court  has  no  power  to  require  ballots 
voted  at  an  election  to  be  later  submitted 
to  the  inspection  of  the  grand  jury.  Ex 
pnrte  Arnold,  128  Mo.  256,  30  S.  W.  768, 
1036, 33  L.  R.  A.  386  ;  but  see  note  thereto 
in  L.  R.  A.  upon  power  of  courts  to  com- 
pel submission  of  ballot  boxes  to  examina- 
tion for  other  purposes  than  election 
contests,  citing  cases  contra  under  sub- 
stantially similar  constitutional  provi- 
sions, notably  People  v.  Londoner,  13 
Col.  303,  22  Pac.  764,  6  L.  R.  A.  444.  j 

l  See  People  v.  Kilduff,  15  111.  492. 
In  this  case  it  was  held  that  the  common 
lines  on  ruled  paper  did  not  render  the 
ballots  void.  Otherwise  as  to  dotted 
lines  under  the  name  of  an  office,  for 
which  no  candidate  is  named.  Steele  v. 
Calhoun,  61  Miss.  556.  See  also  Druliner 
v.  State,  20  Ind.  308,  in  which  it  was  de- 
cided that  a  caption  to  the  ticket  folded 
inside  was  unobjectionable.  To  the  same 
effect  is  Millholland  v.  Bryant,  39  Ind. 
363.  A  method  different  from  the  usual 
one  of  printing  the  names  of  offices  will 
not  avoid  the  ballot.  Coffey  v.  Edmonds, 
58  Cal.  521.  See  also  Owens  v.  State,  04 
Tex.  500.  As  to  what  headlines  are  de- 
signed to  mislead  within  a  prohibition  of 
such,  see  Shields  v.  McGregor,  91  Mo. 
634,  4  S.  W.  266 ;  Williams  v.  State,  69 
Tex.  3^)8,  6  S.  W.  845.  A  ballot  ought 
not  to  be  rejected  because  it  differs  from 
the  regulations  prescribed  by  the  code  as 
to  size,  paper,  type,  &c.,  or  because  the 
office  of  sheriff  is  designated  "  sheriff  and 
collector ; "  the  sheriff  being  ex  officlo 
collector  by  law.  State  v.  Watson,  9  Mo. 
App.  5'J3 ;  Kirk  v.  Rhoads,  46  Cal.  398. 
Making  the  ticket  diamond  shaped  will 


not  avoid  it :  State  v.  Phillips,  63  Tex. 
390;  nor  will  attaching  slips  to  it.  Quinn 
v.  Markoe,  37  Minn.  439,  85  N.  W.  263. 
^Contra,  under  the  Australian  Ballot 
Law,  Fletcher  r.  Wall,  172  III.  426,  50 
N.  E.  230,  40  L.  R.  A.  617.]  The  presid- 
ing officers  of  the  election  are  the  sole 
judges  of  what  is  a  "  distinguishing  mark  " 
on  a  ballot,  where  such  a  mark  is  forbid- 
den; and  ballots  which  they  have  re- 
ceived and  counted  cannot  be  rejected 
afterwards  by  the  Governor  and  Council. 
Opinions  of  Judges,  45  Me.  602.  In 
Colorado  it  is  held  that,  if  voted  in 
good  faith,  a  ticket  with  such  mark  mint 
be  counted.  Kellogg  v.  Hickman,  12  Col. 
256,  21  Pac.  325.  A  requirement  that 
tliat  there  shall  be  a  space  of  one-fifth  of 
an  inch  between  names  of  candidates  is 
mandatory,  and  avoids  the  whole  ticket 
if  disobeyed.  Perkins  v.  Carraway,  59 
Miss.  222.  [[That  statutory  requirements 
concerning  ballots  in  elections  held  for 
purpose  of  passing  upon  proposed  munic- 
ipal bond  issues  must  be  strictly  ob- 
served, se«  Murphy  v.  San  Luis  Obispo, 
119  Cal.  624,  51  Pac..  1085,  39  L.  R.  A. 
444.  Omission  on  part  of  officer  in 
charge  of  ballot-box  to  tear  off  the  strips 
bearing  the  numbers  of  the  ballots  before 
depositing  them  in  the  box  does  not  in- 
validate them.  Buckncr  v.  Lynip,  22 
Nev.  426,  41  Pac.  762,  30  L.  R.  A.  354. 
For  a  case  involving  a  variety  of  marks 
upon  ballots,  some  of  which  were  held  to 
invalidate  the  ballots  and  others  not,  see 
Parker  v.  Orr,  158  111.  609,  41  N.  E.  1002, 
30  L.  R.  A.  227  ;  also  Tebbe  v.  Smith, 
108  Cal.  101,  41  Pac.  454, 29  L.  R.  A.  673  ; 
Dejmis  v.  Caughlin,  22  Nev.  447,  41  Pac. 
768,  29  L.  R.  A.  731  ;  Sego  v.  Stoddard, 
136  Ind.  207,  36  N.  E.  204,  22  L.  R.  A. 
468.  Where  through  mistake  of  officers  of 
election  the  colored  sample  ballots  are 
used  instead  of  the  white  ones  prescribed 
by  law,  the  error  is  harmless,  as  nil 
voters  used  the  colored  ballots  and 
secrecy  is  not  violated.  Boyd  v.  Mills,  53 
Kan.  594,  37  Pac.  16,  25  L.  R.  A.  486.] 


912  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

principle  that  inheres  in  the  system  of  voting  by  ballot,  and  which 
ought  to  be  inviolable  whether  declared  or  not.  In  the  absence 
of  such  a  statute,  all  devices  by  which  party  managers  are  en- 
abled to  distinguish  ballots  in  the  hand  of  the  voter,  and  thus 
determine  whether  he  is  voting  for  or  against  them,  are  opposed 
to  the  spirit  of  the  Constitution,  inasmuch  as  they  tend  to  defeat 
the  design  for  which  voting  by  ballot  is  established,  and,  though 
they  may  not  render  an  election  void,  they  are  exceedingly  repre- 
hensible and  ought  to  be  discountenanced  by  all  good  citizens. 
The  system  of  ballot-voting  rests  upon  the  idea  that  every  elector 
is  to  be  entirely  at  liberty  to  vote  for  whom  he  pleases  and  with 
what  party  he  pleases,  and  that  no  one  is  to  have  the  right,  or  be 
in  position,  to  question  his  independent  action,  either  then  or  at 
any  subsequent  time.1  The  courts  have  held  that  a  voter,  even 
in  case  of  a  contested  election,  cannot  be  compelled  to  disclose 
for  whom  he  voted  ;  and  for  the  same  reason  we  think  others 
who  may  accidentally,  or  by  trick  or  artifice,  have  acquired 
knowledge  on  the  subject  should  not  be  allowed  to  testify  to  such 
knowledge,  or  to  give  any  information  in  the  courts  upon  the 
subject.  Public  policy  requires  that  the  veil  of  secrecy  should  be 
impenetrable,  unless  the  voter  himself  voluntarily  determines  to 
lift  it ; 2  his  ballot  is  absolutely  privileged  ;  and  to  allow  evidence 

• 

1  "  The  right  to  vote  in  this  manner  liams  v.  Stein,  38  Ind.  90,  the  Supreme 
has  usually  been  considered  an  important  Court  of  Indiana  declared  to  be  void  the 
and  valuable  safeguard  of  the  imlepen-  following  enactment:    "It  shall   be  the 
dence  of  the  humble  citizen  against  the  duty  of  the  inspector  of  any  election  held 
influence  which  wealth  and  station  might  in  this  State,  on  receiving  the  ballot  of  any 
be  supposed   to    exercise.      This  object  voter,  to  have  the  same  numbered  with 
would  be  accomplished  but  very  imper-  figures,  on  the  outside  or  back  thereof,  to 
fectly  if  the  privacy  supposed  to  be  se-  correspond  with  the  number  placed  op- 
cured   was  limited    to    the    moment    of  posite  the  name  of  such  voter  on  the  poll 
depositing  the  ballot.     The  spirit  of  the  lists  kept  by  the  clerks  of  said  election." 
system  requires  that  the  elector  should  Pettit,  J.,  delivering  the  opinion  of  the 
be  secured  then  and  at  all  times  there-  court,  after  quoting  several   authorities, 
after  against  reproach  or  animadversion,  among  others  Commonwealth  v.  Woelper, 
or  any  other  prejudice,   on  account  of  3  S.  &  R.  29 ;  People  v.  Pease,  27  N.  Y. 
having  voted  according  to  his  own  un-  45;  People  v.  Cicott,  16  Mich.  283;  Tern- 
biassed   judgment;  and   that  security  is  pie   v.   Mead,  4  Vt.  535;    and   the   text 
made  to  consist  in  shutting  up  within  the  above,   says :  "  It  is  believed  that  these 
privacy  of  his  own  mind  all  knowledge  authorities  establish,  beyond  doubt,  that 
of  the  manner  in  which  he  has  bestowed  the  ballot  implies  absolute  and  inviolable 
his  suffrage."     Per  Denio,  Ch.  J.,  in  Peo-  secrecy,  and  that  the  principle  is  founded 
pie  v.  Pease,  27  N.  Y.  45,  81.  in  the   highest  considerations   of   public 

2  "  The  ballot,"  says  Cicero,  "  is  dear    policy.     When   our  present  constitution 
to  the  people,  for  it  uncovers  men's  faces,    was  framed,  voting  by  ballot  was  in  vogue 

v  and  conceals  their  thoughts.  It  gives  in  nearly  every  State  in  the  Union.  That 
them  the  opportunity  of  doing  what  they  mode  of  voting  had  been  known  and  un- 
like, and  of  promising  all  that  they  are  derstood  for  centuries.  The  term  "  ballot," 
asked."  Speech  in  defence  of  Plaucius,  as  designating  a  mode  of  election,  was 
Forsyth's  Cicero,  Vol.  I.  p.  839.  In  Wil-  then  well  ascertained  and  clearly  defined. 


CH.  XVII.]          THE   EXPRESSION   OF   THE    POPULAR   WILL. 


913 


of  its  contents  when  he  has  not  waived  the  privilege  is  to  en- 
courage trickery  and  fraud,  and  would  in  effect  establish  this 
remarkable  anomaly,  that,  while  the  law  from  motives  of  public 
policy  establishes  the  secret  ballot  with  a  view  to  conceal  the 
elector's  action,  it  at  the  same  time  encourages  a  system  of 
espionage,  by  means  of  which  the  veil  of  secrecy  may  be  pene- 
trated and  the  voter's  action  disclosed  to  the  public.1 


The  eminent  framers  of  the  constitution 
certainly  employed  this  term  with  a  full 
knowledge  of  its  meaning.  Many  of  the 
most  distinguished  members  of  the  con- 
stitutional convention  of  1850  were  mem- 
bers of  the  legislature  of  1852,  the  first 
that  met  under  the  present  constitution. 
That  they  regarded  the  ballot  system 
as  securing  inviolable  secrecy  is  clearly 
shown  by  the  following  law,  which  they 
then  helped  to  enact :  '  If  any  judge,  in- 
spector, clerk,  or  other  officer  of  an  elec- 
tion, shall  open  or  mark,  by  folding  or 
otherwise,  any  ticket  presented  by  sucli 
elector  at  such  election,  or  attempt  to  find 
out  the  names  thereon,  or  suffer  the  same 
to  be  done  by  any  other  person,  before 
such  ticket  is  deposited  in  the  ballot-box, 
he  shall  be  fined  in  any  sum  not  exceed- 
ing one  hundred  dollars.'  2  G.  &  H.  473, 
sec.  60.  If  the  constitution  secures  to  the 
•voter,  in  popular  elections,  the  protection 
and  immunity  of  secrecy,  there  can  be  no 
doubt  that  section  2  of  the  act  of  1869, 
which  authorized  the  inspector  to  number 
ballots,  is  clearly  in  conflict  with  it  and 
is  void.  I  am  not  unmindful  of  the  rule 
that  all  doubts  are  to  be  solved  in  favor 
of  the  constitutionality  of  legislative  en- 
actments. This  rule  is  well  established, 
and  is  founded  in  the  highest  wisdom. 
But  my  convictions  are  clear  that  our 
constitution  was  intended  to,  and  does, 
secure  the  absolute  secrecy  of  a  ballot, 
and  that  the  act  in  question,  which  directs 
the  numbering  of  tickets,  to  correspond 
with  the  numbers  opposite  the  names  of 
the  electors  on  the  poll  lists,  is  in  palpable 
conflict  not  only  with  the  spirit,  but  with 
the  substance,  of  the  constitutional  pro- 
vision. This  act  was  intended  to,  and 
does,  clearly  identify  every  man's  ticket, 
and  renders  it  easy  to  ascertain  exactly 
how  any  particular  person  voted.  That 
secrecy  which  is  esteemed  by  all  authority 
to  be  essential  to  the  free  exercise  of  suf- 
frage is  as  much  violated  by  this  law  as 
if  it  had  declared  that  the  election  should 


58 


be  viva  voce."  A  like  ruling  has  been 
made  in  Minnesota.  Brisbin  v.  Cleary, 
26  Minn.  107,  1  N.  W.  825.  In  several 
States,  however,  this  numbering  is  re- 
quired. See  Hodge  v.  Linn,  100  111.  397. 
QAnd  in  Slay  maker  v.  Phillips,  5  Wyo. 
453,  40  Pac.  971,  42  Pac.  1049,  47 
L.  R.  A.  842,  it  was  held  that  the 
requirement  that  every  ballot  be  offi- 
cially stamped  upon  the  back  thereof 
and  signed  manually  by  one  of  the  judges 
of  election  is  not  an  undue  restriction 
upon  the  right  of  suffrage,  even  though 
the  failure  of  the  judges  of  election  to 
perform  their  duty  in  this  regard  makes 
the  ballots  void.  Upon  marking  official 
ballot,  see  a  valuable  note  to  47  L.  R.  A. 
806,  in  which  many  cases  arising  under 
the  "  Australian "  ballot  laws  of  the 
several  States  are  collected.  Where  the 
voter  votes  for  a  person  whose  name  is 
not  printed  on  the  ballot,  the  addition  of 
the  party  designation  to  the  written 
name,  after  the  manner  of  the  printed 
names  and  designations,  will  not  be  con- 
sidered a  distinguishing  mark  in  the 
absence  of  proof.  Jennings  v.  Brown, 
114  Cal.  307,  46  Pa.  77,  34  L.  R.  A.  45.] 

1  See  this  subject  fully  considered  in 
People  v.  Cicott,  16  Mich.  283.  And  see 
also  State  v.  Hilmantel,  23  Wis.  422; 
Brewer  v.  Weakley,  2  Overt.  99,  5  Am. 
Dec.  656.  A  very  loose  system  pre- 
vails in  the  contests  over  legislative  elec- 
tions, and  it  has  been  held  that  when  a 
voter  refuses  to  disclose  for  whom  he 
voted,  evidence  is  admissible  of  the  gen- 
eral reputation  of  the  political  character 
of  the  voter,  and  as  to  the  party  to  which 
he  belonged  at  the  time  of  the  election. 
Cong.  Globe,  XVI.  App.  456.  This  is 
assuming  that  the  voter  adheres  strictly 
to  party,  and  always  votes  the  "straight 
ticket ;  "  an  assumption  which  may  not 
be  a  very  violent  one  in  the  majority  of 
cases,  but  which  is  scarcely  creditable  to 
the  manly  independence  and  self-reliance 
of  any  free  people;  and  however  strongly 


914 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


Every  ballot  should  be  complete  in  itself,  and  ought  not  to 
require  extrinsic  evidence  to  enable  the  election  officer  to  deter- 
mine the  voter's  intention.  Perfect  certainty,  however,  is  not 
required  in  these  cases.  It  is  sufficient  if  an  examination  leaves 
no  reasonable  doubt  upon  the  intention,  and  technical  accuracy  is 
never  required  in  any  case.  The  cardinal  rule  is  to  give  effect  to 
the  intention  of  the  voter,  whenever  it  is  not  left  in  uncertainty  j1 
but  if  an  ambiguity  appears  upon  its  face,  the  elector  cannot  be 
received  as  a  witness  to  make  it  good  by  testifying  for  whom  or 
for  what  office  he  intended  to  vote.2 


disposed  legislative  bodies  may  be  to  act 
upon  it,  we  are  not  prepared  to  see  any 
such  rule  of  evidence  adopted  by  the 
courts.  If  a  voter  chooses  voluntarily  to 
exhibit  his  ballot  publicly,  perhaps  there 
is  no  reason  why  those  to  whom  it  was 
shown  should  not  testify  to  its  contents  ; 
but  in  other  cases  the  knowledge  of  its 
contents  is  his  own  exclusive  property, 
and  he  can  neither  be  compelled  to  part 
with  it,  nor,  as  we  think,  is  any  one  else 
who  accidentally  or  surreptitiously  be- 
comes possessed  of  it,  or  to  whom  the 
ballot  has  been  shown  with  a  view  to  in- 
formation, advice,  or  alteration,  at  liberty 
to  make  the  disclosure.  Such  third  per- 
son might  be  guilty  of  no  legal  offence  if 
he  should  do  so ;  but  he  is  certainly  in- 
vading the  constitutional  privileges  of  his 
neighbor,  and  we  are  aware  of  no  sound 
principle  of  law  which  will  justify  a  court 
in  compelling  or  even  permitting  liim  to 
testify  to  what  he  has  seen.  And  as  the 
law  does  not  compel  a  voter  to  testify, 
"  surely  it  cannot  be  so  inconsistent  with 
itself  as  to  authorize  a  judicial  inquiry 
upon  a  particular  subject,  and  at  the 
same  time  industriously  provide  for  the 
concealment  of  the  only  material  facts 
upon  which  the  results  of  such  an  inquiry 
must  depend."  Per  Denio,  Ch.  J.,  in  Peo- 
ple v.  Pease,  27  N.  Y.  45,  81.  It  was  held 
iii  People  v.  Cicott,  16  Mich.  283,  that 
until  it  was  distinctly  shown  that  the 
elector  waived  his  privilege  of  secrecy, 
any  evidence  as  to  the  charcter  or  con- 
tents of  his  ballot  was  inadmissible.  It 
was  also  held  that  where  a  voter's  quali- 
fication was  in  question,  but  his  want  of 
right  to  vote  was  not  conceded,  the  privi- 
lege was  and  must  be  the  same  ;  as  other- 
wise any  person's  ballot  might  be  inquired 
into  by  simply  asserting  his  want  of  quali- 
fication. In  State  v.  Olin,  23  Wis.  319,  it 


was  decided  that  where  persons  who  had 
voted  at  an  election  had  declined  to  tes- 
tify concerning  their  qualifications,  and 
how  they  had  voted,  it  was  competent  to 
prove  their  declarations  that  they  were 
unnaturalized  foreigners,  and  had  voted 
a  particular  way.  Compare  State  v. 
Hilmantel,  23  Wis.  422.  In  People  v. 
Thacher,  65  N.  Y.  525,  the  evidence  of 
voters  as  to  how  they  voted  was  received, 
and  as  they  did  not  object  to  giving  it,  it 
was  held  proper.  See  on  this  subject 
McCrary's  Law  of  Elections,  §§  194,  195. 
fjThe  public  are  interested  in  preserving 
the  secrecy  of  the  ballot  in  order  to  make 
bribery  ineffective,  and  a  statutory  re- 
quirement that  before  the  voter  can  take 
any  person  into  the  booth  with  him  to 
aid  him  in  making  out  his  ballot,  he  shall 
swear  that  he  is  unable  to  read  English,  is 
mandatory.  Ellis  v.  May,  99  Mich.  638, 
68  N.  W.  483,  25  L.  R.  A.  325.] 

1  People  v.  Matteson,  17  111.  167 ;  Peo- 
ple v.  Cook,  8  N.  Y.  67  ;  State  v.  Elwood, 
12  Wis.  551 ;  People  v.  Bates,  11  Mich. 
362;   Newton  v.  Newell,  26  Minn.   529, 
6  N.  W.  346. 

2  People  r.    Seaman,    5    Denio,  409. 
The  mental  purpose  of  an  elector  is  not 
provable :  it  must  be  determined  by  his 
acts.     People  v.  Saxton,  22  N.  Y.  309  ; 
Beardstown  v.  Virginia,  76  111.  34.     But 
see  McKinnon   v.   People,  110  111.  306; 
Kreitz  v.  Behrensmeyer,  125  111.  141,  17 
N.  E.  232,  24  L.  R.  A.  59.     And  where 
the  intent   is   to  be   gathered  from  the 
ballot,  it  is  a  question  of  law,  and  can- 
not be  submitted  to  the  jury  as  one  of 
fact.    People  i\  McManus,  34  Barb.  620. 
"  In   canvassing  votes  of  electors   their 
intentions  must  be  ascertained  from  their 
ballots,  which  must  be  counted  to  accord 
with  such  intentions.     If  the  ballots  ex- 
press such  intentions  beyond  reasonable 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR   WILL. 


915 


The  ballot  in  no  case  should  contain  more  names  than  are 
authorized  to  be  voted  for,  for  any  particular  office,  at  that  elec- 
tion ;  and,  if  it  should,  it  must  be  rejected  for  the  obvious  impos- 
sibility of  the  canvassing  officers  choosing  from  among  the  names 
on  the  ballot,  and  applying  the  ballot  to  some  to  the  exclusion  of 
others.  The  choice  must  be  made  by  the  elector  himself,  and  be 
expressed  by  the  ballot.  Accordingly,  where  only  one  supervisor 
was  to  be  chosen,  and  a  ballot  was  deposited  having  upon  it  the 
names  of  two  persons  for  that  office,  it  was  held  that  it  must  be 
rejected  for  ambiguity.1  It  has  been  decided,  however,  that  if  a 
voter  shall  write  a  name  upon  a  printed  ballot,  in  connection  with 
the  title  to  an  office,  this  is  such  a  designation  of  the  name  written 
for  that  office  as  sufficiently  to  demonstrate  his  intention,  even 
though  he  omit  to  strike  off  the  printed  name  of  the  opposing 
candidate.  The  writing  in  such  a  case,  it  is  held,  ought  to  pre- 
vail as  the  highest  evidence  of  the  voter's  intention,  arid  the 
failure  to  strike  off  the  printed  name  will  be  regarded  as  an 
accidental  oversight.2 


doubt,  it  is  sufficient,  without  regard 
to  technical  inaccuracies,  or  the  form 
adopted  by  the  voter  to  express  his  in- 
tentions. Of  course  the  language  of  a 
ballot  is  to  be  construed  in  the  light  of 
all  facts  connected  with  the  election ; 
thus,  the  office  to  be  filled,  the  names  of 
the  candidates  voted  for,  or  the  subject 
contemplated  in  the  proposition  submitted 
to  the  electors,  and  the  like,  may  be  con- 
sidered to  aid  in  discovering  the  inten- 
tions of  the  voter."  Beck,  J.,  in  Hawes 
v.  Miller,  66  Iowa,  395,  397,  9  N.  W.  307.' 
See  Railroad  Co.  v.  Bearss,  39  Ind.  598. 
If  a  voter  marks  out  the  name  of  a  can- 
didate for  a  certain  office  and  writes 
opposite  it  the  name  of  another  person, 
the  vote  must  be  counted  for  the  latter 
for  that  office  ;  though  in  fact  he  is  a 
candidate,  not  for  it,  but  for  some  other 
office.  The  intention  of  the  voter  must 
be  ascertained  from  the  face  of  the  bal- 
lot. Fenton  v.  Scott,  17  Oreg.  189,  20 
Pac.  95. 

1  People  v.  Seaman,  5  Denio,  409.  See 
also  Attorney-General  v.  Ely,  4  VVis.  420 ; 
People  v.  Loomis,  8  Wend.  396 ;  People 
v.  Cook,  14  Barb.  259,  and  8  N.  Y.  67 ; 
State  v.  Griffey,  5  Neb.  161.  Such  a 
vote,  however,  could  not  be  rejected  as 
to  candidates  for  other  offices  regularly 
named  upon  the  ballot;  it  would  be  void 
only  as  to  the  particular  office  for  which 


the  duplicate  ballot  was  cast.  Attorney- 
General  v.  Ely,  4  Wis.  420 ;  Perkins  v. 
Carraway,  59  Miss.  222.  If  the  name  of 
a  candidate  for  an  office  is  given  more 
than  once,  it  is  proper  to  count  it  as  one 
ballot,  instead  of  rejecting  it  as  illegally 
thrown.  People  v.  Holden,  28  Cal.  123 ; 
State  v.  Pierce,  35  Wis.  93. 

2  People  v.  Saxton,  22  N.  Y.  309; 
Brown  v.  McCollum,  76  Iowa,  479,  41 
N.  W.  197.  This  ruling  suggests  this 
query :  Suppose  at  an  election  where 
printed  slips  containing  the  names  of  can- 
didates, with  a  designation  of  the  office, 
are  supplied  to  voters,  to  be  pasted  over 
the  names  of  opposing  candidates,  —  as 
is  very  common,  —  a  ballot  should  be 
found  in  the  box  containing  the  names  of 
a  candidate  for  one  office,  —  say  the 
county  clerk,  —  with  a  designation  of  the 
office  pasted  over  the  name  of  a  candi- 
date for  some  other  office,  —  s;iy  coroner ; 
so  that  the  ballot  would  contain  the  names 
of  two  persons  for  county  clerk,  and  of 
none  for  coroner.  In  such  a  case,  is  the 
slip  the  highest  evidence  of  the  inten- 
tion of  the  voter  as  to  who  should  receive 
his  suffrage  for  county  clerk,  and  must  it 
be  counted  for  that  office  ?  And  if  so, 
then  does  not  the  ballot  also  show  the  in- 
tention of  the  elector  to  cast  his  vote 
for  the  person  for  coroner  whose  name 
is  thus  accidentally  pasted  over,  and 


916 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVII. 


The  name  on  the  ballot  should  be  clearly  expressed,  and  ought 
to  be  given  fully.  Errors  in  spelling,  however,  will  not  defeat  the 
ballot,  if  the  sound  is  the  same ; 1  nor  abbreviations,2  if  such  a.s 
are  in  common  use  and  generally  understood,  so  that  there  can 
be  no  reasonable  doubt  of  the  intent.  And  it  would  seem  that 
where  a  ballot  is  cast  which  contains  only  the  initials  of  the 
Christian  name  of  the  candidate,  it  ought  to  be  sufficient,  as  it 
designates  the  person  voted  for  with  the  same  certainty  which  is 
commonly  met  with  in  contracts  and  other  private  writings,  and 
the  intention  of  the  voter  cannot  reasonably  be  open  to  any  doubt.3 


should  it  not  be  counted  for  that  person  ? 
The  case  of  People  v.  Saxton  would 
seem  to  be  opposed  to  People  v.  Seaman, 
5  Denio,  409,  where  the  court  refused  to 
allow  evidence  to  be  given  to  explain  the 
ambiguity  occasioned  by  the  one  name 
being  placed  upon  the  ticket,  without  the 
other  being  erased.  "  The  intention  of 
the  elector  cannot  be  thus  inquired  into, 
when  it  is  opposed  or  hostile  to  the  paper 
ballot  which  he  has  deposited  in  the  bal- 
lot-box. We  might  with  the  same  pro- 
priety permit  it  to  be  proved  that  he 
intended  to  vote  for  one  man,  when  his 
ballot  was  cast  for  another  ;  a  species  of 
proof  not  to  be  tolerated."  Per  Whittle- 
set/,  J.  See  also  Newton  v.  Newell,  26 
Minn.  529,  6  N.  W.  346.  The  case  of 
People  v.  Cicott,  16  Mich.  283,  is  also  op- 
posed to  People  v.  Saxton.  In  the  Michi- 
gan case,  a  slip  for  the  office  of  sheriff 
was  pasted  over  the  name  of  the  candi- 
date for  another  county  office,  so  that  the 
ballot  contained  the  names  of  two  candi- 
dates for  sheriff.  It  was  argued  that  the 
slip  should  be  counted  as  the  best  evi- 
dence of  the  voter's  intention ;  but  the 
court  held  that  the  ballot  could  be  counted 
for  neither  candidate,  because  of  its  am- 
biguity. And  a  like  rule  is  laid  down  as 
to  a  provision  in  the  Illinois  Constitution 
•which  requires  that,  if  more  persons  are 
designated  for  any  office  than  there  are 
candidates  to  be  elected,  such  part  of  the 
ticket  shall  not  be  counted  for  either. 
This  provision  is  obligatory  where  only 
one  name  is  printed  on  the  ticket,  and  it 
remains  unerased  and  another  is  written 
in.  Kreitz  v.  Behrensmeyer,  125  111.  141, 
17  N.  E.  232,  24  L.  R.  A. "69. 

1  People  v.  May  worm,  5  Mich.  146 ; 
Attorney-General  v.  Ely,  4  Wis.  420; 
Gumm  v.  Hubbard,  97  Mo.  311,  11  S.  W. 


61 ;  Kreitz  v.  Behrensmeyer,  125  111.  141, 
17  N.  E.  232,  24  L.  R.  A.  59. 

2  People  v.  Ferguson,  8  Cow.  102.   See 
also,  upon  this  subject,  People  v.  Cook,  14 
Barb.  259,  and  8  N.  Y.  67  ;  and  People  v. 
Tisdale,  1  Doug.  (Mich.)  59. 

3  In  People  v.  Ferguson,  8  Cow.  102, 
it  was  held  that,  on  the  trial  of  a  con- 
tested election  case  before  a  jury,  ballots 
cast  for  H.  F.  Yates  should  be  counted 
for  Henry  F.  Yates,  if,  under  the  circum- 
stances, the  jury  were  of  the  opinion  they 
were  intended  for  him ;  and  to  arrive  at 
that  intention,  it  was  competent  to  prove 
that  he  generally  signed  his  name  H.  F. 
Yates  ;  that  he  had  before  held  the  same 
office  for  which  these  votes  were  cast,  and 
was  then  a  candidate  again  ;  that  the  peo- 
ple generally  would  apply  the  abbrevia- 
tion to  him,  and  that  no  other  person  was 
known  in  the  county  to  whom  it  would 
apply.     This  ruling  was  followed  in  Peo- 
ple v.  Seaman,  5  Denio,  409,  and  in  People 
t-.  Cook,  14  Barb.  259,  and  8  N.  Y.  67.  The 
courts  also  held,  in  these  cases,  that  the 
elector  voting  the  defective  ballot  might 
give  evidence  to  enable  the  jury  to  apply 
it,  and  might  testify  that  he  intended  it 
for  the  candidate  the   initials  of  whose 
name  he  had  given.    In  Attorney-General 
v.  Ely,  4  Wis.  420,  429,  a  rule  somewhat 
different  was  laid  down.    In  that  case, 
Matthew  H.  Carpenter  was  candidate  for 
the  office  of  prosecuting  attorney ;  and 
besides   the  perfect   ballots   there   were 
others  cast  for  "  D.  M.  Carpenter,"  "  M. 
D.  Carpenter,"  "  M.  T.  Carpenter,"  and 
"  Carpenter."     The  jury  found  that  there 
was  no  lawyer  in   the    county  by    the 
name  of  D.  M.  Carpenter,  M.  D.  Carpen- 
ter, M.  T.  Carpenter,  or  whose  surname 
was  Carpenter,  except  the  relator,  Mat- 
thew H.  Carpenter ;  that  the  relator  was 


CH.  XVII.]          THE    EXPRESSION   OF   THE   POPULAR   WILL. 


917 


As  the  law  knows  only  one  Christian  name,  the  giving  of  an  ini- 
tial to  a  middle  name  when  the  party  has  none,  or  the  giving  of  u 


a  practising  attorney  of  the  county,  and 
eligible  to  the  office,  and  that  the  votes 
above  mentioned  were  all  given  and  in- 
tended by  the  electors  for  the  relator. 
The  court  say  :  "  How  was  the  intention 
of  the  voter  to  be  ascertained  1  By 
reading  the  name  on  the  ballot,  and  as- 
certaining who  was  meant  and  intended 
by  that  name  ?  Is  no  evidence  admissible 
to  show  who  was  intended  to  be  voted 
for  under  the  various  appellations,  except 
such  evidence  as  is  contained  in  the  bal- 
lot itself?  Or  may  you  gather  the  inten- 
tion of  the  voter  from  the  ballot,  explained 
by  the  surrounding  circumstances,  from 
facts  of  a  general  public  nature  connected 
with  the  election  and  the  different  can- 
didates, which  may  aid  you  in  coming  to 
the  right  conclusion  1  These  facts  and 
circumstances  might,  perhaps,  be  adduced 
.so  clear  and  strong  as  to  lead  irresistibly 
to  the  inference  that  a  vote  given  for  Car- 
penter was  intended  to  be  cast  for  Mat- 
thew H.  Carpenter.  A  contract  may  be 
read  by  the  light  of  the  surrounding  cir- 
cumstances, not  to  contradict  it,  but  in 
order  more  perfectly  to  understand  the 
intent  and  meaning  of  the  parties  who 
made  it.  By  analogous  principles,  we 
think  that  these  facts,  and  others  of  like 
nature  connected  with  the  election,  could 
be  given  in  evidence,  for  the  purpose  of 
aiding  the  jury  in  determining  who  was 
intended  to  be  voted  for.  In  New  York, 
courts  have  gone  even  farther  than  this, 
and  held,  that  not  only  facts  of  public 
notoriety  might  be  given  in  evidence  to 
show  the  intention  of  the  elector,  but  that 
the  elector  who  cast  the  abbreviated  bal- 
lot may  be  sworn  as  to  who  was  intended 
by  it.  People  v.  Ferguson,  8  Cow.  102. 
But  this  is  pushing  the  doctrine  to  a  great 
extent;  further,  we  think,  than  considera- 
tion of  public  policy  and  the  well-being  of 
society  will  warrant ;  and  to  restrict  the 
rule,  and  say  that  the  jury  must  deter- 
mine from  an  inspection  of  the  ballot  it- 
self, from  the  letters  upon  it,  aside  from 
all  extraneous  facts,  who  was  intended  to 
be  designated  by  the  ballot,  is  establish- 
ing a  principle  unnecessarily  cautious  and 
limited.  In  the  present  case,  the  jury, 
from  the  evidence  before  them,  found 
that  the  votes  [above  described]  were, 


when  given  and  cast,  intended,  by  the 
electors  who  gave  and  cast  the  same  re- 
spectively, to  be  given  and  cast  for  Mat- 
thew H.  Carpenter,  the  relator.  Such 
being  the  case,  it  clearly  follows  that 
they  should  be  counted  for  him."  See 
also  State  v.  Elwood,  12  Wis.  651 ;  Peo- 
ple v.  Pease,  27  N.  Y.  45,  84,  per  JUenio, 
Ch  J. ;  Talkington  v.  Turner,  71  111.  234  ; 
Clark  v.  Robinson,  88  111.  498;  Kreitz  v. 
Belirensmeyer,  125  III.  141,  17  N.  E. 
232,  24  L.  R.  A.  59 ;  State  v.  Williams, 
95  Mo.  159,  8  S.  W.  415;  State  v.  Gates, 
43  Conn.  533.  In  Wimmer  v.  Eaton,  7'2 
Iowa,  374,  34  N.  W.  170;  ballots  for 
F.  W.  were  counted  for  E.  W.,  who  was 
a  regular  candidate,  there  being  no  one 
eligible  or  running  named  F.  W. 

In  Opinions  of  Judges,  38  Me.  559,  it 
was  held  that  votes  could  not  be  counted 
by  the  canvassers  for  a  person  of  a  dif- 
ferent name  from  that  expressed  by  the 
ballot,  even  though  the  only  difference 
consisted  in  the  initial  to  the  middle 
name.  See  also  Opinions  of  Justices,  64 
Me.  588.  And  in  People  v.  Tisdale,  1 
Doug.  (Mich.)  59,  followed  in  People  v. 
Higgins,  3  Mich.  233,  it  was  held  that  no 
extrinsic  evidence  was  admissible  on  a 
trial  in  court  in  explanation  or  support 
of  the  ballot ;  and  that,  unless  it  showed 
upon  its  face  for  whom  it  was  designed, 
it  must  be  rejected.  And  it  was  also 
held,  that  a  ballot  for  "  J.  A. Dyer"  did 
not  show,  upon  its  face,  that  it  was  in- 
tended for  the  candidate  James  A.  Dyer, 
and  therefore  could  not  be  counted  with 
the  ballots  cast  for  him  by  his  full  name. 
This  rule  is  convenient  of  application, 
but  it  probably  defeats  the  intention  of 
the  electors  in  every  case  to  which  it  is 
applied,  where  the  rejected  votes  could 
influence  the  result,  —  an  intention,  too, 
which  we  think  is  so  apparent  on  the  bal- 
lot itself,  that  no  person  would  be  in  real 
doubt  concerning  it.  In  People  t?.  Pease, 
27  N.  Y.  45,  64,  in  which  Moses  M.  Smith 
was  a  candidate  for  country  treasurer,  Sel- 
den,  J.,  says  :  "According  to  well-settled 
rules,  the  board  of  canvassers  erred  in  re- 
fusing to  allow  to  the  relator  the  nineteen 
votes  given  for  Moses  Smitli  and  M.  M. 
Smith;  "  and  although  we  think  this  doc- 
trine correct,  the  cases  he  cites  in  support 


918 


CONSTITUTIONAL  LIMITATIONS. 


[OH.  XVII. 


wrong  initial,  will  not  render  the  ballot  nugatory ; l  nor  will  a 
failure  to  give  the  addition  to  a  name  —  such  as  "  Junior "  — 
render  it  void,  as  that  is  a  mere  matter  of  description,  not  con- 
stituting a  part  of  the  name,  and  if  given  erroneously  may  be 
treated  as  surplusage.2  But  where  the  name  upon  the  ballot  is 


of  it  (8  Cow.  102,  and  5Denio,409)  would 
only  warrant  a  jury,  not  the  canvassers, 
in  allowing  them ;  or,  at  least,  those  cast 
for  M.  M.  Smith.  The  case  of  People  v. 
Tisdale  was  again  followed  in  People  v. 
Cicott,  16  Mich.  283  ;  the  majority  of  the 
court,  however,  expressing  the  opinion 
that  it  was  erroneous  in  principle,  but 
that  it  had  been  too  long,  (twenty-five 
years),  the  settled  law  of  the  State  to  be 
disturbed,  unless  by  the  legislature.  In 
Massachusetts,  it  is  held  that  votes  cast 
for  "  L.  Clark  "  cannot  be  counted  by  the 
canvassers  for  Leonard  Clark,  though  it 
is  intimated  that  on  a  trial  in  court  it 
might  be  shown  that  he  was  entitled  to 
them.  Clark  v.  County  Examiners,  126 
Mass.  282. 

1  People  v.  Cook,  14  Barb.  259,  8  N.  Y. 
67;   State   v.   Gates,  43  Conn.  633.    But 
see  Opinions  of  Judges,  38  Me.  597. 

2  People  v.  Cook,  14  Barb.  259  and  8 
N.  Y.  67.     In  this  case,  the  jury  found, 
as  matter  of  fac*,  that  ballots  given  for 
Benjamin  Welch  were  intended  for  Ben- 
jamin  Welch,  Jr. ;   and   the  court  held 
that,  as  a  matter  of  law,  they  should  have 
been   counted   for  him.     It  was  not  de- 
cided, however,  that  the  canvassers  were 
at  liberty  to  allow  the  votes  to  Benjamin 
Welch,  Jr. ;  and  the  judge  delivering  the 
prevailing  opinion  in   the  Court  of  Ap- 
peals  says   (p.  81),  that  the   State  can- 
vassers cannot  be  charged  with  error  in 
refusing  to  add  to  the  votes  for  Benjamin 
Welch,  Jr.,  those  which  were  given  for 
Benjamin    Welch,   without    the    junior. 
"  They   had  not   the   means   which   the 
court  possessed,  on  the  trial  of  this  issue, 
of  obtaining,   by   evidence   aliunde,    the 
several  county  returns,  the  intention  of 
the  voters,  and  the  identity  of  the  candi- 
date with  the  name  on  the  defective  bal- 
lots.    Their  judicial  power  extends  no 
further  than  to  take  notice  of  such  facts 
of  public  notoriety  as  that  certain  well- 
known  abbreviations  are  generally  used 
to  designate  particular  names,  and  the 
like."    So  far  as  this  case  holds  that  the 
canvassers  are  not  chargeable  with  error 


in  not  counting  the  ballots  with  the  name 
Benjamin  Welch  for  Benjamin  Welch, 
Jr.,  it  is,  doubtless,  correct.  But  sup- 
pose the  canvassers  had  seen  fit  to  do  so, 
could  the  court  hold  they  were  guilty  of 
usurpation  in  thus  counting  and  allowing 
them  ?  Could  not  the  canvassers  take 
notice  of  such  facts  of  general  public 
notoriety  as  everybody  else  would  take 
notice  of  ?  Or  must  they  shut  their  eyes 
to  facts  which  all  other  persons  must  see  ? 
The  facts  are  these :  Benjamin  Welch, 
Jr.,  and  James  M.  Cook  are  the  candi- 
dates, and  the  only  candidates,  for  State 
Treasurer.  These  facts  are  notorious, 
and  the  two  political  parties  make  deter- 
mined efforts  to  elect  one  or  the  other. 
Certain  votes  are  cast  for  Benjamin 
Welch,  with  the  descriptive  word  "jun- 
ior "  omitted.  The  name  is  correct,  but, 
as  thus  given,  it  may  apply  to  some  one 
else ;  but  it  would  be  to  a  person  noto- 
riously not  a  candidate.  Under  these 
circumstances,  when  the  facts  of  which 
it  would  be  necessary  to  take  notice 
have  occurred  under  their  own  supervi- 
sion, and  are  universally  known,  so  that 
the  result  of  a  contest  in  the  courts  could 
not  be  doubtful,  is  there  any  reason  why 
the  canvassers  should  not  take  notice  of 
these  facts,  count  the  votes  which  a  jury 
would  subsequently  be  compelled  to 
count,  and  thus  save  the  delay,  expense, 
vexation,  and  confusion  of  a  contest  ?  If 
their  judicial  power  extends  to  a  deter- 
mination of  what  are  common  and  well- 
known  abbreviations,  and  what  names 
spelled  differently  are  idem  sonans,  why 
may  it  not  also  extend  to  the  facts,  of 
which  there  will  commonly  be  quite  as 
little  doubt,  as  to  who  are  the  candidates 
at  the  election  over  which  they  preside  ? 
It  seems  to  us  that  in  every  case  where 
the  name  given  on  the  ballot,  though  in 
some  particulars  imperfect,  is  not  differ- 
ent from  that  of  the  candidate,  and  facts 
of  general  notoriety  leave  no  doubt  in  the 
minds  of  canvassers  that  it  was  intended 
for  him,  the  canvassers  should  be  at  lib- 
erty to  do  what  a  jury  would  afterwards 


CH.  XVII.]         THE   EXPRESSION   OF   THE   POPULAR  WILL.  919 

altogether  different  from  that  of  a  candidate,  not  the  same  in 
sound  and  not  a  mere  abbreviation,  the  evidence  of  the  voter 
cannot  be  received  to  show  for  whom  it  was  intended.1 

Upon  the  question  how  far  extrinsic  evidence  is  admissible  by 
way  of  helping  out  any  inperfections  in  the  ballot,  no  rule  can  be 
laid  down  which  can  be  said  to  have  a  preponderating  weight  of 
authority  in  its  support.  We  think  evidence  of  such  facts  as  may 
be  called  the  circumstances  surrounding  the  election  —  such  as 
who  were  the  candidates  brought  forward  by  the  nominating  con- 
ventions ;  whether  other  persons  of  the  same  names  resided  in 
the  district  from  which  the  officer  was  to  be  chosen,  and  if  so 
whether  they  were  eligible  or  had  been  named  for  the  office ;  if  a 
ballot  was  printed  imperfectly,  how  it  came  to  be  so  printed,  and 
the  like  —  is  admissible  for  the  purpose  of  showing  that  an  im- 
perfect ballot  was  intended  for  a  particular  candidate,  unless  the 
name  is  so  different  that  to  thus  apply  it  would  be  to  contradict 
the  ballot  itself;  or  unless  the  ballot  is  so  defective  that  it  fails 
to  show  any  intention  whatever:  in  which  cases  it  is  not  admis- 
sible.2 And  we  also  think  that  in  any  case  to  allow  a  voter  to 
testify  by  way  of  explanation  of  a  ballot  otherwise  fatally  defec- 
tive, that  he  voted  the  particular  ballot,  and  intended  it  for  a 
particular  candidate,  is  exceedingly  dangerous,  invites  corruption 
and  fraud,  and  ought  not  to  be  suffered.  Nothing  is  more  easy 
than  for  reckless  parties  thus  to  testify  to  their  intentions,  with- 
out the  possibility  of  their  testimony  being  disproved  if  untrue ; 
and  if  one  falsely  swears  to  having  deposited  a  particular  ballot, 
unless  the  party  really  depositing  it  sees  fit  to  disclose  his  knowl- 
edge, the  evidence  must  pass  unchallenged,  and  the  temptation 
to  subornation  of  perjury,  when  public  offices  are  at  stake,  and 
when  it  may  be  committed  with  impunity,  is  too  great  to  allow 
such  evidence  to  be  sanctioned.  While  the  law  should  seek  to 

be  compelled  to  do,  —  count  it  for  such  McCrary,  in  his  Law  of  Elections,  devotes 

candidate.     See   People  v.  Kennedy,  37  his   seventh    chapter    to   a    careful  dis- 

Mich.   67.     Compare   Clarke  v.    County  cussion  of  the  general  subject  of  imper- 

Examiners,  126  Mass.  282.  feet  ballots. 

1  A  vote  for  "  Pence"  cannot  be  shown          2  The^text  is  quoted  with  approval  in 

to   have   been    intended    for  "Spence."  Kreitz  v.  Behrensmeyer,  125111.  141,  17 

Hart  v.   Evans,   8  Pa.   St.   13.     Where,  N.  E.  232,  24  L.  R.  A.  59,  but  in  that  case 

however,  wrong  initials  were  given  to  the  after  a  recount  had  been  made  and  his 

Christian  name,  the  ballots  were  allowed  ballot  identified  by  its  number,  a  voter 

to  the  candidate  ;  the  facts  of  public  no-  was  allowed  to  testify  that  a  certain  slip 

toriety  being  such  as  to  show  that  they  upon  it  was  not  there  when  it  left  his 

were   intended  for   him.     Attorney-Gen-  hands ;   and  that  in   writing  in  a  candi- 

eral  v.  Ely,  4  Wis.  420.     This  case  goes  date's  name,  the  name  of  the  office  was 

farther,   in  permitting  mistakes  in   bal-  partly  obliterated  by  accident,  though,  if 

lots   to  be  corrected  on  parol  evidence,  the  latter  was  wholly  obliterated,  the  vote 

than    any    other    in    the   books.      Mr.  could  not  be  counted. 


920 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


give  effect  to  the  intention  of  the  voter,  whenever  it  can  be 
fairly  ascertained,  yet  this  intention  must  be  that  which  is  ex- 
pressed in  due  form  of  law,  not  that  which  remains  hidden  in 
the  elector's  breast ;  and  where  the  ballot,  in  connection  with 
such  facts  surrounding  the  election  as  would  be  provable  if  it 
were  a  case  of  contract,  does  not  enable  the  proper  officers  to 
apply  it  to  one  of  the  candidates,  policy,  coinciding  in  this 
particular  with  the  general  rule  of  law  as  applicable  to  other 
transactions,  requires  that  the  ballot  shall  not  be  counted  for 
such  candidate.1 

The  ballot  should  also  sufficiently  show  on  its  face  for  what 
office  the  person  named,  upon  it  is  designated:  but  here  again 
technical  accuracy  is  not  essential,  and  the  office  is  sufficiently 
named  if  it  be  so  designated  that  no  reasonable  doubt  can  exist 
as  to  what  is  meant.  A  great  constitutional  privilege  —  the 
highest  under  the  government  —  is  not  to  be  taken  away  on  a 
mere  technicality,  but  the  most  liberal  intendment  should  be  made 
in  support  of  the  elector's  action  wherever  the  application  of  the 
common-sense  rules  which  are  applied  in  other  cases  will  enable 
us  to  understand  and  render  it  effectual.2 


1  This  is  substantially  the  New  York 
rule  as  settled  by  the  later  decisions,  if 
we  may  accept  the  opinion  of  Denio,  Ch. 
J.,  in  People  v.  Pease,  27  N.  Y.  45,  84,  as 
taking  the  correct  view  of  those  decisions. 
See  People  v.  Cicott,  16  Mich.  283,  for  a 
discussion  of  this  point.     Also  State  v. 
Griffey,  6  Neb.  161 ;  Clark  v.  County  Ex- 
aminers, 126  Mass.  282. 

2  In  People  v.  Matteson,  17  111.  167,  it 
was  held  that  where  "police  magistrates" 
were  to  be  chosen,  votes  cast  for  "  police 
justices "    should    be    counted,   as  they 
sufficiently  showed  upon  their  face  the 
intention  of  the  voters.      So  where  the 
question  was   submitted   to   the  people, 
whether  a  part  of  one  county  should  be 
annexed  to  another,  and  the  act  of  sub- 
mission provided  that  the  electors  might 
express  their  choice  by  voting  "  for  de- 
taching R ,"  or  "against  detaching 

R ,"  it  was  held  that  votes  cast  for 

"  R attached,"  and  for   "  R de- 
tached,"and  "for  division,"  and  "agairst 
division,"  were  properly  counted  by  the 
canvassers,  as  the  intention  of  the  voters 
was  clearly  ascertainable  from  the  ballots 
themselves  with  the  aid  of  the  extrinsic 
facts  of  a  public  nature  connected  with 
the  election.      State  v.  Elwood,  12  Wis. 


551.  So  where  trustees  of  common 
schools  were  to  be  voted  for,  it  was  held 
that  votes  for  trustees  of  public  schools 
should  be  counted ;  there  being  no 
trustees  to  be  voted  for  at  that  elec- 
tion except  trustees  of  common  schools. 
People  v.  McManus,  34  Barb.  620.  In 
Phelps  v.  Goldthwaite,  16  Wis.  146,  where 
a  city  and  also  a  county  superintendent 
of  schools  were  to  be  chosen  at  the  same 
election,  and  ballots  were  cast  for  "su- 
perintendent of  schools,"  without  further 
designation,  parol  evidence  of  surround- 
ing circumstances  was  admitted  to  enable 
the  proper  application  to  be  made  of  the 
ballots  to  the  respective  candidates.  In 
Peck  v.  Weddell,  17  Ohio  St.  271,  an  act 
providing  for  an  election  on  the  question 
of  the  removal  of  a  county  seat  to  the 
"  town  "  of  Bowling  Green,  was  held  not 
invalid  by  reason  of  Bowling  Green  being 
in  law  not  a  "  town,"  but  an  incorporated 
village.  In  voting  for  a  county  seat  it 
was  held  proper  to  count  votes  cast  for 
a  town  by  its  popular,  which  differed 
from  its  legal,  name.  State  v.  Cavers, 
22  Iowa,  343.  Ballots  in  all  such  cases 
should  receive  such  a  construction  as  will 
make  them  valid  if  they  are  capable  of 
it.  Cattell  v.  Lowry,  45  Iowa,  478;  State 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR  WILL.  921 

Where  more  than  one  office  is  to  be  filled  at  an  election,  the 
law  may  either  require  all  the  persons  voted  for,  for  the  several 
offices,  to  be  so  voted  for  by  each  elector  on  the  same  ballot,  or 
it  may  provide  a  different  receptacle  for  the  ballots  for  some  one 
office  or  set  of  offices  from  that  which  is  to  receive  the  others. 
In  such  a  case  each  elector  will  place  upon  the  ballot  to  be  depos- 
ited in  each  box  the  names  of  such  persons  as  he  desires  to  vote 
for,  for  the  different  offices  to  be  filled  at  the  election  for  which 
that  box  is  provided.  If,  for  instance,  State  and  township  officers 
are  to  be  chosen  at  the  same  election,  and  the  ballots  are  to  be 
kept  separate,  the  elector  must  have  different  ballots  for  each ; 
and  if  he  should  designate  persons  for  a  township  office  on  the 
State  ballot,  such  ballot  would,  to  that  extent,  be  void,  though  the 
improper  addition  would  not  defeat  the  ballot  altogether,  but 
would  be  treated  as  surplusage,  and  the  ballot  be  held  good  as  a 
vote  for  the  State  officers  designated  upon  it.1  But  an  accidental 
error  in  depositing  the  ballot  should  not  defeat  it.  If  an  elector 
should  deliver  the  State  and  township  ballots  to  the  inspector  of 
election,  who  by  mistake  should  deposit  them  in  the  wrong  boxes 
respectively,  this  mistake  is  capable  of  being  corrected  without 
confusion  when  the  boxes  are  opened,  and  should  not  prevent  the 
ballots  being  counted  as  intended.  And  it  would  seem  that,  in 
any  case,  the  honest  mistake,  either  of  the  officer  or  the  elector, 
should  not  defeat  the  intention  of  the  latter,  where  it  was  not  left 
in  doubt  by  his  action.2 

The  elector  is  not  under  obligation  to  vote  for  every  office  to  be 
filled  at  that  election  ;  nor  where  several  persons  are  to  be  chosen 
to  the  same  office  is  he  required  to  vote  for  as  many  as  are  to  be 
elected.  He  may  vote  for  one  or  any  greater  number,  not  to  ex- 
ceed the  whole  number  to  be  chosen.  In  most  of  the  States  a 
plurality  of  the  votes  cast  determines  the  election  ;  in  others,  as 
to  some  elections,  a  majority  ;  but  in  determining  upon  a  majority 

v.  Metzger,  26  Kan.  395.     And  the  elec-         x  See  People  v.  Cook,  14  Barb.  259  and 

tion  should  not  be  set  aside  when  the  8  N.  Y.  67. 

will   of  the   people   is   fairly   ascertain-         2  People  v.  Bates,  11  Mich.  362.     See 

able  from  it.     Holland  v.  Davis,  86  Ark.  Lanier  v.  Gallatas,  13  La.  Ann.  175;  Mc- 

416,  450.      An  obvious  misprint  of  '"2"  Kinney  v.  O'Connor,  26  Tex.  5.     But  in- 

for  "1"  before  "district"  will  not  avoid  spectors  of  election  have  no  authority,  on 

counting  the  votes  cast  in  the  first  dis-  the  assertion  of  a  voter  that  he  has  voted 

trict.      Inglis  v.  Shepherd,  67  Cal.  469,  by  mistake  in  the  wrong  precinct,  to  with- 

8  Pac.  5.     [Where  two  or  more  offices  draw  from  the  ballot-box  and  destroy  a 

are  to  be  filled,  the  ballots  must  show  ballot  which  he  professes  to  identify  as 

for  which  offices  the  candidates  named  the  one  cast  by  him.     Harbaugh  v.  Cicott, 

on  the  ballot  are  intended.     Page  v.  Kuy-  33  Mich.  241. 
kendall,  161  111.  319,  43  N.  E.  1114,  32 
L.  R.  A.  656.] 


922  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

or  plurality,  the  blank  votes,  if  any,  are  not  to  be  counted ;  and  a 
candidate  may  therefore  be  chosen  without  receiving  a  plurality 
or  majority  of  voices  of  those  who  actually  participated  in  the 
election.  Where,  however,  two  offices  of  the  same  name  were  to 
be  filled  at  the  same  election,  but  the  notice  of  election  specified 
one  only,  and  the  political  parties  each  nominated  one  candidate, 
and,  assuming  that  but  one  was  to  be  chosen,  no  elector  voted 
for  more  than  one,  it  was  held  that  the  one  having  a  majority  was 
alone  chosen ;  that  the  opposing  candidate  could  not  claim  to  be 
also  elected,  as  having  received  the  second  highest  number  of 
votes,  but  as  to  the  other  office  there  had  been  a  failure  to  hold 
an  election.1 

The  Freedom  of  Elections. 

To  keep  every  election  free  of  all  the  influences  and  surround- 
ings which  might  bear  improperly  upon  it,  or  might  impel  the 
electors  to  cast  their  suffrages  otherwise  than  as  their  judgments 
would  dictate,  has  always  been  a  prominent  object  in  American 
legislation.2  We  have  referred  to  fundamental  principles  which 
protect  the  secrecy  of  the  ballot,  but  in  addition  to  these  there 
are  express  constitutional  and  statutory  provisions  looking  to  the 
accomplishment  of  the  same  general  purpose.  It  is  provided  by 
the  constitutions  of  several  of  the  States  that  bribery  of  an  elector 
shall  constitute  a  disqualification  of  the  right  to  vote  or  to  hold 

1  People  t>.  Kent  County  Canvassers,  to  such  method  of  voting,  and  the  consti- 
11  Mich.  111.  Where  officers,  e.  g.  alder-  tution  must  clearly  disclose  such  author- 
men,  one  for  a  long  term  and,  one  for  a  ity  before  such  innovation  in  the  exercise 
short  term,  are  to  be  chosen,  if  there  is  of  the  elective  franchise  is  justified.] 
no  designation  of  the  terms  upon  the  2  For  decisions  bearing  upon  the  free- 
ballot,  it  must  be  rejected.  Milligan's  dom  of  elections  and  disorder  or  intimi- 
App.,  96  Pa.  St.  222.  [A  statute  provid-  dation  to  control  it,  see  Commonwealth 
ing  for  "  cumulative  "  voting,  giving  the  v.  Hoxey,  16  Mass.  384 ;  Commonwealth 
right  to  an  elector  of  a  district  in  which  ».  McHale,  97  Pa.  St.  397;  Respublica  v. 
more  than  one  representative  to  the  State  Gibbs,  3  Yeates,  429,  4  Dall.  253 ;  State 
legislature  is  to  be  elected,  to  cast  one  v  Franks,  38  Tex.  640 ;  State  v.  Mason, 
vote  for  each,  or  to  cast  as  many  votes  14  La.  Ann.  505;  United  States  v.  Cruik- 
as  there  are  representatives  to  be  elected  shank,  92  U.  S.  542 ;  Roberts  v.  Calvert, 
from  the  district,  and  distribute  them  as  98  N.  C.  580,  4  S.  E.  127;  Patton  v. 
lie  chooses,  was  held  void  in  Maynard  ;;.  Coates,  41  Ark.  Ill ;  Tarbox  v.  Sughrue, 
Board  of  Canvassers,  84  Mich.  228,  47  36  Kan.  225,  12  Pac.  935;  Brassard  v. 
N.  W.  756, 11  L.  R.  A.  332.  The  opinion  Langevin,  1  Can.  Sup.  Ct.  145.  [In  In- 
in  this  case  proceeds  upon  the  theory  that  diana  the  very  remarkable  device  of  giv- 
without  express  constitutional  authority  ing  the  bribed  elector  the  right  to  sue 
the  legislature  cannot  authorize  an  elector  the  briber  for  a  penalty  of  three  hundred 
to  cast  more  than  one  ballot  for  the  same  dollars  and  attorney's  fees  was  recently 
person  for  a  single  office  :  that  the  history  adopted,  and  was  sustained  in  State  v. 
and  traditions  of  the  elective  franchise  Schoonover,  135  Ind.  526,  85  N.  E.  119, 
as  interpreted  by  the  courts  is  opposed  21  L.  R.  A.  767-3 


CH.  XVII.]         THE   EXPRESSION   OF   THE   POPULAR   WILL. 


923 


office ; 1  the  treating  of  an  elector,  with  a  view  to  influence  his 
vote,  is  in  some  States  made  an  indictable  offence;2  courts  are 
not  allowed  to  be  held,  for  the  two  reasons,  that  the  electors 
ought  to  be  left  free  to  devote  their  attention  to  the  exercise  of 
this  high  trust,  and  that  suits,  if  allowed  on  that  day,  might  be 
used  as  a  means  of  intimidation;8  legal  process  in  some  States, 
and  for  the  same  reasons,  is  not  permitted  to  be  served  on  that 
day  ;  intimidation  of  voters  by  threats  or  otherwise  is  made  pun- 
ishable;  4  and  generally  all  such  precautions  as  the  people  in 
framing  their  organic  law,  or  the  legislature  afterwards,  have 
thought  might  be  made  available  for  the  purpose,  have  been  pro- 
vided with  a  view  to  secure  the  most  completely  free  and  un- 
biassed expression  of  opinion  that  shall  be  possible. 


1  See  the  Constitutions  of  Maryland, 
Missouri,  New  Jersey,  West  Virginia, 
Oregon,  California,  Kansas,  Texas,  Ar- 
kansas, Rhode  Island,  Alabama,  Florida, 
New  York,  Massachusetts,  New  Hamp- 
shire, Vermont,  Nevada,  Tennessee,  Con- 
necticut, Louisiana,  Mississippi,  Ohio, 
Wisconsin.  And  it  has  been  held  on 
general  principles  that  if  an  elector  is  in- 
duced to  vote  in  a  particular  way  by  the 
payment  or  promise  of  any  money  or 
other  valuable  consideration  for  such 
vote,  his  vote  should  be  rejected  as  ille- 
gal. State  v.  Olin,  23  Wis.  309.  The 
power  to  reject  for  such  a  reason,  how- 
ever, is  not  in  the  inspectors,  but  in  the 
court  in  which  the  right  to  try  the  title 
to  the  office  is  vested.  State  v.  Purdy, 
36  Wis.  213,  17  Am.  Rep.  485.  In  this 
case  it  was  held  to  be  a  sufficient  reason 
for  the  court  to  reject  votes,  that  they 
were  obtained  by  means  of  the  candi- 
date's promise  to  perform  the  duties  of 
the  office  for  less  than  the  official  salary. 
£lt  is  frequently  provided,  in  order  to 
make  bribery  ineffective,  that  ballots 
bearing  distinguishing  marks  are  void. 
That  imprints  appearing  upon  all  ballots 
and  imprinted  thereon  at  time  of  print- 
ing, even  though  unlawful,  are  not  distin- 
guishing marks,  see  State  v.  Saxon,  30 
Fla.  668,  12  So.  218,  18  L.  R.  A.  721  ;  see 
other  cases  in  note  on  Australian  Ballot 
Laws,  ante,  p.  899,  n.  a.  Inscription  "  O. 
K."  on  back  of  a  ballot  is  a  distinguish- 
ing mark.  State  v.  Ellis,  111  N.  C.  124, 
15  S.  E.  938,  17  L.  R.  A.  382.  For  cases 
discussing  a  variety  of  distinguishing 
marks,  see  State  v.  Walsh,  62  Conn.  260, 


25  All.  1,  17  L.  R.  A.  364;  Rutledge  v. 
Crawford,  91  Cal.  526,  27  Pac.  779,  13 
L.  R.  A.  761,  and  note  ;  State  v.  Barden, 
77  Wis.  601,  46  N.  W.  899,  10  L.  R.  A. 
155;  Talcott  v.  Philbrick,  59  Conn.  472, 
20  Atl.  436,  10  L.  R.  A.  loO/] 

2  State  v.  Rutledge,  8  Humph.  32. 
And  see  the  provision  in  the  Constitution 
of  Vermont  on  this  subject.  A  resort  to 
this  species  of  influence  would  generally, 
at  the  present  time,  prejudice  the  can- 
didate's interests  instead  of  advancing 
them,  but  such  has  not  always  been  the 
case.  Mr.  Madison,  after  performing  val- 
uable service  for  the  State  in  its  legisla- 
ture, was  defeated  when  offering  himself 
for  re-election,  in  the  very  crisis  of  the 
Revolution,  by  the  treating  of  his  oppo- 
nent. See  his  Life  by  Rives,  Vol.  I. 
p.  179.  The  Constitution  of  Louisiana 
[1879]  requires  the  General  Assembly  to 
forbid  by  law  the  giving  away  or  selling 
of  intoxicating  drinks  on  the  d  ty  of  elec- 
tion within  one  mile  of  any  election  pre- 
cinct. Art.  190. 

8  But  it  was  held  in  New  York  that 
the  statute  of  that  State  forbidding  the 
holding  of  courts  on  election  days  did  not 
apply  to  the  local  elections.  Matter  of 
Election  Law,  7  Hill,  194;  Redfield  v. 
Florence,  2  E.  D.  Smith,  339. 

4  As  to  what  shall  constitute  intimida- 
tion, see  Respublica  r.  Gibbs,  3  Yeates, 
429,  4  Dall.  264,  and  cases,  p.  922,  note  2. 
fjAnd  a  statute  prohibiting  electioneering 
within  one  hundred  feet  of  any  polling 
place  on  election  day  is  valid.  State  v, 
Black,  54  N.  J.  L.  446,  24  Atl.  489,  1029, 
16  L.  R.  A.  769.;] 


924 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


Betting  upon  elections  is  illegal  at  the  common  law,  on  grounds 
of  public  policy  ; l  and  all  contracts  entered  into  with  a  view  im- 
properly to  influence  an  election  would  be  void  for  the  same 
reason.2  And  with  a  just  sense  of  the  danger  of  military  iiiter- 


1  Bunn  r.  Hiker,  4  Johns.  426 ;  Lan- 
sing v.  Lansing,  8  Johns.  454;  Ball  v.  Gil- 
bert, 12   Met.  397 ;    Laval   v.   Myers,   1 
Bailey,    486;    Smyth    v.    McMasters,  2 
Browne,  182;  McAllister  v.  Hoffman,  16 
S.  &  R.  147  ;  Stoddard  v.  Martin,  1  R.  I. 
1 ;  Wroth   v.  Johnson,   4  H.  &  M.  284  ; 
Tarleton  v.  Baker,    18  Vt.  9;    Davis  r. 
Holbrook,  1  La.  Ann.  176 ;  Foreman  v. 
Hardwick,  10  Ala.  316;  Wheeler  v.  Spen- 
cer, 15  Conn.  28;   Russell  v.  Pyland,  2 
Humph.  131 ;  Porter  v.  Sawyer,  1  Harr. 
617;  Hickerson  v.  Benson,  8  Mo.  8;  Ma- 
chir  v.  Moore,  2  Gratt.  257;  Rust  v.  Gott, 
9  Cow.  169,  18  Am.  Dec.  497 ;  Brush  r. 
Keeler,  5  Wend.  250;  Fisher  v.  Hildreth, 
117  Mass.  558;  McCrary,  Law  of  Elec- 
tions, §  149.    A  statute  punishing  betting 
on  elections  does  not  cover  nominating 
conventions.     Com.  v.  Wells,  110  Pa.  St. 
463,  1  All.  310. 

2  In  Jackson  v.  Walker,  5  Hill,  27,  it 
was  held  that  an  agreement  by  the  de- 
fendant to  pay  the  plaintiff  $1,000,  in  con- 
sideration that  the  latter,  who  had  built  a 
log-cabin,  would  keep  it  open  for  political 
meetings  to  further  the  success  of  certain 
persons  nominated  for  members  of  Con- 
gress, &c.,  by  one  of  the  political  parties, 
was  illegal   within   the   statute   of  New 
York,  which  prohibited  contributions  of 
money  "  for  any  other  purpose  intended 
to  promote  the  election  of  any  particular 
person  or  ticket,  except  for  defraying  the 
expenses  of  printing  and  the  circulation  of 
votes,  hand-bills,  and  other  papers."  This 
case  is  criticised  in  Hurley  v.  Van  Wag- 
ner, 28  Barb.  109,  and  it  is  possible  that 
it  went  further  than  either  the  statute  or 
public  policy  would  require.     In  Nichols 
v.  Mudgett,  32  Vt.  546,  the  defendant  be- 
ing indebted  to  the  plaintiff,  who  was  a 
candidate   for  town  representative,    the 
parties  agreed  that  the  former  should  use 
his  influence  for  the  plaintiffs  election, 
and  do  what  he  could  for  that  purpose, 
and  that  if  the  plaintiff  was  elected,  that 
should    be  a   satisfaction  of  his   claim. 
Nothing  was  specifically  said  about  the 
defendant's  voting  for  the  plaintiff,  but 
he  did  vote  for  him,  and  would  not  have 


done  so,  nor  favored  his  election,  but  for 
this  agreement.  The  plaintiff  was  elected. 
Held,  that  the  agreement  was  void,  and 
constituted  no  bar  to  a  recovery  upon 
the  demand.  Where  two  are  candidates, 
and  one  withdraws  in  consideration  of  an 
agreement  that  the  other,  if  chosen,  will 
divide  the  fees,  the  agreement  is  void. 
Gray  v.  Hook,  4  N.  Y.  449.  An  agree- 
ment that  one  for  a  fixed  sum  may  per- 
form all  the  duties  of  an  office  and  receive 
all  the  emoluments  is  illegal.  Hall  i: 
Gavitt,  18  Ind.  390.  So  is  an  agreement 
between  two  candidates  to  divide  emolu- 
ments and  that  the  defeated  one  shall  be 
deputy.  Glover  v.  Taylor,  38  La.  Aun. 
634.  A  note  executed  in  consideration 
of  the  payee's  agreement  to  resign  public 
office  in  favor  of  the  maker,  and  us>e  in- 
fluence in  favor  of  the  latter's  appoint- 
ment as  his  successor,  is  void.  Meacliam 
v.  Dow,  32  Vt.  721.  See  also  Duke  v. 
Ashbee,  11  Ired.  112;  Hunter  v.  Nolf,  71 
Pa.  St.  182  ;  Ham  v.  Smith,  87  Pa.  St.  63 ; 
Robinson  v.  Kalbfleish,  5  Thomp.  &  C. 
(N.  Y.)  212 ;  McCrary,  Law  of  Elections, 
§  192.  A  contract  to  assist  by  money 
and  influence  to  secure  the  election  of  a 
candidate  to  a  public  office  in  considera- 
tion of  a  share  of  its  emoluments,  in  the 
event  of  election,  is  void  as  opposed  to 
public  policy,  and  if  voluntarily  rescinded 
by  the  parties  a  recovery  cannot  be  had 
of  the  moneys  advanced  under  it.  Mar- 
tin r.  Wade.  37  Cal.  168.  It  has  even 
been  held  that  a  public  offer  to  the  elec- 
tors by  a  candidate  for  a  public  office, 
whereby  he  pledged  himself,  if  elected, 
to  perform  the  duties  of  the  office  for 
less  than  the  legal  salary  or  fees,  would 
invalidate  his  election.  State  v.  Purdy, 
36  Wis.  213,  17  Am.  Rep.  485  ;  Harvey  r. 
Tama  County,  63  Iowa,  228,  5  N.  W.  130; 
Caruthers  v.  Russell,  63  Iowa,  346,  5 
N.  W.  499,  36  Am.  Rep.  222;  State  v. 
Collier,  72  Mo.  13,  37  Am.  Rep.  417.  See 
Cardigan  v.  Page,  6  N.  H.  182;  Alvin  v. 
Collin,  20  Pick.  418 ;  State  v.  Church,  5 
Oreg.  375,  20  Am.  Rep.  746.  A  contract 
to  resign  an  office  that  another  may  be 
appointed  is  void.  Meguire  v.  Corwine, 


CH.  XVII.]          THE    EXPRESSION    OF   THE   POPULAR    WILL.  925 

ference,  where  a  trust  is  to  be  exercised,  the  highest  as  well  as 
the  most  delicate  in  the  whole  machinery  of  government,  it  has 
not  been  thought  unwise  to  prohibit  the  militia  being  called  out 
on  election  days,  even  though  for  no  other  purpose  than  for 
enrolling  and  organizing  them.1  The  ordinary  police  is  the  peace 
force  of  the  State,  and  its  presence  suggests  order,  individual 
safety,  and  public  security ;  but  when  the  military  appear  upon 
the  stage,  even  though  composed  of  citizen  militia,  the  circum- 
stances must  be  assumed  to  be  extraordinary,  and  there  is  always 
an  appearance  of  threatening  and  dangerous  compulsion  which 
might  easily  interfere  seriously  with  that  calm  and  unimpassioned 
discharge  of  the  elector's  duty  which  the  law  so  justly  favors. 
The  soldier  in  organized  ranks  can  know  no  law  but  sucli  as  is 
given  him  by  his  commanding  officer ;  and  when  he  appears  at 
the  polls,  there  is  necessarily  a  suggestion  of  the  presence  of  an 
enemy  against  whom  he  may  be  compelled  to  exercise  the  most 
extreme  and  destructive  force ;  and  that  enemy  must  generally 
be  the  party  out  of  power,  while  the  authority  that  commands  the 
force  directed  against  them  will  be  the  executive  authority  of  the 
State  for  the  time  being  wielded  by  their  opponents.  It  is  con- 
sequently of  the  highest  importance  that  the  presence  of  a  military 
force  at  the  polls  be  not  suffered  except  in  serious  emergencies, 
when  disorders  exist  or  are  threatened  for  the  suppression  or 
prevention  of  which  the  ordinary  peace  force  is  insufficient ;  and 
any  statute  which  should  provide  for  or  permit  such  presence  as 
a  usual  occurrence  or  except  in  the  last  resort,  though  it  might 
not  be  void,  would  nevertheless  be  a  serious  invasion  of  constitu- 
tional right,  and  should  not  be  submitted  to  in  a  free  government 
without  vigorous  remonstrance.2 

3     Mac  Arthur,     81.      If    one   advances  v.  Supervisors  of  Portage,  24  Wis.  49; 

money  to  be  used  to  further  the  election  Wells  v.  Taylor,  5  Mont.  202,  3  Pac.  255 ; 

of  a  particular  candidate  irrespective  of  Neal  v.  Sliinn,  49  Ark.  227,  4  S.  W.  771; 

qualifications,  and  it  is  not  so  used,  he  State  v.  Elting,  29  Kan.  397  ;  Hall  v.  Mar- 

cannot  maintain  a  suit  to  recover  it  back,  shall,  80  Ky.  552;    QState  v.  Orange,  54 

Liness  v.  Hesing,  44  111,  113.     In  Pratt  v.  N.  J.  L.  Ill,  22  Atl.  1004,  14  L  R.  A.  62, 

People,  29  111.  54,  it   was   held   that  an  and  note ;  contra,  Ayres  v.  Moan,  34  Neb. 

agreement    between    two   electors    that  210,  51  N.  W.  830,  15  L.  R.  A.  501.    A 

they  should  "pair  off,"  and  both  abstain  promise  by  a  citizen  to  pay  part  of  the 

from  voting,  was  illegal,  and  the  inspec-  expense  of  opening  a  street  will  not  in- 

tors  could  not  refuse  to  receive  a  vote  of  validate  an  ordinance  providing  for  such 

one   of   the   two,  on  the  ground  of  his  opening.     State  v.  Orange,  54  N.  J.  L. 

agreement.     An  election  upon  the  ques-  111,22  Atl.  1004,  14  L.  R.  A.  62,  and  note 

tion  of  the  removal  of  a  county  seat  is  on  bribery  by  gift  to  public.]    See  State 

not  invalidated  by  inducements  held  out  v.  Purdy,  36  Wis.  213. 
by  the  several  localities  ;  such  as  the  offer         1  See  Hyde  v.  Melvin,  11  Johns.  521. 
to  erect  the  county  buildings,  &c.     Di-         2  The  danger,  and,  we  may  say  also, 

slion  v.  Smith,  10  Iowa,  212;  Hawes  v.  the  folly,  of  military  interference  with  the 

Miller,  56  Iowa,  395,  9  N.  W.  307  ;  State  deliberations  or  action  of  electors,  except 


926  CONSTITUTIONAL  LIMITATIONS.  [oil.  XVII. 

The  Elector  not  to  be  deprived  of  his  Vote. 

That  one  entitled  to  vote  shall  not  be  deprived  of  the  privilege 
by  the  action  of  the  authorities  is  a  fundamental  principle,  (a) 

It  has  been  held,  on  constitutional  grounds,  that  a  law  creating 
a  new  county,  but  so  framed  as  to  leave  a  portion  of  its  territory 
unorganized,  so  that  the  voters  within  such  portion  could  not 
participate  in  the  election  of  county  officers,  was  inoperative  and 
void.1  So  a  law  submitting  to  the  voters  of  a  county  the  ques- 
tion of  removing  the  county  seat  is  void  if  there  is  no  mode 
under  the  law  by  which  a  city  within  the  county  can  participate 
in  the  election.2  And  although  the  failure  of  one  election  pre- 
cinct to  hold  an  election,  or  to  make  a  return  of  the  votes  cast, 
might  not  render  the  whole  election  a  nullity,  where  the  electors 
of  that  precinct  were  at  liberty  to  vote  had  they  so  chosen,  or 
where,  having  voted  but  failed  to  make  return,  it  is  not  made  to 
appear  that  the  votes  not  returned  would  have  changed  the  re- 
sult,3 yet  if  any  action  was  required  of  the  public  authorities 
preliminary  to  the  election,  and  that  which  was  taken  was  not 
such  as  to  give  all  the  electors  the  opportunity  to  participate,  and 

in  the  last  necessity,  was  fearfully  illus-  ate  action.  No  one  had  been  conciliated ; 
trated  in  the  case  of  the  "Manchester  no  one  had  been  reduced  to  more  calm 
Massacre,"  which  occurred  in  1819.  An  and  deliberate  courses  ;  but,  on  the  other 
immense  meeting  of  radical  parliamentary  hand,  even  moderate  men  had  been  exas- 
reformers,  whose  objects  and  purposes  perated  and  inclined  to  opposition  by  this 
appeared  threatening  to  the  government,  violent,  reckless,  and  destructive  display 
was  charged  upon  by  the  military,  with  of  coercive  power.  See  Hansard's  De- 
some  loss  of  life,  and  with  injury  to  the  bates,  Vol.  XLI.  pp.  4,  51,230. 
persons  of  several  hundred  people.  As  1  People  v.  Maynard,  15  Mich.  463. 
usual  in  such  cases,  the  extremists  of  one  For  similar  reasons  the  act  for  the  organ- 
party  applauded  the  act  and  compli-  ization  of  Schuyler  County  was  held  in- 
mented  the  military,  while  the  other  valid  in  Lanning  v.  Carpenter,  20  N.  Y. 
party  was  exasperated  in  the  last  degree,  447. 

by  what  seemed  to  them  an  unnecessary,          2  Attorney-General  v.  Supervisors  of 

arbitrary,  and  unconstitutional   exercise  St.   Clair,    11   Mich.  63.     For  a  similar 

of  force.     The  most  bitter  and  dangerous  principle,  see  Foster  v.  Scarff,  15  Ohio  St. 

feeling  was  excited  throughout  the  coun-  632. 

try  by  this  occurrence,  and  it  is  not  too          3  See   Ex  parte  Heath,  3    Hill,   42 ; 

much  to  say  that  if  disorders  were  threat-  Louisville     &    Nashville    R.   R.    Co.   v. 

ening  before,  the  government  had  done  County  Court  of  Davidson,  1  Sneed,637; 

nothing  in  this  way  to  strengthen  its  au-  Marshall  v.  Kerns,  2  Swan,  68 ;  Beards- 

thority,  or  to  insure  quiet  OE  dispassion-  town  r.  Virginia,  76  111.  34. 

(a)  fJBut  it  is  held  that  he  may  be  restricted  to  candidates  whose  names  are 
printed  on  the  official  ballot.  State  v.  McElroy,  44  La.  Ann.  796,  11  So.  133,  16 
L.  R.  A.  278,  and  note.  Voter  may  lawfully  vote  for  the  same  man  as  candidate  for 
two  or  more  incompatible  offices.  Misch  v.  Russell,  136  111.  22,  26  N.  E.  528,  12 
L.  R.  A.  125,  and  note.  A  statute  prohibiting  the  putting  of  the  name  of  a  candidate 
on  a  ballot  as  the  candidate  of  more  than  party,  was  held  void,  in  Murphy  v.  Curry, 
137  Cal.  479,  70  Pac.  461,  59  L.  R.  A.  97/] 


Cfl.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR   WILL. 


927 


no  mode  was  open  to  the  electors  by  which  the  officers  might  be 
compelled  to  act,  it  would  seem  that  such  neglect,  constituting 
as  it  would  the  disfranchisemeut  of  the  excluded  electors  pro  hac 
vice,  must  on  general  principles  render  the  whole  election  nuga- 
tory ;  for  that  cannot  be  called  an  election  or  the  expression  of 
the  popular  sentiment  where  a  part  only  of  the  electors  have  been 
allowed  to  be  heard,  and  the  others,  without  being  guilty  of  fraud 
or  negligence,  have  been  excluded.1 

If  the  inspectors  of  elections  refuse  to  receive  the  vote  of  an 
elector  duly  qualified,  they  may  be  liable  both  civilly  and  crimi- 
nally for  so  doing :  criminally,  if  they  were  actuated  by  improper 
and  corrupt  motives  ;2  and  civilly,  it  is  held  in  some  of  the  States, 
even  though  there  may  have  been  no  malicious  design  in  so  doing ; 3 
but  other  cases  hold  that,  where  the  inspectors  are  vested  by  the 
law  with  the  power  to  pass  upon  the  qualifications  of  electors,  they 
exercise  judicial  functions  in  so  doing,  and  are  entitled  to  the  same 
protection  as  other  judicial  officers  in  the  discharge  of  their  duty, 
and  cannot  be  made  liable  except  upon  proof  of  express  malice.4 
Where,  however,  by  the  law  under  which  the  election  is  held,  the 
inspectors  are  to  receive  the  voter's  ballot,  if  he  takes  the  oath 


1  See  Fort  Dodge  v.  District  Township, 
17  Iowa,  85 ;  Barry  v.  Lauck,  5  Cold. 
688.  In  People  v.  Salomon,  46  111.  415, 
it  was  held  that  where  an  act  of  the 
legislature,  before  it  shall  become  opera- 
tive, is  required  to  be  submitted  to  the 
vote  of  the  legal  electors  of  the  district 
to  be  affected  thereby,  if  the  election 
which  is  attempted  to  be  held  is  illegal 
within  certain  precincts  containing  a  ma- 
jority of  the  voters  of  the  district,  then 
the  act  will  not  be  deemed  to  have  been 
submitted  to  the  required  vote,  and  the 
result  will  not  be  declared  upon  the  votes 
legally  cast,  adverse  to  what  it  would 
have  been  had  no  illegality  intervened. 

2  As  to  common-law  offences  against 
election  laws,  see  Commonwealth  v.  Mc- 
Hale,  97  Pa.  St.  397.  For  an  instance 
under  a  statute,  see  People  v.  Burns,  75 
Cal.  627,  17  Pac.  646. 

8  Kilham  v.  Ward,  2  Mass.  236;  Gard- 
ner v.  Ward,  2  Mass.  244,  note ;  Lincoln 
v.  Hapgood,  11  Mass.  350;  Capen  v.  Fos- 
ter, 12  Pick.  485,  23  Am.  Dec.  632;  Gates 
r.  Neal,  23  Pick.  308  ;  Blanchard  v. 
Stearns,  5  Met.  298 ;  Lamed  v.  Wheeler, 
140  Mass.  390,  5  N.  E.  290;  Jeffries  v. 
Ankeny,  11  Ohio,  372;  Chrisman  v. 
Bruce,  1  Duv.  63;  Monroe  v.  Collins,  17 


Ohio  St.  665 ;  Gillespie  v.  Palmer,  20  Wis. 
644  ;  Long  o.  Long,  57  Iowa,  497,  10  N.  W. 
875. 

4  Jenkins  v.  Waldron,  11  Johns.  114; 
Wecherley  v.  Guyer,  11  S.  &  R.  35;  Gor- 
don v.  Farrar,  2  Doug.  (Mich.)  411; 
Peavey  v.  Bobbins,  3  Jones  (N.  C.),  339; 
Caulfleld  v.  Bullock,  18  B.  Mon.  494; 
Miller  v.  Rucker,  1  Bush,  135  ;  Chrisman 
v.  Bruce,  1  Duv  63;  Wheeler  v.  Patterson, 
1  N.  H.  88 ;  Turnpike  v,  Champney,  2 
N.  H.  199;  Rail  v.  Potts,  8  Humph.  225; 
Bevard  v.  Hoffman,  18  Md.  479  ;  Elbin  v. 
Wilson,  33  Md.  135;  Friend  v.  Hamill, 
34  Md.  298;  Pike  v.  Magoun,  44  Mo. 
492;  Perry  v.  Reynolds,  63  Conn.  527, 
3  Atl.  555 ;  see  State  v.  Daniels,  44  N.  H. 
383,  and  Goetcheus  v.  Mathewson,  61 
N.  Y.  420.  In  the  last  case  the  whole 
subject  is  fully  and  carefully  examined, 
and  the  authorities  analyzed.  Compare 
Byler  v.  Asher,  47  111.  101 ;  Elbin  v.  Wil- 
son, 33  Md.  135;  Murphy  v.  Ramsey, 
114  U.  S.  15,  5  Sup.  Ct.  Rep.  747.  Under 
a  statute  rendering  liable  for  unreason- 
able refusal,  the  refusal  must  be  such  as 
to  seem  unreasonable  to  reasonable,  un- 
prejudiced men.  Sanders  v.  Getchell,  76 
Me.  158  ;  Pierce  v.  Getchell,  Id.  216. 


928  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

that  he  possesses  the  constitutional  qualifications,  the  oath  is  the 
conclusive  evidence  on  which  the  inspectors  are  to  act,  and  they 
are  not  at  liberty  to  refuse  to  administer  the  oath,  or  to  refuse  the 
vote  after  the  oath  has  been  taken.  They  are  only  ministerial 
officers  in  such  a  case,  and  have  no  discretion  but  to  obey  the  law 
and  receive  the  vote.1 

The    Conduct  of  the  Election. 

The  statutes  of  the  different  States  point  out  specifically  the 
mode  in  which  elections  shall  be  conducted ;  but,  although  there 
are  great  diversities  of  detail,  the  same  general  principles  govern 
them  all.  As  the  execution  of  these  statutes  must  very  often  fall 
to  the  hands  of  men  unacquainted  with  the  law  and  unschooled 
in  business,  it  is  inevitable  that  mistakes  shall  sometimes  occur, 
and  that  very  often  the  law  will  fail  of  strict  compliance.  Where 
an  election  is  thus  rendered  irregular,  whether  the  irregularity' 
shall  avoid  it  or  not  must  depend  generally  upon  the  effect  the 
failure  to  comply  strictly  with  the  law  may  have  had  in  obstruct- 
ing the  complete  expression  of  the  popular  will,  or  the  production 
of  satisfactory  evidence  thereof.  Election  statutes  are  to  be  tested 
like  other  statutes,  but  with  a  leaning  to  liberality  in  view  of  the 
great  public  purposes  which  they  accomplish  ;  and  except  where 
they  specifically  provide  that  a  thing  shall  be  done  in  the  manner 
indicated  and  not  otherwise,  their  provisions  designed  merely  for 
the  information  and  guidance  of  the  officers  must  be  regarded  as 
directory  only,  and  the  election  will  not  be  defeated  by  a  failure  to 
comply  with  them,  providing  the  irregularity  has  not  hindered 
any  who  were  entitled  from  exercising  the  right  of  suffrage,  or 
rendered  doubtful  the  evidences  from  which  the  result  was  to  be 
declared.  In  a  leading  case  the  following  irregularities  were  held 
not  to  vitiate  the  election  :  the  accidental  substitution  of  another 
book  for  the  Holy  Evangelists  in  the  administration  of  an  oath, 
both  parties  being  ignorant  of  the  error  at  the  time ;  the  holding 
of  the  election  by  persons  who  were  not  officers  de  jure,  but  who 
had  colorable  authority,  and  acted  de  facto  in  good  faith;2  the 

1  Spriggins  v.   Houghton,   3  111.  377 ;  9  Am.   Rep.   409.      Also   to    Fowler   v. 
State   v.  Robb,  17  Ind.  536  ;   People  v.  Beebe,  9  Mass.  231 ;  Tucker  v.  Aiken,  7 
Pease,  30  Barb.  688.     And  see  People  v.  N.  H.  113;  Commonwealth  v.  McCombs, 
Gordon,  5  Cal.  235 ;  Chrisman  v.  Bruce,  66   Pa.   St.  436 ;    Fenelon   v.   Butts,   49 
1  Duv.  63;  Gillespie  v.  Palmer,  20  Wis.  Wis.  342;  Ex  parie  Strang,  21  Ohio  St. 
544 ;  Goetcheus  v.  Mathewson,  61  N.  Y.  610  ;  Kimball  v.  Alcorn,  45  Miss.  151,  and 
430 ;    FJWolcott  v.   Holcomb,    97    Mich,  authorities    referred   to  in    these  cases 
361,  56  N.  W.  837,  23  L.  R.  A.  2157]  severally  ;   and  to  cases,  supra,  pp.  896, 

2  As  to  what  constitutes  an  officer  de  898,   notes.     Also  Cooley   on   Taxation, 
facto,  the  reader  is  referred  to  the  careful  184-186;   McCrary's   Law   of  Elections, 
opinion  in  State  v.  Carroll,  38  Conn.  449,  §§  75-79. 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR   WILL. 


929 


failure  of  the  board  of  inspectors  to  appoint  clerks  of  the  election ; 
the  closing  of  the  outer  door  of  the  room  where  the  election  was 
held  at  sundown,  and  then  permitting  the  persons  within  the  room 
to  vote,  —  it  not  appearing  that  legal  voters  were  excluded  by  clos- 
ing the  door,  or  illegal  allowed  to  vote ;  and  the  failure  of  the  in- 
spectors or  clerks  to  take  the  prescribed  oath  of  office.  And  it 
was  said,  in  the  same  case,  that  any  irregularity  in  conducting  an 
election  which  does  riot  deprive  a  legal  elector  of  his  vote,  or 
admit  a  disqualified  person  to  vote,  or  cast  uncertainty  on  the 
result,  and  has  not  been  occasioned  by  the  agency  of  a  party 
seeking  to  derive  a  benefit  from  it,  should  be  overlooked  in 
a  proceeding  to  try  the  right  to  an  office  depending  on  such 
election.1  The  rule  is  an  eminently  proper  one,  and  it  furnishes 


1  People  v.  Cook,  14  Barb.  259,  and  8 
N.  Y.  67.  To  the  same  effect,  see  Clifton 
v.  Cook,  7  Ala.  114 ;  Truehart  v.  Addicks, 

2  Tex.  217 ;    Dishon  v.  Smith,  10  Iowa, 
212  ;  Attorney-General  v.  Ely,  4  Wis.  420  ; 
State  v.   Jones,   19   Ind.  356 ;   People   v. 
Higgins,  3  Mich.  233 ;  Gorham  v.  Camp- 
bell, 2  Cal.  135  ;  People  v.  Bates,  11  Mich. 
362  ;  Taylor  v.  Taylor,  10  Minn.  112 ;  Peo- 
ple v.  McManus,  34  Barb.  620 ;  Whipley 
v.  McCune,  12  Cal.  352 ;  Bourland  v.  Hil- 
dreth,  26  Cal.  161;  Day  v.  Kent,  1  Oreg. 
123 ;  Piatt  v.  People,  29  111.  54  ;  Du  Page 
Co.  v.  People,  65  111.  360 ;  Hodge  v.  Linn, 
100  111.  397;  Ewing  v.  Filley,  43  Pa.  St. 
384;  Howard  v.  Shields,  16  Ohio  St.  184; 
Fry  v.  Booth,  19  Ohio  St.  25;  State  v. 
Stumpf,     21    Wis.    579;     McKinney    t;. 
O'Connor,  26  Tex.  5 ;  Sprague  v.  Norway, 
31  Cal.  173 ;   Sheppard's  Election  Case, 
77   Pa.   St.    295;    Wheelock's    Election 
Case,  82  Pa.  St.  297 ;  Barnes  v.  Pike  Co., 
51  Miss.  305 ;  State  v.  O'Day,  69  Iowa, 
368,  28  N.  W.  642.     In  Ex  parte  Heath, 

3  Hill,  42,  it  was  held   that  where  the 
statute  required  the  inspectors  to  certify 
the  result  of   the  election  on  the  next 
day  thereafter,  or  sooner,  the  certificate 
made  the  second  day  thereafter  was  suffi- 
cient, the  statute  as  to  time  being  directory 
merely.    In  People  v.  McManus,  34  Barb. 
620,  it  was  held  that  an  election  was  not 
made  void  by  the  fact  that  one  of  the 
three  inspectors  was  by  the  statute  dis- 
qualified from  acting,  by  being  a  candi- 
date at  the  election,  the  other  two  being 
qualified.     In  Sprague  v.  Norway,  31  Cal. 
173,  it  was  decided  that  where  the  judges 
of  an  election  could  not  read,  and  for  that 
reason  a  person  who  was  not  a  member 


of  the  board  took  the  ballots  from  the 
box,  and  read  them  to  the  tellers,  at  the 
request  of  the  judges,  the  election  was 
not  affected  by  the  irregularity.  In  sev- 
eral cases,  and  among  others  the  follow- 
ing, the  general  principle  is  asserted  that 
any  irregularities  or  misconduct,  not 
amounting  to  fraud,  is  not  to  be  suffered 
to  defeat  an  election  unless  it  is  made 
to  appear  that  the  result  was  thereby 
changed.  Loomis  v.  Jackson,  6  W.  Va. 
613,  692;  Morris  v.  Vanlaningham,  11 
Kan.  269 ;  Supervisors  of  Du  Page  v. 
People,  65  111.  360 ;  Chicago  v.  People,  80 
111.  496  ;  People  v.  Wilson,  62  N.  Y.  186; 
State  v,  Burbridge,  24  Fla.  112,  3  So. 
869.  rjBaltes  v.  Farmers'  Irr.  District,  60 
Neb.  310,  83  N.  W.  83.  But  where  the 
election  officers  took  the  ballot-box  with 
them  when  they  left  the  polling-place 
and  went  to  dinner,  this  of  itself  invali- 
dates the  vote  in  that  precinct.  Tebbe 
v.  Smith,  108  Cal.  101,  29  L.  R.  A.  673, 
41  Pac.  454.]  If  the  election  is  fair 
and  the  count  honest,  it  is  not  fatal  that 
the  election  officers  were  not  properly 
qualified  :  Quinn  v.  Markoe,  37  Minn.  439, 
35  N.  W.  .263;  Swepston  v.  Barton,  39 
Ark.  549 ;  Wells  v.  Taylor,  5  Mont.  202, 
3  Pac.  255 ;  contra,  Walker  v.  Sanford, 
78  Ga.  165, 1  S.  E.  42 1 ;  nor  that  unauthor- 
ized persons  helped  in  the  counting. 
Roberts  v.  Cal  vert,  98  N.  C.  580,  4  S.  E. 
127.  The  failure  to  hold  the  poll  open  _ 
as  long  as  the  law  requires  may  not  be 
fatal  if  no  one  lost  his  vote  in  con- 
sequence. Cleland  v.  Porter,  74  111.  76 ; 
Swepston  v.  Barton,  39  Ark.  549.  See 
Kuykendall  v.  Harker,  89  111.  126.  And 
a  candidate  who  participates  in  the 


59 


930 


CONSTITUTIONAL   LIMITATIONS. 


[OH.  XVIL 


a  very  satisfactory  test  as  to  what  is  essential  and  what  not  in 
election  laws.1  And  where  a  party  contests  an  election  on.  the 
ground  of  these  or  any  similar  irregularities,  he  ought  to  aver 
and  be  able  to  show  that  the  result  was  affected  by  them.2  Time 
and  place,  however,  are  of  the  substance  of  every  election,3  and  a 
failure  to  comply  with  the  law  in  these  particulars  is  not  generally 
to  be  treated  as  a  mere  irregularity.4 

election  actually  held  will  not  be  allowed 
to  question*  its  validity  on  that  ground. 
People  v.  Waite,  70  111.  25.  But  where 
the  law  gave  three  hours  for  an  election 
and  the  polls  were  closed  in  forty  minutes, 
the  proceedings  were  held  invalid.  State 
v.  Wollem,  37  Iowa,  131.  All  votes 
received  after  the  polls  should  be  closed 
are  illegal.  Varney  r.  Justice,  86  Ky. 
590,  6  S.  W.  457.  And  where  the  law 
required  three  judges  and  two  clerks  of 
an  election,  and  only  one  of  each  was 
provided,  it  was  held  that  this  was  not  a 
mere  irregularity  and  the  election  was 
void.  Chicago,  &c.  R.  R.  Co.  v.  Mallory, 
101  111.  583. 

1  This  rule  has  certainly  been  applied 
with  great  liberality,  in  some  cases.  In 
People  v.  Higgins,  3  Mich.  233,  it  was 
held  that  the  statute  requiring  ballots  to 
be  sealed  up  in  a  package,  and  then 
locked  up  in  the  ballot-box,  with  the  ori- 
fice at  the  top  sealed,  was  directory 
merely  ;  and  that  ballots  which  had  been 
kept  in  a  locked  box,  but  without  the  ori- 
fice closed  or  the  ballots  sealed  up,  were 
admissible  in  evidence  in  a  contest  for  an 
office  depending  upon  this  election.  This 
case  was  followed  in  People  v.  Cicott,  16 
Mich.  283,  and  it  was  held  that  whether 
the  ballots  were  more  satisfactory  evi- 
dence than  the  inspector's  certificates, 
where  a  discrepancy  appeared  between 
them,  was  a  question  for  the  jury.  See 
also  Fowler  v.  State,  68  Tex.  30,  3  S.  W. 
255.  In  Morril  v.  Raines,  2  N.  II.  246, 
the  statute  required  State  officers  to  be 
chosen  by  a  check-list,  and  by  delivery 
of  the  ballots  to  the  moderator  in  person  ; 
and  it  was  held  that  the  requirement  of  a 
check-list  was  mandatory,  and  the  election 
in  the  town  was  void  if  none  was  kept. 
The  decision  was  put  upon  the  ground 
that  the  check-list  was  provided  as  an 
important  guard  against  indiscriminate 
and  illegal  voting,  and  the  votes  given  by 
ballot  without  this  protection  were  there- 
fore as  much  void  as  if  given  vica  voce. 


2  Lanier  v.  Gallatas,  13  La.  Ann.  175 ; 
People  v.  Cicott,  16  Mich.  283 ;  Taylor  v. 
Taylor,  10  Minn.  107 ;  Dobyns  v.  Weadon, 
50  Ind.  298. 

3  Dickey     v.    Hurlburt,   5   Cal.   343; 
Knowles  c.  Yeates,  31  Cal.  82  ;  Walker  v. 
Sanford,  78  Ga.  165,   1    S.  E.  424 ;  Wil- 
liams v.  Potter,  114  111.  628,  3  N.  E.  729. 
An  election    adjourned   without  warrant 
to  another  place,  as  well  as  an  election 
held  without  the  officers  required  by  law, 
is  void.     Commonwealth  v.  County  Com- 
missioners,  5  Rawle,   75.     An  unautho- 
rized   adjournment  of   the  election   lor 
dinner  —  it   appearing  to   have   been  in 
good  faith,  :md  no  one  having  been  de- 
prived  of    his    vote  thereby — will  not 
defeat  the  election.    Fry   v.   Booth,   19 
Ohio  St.  25.      Adjourning  an  election  in 
good  faith  to  another  polling  place  will 
not  necessarily  avoid   it      Farrington  v. 
Turner,   63    Mich.    27,   18  N.    W.    544. 
Where  voting  had  been  done  at  a  church, 
and  the  building  was  moved  three-quar- 
ters of  a  mile,  an  election  held   at  the 
new   place  is  valid,  no   one   being  pre- 
vented   from    voting    by    the     change. 
Steele  v.  Calhoun,  61  Miss.  556.     So  of  a 
change  of  two  hundred  feet.     Simons  v. 
People,  119  111.  617,  9  N.  E.  220.    See  also 
Stemper   v.    Higgins,  38   Minn.   222,  37 
N.  W.  95,  where  a  separate  voting  place 
from  the  township  poll  was,  without  au- 
thority of  law  but  in  good  faith,  kept  in 
a  village,  and  the  vote  was  held  legal. 
FJDelay  of  an  hour  in  opening  polls,  when 
not  brought  about  through  fraud,  and  in 
the  absence  of  a  showing  that  the  number 
(one),  of  voters  thereby  prevented  from 
voting  could   have   changed  the  result, 
will  not  invalidate  the  election.     Pick- 
ett  v.  Russell,  42  Fla.  116,  634,  28  So. 
764.] 

4  The  statute  of  Michigan  requires  the 
clerks  of  election  to  keep  lists  of  the  per- 
sons voting,  and  that  at  the  close  of  the 
polls  the  first  duty  of  the  inspectors  shall 
be  to  compare  the  lists  with  the  number 


CH.  XVII.]  THE   EXPRESSION   OF   THE   POPULAR   WILL. 


931 


What  is  a  Sufficient  Election. 

Unless  the  law  under  which  the  election  is  held  expressly  re- 
quires more,  a  plurality  of  the  votes  cast  will  be  sufficient  to  elect, 
notwithstanding  these  may  constitute  but  a  small  portion  of 
those  who  are  entitled  to  vote,1  and  notwithstanding  the  voters 
generally  may  have  failed  to  take  notice  of  the  law  requiring  the 
election  to  be  held.2 

If  several  persons  are  to  be  chosen  to  the  same  office,  the  requi- 
site number  who  shall  stand  highest  on  the  list  will  be  elected. 
But  without  such  a  plurality  no  one  can  be  chosen  to  a  public 
office  ;  and  it  is  held  in  many  cases  that  if  the  person  receiving 
the  highest  number  of  votes  was  ineligible,  the  votes  cast  for  him 
will  still  be  effectual  so  far  as  to  prevent  the  opposing  candidate 


of  votes  in  the  box,  and  if  the  count  of 
the  latter  exceeds  the  former,  then  to 
draw  out  unopened  and  destroy  a  suffi- 
cient number  to  make  them  correspond. 
In  People  v.  Cicott,  16  Mich.  283,  it  ap- 
peared that  the  inspectors  in  two  wards 
of  Detroit,  where  a  surplus  of  votes  had 
been  found,  had  neglected  this  duty,  and 
had  counted  all  the  votes  without  draw- 
ing out  and  destroying  any.  The  surplus 
in  the  two  wards  was  sixteen.  The  ac- 
tual majority  of  one  of  the  candidates 
over  the  other  on  the  count  as  it  stood 
(if  certain  other  disputed  votes  were  re- 
jected) vvould  be  four.  It  was  held  that 
this  neglect  of  the  inspectors  did  not  in- 
validate the  election  ;  that  had  the  votes 
been  drawn  out,  the  probability  was  that 
each  candidate  would  lose  a  number  pro- 
portioned to  the  whole  number  which  he 
had  in  the  box ;  and  this  being  a  proba- 
bility which  the  statute  providing  for  the 
drawing  proceeded  upon,  the  court  should 
apply  it  afterwards,  apportioning  the  ex- 
cess of  votes  between  the  candidates  in 
that  proportion.  pThe  requirements  of 
law  must  be  substantially  complied  with. 
An  election  held  by  a  mere  usurper  is 
void,  even  though  fairly  and  honestly  con- 
ducted. State  v.  Taylor,  108  N.  C.  196, 
12  S.  E.  1005,  12  L.  R.  A.  202.] 

1  Augustin  v.  Eggleston,  12  La.  Ann. 
366;   Gillespie  v.   Palmer,   20   Wis.  544. 
See    also    State    v.   Mayor,    &c.   of    St. 
Joseph,  37  Mo.  270 ;  State  v.  Binder,  38 
Mo.  450 ;   In  re   Plurality  Elections,  15 
R.  I.  617,  8  Atl.  881. 

2  People  v.  Hartwell,   12   Mich.   508. 
In  a  case  a  little  different,  where  the  peo- 


ple were  in  doubt  if  there  were  any  va- 
cancy to  be  filled,  and  only  twenty-nine 
persons  out  of  a  poll  of  eight  hundred  cast 
their  votes  to  fill  the  vacancy,  it  was  held 
that  these  twenty-nine  votes  did  not  make 
an  election.  State  v.  Good,  41  N.  J.  2»6. 
Even  if  the  majority  expressly  dissent, 
yet  if  they  do  not  vote,  the  election  by 
the  minority  will  be  valid.  Oldknow  v. 
Wainwright,  1  W.  Bl.  229;  Hex  v.  Fox- 
croft,  2  Burr.  1017 ;  Rex  v.  Withers,  re- 
ferred to  in  same  case.  Minority  repre- 
sentation in  certain  cases  has  been  intro- 
duced in  New  York,  Pennsylvania,  and 
Illinois,  and  the  principle  is  likely  to  find 
favor  elsewhere.  But  such  representa- 
tion has  been  held  inconsistent  with  a 
constitutional  provision  that  each  elector 
shall  be  entitled  to  vote  at  all  elections. 
State  P.  Constantine,  42  Ohio  St.  437. 
^Contra,  Commonwealth  v.  Reeder,  171 
Pa.  505,  33  Atl.  67,  33  L.  R.  A.  141.  Re- 
quirement that  "  members  of  assembly 
shall  be  appointed  among  the  several 
counties  of  the  State  by  the  legislature  as 
nearly  as  may  be  according  to  the  num- 
ber of  their  respective  inhabitants"  is 
mandatory,  and  any  substantial  non- 
compliance  will  be  set  aside.  People  v. 
Broom,  138  N.  Y.  95,  33  N.  E.  827,  20 
L.  R.  A.  81.  For  other  cases  in  which 
gerrymanders  have  been  set  aside  for 
gross  unfairness  and  inequality,  see 
Parker  v.  State,  133  Ind.  178,  32  N.  E. 
836.  33  N.  E.  119, 18  L.  R.  A.  567  ;  State 
t>.  Cunningham,  83  Wis.  90,  53  N.  W.  35, 
17  L.  R.  A.  145;  Giddings  r.  Blacker,  93 
Mich.  1,  62  N.  W.  944,  16  L.  R.  A.  402; 
Houghton  Co.  Supervisors  v.  Blacker,  92 


932 


CONSTITUTIONAL    LIMITATIONS. 


[CH.  XVII. 


being  chosen,  and   the   election   must  be   considered  as  having 
failed.1 

The  admission  of  illegal  votes  at  an  election  will  not  necessa- 
rily defeat  it ;  but,  to  warrant  its  being  set  aside  on  that  ground, 
it  should  appear  that  the  result  would  have  been  different  had 
they  been  excluded.2  And  the  fact  that  unqualified  persons  are 
allowed  to  enter  the  room,  and  participate  in  an  election,  does  not 


Mich.  638,  52  N.  W.  951,  16  L.  R.  A.  432 ; 
State  v.  Cunningham,  81  Wis.  440,  51 
N.  W.  724,  15  L.  R.  A.  561,  and  note. 
See  also,  in  this  connection,  People  v. 
Rice,  135  N.  Y.  473,  31  N.  E.  921,  16 
L.  R.  A.  836.  Law  providing  that  presi- 
dential electors  shall  be  elected,  one 
from  eacli  congressional  district  and  re- 
mainder at  large,  or  from  larger  districts, 
is  valid.  McPherson  v.  Blacker,  i)2  Mich. 
377,  52  N.  W.  469,  16  L.  R.  A.  475,  aff. 
in  146  U.  S.  1,  13  Sup.  Ct.  Rep.  3. 
Cumulative  voting  held  unconstitutional 
in  Maynard  v.  Bd.  of  Canvassers,  84 
Mich.  228,  47  N.  W.  756,  11  L.  R.  A. 
332.] 

1  State  v.  Giles,  1  Chand.  112  ;  Opin- 
ions of  Judges,  38  Me.  598;  State  v. 
Smith,  14  Wis.  497;  Saunders  v.  Haynes, 
13  Cal.  145  ;  Fish  v.  Collens,  21  La.  Ann. 
289  ;  Sublett  v.  Bedwell,  47  Miss.  266, 
12  Am.  Rep.  338;  State  v.  Swearingen, 
12  Ga.  24;  Commonwealth  v.  Cluley, 
56  Pa.  St.  270;  Matter  of  Corliss,  11 
R.  I.  638,  23  Am.  Rep.  538;  State  v. 
Vail,  63  Mo.  97 ;  Barnum  r.  Oilman,  27 
Minn.  466,  8  N.  W.  375,  38  Am.  Rep. 
304;  Dryden  v.  Swinburne,  20  W.  Va.  89  ; 
Swepston  v.  Barton,  39  Ark.  549.  In 
People  v.  Molliter,  23  Mich.  341,  a  minor- 
ity candidate  claimed  the  election  on  the 
ground  .that  the  votes  cast  for  his  oppo- 
nent, though  a  majority,  were  ineffectual 
because  the  name  was  abbreviated.  Held, 
that  they  were  at  least  effectual  to  pre- 
clude the  election  of  a  candidate  who 
received  a  less  number.  And  see  Craw- 
ford v.  Dunbar,  52  Cal.  36;  [State  v. 
McGeary,  69  Vt.  461,  38  Atl.  165,  44 
L.  R.  A.  446-3  But  it  has  been  held  that, 
if  ineligibility  is  notorious,  so  that  the 
electors  must  be  deemed  to  have  voted 
with  full  knowledge  of  it,  the  votes  for  an 
ineligible  candidate  must  be  declared  void, 
and  the  next  highest  candidate  is  chosen. 
This  is  the  English  doctrine :  King  v. 
Hawkins,  10  East,  211 ;  2  Dow.  P.  C.  124 ; 
King  v.  Parry,  14  East,  549;  Gosling  r. 


Veley,  7  Q.  B.  406;  Rex  v.  Monday,  2 
Cowp.  530;  Rex  v.  Foxcroft,  Burr.  1017, 
8.  c.  1  Wm.  Bl.  229 ;  Reg.  v.  Coaka,  3  E. 
&  B.  249;  French  v.  Nolan,  2  Moak,  711. 
And  see  the  following  American  cases : 
Price  v.  Baker,  41  Ind.  572 ;  Hatclieson  v. 
Tilder,  4  H.  &  Mcli.  279;  Commonwealth 
v.  Green,  4  Whart.  521 ;  Gulick  v.  New, 
14  Ind.  93;  Carson  v.  McPhetridge,  15 
Ind.  327 ;  People  v.  Clute,  60  N.  Y.  451, 
10  Am.  Rep.  508;  State  v.  Johnson,  100 
Ind.  489.  Compare  Barnum  v.  Gilman, 

27  Minn.  466,  8  N.  W.  375,  38  Am.  Rep. 
304  ;  [Gardner  v.  Burke,  61  Neb.  534,  85 
N.  W.  541,  is  contra.]   It  would  seem  that, 
if  the  law  which  creates  the  disqualifica- 
tion expressly  declares  all  votes  cast  for 
the  disqualified  person  void,  they  must  be 
treated  as  mere  blank  votes,  and  cannot 
be   counted   for  any  purpose.      Where, 
under  the  law  creating  it,  the  disability 
concerns  the  holding  of  the  office  merely, 
and  it  is  not  a  disability  to  be  elected,  it 
is  sufficient  if  the  disability  is  removed 
before  the  term  begins.    State  v.  Murray, 

28  Wis.  96;  State  v.  Trumpf,  50   Wis. 
103,  5  N.  W.  876,  6  N.  W.  512 ;  Privett  v. 
Bickford,  26  Kan.  52.     Compare  Searcy 
v.  Grow,  15  Cal.  117 ;  State  v.  Clarke,  3 
Nev.  566.     [See  discussion  by  Floyd  R. 
Mechem  of  the  question  of  "  Eligibility 
to   Office  — As    of   What    Time    Deter- 
mined," in  1  Mich.  Law  Rev.  17.] 

2  Ex  parte  Murphy,  7  Cow.  153 ;  First 
Parish  in  Sudbury  v.  Stearns,  21  Pick. 
148;  Blandford  School  District  v.  Gibbs, 
2  Gush.  39;  People  v.  Cicott,  16  Mich. 
283;  Judkins  v.  Hill,  60  N.  H.  140;  De- 
loach  i;.  Rogers,  86  N.  C.  357  ;  Tarbox  v. 
Sughrue,  36  Kan.  225,  12  Pac.  935; 
Sweptson  v.  Barton,  39  Ark.  549.  See 
Shields  v.  McGregor,  91  Mo.  534,  4  S.  W. 
266.  Votes  received  illegally  will  be  re- 
jected by  the  court  in  an  action  to  try 
title  to  an  office.  State  v.  Hilmantel,  21 
Wis.  566  ;  Harbaugh  v.  Cicott,  33  Mich. 
241 ;  Clark  v.  Robinson,  88  111.  498. 


CII.  XVII.]          THE   EXPRESSION    OF   THE    POPULAE   WILL.  933 

justify  legal  voters  in  refusing  to  vote,  and  treating  the  election 
as  void,  but  it  will  be  held  valid  if  the  persons  declared  chosen 
had  a  plurality  of  the  legal  votes  actually  cast.1  So  it  is  held 
that  an  exclusion  of  legal  votes  —  not  fraudulently,  but  through 
error  in  judgment  —  will  not  defeat  an  election  ;  notwithstanding 
the  error  in  such  a  case  is  one  which  there  was  no  mode  of  cor- 
recting, even  by  the  aid  of  the  courts,  since  it  cannot  be  known 
with  certainty  afterwards  how  the  excluded  electors  would  have 
voted,  and  it  would  obviously  be  dangerous  to  receive  and  rely 
upon  their  subsequent  statements  as  to  their  intentions,  after  it  is 
ascertained  precisely  what  effect  their  votes  would  have  upon  the 
result.2  If,  however,  the  inspectors  of  election  shall  exclude  legal 
voters,  not  because  of  honest  error  in  judgment,  but  wilfully  and 
corruptly,  and  to  an  extent  that  affects  the  result,  or  if  by  riots  or 
otherwise  legal  voters  are  intimated  and  prevented  from  voting, 
or  for  any  other  reasons  the  electors  have  not  had  opportunity  for 
the  expression  of  their  sentiments  through  the  ballot-box,  the  elec- 
tion should  be  set  aside  altogether,  as  having  failed  in  the  purpose 
for  which  it  was  called.8  Errors  of  judgment  are  inevitable,  but 
fraud,  intimidation,  and  violence  the  law  can  and  should  protect 
against.  A  mere  casual  affray,  however,  or  accidental  disturbance, 
without  any  intention  of  overawing  or  intimidating  the  electors, 
cannot  be  considered  as  affecting  the  freedom  of  the  election;4 
nor  in  any  case  would  electors  be  justified  in  abandoning  the 
ground  for  any  light  causes,  or  for  improper  interference  by 
others,  where  the  officers  continue  in  the  discharge  of  their  func- 
tions, and  there  is  opportunity  for  the  electors  to  vote.6  And,  as 
we  have  already  seen,  a  failure  of  an  election  in  one  precinct,  or 
disorder  or  violence  which  prevent  a  return  from  that  precinct, 
will  not  defeat  the  whole  election,  unless  it  appears  that  the  votes 
which  could  not  be  returned  in  consequence  of  the  violence  would 
have  changed  the  result.6  It  is  a  little  difficult  at  times  to  adopt 

1  First  Parish  in  Sudbury  v.  Stearns,  Matter  of  Long  Island   R.   R.   Co.,   19 
21  Pick.  148.  Wend.  37 ;  People  v.  Phillips,  1  Denio, 

2  Newcum  v.  Kirtley,  13  B.  Monr.  515.  388;  State  v.  McDaniel,  22  Ohio  St.  354. 
See  Burke  v.  Supervisors  of  Monroe,  4         4  Gush.  Leg.  Assemb.  §  184  ;  Roberts 
W.  Va.  371 ;  QPickett  v.  Russell,  42  Fla.  v.  Calvert,  98  N.  C.  580,  4  S.  E.  127. 
116,  28  So.  764.]  6  See    First    Parish    in    Sudbury    v. 

6  Where  one   receives  a  majority  of  Stearns,  21  Pick.  148.     Enough  voters  to 

all  the  votes  cast,  the  opposing  candidate  change  the  result  must  have  been  pre- 

cannot  be  declared  elected  on  evidence  vented  from  voting  in  order  to  vitiate  the 

that  legal  voters  sufficient  to  change  the  election.    Tarbox   v.    Sughrue,  36   Kan. 

result  offered  to  vote  for  him,  but  were  225,  12  Pac.  935.     And  see  cases,  p.  922, 

erroneously   denied  the  right ;   but   the  note  2,  ante. 

election  may  be  declared  to  have  failed,         6  Exparte  Heath,  3  Hill,  42.     See  ante, 

and  a  new  election  be  ordered.     Renner  p.  927,  and  note. 
v.  Bennett,  21  Ohio  St.  431.     See  also 


934  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

the  true  mean  between  those  things  which  should  and  those  which 
should  not  defeat  an  election ;  for  while  on  the  one  hand  the  law 
should  seek  to  secure  the  due  expression  of  his  will  by  every  legal 
voter,  and  guard  against  any  irregularities  or  misconduct  that  may 
tend  to  prevent  it,  so,  on  the  other  hand,  it  is  to  be  borne  in  mind 
that  charges  of  irregularity  and  misconduct  are  easily  made,  and 
that  the  dangers  from  throwing  elections  open  to  be  set  aside  or 
controlled  by  oral  evidence,  are  perhaps  as  great  as  any  in  our 
system.  An  election  honestly  conducted  under  the  forms  of 
law  ought  generally  to  stand,  notwithstanding  individual  electors 
may  have  been  deprived  of  their  votes,  or  unqualified  voters  been 
allowed  to  participate.  Individuals  may  suffer  wrong  in  such 
cases,  and  a  candidate  who  was  the  real  choice  of  the  people  may 
sometimes  be  deprived  of  his  election ;  but  as  it  is  generally  im- 
possible to  arrive  at  any  greater  certainty  of  result  by  resort  to 
oral  evidence,  public  policy  is  best  subserved  by  allowing  the 
election  to  stand,  and  trusting  to  a  strict  enforcement  of  the 
criminal  laws  for  greater  security  against  the  like  irregularities 
and  wrongs  in  the  future. 

The  Canvass  and  the  Return. 

If  the  election  is  purely  a  local  one,  the  inspectors  who  have 
had  charge  of  it  will  be  expected  to  proceed  immediately  on  the 
closing  of  the  poll  to  canvass  the  votes  and  declare  the  result.  It 
is  commonly  made  their  duty  also,  or  the  duty  of  their  clerk,  to 
issue  to  the  person  or  persons  appearing  to  be  chosen  a  certificate 
or  notification  of  his  or  their  election,  which  will  be  presumptive 
evidence  of  the  fact.  It  is  not  in  the  power  of  the  inspectors  by 
neglecting  or  refusing  to  give  the  proper  certificate  to  defeat  the 
will  of  the  people,  for  the  ballots  determine  the  election  and  not 
the  certificate,  and  the  person  chosen,  from  whom  the  certificate 
is  withheld,  may  nevertheless  proceed  to  qualify  and  take  posses- 
sion of  the  office  unless  opposed  by  a  de  facto  incumbent.1  If  the 
election  district  comprises  several  precincts,  the  inspectors  of  the 
polls  in  each  will  make  return  in  writing  of  the  canvass  made  by 
them  to  the  proper  board  of  canvassers  for  the  whole  district,  and 
if  the  election  is  for  State  officers,  this  district  board  will  transmit 
the  result  of  the  district  canvass  to  the  proper  State  board,  who 
will  declare  the  general  result.2  In  all  this,  the  several  boards 

1  Ex  parte  Smith,  8  S.  C.  495 ;  Govan  t>.  Hickman,  12   Col.  256,  21   Pac.  325 ; 
v.  Jackson,  32  Ark.  553.  Fowler  v.  State,  68  Tex.  30,  3  S.  W.  255. 

2  Errors  in  certifying  boxes,  &c.,  and  See  People  v.  Higgins,  3  Mich.  233 ;  State 
making   the  returns  will  not,  in  the  ab-  v.  Berg,  76  Mo.  136 ;   Dixon  v.  Orr,  49 
sence  of  fraud  or  changes  in  the  ballots,  Ark.  238,  4  S.  W.  774. 

warrant  throwing  out  the  vote.    Kellogg 


CH.  XVII.]         THE   EXPRESSION   OF  THE  POPULAR  WILL. 


935 


act  for  the  most  part  in  a  ministerial  capacity,  and  are  not  vested 
with  judicial  powers  to  correct  the  errors  and  mistakes  that  may 
have  occurred  with  any  officer  who  preceded  them  in  the  perform- 
ance of  any  duty  connected  with  the  election,  or  to  pass  upon  any 
disputed  fact  which  may  affect  the  result.1  Each  board  is  to  re- 
ceive the  returns  transmitted  to  it,  if  in  due  form,  as  correct,  and 
is  to  ascertain  and  declare  the  result  as  it  appears  by  such  re- 
turns ; 2  and  if  other  matters  are  introduced  into  the  return  than 
those  which  the  law  provides,  they  are  to  that  extent  unofficial 
and  unauthorized,  and  must  be  disregarded.3  If  a  district  or 

People  v.  Kilduff,  15  111.  492 ;  O'Ferrell  v. 
Colby,  2  Minn. -180 ;  People  v.  Van  Cleve, 
1  Mich.  362;  People  v.  Van  Slyck,  4 
Cow.  297;  Morgan  v.  Quackenbush,  22 
Barb.  72  ;  Dishon  v.  Smith,  10  Iowa,  212 ; 
People  v.  Cook,  14  Barb.  259,  and  8  N.  Y. 
67  ;  Hartt  v.  Harvey,  32  Barb.  55  ;  Attor- 
ney-General v.  Barstow,  4  Wis.  567 ;  At- 
torney-General v.  Ely,  4  Wis.  420 ;  State 
v.  Governor,  25  N.  J.  331 ;  State  v.  Clerk 
of  Passaic,  25  N.  J.  354;  Marshall  v. 
Kerns,  2  Swan,  68;  People  v  Pease,  27 
N.  Y.  45;  Phelps  v.  Schroder,  26  Ohio 
St.  549;  State  v.  State  Canvassers,  36 
Wis.  498 ;  Opinion  of  Justices,  53  N.  H. 
640 ;  State  v.  Cavers,  22  Iowa,  343  ;  State 
v.  Harrison,  38  Mo.  640 ;  State  v.  Rod- 
man, 43  Mo.  256;  State  v.  Steers,  44  Mo. 
223;  Bacon  r.  York  Co.,  26  Mo.  491; 
Taylor  v.  Taylor,  10  Minn.  107;  Opinion 
of  Justices,  64  Me.  588 ;  Prince  v.  Skillin, 
71  Me.  361,  36  Am.  Rep.  325;  Peebles 
v.  County  Com'rs,  82  N.  C.  385  •  Clark 
v.  County  Examiners,  126  Mass.  282; 
State  v.  County  Canvassers,  17  Fla.  29 ; 
Hagge  v.  State,  10  Neb.  61,  4  N.  W.  375 ; 
State  v.  Wilson,  24  Neb.  139,  38  N.  W. 
31 ;  Moore  v.  Kessler,  59  Ind.  152;  State 
v.  Hayne,  8  S.  C.  67.  They  may  not  re- 
fuse to  canvass  because  a  poll  book  is 
not  returned  as  it  should  be.  Patten 
v.  Florence,  38  Kan.  601,  17  Pac.  174. 
They  may  and  should  correct  an  arith- 
metical blunder.  State  v.  Hill,  20  Neb. 
119,  29  N.  W.  258.  Legal  returns  re- 
ceived after  the  proper  time  should  be 
counted.  Cresap  v.  Gray,  10  Oreg.  345. 
[JAfter  the  board  lias  acted  upon  returns 
that  are  fair  on  their  face,  and  has  ren- 
dered its  return,  it  is  functus  offirio  and 
cannot  revise  its  work.  Rosenthal  r. 
State  Bd.  of  Canvassers.  50  Kan.  129,  32 
Pac.  129,  19  L.  R.  A.  157.] 

»  Ex  parte  Heath,  3  Hill,  42.    Papers 


1  State  v.  Charleston,  1  S.  C.  N.  s.  30. 
And   see  cases  cited    in   the   next  note. 
While  canvassers  act  in  a  ministerial  ca- 
pacity only,  and  must  declare  the  result 
on  the  face  of  the  returns,  it  does  not  fol- 
low that  they  are  to  insist  upon  technical 
accuracy  in  the  returns,  and  reject  those 
which  do  not  comply  with  the  very  letter 
of  the  law,  and  that  they  are  compelled 
to  act   upon   returns   which  by  mistake 
have  been  made  inaccurate,  without  af- 
fording  an   opportunity    for  correction. 
If,  for  example,  in  a  return  transmitted 
to  them,  the  name  of  one  of  the  persons 
voted  for  is  erroneously  given,  and  the 
election  judges  are  ready  to  correct  it,  a 
great  wrong  is  done  if  this  is  not  per- 
mitted.    The  purpose  of  the  canvass  is 
to  determine,  record,  and  declare  the  act- 
ual will  of  the  electors  ;  not  to  defeat  it; 
and  when  technicalities  and  mistakes  are 
seized  upon  and  taken  advantage  of  for 
party  or  personal  ends,  and  without  other 
object  or  necessity,  the  public  injury  is 
very  manifest.     It  is  of  the  utmost  im- 
portance that  the  public  shall  have  con- 
fidence   in    the    administration    of    the 
election  laws  ;  and  whatever  undermines 
that  confidence  invites  fraud  and  violence. 
It  is  true  that  errors  which  creep  into  the 
returns   may  be   obviated   on  a  judicial 
trial ;  but  that  is  a  slow  and  expensive 
process,  and  ought  not  to  be  forced  upon 
the  parties  except  in  cases  where  the  re- 
sult upon  the  balloting  is  really  in  doubt. 
Errors   which   are  immaterial  should  be 
overlooked,  and  those  which  are  mate- 
rial ought  to  be  corrected  by  the  proper 
officers  whenever  it  is  practicable. 

2  Ex  parte  Heath,  3  Hill.  42  ;  Brower 
v.   O'Brien.    2   Ind     423;  People  v.   Hil- 
liard,  29  111.  413  ;  People  v.  Jones.  19  Ind. 
357;    Mayo   v.   Freeland,  10    Mo.    629; 
Thompson  v.  Circuit  Judge,  9  Ala.  338 ; 


936  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVII. 

State  board  of  canvassers  assumes  to  reject  returns  transmitted 
to  it,  on  other  grounds  than  those  appearing  upon  its  face,  or  to 
declare  persons  elected  who  are  not  shown  by  the  returns  to  have 
received  the  requisite  plurality,  it  is  usurping  functions,  and  its 
conduct  will  be  reprehensible,  if  not  even  criminal.1  The  action 
of  such  boards  is  to  be  carefully  confined  to  an  examination  of 
the  papers  before  them,  and  a  determination  of  the  result  there- 
from, in  the  light  of  such  facts  of  public  notoriety  connected  with 
the  election  as  every  one  takes  notice  of,  and  which  may  enable 
them  to  apply  such  ballots  as  are  in  any  respect  imperfect  to  the 
proper  candidates  or  offices  for  which  they  are  intended,  provided 
the  intent  is  sufficiently  indicated  by  the  ballot  in  connection  with 
such  facts,  so  that  extraneous  evidence  is  riot  necessary  for  this 
purpose.2  If  canvassers  refuse  or  neglect  to  perform  their  duty, 
they  may  be  compelled  by  mandamus;  3  though  as  these  boards 
are  created  for  a  single  purpose  only,  and  are  dissolved  by  an 
adjournment  without  day,  it  has  been  held  that,  after  such  ad- 
journment mandamus  would  be  inapplicable,  inasmuch  as  there  is 
no  longer  any  board  which  can  act.4  But  we  should  think  the 
better  doctrine  to  be,  that  if  the  board  adjourn  before  a  legal  and 
complete  performance  of  their  duty,  mandamus  would  lie  to  com- 
pel them  to  meet  and  perform  it.5  But  when  the  board  them- 

in  the  poll  book  but  not  a  part  of  the  People    v.    Supervisors,   12    Barb.    217 ; 

return  cannot  be  considered.     Simon   v.  State  v.  Rodman,  43  Mo.  256. 

Durham,  10  Oreg.  52.     Returns  void  on  8  To  this  effect  is  State  v.  Gibbs,  13 

their  face  may  be  rejected.  State  v.  State  Fla.  55;  People  v.  Schiellein,  95  N.  Y.  124. 

Canvassers,  36  Wis.  498.     A  certificate  In  the  last  case  it  is  held  that  the  board 

to  be  made  by  a  justice  and  inspectors  is  continues  as   such,  in  spite  of  adjourn- 

void  on  its  face  if  signed  by  the  justice  ment,   till  its  whole  duty  is  performed, 

alone.     Perry  v.  Whitaker,  71  N.  C.  475.  And  see  People  v.  Board  of  Registration, 

1  Prince  v.  Skillin,71  Me.  361,  36  Am.  17   Mich.  427;  People  v.  Board,  &c.  of 
Rep.  325.     But  if  not  void  on  their  face,  Nankin,    15  Mich.   156;    Lewis  v.  Com- 
the  election  board  to    whicli    they  are  missioners,    16    Kan.    102;    Pacheco    v. 
returned  have  no  jurisdiction  to  go  be-  Beck,  52  Cal.  3 ;  State  v.  Hill,  20  Neb. 
hind  them  and  inquire  into  questions  of  119,  29  N.  W.  258.    And   they  may  be 
fraud  in  the  election.    Phelps  v.  Schroder,  compelled  to  make  a  legal  and  proper 
26  Ohio  St.  549;  Leigh  v.  State,  69  Ala.  canvass  after  they  have  made  one  which 
261;  Brown  v.  Com'rs  Rush  Co.,  38  Kan.  was  illegal  and   unwarranted.     State   v. 
436,  17  Pac.  304;  Opinion  of  Justices,  58  County   Com'rs,   23  Kan.   264;  State  ». 
N.  H.  621.     So  of  judges  of  the  Supreme  Hill,  10  Neb.  58,  4  N.  W.  514;  Stewart 
Court  sitting  as  canvassers.     Osgood  v.  v.  Peyton,  77  Ga.  668;  Simon  v.  Durham, 
Jones,  60  N.  H.  273,  282.  10  Oreg.  52.    And  if  tiiey  have  finished 

2  State  v.  Foster,  38  Ohio  St.  599.  their  work  before  the  time  allowed  has 
8  Clark  v.  McKenzie,   7   Bush,    523  ;  elapsed,  and  while  they  still  have  the  re- 
Burke  v.  Supervisors  of  Monroe,  4  W.  turns,  they  may  be  compelled  to  recon- 
Va.  371 ;  State  v .  County  Judge,  7  Iowa,  sider  their  action.     State  v.  Berg,  76  Mo. 
186;  Magee  v.  Supervisors,  10  Cal.  376;  136.      fJUpon   canvassing    boards,    their 
Kisler  v.  Cameron,  39  Ind.  488 ;  Common-  powers  and  duties,  see  People  v.  Rice, 
wealth  ».  Emminger,  74  Pa.  St.  479.  129  N.  Y.  449,  29  N.  E.  356,  14  L.  R.  A. 

*  Clark  v.   Buchanan,   2   Minn.  346;     643.] 


CH.  XVII.]         THE   EXPRESSION   OF   THE   POPULAR   WILL. 


937 


selves  have  once  performed  and  fully  completed  their  duty,  they 
have-  no  power  afterwards  to  reconsider  their  determination  and 
come  to  a  different  conclusion.1 


Contesting  Elections. 

As  the  election  officers  perform  for  the  most  part  ministerial 
functions  only,  their  returns,  and  the  certificates  of  election  which 
are  issued  upon  them,  are  not  conclusive  in  favor  of  the  officers 
who  would  thereby  appear  to  be  chosen,  but  the  final  decision 
must  rest  with  the  courts.2  This  is  the  general  rule,  and  the 
exceptions  are  of  those  cases  where  the  law  under  which  the  can- 
vass is  made  declares  the  decision  conclusive,  or  where  a  special 
statutory  board  is  established  with  powers  of  final  decision.3  What- 


1  Hadley  v.  Mayor,  &c.,  33  N.  Y.  603 ; 
State  f.  Warren,  1  Houston,  39;  State  v. 
Harrison,  38  Mo.  540;  Swain  v.  McRae, 
80  N.  C.  Ill;    State  v.  Lamberton,  37 
Minn.    362,   34    N.  W.   336;     Myers   v. 
Chalmers,  60  Miss.  772;  People  v.  Rear- 
don,  3  N.  Y.  Supp.  560 ;  People  v.  Board 
Canvassers,  46  Hun,  390.     Compare  Al- 
derson  v.  Com'rs,  32  W.  Va.  454,  9  S.  E. 
863.     If  they  recount  and  give  the  cer- 
tificate to  another,  such  action  is  a  mere 
nullity.     Bowen  v.  Hixon,  45  Mo.  340; 
People  v.  Robertson,  27  Mich.  116;  Opin- 
ions of  Justices,  117  Mass.  599;  State  v. 
Donewirth,  21  Ohio  St.  216. 

2  State  v.  Justices  of  Middlesex,  1  N.  J. 
244;  Hillu.  Hill,  4  McCord,  277;  Wam- 
mack  v.  Holloway,  2  Ala.  31 ;    State  v. 
Clerk  of  Passaic,  25  N.  J.  354;  Marshall 
v.  Kerns,  2  Swan,  68 ;  Attorney-General  v. 
Barstow,  4  Wis.  567 ;  Attorney-General 
v.  Ely,  4  Wis.  420;  People  v.  Van  Cleve, 
1  Mich.  362 ;  People  v.  Higgins,  3  Mich. 
233;    Dishon  v.   Smith,   10    Iowa,   212; 
State  v.  Johnson,  17  Ark.  407;  State  v. 
Fetter,  12  Wis.  566 ;   State  v.  Avery,  14 
Wis.  122;   People  i;.  Jones,  20  Cal.  50; 
Newcum  v.   Kirtley,  13   B.   Monr.  515; 
Commonwealth  v.  Jones,  10  Bush,  725  ; 
People  v.  Seaman,  5  Denio,  409 ;  People 
v.  Cook,  8  N.  Y.  67 ;  People  v.  Matteson, 
17  111.  167;  Taylor  v.  Taylor,  10  Minn. 
107;  Calaveras  County  v.  Brock  way ;  30 
Cal.  325;   Prince  v.  Skillin,  71  Me.  361. 
36  Am.  Rep.  325;    Echols  v.  State,  50 
Ala.  131 ;  Reynolds  v.  State,  61  Ind.  392 ; 
Winter  v.  Thistle  wood,  101  111.  450;  Rob- 
erts «?.  Calvert,  98  N.  C.  580,  4  S.  E.  127. 
But  see  State  v.  Dortch,  41  La.  846,  6  So. 


777.  In  Georgia  the  governor's  decision 
upon  the  election  of  officers  commissioned 
by  him  is  conclusive.  Corbett  v.  Mc- 
Daniel,  77  Ga.  544.  A  chief  justice  can- 
not be  empowered  to  decide,  pending  a 
legal  determination  of  a  contest,  which 
claimant  shall  hold  the  office  ad  interim. 
If  the  power  is  executive  it  cannot  be 
conferred  on  a  judicial  officer;  if  judi- 
cial, it  belongs  to  a  court.  In  re  Cleve- 
land, 51  N.  J.  L.  319,  18  Atl.  67.  An 
illegal  election  may  be  contested  and  set 
aside,  even  though  but  one  person  was 
voted  for.  Ex  parte  Ellyson,  20  Gratt. 
10.  The  customary  remedy  is  by  writ  of 
quo  warranto,  issued  either  on  the  relation 
of  some  citizen  who  shows  an  interest  of 
his  own  in  the  question  involved,  or  on 
relation  of  the  Attorney-General  in  the 
interest  of  the  State.  State  v.  Tuttle,  53 
Wis.  45,  9  N.  W.  791.  Statutory  provi- 
sion for  contesting  elections  does  not 
abrogate  the  remedy  by  quo  warranto. 
People  v.  Londoner,  13  Col.  303,  22  Pac. 
764,  differing  from  State  v.  Francis,  88 
Mo.  557.  fJUpon  election  contests  in 
Indiana,  see  English  v.  Dickery,  128  Ind. 
174,  27  N.  E.  495,  13  L.  R.  A.  40,  and 
note.  As  to  notice  to  contestee,  see 
Bowler  v.  Eisenhood,  1  S.  D.  577,  48 
N.  W,  136,  12  L.  R.  A.  705,  and  note.] 

8  See  Grier  v.  Shackleford,  Const.  Hep. 
642 ;  Batman  v.  Megowan,  1  Met.  (Ky.) 
533;  State  v.  Marlow,  15  Ohio  St.  114; 
People  r.  Goodwin,  22  Mich.  496 ;  Baxter 
v.  Brooks,  29  Ark.  173,  11  Am.  Law  Rev. 
534;  Hipp  ?>.  Charlevoix  Co.  Supervisors, 
62  Mich.  456,  29  N.  W.  707.  For  the  pro- 
ceedings in  the  State  of  New  York  in  the 


938 


CONSTITUTIONAL   LIMITATIONS. 


[CH.  XVII. 


ever  may  be  the  office,  an  election  to  it  is  only  made  by  the  can- 
didate receiving  the  requisite  majority  or  plurality  of  the  legal 
votes  cast;1  and  whoever,  without  such  election,  intrudes  into 
an  office,  whether  with  or  without  the  formal  evidences  of  title, 
may  be  ousted  on  the  proper  judicial  inquiry.2  The  general  doc- 
trine is  here  stated ;  but  in  one  important  case  it  was  denied 
that  it  could  apply  to  the  office  of  chief  executive  of  the  State. 
The  case  was  one  in  which  the  incumbent  was  a  candidate  for 
re-election,  and  a  majority  of  votes  was  cast  for  his  opponent. 
Certain  spurious  returns  were,  however,  transmitted  to  the  State 
canvassers,  which,  together  with  the  legal  returns,  showed  a  plu- 
rality for  the  incumbent,  and  he  was  accordingly  declared  chosen. 
Proceedings  being  taken  against  him  by  quo  warranto  in  the 
Supreme  Court,  he  objected  to  the  jurisdiction,  on  the  ground 
that  the  three  departments  of  the  State  government,  the  legis- 
lative, the  executive,  and  the  judicial,  were  equal,  co-ordinate, 
and  independent  of  each  other,  and  that  each  department  must  be 
and  is  the  ultimate  judge  of  the  election  and  qualification  of  its 
own  member  or  members,  subject  only  to  impeachment  and  ap- 


canvass  of  votes  for  Governor  in  1792, 
where  the  election  of  John  Jay  to  that 
office  was  defeated  by  the  rejection  of 
votes  cast  for  him  for  certain  irregu- 
larities, which,  under  the  more  recent 
judicial  decisions,  ought  to  have  been 
overlooked,  see  Hammond's  Political 
History  of  New  York,  ch.  3.  The  law 
then  in  force  made  the  decision  of  the 
State  canvassers  final  and  conclusive. 
The  Louisiana  Returning  Board  cases 
will  readily  occur  to  the  mind  ;  but  those 
must  be  regarded  as  standing  by  them- 
selves, because  the  legislative  provisions 
under  which  they  were  had  were  unlike 
any  others  known  to  our  history,  and 
assumed  to  confer  extraordinary  and 
irresponsible  powers.  fJFor  the  proced- 
ure in  Nebraska  where  the  legislature  in 
joint  session  determines  contests  over 
election  of  officers  of  the  executive  de- 
partment, see  State  v.  Elder,  31  Neb. 
169,  47  N.  W.  710,  10  L.  R.  A.  796,  and 
re-election  of  executive  officers,  Re  Re- 
Election  of  Executive  Officers,  31  Neb. 
262,  47  N.  W.  923,  10  L.  R.  A.  803.] 

1  In  some  cases  it  is  provided  by  law, 
that,  if  there  is  a  tie  vote,  the  two  per- 
sons receiving  an  equal  and  the  highest 
Aumlier  shall  cast  lots,  and  the  election 
shall  be  thereby  determined.  The  draw- 


ing of  lots,  however,  would  not  preclude 
an  inquiry,  at  the  suit  of  the  State,  into 
previous  irregularities.  People  v.  Robert- 
son, 27  Mich.  116.  fJAnd  where  the  Con- 
stitution provides  a  mode  of  procedure 
to  be  followed  in  case  of  tie  votes  for  cer- 
tain officers,  but  makes  none  for  justices 
of  the  peace,  and  does  not  authorize  the 
legislature  to  provide  for  such  case,  there 
is  no  election  in  case  of  tie  vote  for  jus- 
tice of  the  peace,  and  the  old  incumbent 
holds  over.  State  v.  Kramer,  160  Mo. 
89,  51  S.  W.  716,47  L.  R.  A.  551. J 

2  Whether  jury  trial  in  the  case  of 
contested  elections  is  matter  of  right, 
seems  to  be  made  a  question.  That  it 
is,  see  State  v.  Burnett,  2  Ala.  140;  People 
v.  Cicott,  16  Mich.  283;  ilictiim,  People  i>. 
Albany,  &c.  R.  R.  Co.,  57  N.  Y.  161. 
That  it  is  not,  is  held  in  Ewing  v.  Filley, 

43  Pa.  St.  384;  Commonwealth  v.  Leech, 

44  Pa.  St.  332;  State  v.  Johnson,  26  Ark. 
281 ;  Wheat  v.  Smith,  50  Ark.  266,  7  S.  W. 
161;  Williamson  v.  Lane,  52  Tex.  335; 
State  r.  Lewis,  51  Conn.  113.     [State  v. 
Doherty,  16  Wash.  382,  47  Pac.  958,  58 
Am.  St.  39  ]     It  is,  however,  conceded 
in  Pennsylvania  that,  in  a  proceeding  to 
forfeit  an  office,  jury   trial  is  of  right. 
See  also  cases,  p.  590,  note  2,  ante. 


CH.  XVII.]          THE   EXPRESSION   OF   THE   POPULAR   WILL.  939 

peal  to  the  people ;  that  the  question,  who  is  rightfully  entitled 
to  the  office  of  governor,  could  in  no  case  become  a  judicial  ques- 
tion ;  and  that  as  the  Constitution  provides  no  means  for  ousting 
a  successful  usurper  of  either  of  the  three  departments  of  the 
government,  that  power  rests  exclusively  with  the  people,  to  be 
exercised  by  them  whenever  they  think  the  exigency  requires  it.1 
There  is  a  basis  of  truth  in  this  argument ;  the  executive  of 
the  State  cannot  be  subordinated  to  the  judiciary,  and  may,  in 
general,  refuse  obedience  to  writs  by  which  this  may  be  attempted.2 
But  when  the  question  is,  who  is  the  executive  of  the  State,  the 
judges  have  functions  to  perform,  which  are  at  least  as  important 
as  those  of  any  other  citizens,  and  the  fact  that  they  are  judges 
can  never  be  a  reason  why  they  should  submit  to  a  usurpation.  A 
successful  usurpation  of  the  executive  office  can  only  be  accom- 
plished with  the  acquiescence  of  the  other  departments ;  and  the 
judges,  for  the  determination  of  their  own  course,  must,  in  some 
form,  inquire  into  or  take  notice  of  the  facts.  In  a  controversy 
of  such  momentous  import,  the  most  formal  and  deliberate  in- 
quiry that  the  circumstances  will  admit  of  is  alone  excusable ; 
and,  when  made  and  declared,  the  circumstances  must  be  extraor- 
dinary in  which  it  will  not  be  effectual.  In  the  case  referred 
to,  the  usurper,  though  the  candidate  of  a  party  embracing  hnlf 
the  voters  of  the  State,  found  himself  utterly  stripped  of  power  by 
the  decision  of  the  court  against  him  ;  public  support  fell  away 
from  him,  and  success  in  his  usurpation  became  an  impossibility. 
The  decision  guided  and  determined  the  popular  sentiment,  and 
perhaps  saved  the  State  from  disorder,  violence,  and  anarchy.3 

Where,  however,  the  question  arises  collaterally,  and  not  in  a 
direct  proceeding  to  try  the  title  to  the  office,  the  correctness  of 
the  decision  of  the  canvassers  cannot  be  called  in  question,  but 
must  be  conclusively  presumed  to  be  correct ; 4  and  where  the 

1  Attorney-General  v.  Barstow,  4  Wis.  ter mined  by  popular  acquiescence.     The 

567.  difficulty  was  that  the  legislative  author- 

a  See  ante,  p.  162.  ity  was  as  much  in  dispute  as  the  execu- 

8  Some  attention  to  conflicts  between  tive.    The  cases  of  South  Carolina  and 

the  several  departments  of  government  Louisiana  are  here  specially  referred  to. 
was  given  by  the  author  in  an  essay  on         *  Morgan  v.  Quackenbush,   22  Barb. 

Checks  and  Balances  in  Government,  pub-  72;  Hadley  v.  Mayor,  &c.,  33  N.  Y.  603; 

lished  in  the  "  International  Review  "  for  Howard  v.  McDiarmid,  26  Ark.  100.    And 

1876.     A  question  like  that  above  men-  see   Hulseman  v.  Rens,  41  Pa.  St.  396, 

tioned  could  not  arise  in  respect  to  the  where  it  was  held  that  the  court  could  not 

presidency,  as  Congress  must  canvass  and  interfere  summarily  to  set  aside  a  certifl- 

declare  the  result.     In  some  recent  cases,  cate  of  election,  where  it  did  not  appear 

in  which  the  office  of  governor  was  in  that  the  officers  had  acted  corruptly,  not- 

question,  though  the  decision  was  placed  withstanding  it  was  shown  to  be  based  in 

by  the  constitution  in  the  hands  of  the  part  upon  forged  returns, 
legislature,  the  final  result  was  only  de- 


940  CONSTITUTIONAL  LIMITATIONS.  [CH.  XVII. 

election  was  to  a  legislative  office,  the  final  decision,  as  well  by 
parliamentary  law  as  by  constitutional  provisions,  rests  with  the 
legislative  body  itself,  and  the  courts,  as  we  have  heretofore  seen,1 
cannot  interfere.2 

The  most  important  question  which  remains  to  be  mentioned 
relates  to  the  evidence  which  the  courts  are  at  liberty  to  receive, 
and  the  facts  which  it  is  proper  to  spread  before  the  jury  for  their 
consideration  when  an  issue  is  made  upon  an  election  for  trial  at 
law. 

The  questions  involved  in  every  case  are,  first,  has  there  been 
an  election  ?  and  second,  was  the  party  who  has  taken  possession 
of  the  office  the  successful  candidate  at  such  election,  by  having 
received  a  majority  of  the  legal  votes  cast  ? 3  These  are  ques- 
tions which  involve  mixed  considerations  of  law  and  fact,  and 
the  proper  proceeding  in  which  to  try  them  in  the  courts  is  by 
quo  warrantOj  when  no  special  statutory  tribunal  is  created  for 
the  purpose.4 

Upon  the  first  question,  we  shall  not  add  to  what  we  have  al- 
ready said.  When  the  second  is  to  be  considered,  it  is  to  be  con- 
stantly borne  in  mind  that  the  point  of  inquiry  is  the  will  of  the 
electors  as  manifested  by  their  ballots ;  and  to  this  should  all  the 
evidence  be  directed,  and  none  that  does  not  bear  upon  it  should 
be  admissible. 

We  have  already  seen  that  the  certificates  or  determinations  of 
the  various  canvassing  boards,  though  conclusive  in  collateral  in- 
quiries, do  not  preclude  an  investigation  by  the  courts  into  the 
facts  which  they  certify.  They  are  prima  facie  evidence,  how- 
ever, even  in  the  courts ; 6  and  this  is  so,  notwithstanding  altera- 

1  See  ante,  p.  189,  note  1.     See  also  Draper,  50  Mo.  353.     Where  tlie  officers 
Commonwealth  v.  Meeser,  44  Pa.  St.  341.  acted  fraudulently  in  the  conduct  of  an 

2  In  Maine,  where  there  were  two  con-  election,  their  returns  may  be  rejected, 
flicting  bodies,  each  claiming  the  right  to  and  the  result  be  arrived  at  from  other 
exercise  the  legislative  power,  the  judici-  proofs  exclusively.    Supervisors  v.  Davis, 
ary  asserted  and  enforced  the  right  to  de-  63  111.  405.     Where   returns  are  lost  or 
cide  between  them.    Prince  v.  Skillin,  71  defective,  parol  evidence  of  what  the  vote 
Me.  361,  36  Am.  Rep.  325.     It  is  to  be  was  is  admissible  :   Wheat  v.  Smith,  60 
observed,  however,  that  the  governor  had  Ark.  266,  7  S.  W.  161 ;  Dixon  v.  Orr,  49 
already   recognized    the    same   body   in  Ark.  238,  4  S.  W.  774,  if  ballots  cannot, 
whose  favor  the  court  decided,  and  had  from   possible    tampering,   be   admitted, 
approved  the  act  whose  validity  came  in  Stemper   v.  Higgins,   38   Minn.   222,   37 
question  in  the  court.  N.  W.  95. 

8  See  cases  cited,  p.  935,  note.    Also         4  People  v.  Matteson,  17  III.  167 ;  Peo- 

State  v.  The  Judge,  13  Ala.  805;  People  pie  v.  Cover,  50  111.  100.     If  the  proceed- 

v.   Kobertson,   27   Mich.  116 ;   Common-  ing  is  commenced  before  the  term  which 

wealth    v.   Emminger,   74   Pa.   St.   479 ;  is  in  contest  has  expired,  it  may  be  con- 

Dobyns  v.  Weadon,  50  Ind.  298.     The  tinued  to  a  conclusion  aitenvards.     State 

right  to  the  office  comes  from  the  ballots,  v.  Pierce,  35  Wis.  03. 
and  not  from  the  commission.     State  v.         5  Marshall  v.  Kerns,  2  Swan,  68;  Mor- 


CH.  XVII.]          THE    EXPRESSION   OF   THE    POPULAR   WILL.  941 

tions  appear  ;  the  question  of  their  fairness  in  such  a  case  being 
for  the  jury.1  But  back  of  this  prima  facie  case  the  courts  may 
go,  and  the  determinations  of  the  State  board  may  be  corrected 
by  those  of  the  district  boards,  and  the  latter  by  the  ballots  them- 
selves when  the  ballots  are  still  in  existence,  and  have  been  kept 
as  required  by  law.2  If,  however,  the  ballots  have  not  been  kept  as 
required  by  law,  and  surrounded  by  such  securities  as  the  law 
has  prescribed  with  a  view  to  their  safe  preservation  as  the  best 
evidence  of  the  election,  it  would  seem  that  they  should  not  be 
received  in  evidence  at  all,3  or,  if  received,  that  it  should  be  left 
to  the  jury  to  determine,  upon  all  the  circumstances  of  the  case, 
whether  they  constitute  more  reliable  evidence  than  the  inspec- 
tors' certificate,4  which  is  usually  prepared  immediately  on  the 
close  of  the  election,  and  upon  actual  count  of  the  ballots  as  then 
made  by  the  officers  whose  duty  it  is  to  do  so. 

Something  has  already  been  said  regarding  the  evidence  which 
can  be  received  where  the  elector's  ballot  is  less  complete  and 
perfect  in  its  expression  of  intention  than  it  should  have  been. 
There  can  be  no  doubt  under  the  authorities  that,  whenever  a 
question  may  arise  as  to  the  proper  application  of  a  ballot,  any 
evidence  is  admissible  with  a  view  to  explain  and  apply  it  which 
would  be  admissible  under  the  general  rules  of  evidence  for  the 
purpose  of  explaining  and  applying  other  written  instruments. 
But  the  rule,  as  it  appears  to  us,  ought  not  to  go  further.  The 
evidence  ought  to  be  confined  to  proof  of  the  concomitant  cir- 
cumstances ;  such  circumstances  as  may  be  proved  in  support  or 
explanation  of  a  contract,  where  the  parties  themselves  would 
not  be  allowed  to  give  testimony  as  to  their  actual  intention, 
when  unfortunately  the  intention  was  ineffectually  expressed.5 

gan  v.  Quackenbush,  22  Barb.  72;  Gala-         8  People  v.  Sackett,  14  Mich.  320.    But 

veras  County  v.  Brock  way,  30  Cal'.  325.  see  People  v.  Higgins,  3  Mich.  233.     Bur- 

1  State  v.  Adams,  2  Stew.  231.     See  den  of  showing  that  ballots  offered  are 
State  v.  Hilmantel,  23  Wis.  422.  genuine  is  on  the  party  offering  them. 

2  People  v.  Van  Cleve,  1  Mich.  362  ;  Powell  v.  Holman,  60  Ark.  85,  6  S.  W. 
People  v.  Higgins,  3  Mich.  233 ;  State  v.  505 ;   Fenton  v.  Scott,  17  Oreg.  189,  20 
Clerk  of  Passaic,  25  N.  J.  354 ;  State  v.  Pac.  95 ;   Coglan  v.  Beard,  67  Cal.  303, 
Judge.  &c.,  13  Ala.  805;  People  v.  Cook,  7  Pac.  738,  which  see  as  to  what  is  suffl- 
14   Barb.  259,   8   N.  Y.  67;   People    r.  cient  proof  that  they  have  not  been  tam- 
Cicott,  16  Mich.  283  ;  Attorney-General  v.  pered  with. 

Ely,  4  Wis.  420;  Owens  v.  State,  64  Tex.          *  People  v.  Cicott,  16  Mich.  283;  Du- 

500.     Ballots   which   sliould   have  been  son  v.  Thompson,  32  La.  Ann.  861 ;  Peo- 

destroyed  under  the  law  cannot  be  used  pie  v.  Livingston,  79  N.  Y.  279;  People  v. 

on  a  recount.    State  t;.  Bate,  70  Wis.  409,  Robertson,  27  Mich.  116. 
36  N.  W.  17.     The  ballot  is  always  the         5  People  v.  Pease,  27  N.  Y.  45,  84,  per 

best    evidence    of    the    voter's    action.  Denio,  Ch.  J.,  commenting  upon  previous 

Wheat  v.  Ragsdale,  27  Ind.  191 ;  People  New    York   cases.     See    also   Attorney- 

v.  Holden,  28  Cal.  123 ;  Searle  v.  Clark,  General  v.  Ely,  4  Wis.  420. 
34  Kan.  49,  7  Pac.  630. 


942  CONSTITUTIONAL   LIMITATIONS.  [CH.  XVIL 

And  we  have  seen  that  no  evidence  is  admissible  as  to  how  par- 
ties intended  to  vote  who  were  wrongfully  prevented  or  excluded 
from  so  doing.  Such  a  case  is  one  of  wrong  without  remedy,  so 
far  as  candidates  are  concerned.1  There  is  more  difficulty,  how- 
ever, when  the  question  arises  whether  votes  which  have  been 
cast  by  incompetent  persons,  and  which  have  been  allowed  in  the 
canvass,  can  afterwards  be  inquired  into  and  rejected  because  of 
the  want  of  qualification. 

If  votes  were  taken  viva  voce,  so  that  it  could  always  be  deter- 
mined with  absolute  certainty  how  every  person  had  voted,  the 
objections  to  this  species  of  scrutiny  after  an  election  had  been 
held  would  not  be  very  formidable.  But  when  secret  balloting 
is  the  policy  of  the  law,  and  no  one  is  at  liberty  to  inquire  how 
any  elector  has  voted,  except  as  he  may  voluntarily  have  waived 
his  privilege,  and  when  consequently  the  avenues  to  correct  in- 
formation concerning  the  votes  cast  are  carefully  guarded  against 
judicial  exploration,  it  seems  exceedingly  dangerous  to  permit 
any  question  to  be  raised  upon  this  subject.  For  the  evidence 
voluntarily  given  upon  any  such  question  will  usually  come  from 
those  least  worthy  of  credit,  who,  if  they  have  voted  without  legal 
right  in  order  to  elect  particular  candidates,  will  be  equally  ready 
to  testify  falsely,  if  their  testimony  can  be  made  to  help  the  same 
candidates  ;  especially  when,  if  they  give  evidence  that  they  voted 
the  opposing  ticket,  there  can  usually  be  no  means,  as  they  will  well 
know,  of  showing  the  evidence  to  be  untrue.2  Moreover,  to  allow 
such  scrutiny  is  to  hold  out  strong  temptation  to  usurpation  of 
office,  without  pretence  or  color  of  right ;  since  the  nature  of  the 
case,  and  the  forms  and  proceedings  necessary  to  a  trial,  are  such 
that,  if  an  issue  may  be  made  on  the  right  of  every  individual 
voter,  it  will  be  easy,  in  the  case  of  important  elections,  to  prolong 
a  contest  for  the  major  part  if  not  the  whole  of  an  official  term, 
and  to  keep  perpetually  before  the  courts  the  same  excitements, 
strifes,  and  animosities  which  characterize  the  hustings,  and  which 
ought,  for  the  peace  of  the  community,  and  the  safety  and  stability 
of  our  institutions,  to  terminate  with  the  close  of  the  polls.3 

1  See  ante,  p.  933.  ticket  of  his  choice,  and  then,  on  a  con- 

2  It  has   been  decided   in  Wisconsin  test,  he  declares  he  voted  the  other  way, 
that  where  an  unqualified  person  is  called  and  a  deduction  is  made  from  the  oppo- 
to  prove  that  he  voted  at  an  election,  and  site  vote  accordingly.     See  Beardstown 
declines  to  testify,  the  fact  of  his  having  v.  Virginia,  76  111.  34. 

voted  may  be  proved,  and  then  -his  decla-  8  This  is  one  reason,  perhaps,  why  in 

rations  may  be  put  in  evidence  to  show  the  ease  of  State  officers  a  statutory  tri- 

how  he  voted.     State  t>.  Olin,  23  Wis.  309.  bunal  is  sometimes  provided  with  powers 

This  may  give  the  incompetent  voter  a  of  summary  and  final  decision, 
double  vote.     First,  he  votes   for   the 


CH.  XVII.J          THE   EXPKESSION   OF   THE   POPULAR  WILL. 


943 


Upon  this  subject  there  is  very  little  judicial  authority,  though 
legislative  bodies,  deriving  their  precedents  from  England,  where 
the  system  of  open  voting  prevailed,  have  always  been  accustomed 
to  receive  such  evidence,  and  have  indeed  allowed  a  latitude  of 
inquiry  which  makes  more  to  depend  upon  the  conscience  of  the 
•witnesses,  and  of  legislative  committees,  in  some  cases,  than  upon 
the  legitimate  action  of  the  voters.  The  question  of  the  right  to 
inquire  into  the  qualifications  of  those  who  had  voted  at  an  elec- 
tion, on  a  proceeding  in  the  nature  of  a  quo  warranto,  was  directly 
presented  in  one  case  to  the  Supreme  Court  of  New  York,  and 
the  court  was  equally  divided  upon  it.1  On  error  to  the  Court 
of  Appeals,  a  decision  in  favor  of  the  right  was  rendered  with 
the  concurrence  of  five  judges,  against  three  dissentients.2  The 
same  question  afterwards  came  before  the  Supreme  Court  of 
Michigan,  and  was  decided  the  same  way,  though  it  appears  from 
the  opinions  that  the  court  were  equally  divided  in  their  views.3 
To  these  cases  we  must  refer  for  the  full  discussion  of  the  rea- 
sons influencing  the  several  judges;  but  future  decisions  alone 
can  give  the  question  authoritative  settlement.4 


1  People  v.  Pease,  30  Barb.  588. 

2  People  v.  Pease,  29  N.  Y.  45. 

8  People  v.  Cicott,  16  Mich.  283.  See 
further  the  case  of  State  v.  Hilmantel,  23 
Wis.  422,  where  it  was  decided  that  those 
who  had  voted  illegally  might  be  com- 
pelled to  testify  for  whom  they  voted. 
The  question  was  discussed  but  briefly, 
and  as  one  of  privilege  merely. 

4  Considerable  stress  was  laid  by  the 
majority  of  the  New  York  Court  of  Ap- 
peals on  the  legislative  practice,  which, 
as  it  seems  to  us,  is  quite  too  loose  in 
these  cases  to  constitute  a  safe  guide. 
Some  other  rulings  in  that  case  also  seem 
more  latitudinarian  than  is  warranted  by 
sound  principle  and  a  due  regard  to  the 
secret  ballot  system  which  we  justly 
esteem  so  important.  Thus,  Selden,  J., 
says:  "  When  a  voter  refuses  to  disclose 
or  fails  to  remember  for  whom  he  voted, 
I  think  it  is  competent  to  resort  to  cir- 
cumstantial evidence  to  raise  a  presump- 
tion in  regard  to  that  fact.  Such  is  the 
established  rule  in  election  cases  before 
legislative  committees,  which  assume  to 
be  governed  by  legal  rules  of  evidence 
(Cush.  Leg.  Assem.  §§  199  and  200) ;  and 
within  that  rule  it  was  proper,  in  connec- 
tion with  the  other  circumstances  stated 
by  the  witness  Loftis,  to  ask  him  for 
whom  he  intended  to  vote ;  not,  however, 


on  the  ground  that  his  intention,  as  an 
independent  fact,  could  be  material,  but 
on  the  ground  that  it  was  a  circumstance 
tending  to  raise  a  presumption  for  whom 
he  did  vote."  Now  as,  in  the  absence  of 
fraud  or  mistake,  you  have  arrived  at  a 
knowledge  of  how  the  man  voted,  when 
you  have  ascertained  how,  at  the  time, 
lie  intended  to  vote,  it  is  difficult  to  dis- 
cover much  value  in  the  elector's  privi- 
lege of  secrecy  under  this  ruling.  And 
if  "  circumstances  "  may  be  shown  to  de- 
termine how  he  probably  voted,  in  cases 
where  he  insists  upon  his  constitutional 
right  to  secrecy,  then,  as  it  appears  to  us, 
it  would  be  better  to  abolish  altogether 
the  secret  ballot  than  to  continue  longer 
a  system  which  falsely  promises  secrecy, 
at  the  same  time  that  it  gives  to  party 
spies  and  informers  full  license  to  invade 
the  voter's  privilege  in  secret  and  surrep- 
titious ways,  and  which  leaves  jurors,  in 
the  absence  of  any  definite  information, 
to  act  upon  their  guesses,  surmises,  and 
vague  conjectures  as  to  the  contents  of  a 
ballot. 

Upon  the  right  to  inquire  into  the 
qualifications  of  those  who  have  voted, 
in  a  proceeding  by  quo  warranto  to  test  the 
right  to  a  public  office,  reference  is  made 
to  the  very  full  discussions  by  Justices 
Christiancy  and  Campbell,  taking  different 


944 


CONSTITUTIONAL  LIMITATIONS. 


[CH.  XVII. 


views,  in  People  v.  Cicott,  16  Mich.  283, 
294,  311.  fJThe  question  of  the  effect  of 
votes  cast  by  unqualified  voters  arose  in 
Rasmussen  v.  Baker,  7  Wyo.  117,  60  Pac. 
819,  38  L.  R.  A.  773.  The  Constitution  of 
Wyoming  provides  that  "no  person  shall 
have  the  right  to  vote  who  shall  not 
be  able  to  read  the  Constitution  of  this 
State."  At  an  election  held  Nov.  3,  1896, 


to  elect  a  county  treasurer,  fifty-four 
votes  in  one  precinct  and  fifty  in  another 
were  cast  for  the  defendant  B,  by  natu- 
ralized citizens  of  Finnish  birth.  These 
voters  were  incapable  of  reading  the 
Constitution  in  English,  but  could  read  a 
Finnish  translation  of  it.  Held,  that 
they  were  unqualified,  and  that  their 
votes  were  void.] 


INDEX. 


THE  FIGURES   REFER  TO  THE  TOP  PAGING. 


ABBREVIATIONS, 

when  ballots  rendered  ineffectual  by,  916-919. 

AB  INCONVENIENT!, 

doctrine  of,  in  construction,  93,  n.  i,  102-106. 

ACCUSATIONS  OF  CRIME, 
are  actionable  per  se,  605. 
self,  not  to  be  compelled,  442-449. 
how  made  with  a  view  to  investigation  and  trial,  436. 

See  PERSONAL  LIBEKTY. 
varying  form  of,  cannot  subject  party  to  second  trial,  470. 

ACCUSED  PARTIES, 

testimony  of,  in  their  own  behalf,  447-449. 
confessions  of,  443-449. 

See  PERSONAL  LIBERTY. 
ACQUIESCENCE, 

in  irregular  organization  of  corporations,  363,  364. 

ACTION, 

against  States,  23. 

against  election  officers  for  refusing  to  receive  votes,  927. 

for  negligent  or  improper  construction  of  public  works,  358-362,  825,  826. 

for  property  taken  under  right  of  eminent  domain,  812-828. 

See  EMINENT  DOMAIN. 

for  exercise  of  legislative  power  by  municipal  bodies,  298-306. 
for  slander  and  libel,  rules  for,  605-612. 
modification  of,  by  statute,  615. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
rights  in,  cannot  be  created  by  mere  legislative  enactment,  526,  527. 
nor  taken  away  by  legislature,  517,  518. 
nor  appropriated  under  right  of  eminent  domain,  759. 
nor  forfeited,  except  by  judicial  proceedings,  517,  518. 
statutory  penalties  may  be  taken  away  before  recovery  of  judgment, 
518,  n. 

60 


946  INDEX. 

ACTION"  —  continued. 

limitation  to  suits,  520-524. 

statutes  for,  are  unobjectionable  in  principle,  520,  521. 
subsequent  repeal  of  statute  cannot  revive  rights,  416,  521. 
principle  on  which  statutes  are  based,  522. 
cannot  apply  against  a  party  not  in  default,  523. 
must  give  parties  an  opportunity  for  trial,  523,  524. 
for  causing  death  by  negligence,  &c.,  844. 
ACTS  OF  PARLIAMENT, 

how  far  in  force  in  America,  51-53. 
ACTS  OF  THE  LEGISLATURE.    See  STATUTES. 

ADJOURNMENT  OF  SUIT, 

from  regard  to  religious  scruples  of  party,  676,  n. 
ADJOURNMENT  OF  THE  LEGISLATURE, 

on  its  own  motion,  188. 
by  the  governor,  188. 

ADMINISTRATION, 

conclusiveness  of,  though  supposed  intestate  living,  80,  n.  1. 

ADMINISTRATIVE  POWERS, 

distinguished  from  judicial,  143,  n.  1. 

ADMINISTRATORS.     See  EXECUTORS  AND  ADMINISTRATORS. 
ADMIRALTY  JURISDICTION, 

exercise  of,  by  the  Revolutionary  Congress,  8. 
conferred  upon  courts  of  United  States,  23. 

ADMISSIONS, 

of  accused  parties  as  evidence,  443-449. 

See  CONFESSIONS. 
ADVERTISEMENT, 

notice  to  foreign  parties  by,  582-585. 

not  effectual  to  warrant  a  personal  judgment,  583-585. 
AGENCIES  OF   GOVERNMENT, 

not  to  be  taxed,  45,  682-686. 

strict  construction  of  powers  of,  270-274. 

States  not  liable  for  acts  of,  23,  n.  2. 
AGREEMENTS.    See  CONTRACTS. 
ALABAMA, 

divorces  qot  to  be  granted  by  legislature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160,  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

bills,  how  to  be  signed,  195,  n.  2. 

legislative  journals  to  be  signed  by  presiding  officer,  195,  n.  2. 

no  law  to  embrace  more  than  one  object,  to  be  expressed  in  title,  202,  n.  3. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n. 

liberty  of  speech  and  the  press  in,  596,  n.  1. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n.  2. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 


INDEX.  947 

ALIENS, 

exclusion  of,  from  suffrage,  58,  901. 
ALIMONY, 

payment  of,  cannot  be  ordered  by  legislature,  157.     X 
decree  for,  not  valid  unless  process  served,  584,  585. 
AMBASSADORS,  PUBLIC  MINISTERS,  ETC., 

President  to  appoint,  21,  22.  , 

jurisdiction  of  United  States  courts  in  respect  to,  23. 
AMENDMENT, 

of  State  constitutions,  49,  96,  97. 

of  money  bills,  may  be  made  by  Senate,  188,  n.  1. 

of  indictments,  382. 

statutes  allowing  may  apply  to  pending  suits,  543-544.   ' 
of  statutes,  214-217. 

republication  of  statute  amended,  215-217. 
by  implication,  216. 

at  the  same  session  of  their  passage,  217. 
of  defective  proceedings  by  legislation,  416,  529-546. 

AMENDMENTS  TO  THE  FEDERAL  CONSTITUTION, 
first,  596,  668,  n. 

AMERICAN  COLONIES.     See  COLONIES. 
APPEAL, 

giving  right  of,  retrospectively,  138,  n.  1. 

right  of,  may  be  taken  away,  547,  548. 

effect  of  change  in  the  law  pending  an  appeal,  544. 
APPOINTMENT  TO  OFFICE.     See  OFFICE. 
APPORTIONMENT, 

of  powers  between  the  States  and  the  nation,  4. 

between  the  departments  of  the  State  government,  62-65,  126-134 

of  taxes,  708,  709,  712,  713. 

of  debts  and  property  on  division  of  municipal  corporations,  268,  n.  2. 

?Bee  TAXATION. 
APPRAISAL,  ii 

of  private  property  taken  by  the  public,  812-826. 
APPRAISEMENT   LAWS, 

how  far  invalid,  412. 

APPRENTICE, 

control  of  master  over,  486. 
APPROPRIATION, 

of  private  property  to  public  use,  752  et  seq. 

See  EMINENT  DOMAIN. 
APPROVAL  OF  LAWS.     See  GOVERNOR. 
ARBITRARY   ARRESTS, 

illegality  of,  425. 

See  PERSONAL  LIBERTY. 
ARBITRARY  EXACTIONS, 

distinguished  from  taxation,  697. 
ARBITRARY   POWER, 

unknown  among  common-law  principles,  50. 

cannot  be  exercised  under  pretence  of  taxation,  697,  726. 


948  INDEX. 

ARBITRARY  RULES, 

of  construction,  danger  of,  93,  94,  123,  n.  1. 
of  presumption,  465,  u.  1 . 

ARBITRATION, 

submission  of  controversies  to,  576. 

ARGUMENTUM  AB  1NCONVEN1ENT1, 
in  constitutional  construction,  93,  n.  1,  102-106. 

ARKANSAS, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160,  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

limited  time  for  introduction  of  new  bills,  199,  n.  2. 

no  law  to  embrace  more  than  one  object,  to  be  expressed  in  title,  202,  n.  3. 

protection  of  person  and  property  by  the  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n.  1. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  competency  of  witness,  676,  n.  2. 
ARMS, 

right  to  bear,  498,  499. 

exemption  from  bearing,  of  persons  conscientiously  opposed,  676. 
ARMY, 

and  navy,  Congress  may  raise,  and  maintain,  13. 
and  make  rules  for  government  of,  13. 

quartering  in  private  houses,  435. 

jealousy  of  standing  army,  498,  499. 
ARREST, 

privilege  of  legislators  from,  192. 

on  criminal  process.     See  CRIMES. 

of  judgment,  new  trial  after,  649  and  n.  6. 
ART,   WORKS  OF, 

criticism  of,  how  far  privileged,  645. 

ARTICLES  OF  CONFEDERATION, 

adoption  of,  9. 

why  superseded,  9. 
ASSESSMENTS, 

for  local  improvements,  generally  made  in  reference  to  benefits,  713, 716. 

special  taxing  districts  for,  714,  733,  734. 

not  necessarily  made  on  property  according  to  value,  713-717. 

are  made  under  the  power  of  taxation,  713-716. 

not  covered  by  the  general  constitutional  provisions  respecting  taxation, 
716,  717. 

not  unconstitutional  to  make  benefits  the  basis  for,  715,  716,  729-735. 
apportionment  necessary  in  cases  of,  718. 

may  be  made  in  reference  to  frontage,  729-731. 

but  each  lot  cannot  be  compelled  to  make  the  improvement  in  front  of  it, 
732. 

for  drains,  levees,  &c.,  734-736. 

in  labor  for  repair  of  roads,  737. 


INDEX.  949 

ATTAINDER, 

meaning  of  the  term,  368. 

bills  of,  not  to  be  passed  by  State  legislatures,  36, 62,  368. 

cases  of  such  bills,  368-370. 

bills  of  pains  and  penalties  included  in,  370. 

ATTORNEYS, 

exclusion  of,  from  practice,  regarded  as  a  punishment,  371,  372. 
right  to  notice  of  proceedings  therefor,  583,  n.  1. 
laws  requiring  service  from,  without  compensation,  477,  563. 
punishment  of,  for  misconduct,  481,  482. 
See  COUNSEL. 
AUSTRALIAN  BALLOT, 

use  of,  899,  n.  (a),  911,  n.,  913,  n. 

AUTHORS, 

not  to  be  assailed  through  their  works,  645. 
criticism  of  works  of,  how  far  privileged,  645. 


B. 

BAIL, 

accused  parties  entitled  to,  437-439. 
unreasonable,  not  to  be  demanded,  439. 
on  habeas  corpus,  496. 
control  of  bail  over  principal,  486,  487. 

BAILMENT.    See  COMMON  CARRIERS. 
BALLOT, 

correction  of  abuses  by,  269  and  n.  1. 

system  of  voting  by,  generally  prevails,  910. 

Australian,  899,  n.  (a),  911,  n.,  913,  n. 

right  of  the  elector  to  secrecy,  910-913  and  notes. 

regulations  as  to  form  of,  899,  n.  (a). 

must  be  complete  in  itself,  914,  915. 

abbreviated  names,  916,  917. 

how  far  open  to  explanation,  920,  941,  942. 

voting  machines  satisfy  requirement  of,  910,  n.  1. 

See  ELECTIONS. 
BANKRUPTCY, 

power  of  Congress  over,  12.    .    . 
legislation  by  the  States,  45,  416,  417. 

BEARING   ARMS, 

persons  conscientiously  opposed  to,  are  excused,  676. 
constitutional  right  of,  498,  499. 

BEASTS, 

police  regulations  regarding,  886,  n.  2. 

regulations  making  railway  companies  liable  for  killing,  841,  842. 

BENEFITS, 

may  be  taken  into  account  in  assessments  for  local  improvements,  714, 

715,  727,  734. 

what  may  be  deducted  when  private  property  is  taken  by  the  public,  823- 
825. 


950  INDEX. 

BETTERMENT  LAWS, 

principle  of,  550-553. 

are  constitutional,  553. 

owner  cannot  be  compelled  to  improve  his  lands,  550. 

BETTING  ON  ELECTIONS, 
illegality  of,  924. 

BEVERAGES, 

police  regulations  to  prevent  the  sale  of  intoxicating,  845-851. 

BIBLE, 

in  the  schools,  665,  n.  2. 
BILL  OF   RIGHTS  (English), 

a  declaratory  statute,  51,  366. 
BILL  OF   RIGHTS  (National), 

not  originally  inserted  in  Constitution,  365. 

reasons  for  omission,  365,  366. 

objections  to  Constitution  on  that  ground,  367. 

afterwards  added  by  amendments,  367,  368. 
BILL  OF   RIGHTS  (State), 

generally  found  in  constitution,  65. 

classes  of  provisions  in,  65,  66. 

what  prohibitions  not  necessary,  245. 

BILLS,  LEGISLATIVE, 

constitutional  provisions  for  three  readings,  116-1 J  9,  199,  200. 

title  of,  to  express  object,  117,  202-217. 

when  they  become  laws,  186,  n.  1. 

including  in,  matter  by  reference,  200. 

See  LEGISLATURE  OF  THE  STATE. 
BILLS  OF  ATTAINDER, 

not  to  be  passed  by  State  legislature,  36,  62,  368. 

meaning  of  attainderu368. 

cases  of  such  bills,  37(P372~"and  notes. 
BILLS  OF   CREDIT, 

States  not  to  emit,  35. 
BILLS  OF   PAINS  AND   PENALTIES, 

included  in  bills  of  attainder,  370. 
BLASPHEMY, 

punishment  of,  does  not  violate  religious  liberty,  671-673. 
nor  the  liberty  of  speech,  604. 

published  in  account  of  judicial  proceedings  is  not  privileged,  638. 
BOATS, 

ferry,  licensing  of,  867. 

speed  of,  on  navigable  waters,  may  be  regulated  by  States,  867,  868. 
BONA   FIDE   PURCHASERS, 

not  to  be  affected  by  retrospective  legislation,  539,  540. 
BONDS, 

issue  of,  by  municipalities  in  aid  of  internal  improvements,  167, 168, 312- 

325. 
BOOKS, 

criticism  of,  how  far  privileged,  644,  645. 

indecent,  sale  of,  may  be  prohibited,  884. 


INDEX.  951 

BOUNTIES, 

when  earned,  become  vested  rights,  547,  n.  6. 

payment  of,  to  soldiers  by  municipal  corporations,  326-332,  341,  342. 
BOUNTY   SUBSCRIPTIONS, 

by  municipal  corporations,  how  far  valid,  326-332,  341,  342,  699-701. 

BRIDGES, 

erection  of,  by  State  authority  over  navigable  waters,  865,  866. 

See  NAVIGABLE  WATERS. 
BUILDINGS, 

condemnation  and  forfeiture  of,  as  nuisances,  849,  850. 
destruction  of,  to  prevent  spread  of  fires,  756,  757,  878. 
appropriation  of,  under  right  of  eminent  domain,  752. 

BURIAL, 

right  of,  subject  to  control,  284,  n.  4. 

BURLESQUES, 

libels  by  means  of,  608. 

BUSINESS  CHARGES, 

regulation  of,  870-877. 

BY-LAWS, 

of  municipal  corporations,  270,  278-292. 

must  be  reasonable,  280-292. 

illustrative  cases  on  question  of  reasonableness  of,  281,  n.  1,  282,  n.  2, 
284,  n.  4. 

must  be  certain,  284. 

must  not  conflict  with  constitution  of  State  or  nation,  278. 

nor  with  statutes  of  State,  278,  279. 

nor  with  general  principles  of  the  common  law,  284. 

imposing  license  fees,  283. 
of  school  corporations,  261,  n.  1. 


C. 

CALIFORNIA, 

Mexican  law  retained  in  the  system  of,  54,  n.  2. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

local  option  statutes,  validity  of,  173. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

no  law  to  embrace  more  than  one  object,  to  be  expressed  in  title,  202, 

n.  3. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 
protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 
liberty  of  speech  and  of  the  press  in,  598,  n. 
religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n. 
CANADA, 

apportionment  of  governmental  powers  in,  6,  n. 

CANALS, 

appropriation  of  private  property  for,  767. 

CANDIDATES  FOR   OFFICE, 

criticism  of,  how  far  privileged,  616-628,  644. 
ineligibility  of,  how  to  affect  election,  931. 


952  INDEX. 

CANVASSERS, 

act  ministerially  in  counting  and  returning  votes,  934-936. 
whether  they  may  be  compelled  by  mandamus  to  perform  duty,  936. 
certificate  of,  conclusive  character  of,  937. 
See  ELECTIONS. 
CARRIERS, 

regulation  of  charges  of,  870-876. 

police  regulations  making  them  liable  for  beasts  killed,  841,  842. 

change  of  common-law  liability  of,  by  police  regulations,  836-844,  870- 

877. 
may  be  made  responsible  for  death  caused  by  negligence,  &c.,  843,  844. 

but  not  for  injuries  for  which  they  are  not  responsible,  841,  n. 
CATTLE, 

police  regulations  making  railway  companies  liable  for  killing,  841,  842. 
other  police  regulations,  886,  n.  2. 
CEMETERIES, 

further  use  of,  may  be  prohibited  when  they  become  nuisances,  880,  881. 
CENSORSHIP   OF   THE   PRESS, 

in  England  and  America,  599,  600. 
CENTRALIZATION, 

American  system  the  opposite  of,  261. 
CHALLENGES, 

prisoner's  right  to,  459. 
CHARACTER, 

bad,  of  attorney,  sufficient  reason  to  exclude  him  from  practice,  481,  482. 
slander  of,  605. 

good,  of  defendant  in  libel  suit,  no  defence  to  false  publication,  658,  n. 
benefit  of,  in  criminal  cases,  465,  n.  1. 
CHARTERS, 
of  liberty,  51. 
colonial,  swept  away  by  Revolution,  58. 

exceptions  of  Connecticut  and  Rhode  Island,  58. 
forfeiture  of,  is  a  judicial  question,  149,  n.  1. 
municipal,  do  not  constitute  contracts,  268. 
control  of  legislature  over,  266-270. 
construction  of,  271,  309-342. 

See  MUNICIPAL  CORPORATIONS. 
of  private  corporations  are  contracts,  175,  391,  401. 
police  regulations  affecting,  835-844. 
strict  construction  of,  565-567. 
amendment  of,  391-394,  837-840. 
CHASTITY, 

accusation  of  want  of,  not  actionable  per  se,  606,  607. 
statutory  provisions  on  the  subject,  607. 
CHECKS  AND  BALANCES, 

in  constitutions,  64,  65. 
CHILDREN, 

imprisonment  of,  for  lack  of  parental  control,  423,  n.  4. 
control  of  parent,  &c.,  over,  485. 
obtaining  possession  of,  by  habeas  corpus,  496,  497. 
decree  for  custody  of,  in  divorce  suits,  584. 


INDEX.  953 

CHRISTIANITY, 

its  influence  in  the  overthrow  of  slavery,  421  and  n.  1,  422. 

in  what  sense  part  of  the  law  of  the  land,  669-673  and  n.  1. 

See  RELIGIOUS  LIBERTY. 
CHURCH  ENDOWMENTS, 

not  to  be  taken  away  by  legislature,  n.  2,  385. 
CHURCH  ESTABLISHMENTS, 

forbidden  by  State  constitutions,  659-668. 

CHURCH   ORGANIZATIONS, 

powers  and  control  of,  659,  n.  1. 
discipline  of  members,  619,  n.  3. 

CITIES  AND  VILLAGES.     See  MUNICIPAL  CORPORATIONS. 

CITIZENS, 

who  are,  14  and  n.  (c). 

of  the  several  States,  privileges  and  immunities  of,  14,  15,  36,  37,  556- 

575,  869. 

discriminations  in  taxation  of,  573,  574,  692,  693. 
jurisdiction  of  United  States  courts  in  respect  to,  23,  418. 

CIVIL  RIGHTS, 

protection  of,  by  amendments  to  constitution,  417,  418,  869. 

discriminations  not  to  be  made  in,  on  account  of  religious  beliefs,  659- 
668. 

See  CITIZENS  ;  CLASS  LEGISLATION. 
CLASS   LEGISLATION, 

private  legislation  which  grants  privileges,  554. 

party  petitioning  for,  estopped  from  disputing  validity,  554. 

public  laws  may  be  local  in  application,  554. 

special  rules  for  pai'ticular  occupations,  555. 

proscription  for  opinion's  sake  unconstitutional,  556. 

suspensions  of  laws  must  be  general,  558. 

each  individual  entitled  to  be  governed  by  general  rules,  559-561. 

discriminations  should  be  based  upon  reason,  561. 

equality  of  rights,  &c.,  the  aim  of  the  law,  562. 

strict  construction  of  special  burdens  and  privileges,  563,  564. 

discriminations  not  to  be  made  on  account  of  religious  beliefs,  659-668. 

See  CIVIL  RIGHTS. 
CLERICAL   ERRORS, 

in  statutes,  disregarding,  218,  n.  1. 

COINING  MONEY, 
power  over,  12. 

COLLUSION, 

conviction  by,  no  bar  to  new  prosecution,  467,  n.  1. 

COLONIES, 

union  of,  before  Revolution,  7. 

authority  of  the  Crown  and  Parliament  in,  7,  8. 

Revolutionary  Congress  and  its  powers,  8,  9. 

controversy  with  the  mother  country,  51,  53. 

legislatures  of,  53. 

of  what  laws  of,  consisted  at  time  of  declaration  of  independence,  53-55. 

substitution  of  constitutions  for  charters  of,  56. 

censorship  of  the  press  in,  600-603. 


954  INDEX. 

COLOR, 

not  to  be  a  disqualification  for  suffrage,  17,  IS,  901. 

COLORADO, 

special  statutes  authorizing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

title  of  acts  to  embrace  the  object,  202,  n.  3. 

municipalities  of,  restrained  from  aiding  in  public  improvements,  318,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n.  1. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  662,  n.  3. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

COLORED  PERSONS, 

protection  to  rights  of,  17,  18. 

rights  in  schools,  556,  n.  1. 
COMITY, 

enforcement  of  contracts  by,  178-181. 
COMMERCE, 

power  of  Congress  to  regulate,  12,  687,  688,  851-859. 

State  regulations  valid  when  they  do  not  interfere  with  those  of   Con- 
gress, 851-868. 

See  POLICE  POWER. 

State  taxation  of  subjects  of,  686-691,  851-859. 
See  TAXATION. 

in  intoxicating  drinks,  how  far  State  regulations  may  affect,  845-851. 
COMMITTEES   OF  THE  LEGISLATURE, 

collection  of  information  by,  193. 

contempts  of  witnesses,  how  punished,  193. 

employment  of  counsel  before,  196  and  n.  2. 

COMMON   CARRIERS, 

police  regulations  regarding,  838-844,  869-879. 

See  RAILWAY  COMPANIES. 
COMMON  LAW, 

Federal  courts  acquire  no  jurisdiction  from,  47,  613. 
existing  before  the  Constitution,  49. 
what  it  consists  in,  49. 
its  general  features,  50. 
modification  of,  by  statutes,  50,  51. 
colonists  in  America  claimed  benefits  of,  51,  52. 
how  far  in  force,  51,  n.  8,  52. 

of  different  States,  presumption  as  to  similarity  of,  52,  n. 
evidences  of,  53. 

decisions  under,  as  precedents,  83-88. 
gradual  modification  of,  88,  89. 

to  be  kept  in  view  in  construing  constitutions,  94,  95. 
statutes  in  derogation  of,  95,  n. 
not  to  control  constitutions,  95,  96. 
municipal  by-laws  must  harmonize  with,  278,  279. 
rules  of  liability  for  injurious  publications,  605-609. 
modification  of,  by  statute,  607. 


INDEX.  955 

COMMON   LAW  —  continued. 

modification   by  police  regulations  of  common-law  liability  of  carriers, 

838-844,  869-879. 
COMMON    RIGHT, 

statutes  against,  said  to  be  void,  233-237. 
COMPACTS    BETWEEN   STATES, 

must  have  consent  of  Congress,  36. 

are  inviolable  under  United  States  Constitution,  386. 
COMPENSATION, 

for  private  property  appropriated  by  the  public,  812-828. 
See  EMINENT  DOMAIN. 

for  injuries  by  rioters,  345,  n.  1. 

•what  the  taxpayer  receives  as  an  equivalent  for  taxes,  707,  708. 
COMPLAINTS, 

for  purposes  of  search-warrant,  429. 

of  crime,  how  made,  436. 
COMPULSORY  TAXATION, 

by  municipal  bodies,  331-342. 
CONCLUSIVENESS  OF  JUDGMENTS, 

full  faith  and  credit  to  be  given  in  each  State  to  those  of  other  States, 
37-40. 

parties  and  privies  estopped  by,  79-81,  587. 

but  not  in  controversy  with  new  subject-matter,  82. 

strangers  to  suit  not  bound  by,  82. 

irregularities  do  not  defeat,  587,  588. 

See  JURISDICTION. 
CONDITIONAL  LEGISLATION, 

power  of  the  States  to  adopt,  164-170. 

not  valid  when  framed  for  State  at  large,  168. 
CONDITIONS, 

what  may  be  imposed  on  right  of  suffrage,  899-909. 
See  ELECTIONS. 

precedent  to  exercise  of  right  of  eminent  domain,  759-763. 
CONFEDERACY   OF   1643. 

brought  about  by  tendency  of  colonies  to  union,  7. 
CONFEDERATE   DEBT, 

not  to  be  assumed  or  paid,  17. 


CONFEDERATION,   ARTICLES  OF, 

adoption  of,  9. 

authority  to  supersede,  9,  n. 
CONFESSIONS, 

dangerous  character  of,  as  evidenc 

must  appear  to  have  been  made  voluntarily,  444. 

excluded  if  solicitations  or  threats  have  been  used,  444. 

will  not  prove  the  corpus  delicti,  444. 
CONFIDENCE, 

communications  in,  when  privileged,  609-612. 

between  attorney  and  client,  is  client's  privilege,  477,  478. 
CONFIRMING   INVALID   PROCEEDINGS, 

of  a  judicial  nature,  150,  151. 

admissible  when  defects  are  mere  irregularities,  529  et  seq. 
See  RETROSPECTIVE  LAWS. 


956  INDEX. 

CONFISCATIONS, 

require  judicial  proceedings,  518. 

during  the  Revolutionary  War,  370. 
CONFLICT  OF  LAWS, 

in  divorce  cases,  577-582. 

See  UNCONSTITUTIONAL  LAWS. 
CONFRONTING  WITH  WITNESSES, 

in  criminal  cases,  450-452. 

CONGRESS  OF  1690, 

brought  together  by  tendency  of  colonies  to  union,  7. 
CONGRESS  OF   THE  REVOLUTION,  1775-1776, 

powers  assumed  and  exercised  by,  7,  9. 
CONGRESS  OF  THE   UNITED  STATES, 

general  powers  of,  11-18. 

enabling  acts  by,  for  formation  of  State  constitutions,  58,  59. 

cannot  divest  vested  rights,  518. 

exercise  of  power  of  eminent  domain  by,  755,  756. 

regulations  of  commerce  by,  are  supreme,  687,  688,  851-859,  863. 

See  POLICE  POWER. 
CONNECTICUT, 

charter  government  of,  55. 

municipalities  of,  restrained  from  aiding  public  improvements,  318,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n.  1. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  662,  n.  3. 

CONSCIENCE,  FREEDOM  OF  (see  RELIGIOUS  LIBERTY),  659-677. 
CONSENT, 

conviction  by  collusion  no  bar  to  new  prosecution,  467,  n.  1. 

cannot  confer  jurisdiction  of  subject-matter  upon  courts,  575,  576. 

cannot  authorize  jury  trial  by  less  than  twelve  jurors,  458. 

is  a  waiver  of  irregularities  in  legal  proceedings,  587,  588. 

waiver  of  constitutional  privileges  by,  250,  251,  458,  n.  1,  554. 
CONSEQUENTIAL  INJURIES, 

caused  by  exercise  of  legal  right  give  no  ground  of  complaint,  548,  549. 

do  not  constitute  a  taking  of  property,  781-788. 
otherwise  under  some  constitutions,  810-812. 

are  covered  by  assessment  of  damages  when  property  taken  by  the  State, 
825,  826. 

but  not  such  as  result  from  negligence  or  improper  construction,  825,  826. 
CONSTITUTION, 

definition  of,  4,  5,  68,  n.  1,  69. 

object  of,  in  the  American  system,  68,  69. 

does  not  measure  rights  of  governed,  68. 
CONSTITUTION  OF  ENGLAND, 

theory  of,  6. 

power  of  Parliament  under,  6. 

developed  by  precedents,  84,  n.  1. 
CONSTITUTION  OF  THE  UNITED  STATES, 

origin  of,  7-9. 

ratification  of,  9. 


INDEX.  957 

CONSTITUTION  OF  THE  UNITED   STATES  —  continued. 
government  of  enumerated  powers,  formed  by,  11,  242. 
all  power  of  federal  government  must  be  found  in,  11. 
general  purpose  and  powers  of  the  government  under,  11-23. 
judicial  powers  under,  22,  23,  47. 

See  COURTS  OF  THE  UNITED  STATES. 

prohibition  by,  of  powers  to  the  States,  35,  36,  416-417,  899,  901. 
guaranty  of  republican  government  to  the  States,  42-45. 
implied  prohibitions  on  the  States,  45. 

and  on  municipal  corporations,  277,  278. 
reservation  of  powers  to  States  and  people,  46. 
difference  between,  and  State  constitutions,  11,  241,  242. 
construction  of,  9,  10,  n.,  46,  47. 
amendment  of  State  constitutions,  how  limited  by,  62. 
new  amendments  to,  14. 

protection  of  person  and  property  by,  as  against  State  action,  365-418. 
bill  of  rights  not  at  first  inserted  in,  and  why,  365. 
adoption  of,  afterwards,  366-368. 
of  attainder  prohibited  by,  368-372. 

See  BILLS  OF  ATTAINDER. 
ex  post  facto  laws  also  forbidden,  372-383. 

See  Ex  POST  FACTO  LAWS. 

laws  impairing  obligation  of  contracts  forbidden,  383-418. 
what  is  a  contract,  384-393. 
what  charters  of  incorporation  are,  391-394. 
whether  release  of  taxation  is  contract,  395,  396. 
whether  States  can  relinquish  right  of  eminent  domain,  397-399, 755. 

or  the  police  power,  399-402,  849,  n.  2. 
general  laws  of  the  States  not  contracts,  402. 
what  the  obligation  of  the  contract  consists  in,  403-406. 
power  of  the  States  to  control  remedies,  406-416. 
to  pass  insolvent  laws,  416,  417. 

See  OBLIGATION  OF  CONTRACTS. 
regulations  by  the  State,  when  in  conflict  with,  832-851,  869. 

See  POLICE  POWER. 
regulation  of  the  subjects  of  commerce  by  the  States,  687,  688,  851-868. 

CONSTITUTIONS  OF  THE  STATES, 

compared  with  that  of  the  United  States,  11,  241,  242. 
formation  and  amendment  of,  49-69. 
conditions  on,  imposed  by  Congress,  59. 
construction  of,  70-123. 
not  the  source  of  individual  rights,  68. 
See  STATE  CONSTITUTIONS  ;  CONSTRUCTION  OF  STATE  CONSTITUTIONS. 

CONSTITUTIONAL   CONVENTIONS, 

of  1787,  circumstances  giving  occasion  for,  9. 

Madison's  views  on  inter-state  relations  under,  9,  n.  3. 
for  formation  and  amendment  of  State  constitutions,  58-63. 
proceedings  of,  as  bearing  on  construction  of  constitution,  101,  102. 
of  1787  sat  with  closed  doors,  601. 

CONSTITUTIONAL  GOVERNMENTS, 

meaning  of  the  term,  4. 


958  INDEX. 

CONSTITUTIONAL  PRIVILEGES, 

may  be  waived  generally,  250-252. 

See  WAIVER. 
CONSTRUCTION, 

meaning  of  and  necessity  for,  70. 

of  United  States  Constitution  and  laws  by  United  States  courts,  22-31,  46. 
of  State  constitution  and  laws  by  State  courts,  31-35,  418. 
of  special  privileges,  563. 

CONSTRUCTION  OF   STATE  CONSTITUTIONS, 
meaning  of  the  term  "construction,"  70. 
necessity  for,  70. 

questions  of,  arise  whenever  powers  to  be  exercised,  71. 
who  first  to  decide  upon,  72-75. 

in  certain  States  judges  may  be  called  upon  for  opinions  in  advance,  72,  n. 
in  what  cases  construction  by  legislature  or  executive  to  be  final,  73-75. 

in  what  cases  not,  75-77. 

when  questions  of,  are  addressed  to  two  or  more  departments,  75,  76. 
final  decision  upon,  rests  generally  with  judiciary,  76-78,  87,  88. 

reasons  for  this,  77,  n. 

this  does  not  imply  pre-eminence  of  authority  in  the  judiciary,  78,  n.  1. 
the  doctrine  of  res  adjudicata,  79-88. 

decisions  once  made  binding  upon  parties  and  privies,  79-81. 

force  of  judgment  does  not  depend  on  reasons  given,  81. 

strangers  to  suit  not  bound  by,  82. 

nor  the  parties  in  a  controversy  about  a  new  subject-matter,  82. 
the  doctrine  of  stare  decisis,  79-88. 

only  applicable  within  jurisdiction  of  court  making  the  decision,  85. 

importance  of  precedents,  84,  n.  1. 

•when  precedents  to  be  disregarded,  86. 

when  other  departments  to  follow  decisions  of  the  courts,  and  when 

not,  87,  88. 

uniformity  of  construction,  importance  of,  88. 
not  to  be  affected  by  changes  in  public  sentiment,  88,  89. 
words  of  the  instrument  to  control,  89-91,  100,  123,  n.  1,  186. 
intent  of  people  in  adopting  it  to  govern,  89-91. 
intent  to  be  found  in  words  employed,  89  and  n.  3,  91. 
whole  instrument  to  be  examined,  91-93  and  n.  1. 
words  not  to  be  supposed  employed  without  occasion,  91. 
effect  to  be  given  to  whole  instrument,  91,  92. 
irreconcilable  provisions,  92,  n.  3. 
general  intent  as  opposed  to  particular  intent,  92,  n.  3. 
words  to  be  understood  in  their  ordinary  sense,  92,  123,  n.  1. 
words  of  art  to  be  understood  in  technical  sense,  93,  94. 
importance  of  the  history  of  the  law  to,  94. 
common  law  to  be  kept  in  view,  94-97. 

but  not  to  control  constitution,  95. 

whether  provisions  in  derogation  of,  should  be  strictly  construed, 
95,  n.  3. 

arbitrary  rules  of,  dangerous,  95,  123. 

and  especially  inapplicable  to  constitutions,  92. 
same  word  presumed  employed  in  same  sense  throughout,  95. 

this  not  a  conclusive  rule,  96. 
operation  to  be  prospective,  97. 


INDEX.  959 

CONSTRUCTION   OF  STATE  CONSTITUTIONS  —  continued. 
implied  powers  to  carry  into  effect  express  powers,  98,  99. 
power  granted  in  general  terras  is  coextensive  with  the  terms,  98. 
when  constitution  prescribes  conditions  to  a  right,  legislature  cannot  add 

others,  99. 

mischief  to  be  remedied,  consideration  of,  100. 
prior  state  of  the  law  to  be  examined,  100,  101. 
proceedings  of  constitutional  convention  may  be  consulted,  101. 

reasons  why  unsatisfactory,  101,  102. 
weight  of  contemporary  and  practical  construction,  102. 
the  argument  ab  inconvenienti,  102-107. 
deference  to  construction  by  executive  officers,  103,  104. 
plain  intent  not  to  be  defeated  by,  105-107. 
injustice  of  provisions  will  not  render  them  void,  108,  109. 

nor  authorize  courts  to  construe  them  away,  108. 
doubtful  cases  of,  duty  of  officers  acting  in,  109. 
directory  and  mandatory  statutes,  doctrine  of,  109-119. 
not  applicable  to  constitutions,  114-119. 
has  been  sometimes  applied,  115-119. 
authorities  generally  the  other  way,  118,  119. 
self-executing  provisions,  119-123. 
CONSTRUCTION   OF   STATUTES, 
by  judiciary,  conclusiveness  of,  136. 
to  be  such  as  to  give  them  effect,  if  possible,  255. 
conflict  with  constitution  not  to  be  presumed,  255,  256. 
directory  and  mandatory,  109-119. 

contemporary  and  practical,  weight  to  be  given  to,  102-106. 
to  be  prospective,  255,  529. 
granting  special  privileges,  270-273,  565. 
CONSTRUCTIVE   NOTICE,  582. 
CONTEMPORANEOUS  CONSTRUCTION, 

force  and  effect  of,  102-106. 
CONTEMPTS, 

of  the  legislature,  punishment  of,  191,  192. 

of  legislative  committees,  193. 
no  jury  trial  in  cases  of,  453,  n.  2. 
CONTESTED  ELECTIONS, 

right  of  the  courts  to  determine  upon,  937.     ) 

See  ELECTIONS. 
CONTESTED  FACTS, 

cannot  be  settled  by  statute,  139,  147-150. 
CONTESTED   SEATS, 

legislative  bodies  to  decide  upon,  190. 
CONTINENTAL  CONGRESS, 

powers  assumed  and  exercised  by,  7,  8. 
CONTINGENT    LEGISLATION, 

authority  of  the  States  to  adopt,  163-174. 
CONTINUANCES, 

of  suits,  not  fco  be  ordered  by  legislature,  138,  n.  2. 
CONTRACTS, 

for  lobby  services,  illegal,  196. 

to  influence  elections,  are  void,  924. 


960  INDEX. 

CONTRACTS  —  continued. 

caunot  be  made  for  individuals  by  legislative  act,  527  and  n.  1. 

charters  of  municipal  corporations  do  not  constitute,  268,  269. 
of  private  corporations  are,  391-394. 

of  municipal  corporation  ultra  vires  void,  270-273. 

invalid,  may  be  validated  by  legislature,  530-546. 

obligation  of,  not.  to  be  violated,  175,  176,  383-417. 
See  OBLIGATION  OF  CONTRACTS. 
COPYRIGHT, 

Congress  may  secure  to  authors,  12. 
CORPORATE   CHARTERS.     See  CHARTERS. 
CORPORATE   FRANCHISES, 

may  be  appropriated  under  right  of  eminent  domain,  756-759. 
CORPORATE  POWERS, 

adjudging  forfeiture  of,  149,  n.  1. 
CORPORATE   PROPERTY, 

legislative  control  of,  342-347. 
CORPORATIONS, 

protected  by  fourteenth  amendment,  19,  n. 

organization  of,  not  a  judicial  function,  143,  n.  1. 

foreign,  powers  of,  178-181,  and  n.  (a)  179. 

educational,  261,  n.  1. 

private,  may  be  authorized  to  take  lands  for  public  use,  776. 

irregular  organization  of,  may  be  validated,  535,  n.  1. 

See  CHARTERS;  MUNICIPAL  CORPORATIONS. 
CORPUS  DELICTI, 

not  to  be  proved  by  confessions,  444. 
CORRESPONDENCE, 

private,  inviolability  of,  432  and  n.  2. 
CORRUPTION, 

provisions  against  influencing  legislation  by,  196.     ' 
COUNSEL, 

constitutional  right  to,  377,  474-482. 

oath  of,  474. 

duty  of,  475-482. 

denial  of,  in  England,  475-477. 

court  to  assign,  for  poor  persons,  477. 

whether  those  assigned  may  refuse  to  act,  477. 

privilege  of,  is  the  privilege  of  the  client,  477,  478. 

independence  of,  479-481. 

not  at  liberty  to  withdraw  from  cause,  except  by  consent,  478. 

how  far  he  may  go  in  pressing  for  acquittal,  479. 

duty  of,  as  between  the  court  and  the  prisoner,  480. 

whether  to  address  the  jury  on  the  law,  480,  481. 

summary  punishment  of,  for  misconduct,  481,  482,  509,  n.  3,  583,  n.  1. 

limitation  of  client's  control  over,  482. 

See  ATTORNEYS. 

may  be  employed  before  legislative  committees,  196. 
but  not  as  lobbyists,  196  and  n.  2. 

not  liable  to  action  for  what  he  may  say  in  judicial  proceedings,  631-633. 
unless  irrelevant  to  the  case,  633. 

not  privileged  in  afterwai-ds  publishing  his  argument,  if  it  contains  in- 
jurious reflections,  636. 


INDEX.  961 

COUNSEL  —  continued. 

newspaper  publisher  not  justified  in  publishing  speech  of  a  criminal  re- 
flecting on,  644. 
COUNTERFEITING, 

Congress  may  provide  for  punishment  of,  12. 
States  also  may  punish,  46. 
COUNTIES    AND   TOWNS, 

difference  from  chartered  incorporations,  347-349. 
are  quasi  corporations,  347-349. 

See  MUNICIPAL  CORPORATIONS. 
COUNTY  SEAT, 
change  of,  548. 
COURTS, 

duty  of,  to  refuse  to  execute  unconstitutional  laws,  107,  n.,  118,  119,  227, 

et  seq. 

contested  elections  to  be  determined  by,  937. 
not  to  be  directed  by  legislature  in  decisions,  134-139. 
action  of,  not  to  be  set  aside  by  legislature,  137,  138. 
may  not  control  the  executive,  162. 
must  act  by  majorities,  139  and  n.  1. 
not  to  be  open  on  election  days,  923. 

power  to  declare  laws  unconstitutional  a  delicate  one,  227-229. 
will  not  be  exercised  by  bare  quorum,  230. 
nor  unless  necessary,  231. 
nor  on  complaint  of  one  not  interested,  232. 
nor  of  one  who  has  assented,  232. 

will  not  declare  laws  void  because  solely  of  unjust  provisions,  232-237. 
nor  because  in  violation  of  "fundamental  principles,  237-239. 
nor  because  conflicting  with  the  spirit  of  the  constitution,  239-241. 
nor  unless  a  clear  repugnancy  between  the  laws  and  the  constitution, 

241. 

special,  for  trial  of  rights  of  particular  individuals,  560. 
of  star  chamber,  488. 
of  high  commission,  488. 
martial,  454,  n.  1. 

of  the  United  States,  to  be  created  by  Congress,  13. 
general  powers  of,  22,  23. 
removal  of  causes  to,  from  State  courts,  25-31. 
to  follow  State  courts  as  to  State  law,  31,  33. 
to  decide  finally  upon  United  States  laws,  &c.,  25,  26. 
cannot  enforce  penal  laws  of  the  States,  43,  n. 
require  statutes  to  apportion  jurisdiction,  47. 
have  no  common-law  jurisdiction,  47. 
in  what  cases  may  issue  writs  of  habeas  corpus,  491-493. 
Congress  may  make  their  constitutional  jurisdiction  exclusive,  45. 

See  JURISDICTION. 
CREDIT, 

bills  of,  35. 
CREDITOR, 

control  of  debtor  by,  487. 
CRIMES, 

act  beyond  boundary,  effect  within.  177  and  n.  3. 
committed  abroad,  punishment  of,  176,  177. 

61 


962  INDEX. 

CRIMES  —  continued. 

legislative  convictions  of,  prohibited,  36,  62,  368-371. 

ex  post  facto  laws  prohibited,  36,  62,  372-383. 

punishment  of,  by  servitude,  423. 

search-warrants  for  evidence  of.     See  SEARCHES  AND  SEIZURES. 

accusations  of,  how  made,  436. 

presumption  of  innocence,  437-439. 

right  of  accused  party  to  bail,  437-439. 

prisoner  refusing  to  plead,  439,  n.  2. 

trial  to  be  speedy,  440,  441. 

and  public,  441. 

what  is,  441  and  n.  2. 

and  not  inquisitorial,  442  and  n.  1,  also  424,  n.  (a), 
prisoner's  right  "to  make  statement,  443-449. 
confessions  as  evidence,  443-449. 

prisoner  to  be  confronted  with  the  witnesses,  450. 
exceptional  cases,  451,  452. 

to  be  by  jury,  453,  454. 

necessity  for  presence  of  the  accused  at  his  trial,  452. 
jury  must  consist  of  twelve,  454-459  and  notes. 

State  constitution  may  provide  a  jury  of  less  than  twelve,  454,  n.  (a), 

458,  n.  (a). 

right  to  jury  cannot  be  waived,  458. 
prisoner's  right  to  challenges,  459. 
jury  must  be  from  vicinage,  459. 

must  unanimously  concur  in  verdict,  460. 

must  be  left  free  to  act,  460. 

judge  not  to  express  opinion  upon  the  facts,  460. 
nor  to  refuse  to  receive  the  verdict,  461. 
but  is  to  give  instruction  in  the  law,  461. 
how  far  jury  may  judge  of  the  law,  461-465. 
acquittal  by  jury  is  final,  462. 
accused  not  to  be  twice  put  in  jeopardy,  466. 

what  is  legal  jeopardy,  467,  468. 

when  nolle  prosequi  equivalent  to  acquittal,  468. 

when  jury  may  be  discharged  without  verdict,  468-470. 

second  trial  after  verdict  set  aside,  470. 
cruel  and  unusual  punishments  prohibited,  471-474. 

what  are,  472,  473. 
counsel  to  be  allowed,  377.  474-482. 

oath  of,  474. 

duty  of,  475-482. 

denial  of,  in  England,  475-477. 

court  to  designate,  for  poor  persons,  477. 
whether  one  may  refuse  to  act,  477. 

privilege  of,  is  the  privilege  of  the  client,  477,  478. 

not  at  liberty  to  withdraw  from  case,  except  by  consent,  478, 

how  far  he  may  go  in  pressing  for  acquittal,  479. 

duty  of,  as  between  the  court  and  the  prisoner,  480. 

whether  to  address  the  jury  on  the  law,  480,  481. 

summary  punishment  of,  for  misconduct,  481,  482,  509  and  n.  3,  and 
n.  1,  583. 

not  to  be  made  the  instrument  of  injustice,  482. 


INDEX.  963 

CRIMES  —  continued. 

intoxication  no  excuse  for,  673,  n.  4. 

habeas  corpus  for  imprisoned  parties,  483-497. 

accusations  of,  are  libellous  per  se,  605,  607. 

See  HABEAS  CORPUS. 
but  privileged  if  made  in  course  of  judicial  proceedings,  629-631.     ; 

violations  of  police  regulations  of  States,  890. 
CRITICISM, 

of  works  of  art  and  literary  productions  is  privileged,  644,  645. 
but  not  of  the  personal  character  of  the  author,  645. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
CROWN   OF  GREAT   BRITAIN,  '. 

succession  to,  may  be  changed  by  Parliament,  125. 

union  of  the  colonies  under,  7. 
CRUEL  AND  UNUSUAL  PUNISHMENTS, 

constitutional  prohibition  of,  471. 

what  are,  471-474. 
CUMULATIVE  PUNISHMENTS, 

for  counterfeiting  money,  46. 

under  State  and  municipal  laws,  279. 
CUMULATIVE   VOTING,  922,  n.  1. 
CURATIVE   LAWS,  529-546. 
CURTESY,   ESTATE  BY  THE, 

power  of  legislature  to  modify  or  abolish,  513. 
CUSTODY, 

of  wards,  apprentices,  servants,  and  scholars,  485,  486. 

of  wife  by  husband,  484,  485. 

of  children  by  parents,  485. 

of  principal  by  his  bail,  486,  487. 
CUSTOMS.    See  COMMON  LAW;  DUTIES  AND  IMPOSTS. 


D. 

DAM, 

to  obtain  water  power,  condemnation  of  land  for,  771-775. 

effect  of  repeal  of  act  permitting,  548  and  n.  3. 

erection  of,  across  navigable  waters  by  State  authority,  867. 

destruction  of,  when  it  becomes  a  nuisance,  880. 
DAMAGES, 

in  libel  cases,  increased  by  attempt  at  justification,  623,  624. 
when  exemplary,  not  to  be  awarded,  647-650. 

for  property  taken  by  the  public,  must  be  paid,  812-828. 

See  EMINENT  DOMAIN. 
DAMAGING, 

property  in  course  of  public  improvements,  810-812. 
DAMNUM  ABSQUE  INJURIA, 

what  consequential  injuries  are,  548,  549,  781-787,  810-812. 
DEATH, 

action  for,  in  State  other  than  that  in  which  caused,  181. 

common  carriers  may  be  made  liable  for  causing,  843,  844. 


964  INDEX. 

DEBATES, 

in  Parliament  formerly  not  suffered  to  be  published,  600. 

in  American  legislative  bodies,  publication  of,  600,  601,  650-652. 

privileges  of  members  in,  634-636. 

See  LIBERTY  OF  SPEECH  AND  OP  THE  PRESS. 
DEBT, 

general  government  may  incur,  12. 

public,  declared  inviolable,  17. 

Confederate,  not  to  be  assumed  or  paid,  17. 

imprisonment  for,  may  be  abolished  as  to  pre-existing  obligations,  407. 

imprisonment  for,  now  generally  abolished,  487. 
DEBTOR, 

control  of  creditor  over,  487. 
DEBTS   BY   THE   STATE, 

prohibition  of,  whether  it  precludes  indebtedness  by  municipalities,  321- 

325. 
DECENTRALIZATION, 

the  peculiar  feature  in  American  government,  261. 
DECISIONS, 

judicial,  binding  force  of,  79-88.  , 

See  JUDICIAL  PROCEEDINGS. 
DECLARATION  OF  INDEPENDENCE, 

effect  of,  8. 
DECLARATION  OF  RIGHTS, 

was  a  declaratory  statute,  51,  65,  365,  366. 

See' BILL  OF  RIGHTS. 
DECLARATORY  STATUTES, 

in  English  constitutional  law,  49-53. 

are  not  encroachments  upon  judicial  power,  134-137. 

judgments  not  to  be  reversed  by  means  of,  137-139. 

purposes  and  proper  force  of,  134-137. 
DEDICATION, 

of  lands  to  public  use,  820. 
DEEDS, 

invalid,  may  be  confirmed  by  legislature,  537-540. 

but  not  to  prejudice  of  bonafide  purchasers,  540. 
DEFENCES, 

not  based  upon  equity,  may  be  taken  away  by  legislature,  537,  540,  553. 

under  statute  of  limitations  are  vested  rights,  521. 
DEFINITIONS, 

of  a  State,  3. 

of  a  nation,  3. 

of  a  people,  sovereignty,  and  sovereign  State,  3. 

of  a  constitution,  4. 

of  an  unconstitutional  law,  5. 

of  construction  and  interpretation,  70,  71. 

of  self-executing  provisions,  121. 

of  legislative  power,  131,  132. 

of  judicial  power,  132-134. 

of  declaratory  statutes,  134,  135. 

of  due  process  of  law,  502. 

of  law  of  the  land,  502,  503. 

of  personal  liberty,  483. 


INDEX.  965 

DEFINITIONS  —  continued 

of  civil  liberty,  561,  n.  1. 

of  natural  liberty,  561,  n.  1. 

of  liberty  of  the  press,  602-605. 

of  liberty  of  speech,  602-605. 

of  religious  liberty,  659-668. 

of  taxation,  678. 

of  the  eminent  domain,  752-754. 

of  police  power,  829. 

of  domicile,  903,  904. 

of  incompatibility  in  offices,  894,  n. 

of  officer  de  jure,  897. 

of  officer  de  facto,  897. 

of  ballot,  910. 
DELAWARE, 

local  option  laws,  validity  of,  173. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n,  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

exclusion  of  religious  teachers  from  office,  662,  u.  2. 

religious  tests  forbidden,  662,  n.  3. 
DELEGATION   OF   POWER, 

of  judicial  power,  not  admissible,  139,  n.  1,  589. 

by  the  legislature  not  admissible,  163-174. 

except  as  to  powers  of  local  government,  166-168,  264. 

such  delegated  power  may  be  recalled,  168,  n.  1. 

by  municipal  corporations  invalid,  293,  294. 

by  officers  in  inflicting  punishment,  473,  n.  1. 
DEPARTMENTS   OF   THE   GOVERNMENT, 

division  of  powers  between,  64-69,  126-134. 

equality  of,  78,  n.  1,  79,  n. 
DESCENT,    LAW   OF,  511,  513. 
DESECRATION   OF   THE   SABBATH, 

constitutional  right  to  punish,  674,  675,  859,  885,  n.  1. 
DESTRUCTION   OF   PROPERTY, 

to  prevent  calamities,  309,  n.  2,  757,  n.  1,  878-883. 
DIRECTORY    STATUTES, 

what  are,  and  what  are  mandatory,  109-119. 

doctrine  of,  not  admissible  as  to  constitutional  provisions,  114-119. 
DISABILITIES, 

personal,  do  not  follow  into  another  jurisdiction,  43,  n. 
DISCRETIONARY   POWERS, 

what  are,  71-73. 

department  to  which  they  are  confided  decides  finally  upon,  73,  157-162. 
DISCRIMINATIONS, 

cannot  be  made  in  taxation  between  citizens  of  different  States,  573,  574, 
694. 

in  legislation  between  different  classes,  554-575. 

in  the  privileges  and  immunities  of  citizens,  14,  15,  36,  37,  556-575,  869. 

not  to  be  made  on  account  of  religious  belief,  666-677. 


966  INDEX. 

DISCUSSION, 

right  of,  497,  498. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
DISFRANCHISEMENT, 

of  voters,  may  render  a  statute  void,  926. 
what  classes  excluded  from  suffrage,  57,  58,  108,  900,  902. 
DISTRICTS, 

for  schools,  powers  of,  261,  263,  348,  349. 

exercise  by,  of  power  of  eminent  domain,  775,  776. 
for  taxation,  necessity  for,  711,  718,  719,  722. 
not  to  tax  property  outside,  720,  726. 
taxation  to  be  uniform  within,  718-732. 
DIVISION  OF   POWERS, 

between  sovereign  States,  3,  4. 
between  the  States  and  the  Union,  4. 
among  departments  of  State  government,  126-134. 
DIVISION   OF   TOWNSHIPS,  &c., 

question  of,  may  be  submitted  to  people,  167. 
disposition  of  property  and  debts  on,  268,  n.  2,  344. 
DIVORCE, 

decrees  for,  within  "full  faith  and  credit "  clause,  44,  n. 

question  of,  is  properly  judicial,  138,  n.,  153. 

power  of  the  legislature  over,  152-157. 

general  doctrine  of  the  courts  on  the  subject,  154-157. 

conflicting  decisions,  154-157. 

legislative  divorce  cannot  go  beyond  dissolution  of  the  status,  157. 

constitutional  provisions  requiring  judicial  action,  153,  n.  2. 

laws  for,  do  not  violate  contracts,  403. 

and  may  be  applied  to  pre-existing  causes,  376,  n.  1. 
what  gives  jurisdiction  in  cases  of,  577,  578. 

actual  residence  of  one  party  in  the  State  sufficient,  578. 
conflict  of  decisions  on  this  subject,  578,  and  n.  1. 
not  sufficient  if  residence  merely  colorable,  578,  n.  1. 
necessity  for  service  of  process,  579-585. 
cannot  be  served  out  of  State,  582,  584. 
substituted  service  by  publication,  582. 
restricted  effect  of  such  notice,  583. 
order  as  to  custody  of  children,  584. 

alimony  not  to  be  awarded  if  defendant  not  served,  584,  585. 
DOGS, 

police  regulation  of,  881. 
DOMAIN, 

ordinary,  of  the  State,  distinguished  from  eminent  domain,  753. 
DOMICILE, 

gives  jurisdiction  in  divorce  cases,  578 

but  must  be  bonaf.de,  578,  n.  1. 

of  wife  may  be  different  from  that  of  husband,  578,  n.  1. 
of  one  party,  may  give  jurisdiction  in  divorce  cases,  578. 
of  voters,  meaning  of,  903,  904. 
DOUBLE   PUNISHMENT, 

,-        for  same  act  under  State  and  municipal  law,  279,  and  n.  4. 
for  counterfeiting  money,  46. 


INDEX.  967 


DOUBLE   TAXATION, 

sometimes  unavoidable,  738. 
DOUBTFUL   QUESTIONS, 

of  constitutional  law,  duty  in  case  of,  109,  252-257. 
DOWER, 

legislative  control  of  estates  in,  513-515 
DRAINS, 

appropriating  property  for  purposes  of,  767,  769,  770. 

special  assessments  for,  713,  714,  734,  735. 

ordered  under  police  power,  868. 
DRUNKENNESS, 

does  not  excuse  crime,  673,  n.  4. 

is  a  temporary  insanity,  902,  n. 
DUE   PROCESS   OF   LAW, 

required  for  the  taking  of  life,  liberty  or  property,  15. 

meaning  of  the  term,  502  et  seq. 

See  LAW  OF  THE  LAND. 
DUPLICATE   PUNISHMENTS, 

by  States  and  United  States,  45,  46. 

by  States  and  municipal  corporations,  279,  and  n.  4. 
DUTIES   AND  IMPOSTS, 

Congress  may  levy  and  collect,  679. 

to  be  uniform  throughout  the  United  States,  12,  679,  680. 

what  the  States  may  lay,  36. 
DWELLING-H  OUSE, 

is  the  owner's  castle,  50,  425,  426. 

homicide  in  defence  of,  434. 

quartering  soldiers  in,  prohibited,  435. 

DYING  DECLARATIONS, 

admissible  in  evidence  on  trials  for  homicide,  452. 
inconclusive  character  of  the  evidence,  452. 


E. 

EASEMENTS, 

acquirement  by  the  public  under  right  of  eminent  domain,  753. 

for  private  use,  cannot  be  acquired  under  this  right,  763-766. 

See  EMINENT  DOMAIN. 
ECCLESIASTICAL   CORPORATIONS, 

powers  and  control  of,  659-662. 
ELECTIONS, 

provisions  in  Federal  Constitution  respecting,  16. 

on  adoption  of  State  constitutions,  57,  58. 

people  exercise  the  sovereignty  by  means  of,  892-895. 

who  to  participate  in,  899-905. 

constitutional  qualifications  cannot  be  added  to  by  legislature,  99,  n. 

exclusion  of  married  women,  aliens,  minors,  idiots,  &c.,  901,  902. 

conditions  necessary  to  participation,  902,  903,  905-909. 

residence  of  voter  at  place  of  domicile,  903,  904. 


968  INDEX. 

ELECTIONS  —  continued. 

what  constitutes  residence,  904,  905. 

registration  may  be  made  a  condition,  905,  907. 

preliminary  action  by  the  authorities,  notice,  &c.,  908,  909. 

mode  of  exercising  the  right,  910. 

the  elector's  privilege  of  secrecy,  910-913. 

a  printed  ballot  is  "  written,"  910,  n.  3. 

ballot  must  be  complete  in  itself,  914. 

technical  accuracy  not  essential,  915-920. 

explanations  by  voter  inadmissible,  914. 

must  not  contain  too  many  names,  915. 

name  should  be  given  in  full,  916. 

sufficient  if  idem  sonans,  916. 

what  abbreviations  sufficient,  916-919. 

erroneous  additions  not  to  affect,  917,  918  and  notes, 
extrinsic  evidence  to  explain  imperfections,  919-920. 
ballot  must  contain  name  of  office,  920. 

but  need  not  be  strictly  accurate,  920. 
different  boxes  for  different  ballots,  921. 
elector  need  not  vote  for  every  office,  921,  922. 
plurality  of  votes  cast  to  elect,  921,  922,  931. 
effect  if  highest  candidate  is  ineligible,  931. 
freedom  of  elections,  922-925. 

bribery  or  treating  of  voters,  922,  923. 

militia  not  to  be  called  out  on  election  day,  924,  925. 

courts  not  to  be  open  on  election  day,  923. 
bets  upon  election  are  illegal,  924. 
contracts  to  influence  election  are  void,  924. 
elector  not  to  be  deprived  of  his  vote,  926-928. 

statutes  which  would  disfranchise  voters,  926. 

failure  to  hold  election  in  one  precinct,  926. 

liability  of  inspectors  for  refusing  to  receive  vote,  927,  928. 

elector's  oath,  when  conclusive  on  inspector,  927,  928. 
conduct  of  the  election,  928. 
effect  of  irregularities  upon,  928-930. 
what  constitutes  a  sufficient  election,  931-934. 

not  necessary  that  a  majority  participate,  931. 

minority  representation,  931,  n.  2. 

admission  of  illegal  votes  not  to  defeat,  932. 
unless  done  fraudulently,  933. 

effect  of  casual  affray,  933. 
canvass  and  return,  934-937. 

canvassers  are  ministerial  officers,  934,  935. 

canvassers  not  to  question  returns  made  to  them,  935,  936. 

whether  they  can  be  compelled  by  mandamus  to  perform  duty,  936. 
contesting  elections  in  the  courts,  937-944. 

canvasser's  certificate  as  evidence,  937,  938,  940. 

courts  may  go  behind  certificate,  940-944. 

what  surrounding  circumstances  maybe  given  in  evidence,  941,  944. 

whether  qualification  of  voters  may  be  inquired  into,  943. 
to  legislative  body,  house  to  decide  upon,  189-190. 
ELECTIVE   FRANCHISE, 

protected  by  fourteenth  amendment,  16,  17. 


INDEX.  969 

EMANCIPATION, 

of  slaves  in  Great  Britain  and  America,  14,  419,  424. 

of  children  by  parents,  485. 
EMERGENCY, 

declaration  of,  223. 
EMINENT   DOMAIN, 

distinguished  from  ordinary  domain  of  States,  752,  753. 

definition  of  753,  754. 

right  of,  rests  upon  necessity,  753. 

cannot  be  bargained  away,  398,  754,  755. 

general  right  is  in  the  States,  755. 

for  what  purposes  nation  may  exercise  right,  755,  756. 

all  property  subject  to  right,  756-759. 

exception  of  money  and  rights  in  action,  759. 
legislative  authority  requisite  to,  759-763. 
legislature  may  determine  upon  the  necessity,  760. 
conditions  precedent  must  be  complied  with,  760,  761. 
statutes  for  exercise  of,  not  to  be  extended  by  intendment,  761-763. 
the  purpose  must  be  public,  763,  764. 

legislative  judgment  not  conclusive  as  to  what  is  public  use,  774-775. 
private  roads  cannot  be  laid  out  under,  764-766. 
what  constitutes  public  purpose,  766-775. 

whether  erection  of  mills  and  factories  is,  771-773. 
property  need  not  be  taken  to  the  State,  775. 

individuals  or  corporations  may  be  public  agents  for  the  purpose,  776. 
the  taking  to  be  limited  to  the  necessity,  777-781. 
statute  for  taking  more  than  is  needed  is  ineffectual,  unless  owner  assents, 

779,  780. 
what  constitutes  a  taking  of  property,  781-808. 

incidental  injuries  do  not,  781-787. 

any  deprivation  of  use  of  property  does,  787,  788. 

water  front  and  right  to  wharfage  is  property,  787,  788. 

right  to  pasturage  in  streets  is  property,  788. 
taking  of  common  highway  for  higher  grade  of  way,  788-806. 

if  taken  for  turnpike,  &c.,  owner  not  entitled  to  compensation,  789, 
790. 

difference  when  taken  for  a  railway,  790-803. 

for  an  elevated  street  railway,  799,  n.  2. 

owner  entitled  to  compensation  in  such  case,  790-803. 

whether  he  is  entitled  in  case  of  street  railway,  790-803. 

decisions  where  the  fee  of  the  streets  is  in  the  public,  796-803. 

distinction  between  a  street  railway  and  a  thoroughfare,  802,  803. 
right  to  compensation  when  course  of  a  stream  is  diverted,  807,  808. 
whether  the  fee  in  the  land  can  be  taken,  808,  809. 
damage  to  property  not  taken  to  be  compensated  for  in  some  States,  810- 

812. 
compensation  must  be  made  for  property,  812-828. 

must  be  pecuniary,  812,  813. 

preliminary  surveys  may  be  made  without,  813. 

need  not  be  first  made  when  property  taken  by  State,  &c.,  813-816. 

sufficient  if  party  is  given  a  remedy  by  means  of  which  he  may  obtain 
it,  813-816. 

time  for  resorting  to  remedy  may  be  limited,  815-816. 


970  INDEX. 

EMINENT  DOMAIN  —  continued. 

waiver  of  right  to  compensation,  815-816. 

when  property  taken  by  individual  or  private  corporation,  compensa- 
tion must  be  first  made,  816,  817. 
tribunal  for  assessment  of,  817. 
time  when  right  to  payment  is  complete,  818-819. 
principle  on  which  compensation  to  be  assessed,  819-828. 
allowance  of  incidental  injuries  and  benefits,  820-828. 
not  those  suffered  or  received  in  common  with  public  at  large,  823-828. 
.  if  benefits  equal  damages,  owner  entitled  to  nothing,  825. 
assessment  of  damages  covers  all  consequential  injuries,  825-826. 
for  injuries  arising  from  negligence,  &c.,  party  may  have  action,  826. 
EMPLOYMENTS, 

control  of  the  State  in  respect  to,  884-890. 
ENABLING   ACT, 

to  entitle  Territory  to  form  State  constitution,  56,  58,  59. 
ENGLAND.     See  GREAT  BRITAIN. 
ENROLLED  ACT, 

effect  of,  as  evidence  of  its  own  validity,  194,  195. 

ENUMERATED   POWERS, 

United  States,  a  government  of,  11. 
EQUALITY, 

of  protection  guaranteed  by  the  fourteenth  amendment,  15,  36-41. 

of  the  several  departments  of  the  government,  78,  n.  2,  227,  228. 

of  rights  and  privileges,  the  aim  of  the  law,  562,  563. 

distinctions  must  not  be  arbitrary,  561  and  n.  (a). 

grants  of  special  privileges  construed  strictly,  562-564. 

religious,  660. 

See  RELIGIOUS  LIBERTY. 
EQUITABLE   TITLES, 

may  be  changed  by  legislature  into  legal,  537-539. 
ERRONEOUS  JUDGMENTS, 

may  be  overruled,  86. 

when  they  should  not  be,  86,  87. 
ERRORS, 

waiver  of,  in  legal  proceedings,  587,  588. 

judgments,  &c.,  not  void  by  reason  of,  587. 

curing  by  retrospective  legislation,  529-546. 

in  conduct  of  elections,  effect  of,  928-930. 
ESSENTIAL  POWERS  OF   GOVERNMENT, 

taxation,  eminent  domain,  &c.,  cannot  be  bartered  away,  395-401. 
ESTABLISHMENTS, 

religious,  are  forbidden  by  State  constitutions,  663. 
ESTATES  OF  DECEASED   PERSONS, 

special  legislative  authority  to  sell  lands  for  payment  of  debts  is  consti- 
tutional, 140-147. 

such  acts  forbidden  by  some  constitutions,  141,  n.  1. 

legislature  cannot  adjudicate  upon  debts,  147-150. 
ESTATES  IN  LAND, 

subject  to  change  by  the  legislature  before  they  become  vested,  511-515. 
but  not  afterwards,  136,  n.  2. 


INDEX.  971 

ESTOPPEL, 

by  judgment  only  applies  to  parties  and  privies,  79-82. 
does  not  depend  on  reasons  given  by  the  court,  82. 
does  not  apply  in  controversy  about  new  subject-matter,  82. 

of  the  State  by  its  legislation,  107,  n.,  364. 

of  individuals  by  legislation,  139. 
EVASION, 

of  constitutional  provisions,  199,  n.  3. 
EVIDENCE. 

by  recitals  in  statutes,  139. 

collecting  by  legislature,  193. 

complete  control  of  legislature  over  rules  of,  409,  410. 

conclusive  rules  of,  not  generally  admissible,  526,  527. 

confessions  of  accused  parties  as,  443-449. 

dying  declarations,  when  are,  452. 

search-warrants  to  obtain,  not  constitutional,  431,  n.  2,  432. 

compulsory  inspection  of  person  or  property  to  obtain,  424  n.  (a)  and  425 
n.  (a). 

correspondence  not  to  be  violated  to  obtain,  432,  n.  2. 

accused  party  not  compelled  to  give,  against  himself,  442. 

by  accused  parties  in  their  own  favor,  447-449. 

against  accused  parties,  to  be  given  publicly,  and  in  their  presence,  450-452. 

communications  by  client  to  counsel  not  to  be  disclosed,  477,  478. 

in  State  courts,  State  laws  control,  684,  n.  2. 

to  explain  imperfections  in  ballots,  915-920,  942. 

EVIL   TO   BE   REMEDIED, 

weight  of,  in  construing  constitutions,  100,  123,  n.  1. 

what  in  view  in  requiring  title  of  act  to  state  the  object,  203-205. 
EXAMINATIONS, 

of  accused  parties,  when  to  be  evidence  against  them,  442-444. 
EXCESSIVE   PUNISHMENTS, 

constitutional  prohibition  of,  471-474. 
EXCESSIVE   TAXATION, 

renders  tax  proceeding  and  sales  void,  747,  748.     j 
EXCISE   TAXES, 

Congress  may  lay,  12. 

EXCLUSIVE  PRIVILEGES, 

grant  of,  395,  402. 

not  to  be  taken  by  implication,  565. 

strict  construction  of,  395,  402. 

are  subject  to  right  of  eminent  domain,  398. 

EXECUTION, 

exemptions  from,  may  be  increased  without  violating  pre-existing  con- 
tracts, 407-409. 
and  may  be  recalled,  546. 
imprisonment  upon,  may  be  abolished,  407. 

EXECUTIVE, 

construction  of  constitution  by,  72-75. 
weight  of  practical  construction  by,  102-106. 
power  of,  to  pardon  and  reprieve,  160,  161. 
approval  or  veto  of  laws  by,  218-221. 


972  INDEX. 

EXECUTIVE  POWER, 

what  is,  131. 

not  to  be  exercised  by  legislature,  126,  127,  157-162. 

may  legislature  prescribe  rules  for  exercise  of,  160-162. 

exercise  of,  not  to  be  controlled  by  the  judiciary,  162. 

of  the  United  States,  19-22. 
EXECUTORS   AND   ADMINISTRATORS, 

special  statute,  authorizing  sales  by,  140-147. 

propriety  of  judicial  action  in  these  cases,  140,  141. 

legislature  cannot  adjudicate  upon  debts,  147,  148. 
EXEMPLARY  DAMAGES, 

against  publisher  of  newspaper,  647-650. 
EXEMPTIONS, 

provisions  for,  when  self-executing,  122. 

waiver  of  right  to,  251,  252. 

from  taxation,  when  not  repealable,  176, 595,  396,  547. 
power  of  the  legislature  to  make,  739-744. 
do  not  apply  to  local  assessments  unless  so  expressed,  740,  n. 

from  public  duties,  &c.,  may  be  recalled,  329,  546. 

of  property  from  right  of  eminent  domain,  397-399. 

of  property  from  police  power  of  the  State,  399. 

from  execution  may  be  increased  without  violating  contracts,  407-409. 

of  debtor  from  imprisonment,  407. 

privilege  of,  may  be  made  to  depend  upon  residence,  574. 

laws  for,  not  to  be  suspended  for  individual  cases,  558,  559. 
EX  PARTE  PROCEEDINGS, 

how  far  binding  on  parties  interested,  587,  n.  1. 

publication  of,  not  privileged,  637-640. 
EXPECTANCY, 

interests  in,  are  not  vested  rights,  509-515. 
EXPEDIENCY, 

questions  of,  are  legislative,  237-241. 
EXPOSITORY  ACTS.     See  DECLARATORY  STATUTES. 
EX  POST  FACTO  LAWS, 

States  not  to  pass,  36,  372. 

meaning  of  the  term,  373,  376. 

only  applies  to  criminal  laws,  373. 

distinction  between  and  retrospective  laws,  374. 

laws  in  mitigation  of  punishment  are  not,  376. 

what  is  in  mitigation,  and  what  not,  376-383. 

modes  of  procedure  in  criminal  cases  may  be  changed,  381,  382. 

punishment  of  second  offences,  382,  383. 
EXPRESSION  OF   POPULAR  WILL, 

must  be  under  forms  of  law,  892. 

See  ELECTIONS. 
EXPULSION, 

of  legislative  members  for  misconduct,  190. 
EXTRADITION, 

of  criminals  as  between  the  States,  37,  38,  n.  1. 

of  persons  accused  of  libel,  459,  n.  2. 

between  sovereignties,  41,  n. 

treaties  for,  may  be  retroactive,  383,  n.  1. 


INDEX.  973 


F. 
FACT  AND  LAW, 

province  of  judge  and  jury  respectively,  460-465. 

in  libel  cases,  652-655. 
FAITH   AND   CREDIT, 

in  each  State  to  public  acts,  records,  and  judicial  proceedings  of  every 

other,  38-40,  n.  1. 
FAST  DAYS, 

appointment  of,  does  not  violate  religious  liberty,  669. 
FEDERAL   COURTS.     See  COURTS  OF  THE  UNITED  STATES. 
FEDERAL    QUESTION, 

Supreme  Court  may  review  judgments  of  State  courts  upon,  25-31,  36, 

n.  (6). 
FEDERALIST, 

on  the  power  to  supersede  the  Articles  of  Confederation,  9,  10,  n. 

reasons  of,  for  dispensing  with  national  bill  of  rights,  365. 

reference  in,  to  laws  violating  obligation  of  contracts,  384. 
FEE, 

whether  the  public  may  appropriate,  in  taking  lands,  808. 
FELONIES, 

Congress  may  define  and  punish,  13. 
FEMALES, 

accusation  of  want  of  chastity  not  actionable  per  se,  606,  607. 
statutes  on  the  subject,  607. 

excluded  from  suffrage,  901,  902. 

See  MARRIED  WOMEN. 
FERRY  FRANCHISES, 

granted  to  municipal  corporations,  may  be  resumed,  390,  and  n.  1. 

strict  construction  of,  564-567. 

grants  of,  by  the  State  across  navigable  waters,  867. 

police  regulations  respecting,  867,  868. 
FEUDAL  KINGDOM, 

definition  of,  50,  n.  1. 
FIFTEENTH    AMENDMENT, 

provisions  of,  17,  18,  901,  902. 

to  what  extent  self-executing,  120. 
FINE, 

remission  of,  160,  n.  2. 
FIRE, 

destruction  of  buildings  to  prevent  spread  of,  756,  878. 

precautions  against,  by  establishing  fire  limits,  284,  n.  4,  878. 
FIRST   AMENDMENT,  596. 
FISHERY, 

public  rights  of,  in  navigable  waters,  752. 

restrictions  upon,  291. 
FLORIDA, 

judges  of,  to  give  opinions  to  the  governor,  72,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153  and  n.  2. 

exercise  of  the  pardoning  power  restrained,  160  and  n.  2,  161, 162. 


974  "    INDEX. 

FLORIDA  —  continued. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  662,  n.  3. 

religious  belief  not  to  be  a  test  of  competency  of  witness,  677,  n. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 
FOREIGN  CONTRACTS, 

enforcement  of,  178-181. 
FOREIGN  CORPORATIONS, 

rights  of,  179,  n.  (a). 

as  to  real  estate  in  the  foreign  State,  180,  181. 

powers  of,  178-181,  763,  n.  (a). 

jurisdiction  over,  5S2,  n. 
FOREIGNERS.    See  ALIENS. 
FORFEITURES, 

under  municipal  by-laws,  292,  n.  1. 

must  be  judicially  declared,  149,  370-372,  518,  519. 
FORMS, 

prescribed  by  constitution  are  essential,  114-119,  245,  246. 
FORTS, 

magazines,  arsenals,  etc.,  lands  purchased  for,  under  exclusive  control  of 

Congress,  13. 
FOURTEENTH   AMENDMENT, 

protections  of,  14,  17,  418,  502,  567,  869. 
FOURTH  OF  JULY, 

celebration  of.  at  public  expense,  310. 
FOX'S  LIBEL   ACT, 

provisions  of,  654. 
FRANCHISES, 

of  incorporation,  when  they  constitute  contracts,  390. 

granted  to  municipal  bodies  may  be  resumed,  266-268,  347. 

repeal  of,  where  right  to  repeal  is  reserved,  547,  839. 

strict  construction  of,  271,  272,  564,  567. 

police  regulations  respecting,  835-844. 

may  be  appropriated  under  right  of  eminent  domain,  757. 
FRAUD, 

as  affecting  decrees  of  divorce,  578. 

in  securing  passage  of  statute  cannot  be  shown  to  defeat  it,'  258,  259. 
FREEDMEN, 

made  citizens,  14,  418,  869. 
FREEDOM, 

maxims  of,  in  the  common  law,  49,  50.   \  :£ 

gradually  acquired  by  servile  classes  in  Great  Britain,  419-424. 

See  PERSONAL  LIBERTY. 
FREEDOM  OF  ELECTIONS, 

provisions  to  secure,  922. 

.bribery  and  treating  of  electors,  922,  923. 

militia  not  to  be  called  out  on  election  day,  925. 

courts  not  to  be  open  on  election  day,  923. 

betting  on  elections  illegal,  924. 

contracts  to  influence  elections  void,  924. 


INDEX.  975 

FREEDOM  OF  THE  PRESS, 

Hamilton's  reasons  why  protection  of,  by  bill  of  rights,  not  important, 

365. 
opposing  reasons  by  Jefferson,  367,  n.  1. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
FREEDOM   OF   SPEECH, 
definition  of,  602-604. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
FRONTAGE, 

apportionment  of  assessment  for  local  improvement  according  to,  729  and 

n.  1. 
FUGITIVES  FROM  JUSTICE, 

to  be  delivered  up  by  the  States,  37,  38,  n.  1. 
surrender  of,  under  treaties,  38,  n.  1. 
FUNDAMENTAL   LAW, 

constitutions  are,  4. 
FUNDAMENTAL   RIGHTS, 

bills  of,  in  State  constitutions,  65,  66. 
in  the  national  Constitution,  365-372. 
in  England,  49,  50,  366. 
are  before  constitutions,  68,  69. 
statutes  in  violation  of,  233-242. 
under  fourteenth  amendment,  14-17,  417,  418,  567,  568,  869. 


G. 

GAMING  IMPLEMENTS, 

keeping  of,  for  unlawful  games  may  be  prohibited,  884. 
GENERAL  INTENT, 

when  to  control  particular  intent,  91,  92,  n.  3. 
GENERAL   LAWS, 

exceptions  from,  in  some  cases,  139-151. 

required  instead  of  special,  by  some  constitutions,  181-185. 

in  cases  of  divorce,  152-157. 

control  municipal  regulations,  278,  279. 

due  process  of  law  does  not  always  require,  140,  504-505,  554-556. 

submission  of,  to  vote  of  people  invalid,  163-174. 

suspension  of,  558,  559. 

changes  in,  give  citizens  no  claim  to  remuneration,  402,  509-511. 

respecting  remedies,  power  to  change,  381,  382,  406-417,  515-528. 
GENERAL   WARRANTS, 

illegality  of,  419-430. 
GENERAL   WELFARE, 

legislation  to  be  determined  by,  184. 
GEORGIA, 

divorce  cases  to  be  adjudged  by  the  courts,  153,  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 


976  INDEX. 

GEORGIA—  continued. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 
GOOD  MOTIVES   AND  JUSTIFIABLE  ENDS, 

defence  of,  in  libel  cases,  656-658. 

burden  of  proof  on  defendant  to  show,  657. 
GOVERNMENT, 

constitutional,  what  is,  4,  5. 

republican,  to  be  guaranteed  to  the  States,  42-45. 

of  the  United  States,  origin  of,  7-9. 
one  of  enumerated  powers,  11. 

not  liable  for  acts  of  ageuts,  23,  n.  2. 

American,  a  decentralized  system,  261-270. 
GOVERNOR, 

mandamus  to,  162,  n.  3. 

approval  or  veto  of  laws  by,  218-221. 

messages  to  legislature,  222. 

power  to  prorogue  or  adjourn  legislature,  188. 

power  to  convene  legislature,  222. 

legislative  encroachment  on  powers  of,  157-162. 

power  to  pardon,  158,  n.  1,  160,  n.  2. 

to  appoint  officers  and  remove  them,  158,  n.  1. 

to  reprieve,  160,  n.  2. 
GRADE   OF   RAILROADS, 

legislature  may  establish,  for  crossings,  842. 
GRADE   OF   STREETS, 

change  of,  gives  parties  no  right  to  compensation,  296. 

special  assessments  for  grading,  713,  727-732. 
GRAND  JURY, 

criminal  accusations  by,  436. 

presentments  by,  are  privileged,  629,  630. 
GRANTS, 

are  contracts,  and  inviolable,  384,  385. 

by  States,  cannot  be  resumed,  385-387. 

of  franchises,  strict  construction  of,  270-273,  564-567. 
when  they  constitute  contracts,  387-401. 
to  municipal  bodies,  may  be  recalled,  388-390. 
GREAT  BRITAIN, 

how  it  became  a  constitutional  government,  4,  n.,  84,  n*  1. 

power  of  Parliament  to  change  constitution,  6. 

meaning  of  unconstitutional  law  in,  5. 

control  over  American  colonies,  7,  51-54. 

statutes  of,  how  far  in  force  in  America,  52. 

bill  of  rights  of,  51,  366. 

habeas  corpus  act  of,  51,  489-491. 

local  self-government  in,  263. 

declaration  of  rights  of,  367  et  seq. 

bills  of  attainder  in,  368-372. 

money  bills  to  originate  in  the  Commons,  188. 

emancipation  of  slaves  in,  419-424. 

prosecutions  for  libel  in,  612,  613,  650,  651,  n.  1. 
See  PARLIAMENT. 


INDEX.  977 

GUARANTIES.     See  FUNDAMENTAL  RIGHTS  ;  JURY  TRIAL  ;  LAW  OF  THE 

LAND;  LIBERTY. 
GUARDIANS, 

special  statute  authorizing  sales  by,  140-147. 

propriety  of  judicial  action  in  such  cases,  140,  141. 
control  of  ward  by,  485,  486. 
appointment  of,  in  divorce  suits,  584. 
authority  of,  is  local,  486. 
GUNPOWDER, 

police  regulations  concerning,  881. 


H. 

HABEAS   CORPUS, 

writ  of,  a  principal  protection  to  personal  liberty,  483,  489,  490. 
personal  liberty,  meaning  of,  483,  484. 

restraints  upon,  to  prevent  or  punish  crime,  &c.,  484. 
growing  out  of  relation  of  husband  and  wife,  484,  485. 
of  parent  and  child,  485. 
of  guardian  and  ward,  485,  486. 
of  master  and  apprentice,  486. 
of  master  and  servant,  486. 
of  teacher  and  scholar,  486. 
of  principal  and  bail,  486,  487. 
of  creditor  and  debtor,  487. 
insecurity  of,  formerly,  in  England,  487-489. 
habeas  corpus  act,  and  its  purpose,  51,  489-491. 
general  provisions  of,  490. 
adoption  of,  in  America,  491. 

writ  of,  when  to  be  issued  by  national  courts,  491-493. 
generally  to  issue  from  State  courts,  493,  494. 
return  to,  where  prisoner  held  under  national  authority,  493-494. 
cases  for,  determined  by  common  law,  494. 
not  to  be  made  a  writ  of  error,  495. 
what  to  be  inquired  into  under,  495,  496. 
right  to  jury  trial  in  habeas  corpus  cases,  497 
to  obtain  custody  of  children,  496,  497. 
HACKMEN, 

regulation  of  charges  of,  870-876. 
HARBOR   REGULATIONS, 

establishment  of,  by  the  States,  855-859. 
wharf  lines  may  be  prescribed,  878. 
HARDSHIP, 

of  particular  cases  not  to  control  the  law.  107,  n.  1. 
unjust  provisions  not  necessarily  unconstitutional,  108,  109,  737,  738. 
HEALTH, 

police  regulations  for  protection  of,  851-854  and  notes,  880. 
draining  swamps,  &c.,  in  reference  to,  734,  882. 
HEARING, 

right  to,  in  judicial  proceedings,  523,  579-588. 
in  cases  of  appropriation  of  lands,  817,  818. 
in  tax  proceedings,  711,  n.  3. 

62 


978  INDEX. 

HEIRSHIP, 

right  to  modify,  511. 
HIGH    SEAS, 

not  subject  to  exclusive  appropriation,  4. 

States  no  authority  upon,  176,  177. 

Congress  may 'punish  offences  committed  upon,  13. 
HIGHWAYS, 

establishment  of,  under  right  of  eminent  domain,  753. 

compensation  in  such  case,  812-828. 

appropriation  of,   to  purposes    of   turnpike,   railroad,    &c.,   whether  it 
entitles  owner  to  compensation,  788-888. 

See  EMINENT  DOMAIN. 

regulations  of,  by  States  under  police  power,  860,  861,  867. 
HOMESTEADS, 

provisions  for,  when  self-executing,  122. 

exemption  of,  from  execution,  408. 
HUSBAND  AND   WIFE, 

power  of  legislature  to  divorce,  152,  153. 

jurisdiction  in  divorce  cases,  577-585. 

See  DIVORCE. 

control  of  husband  over  wife,  484,  485. 

obligation  of  husband  to  support  wife,  484  and  n.  2. 

right,  as  between,  to  custody  of  children,  496,  497. 

property  rights,  how  far  subject  to  legislative  control,  515-518. 

validating  invalid  marriage  by  legislation,  533,  534. 


IDEM  SONANS, 

ballot  sufficient  in  cases  of,  916. 
IDIOTS, 

exclusion  of,  from  suffrage,  57,  902. 

special  legislative  authority  for  sale  of  lands  of,  140-147,  554. 
ILLEGAL   CONTRACTS, 

have  no  obligation,  404,  405. 

legalization  of,  415,  416,  535-540. 

for  lobby  legislative  services,  196  and  n.  2. 

designed  to  affect  elections,  924. 
ILLINOIS, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

title  of  acts  to  embrace  the  subject,  202,  n.  3. 

special  legislative  sessions,  220,  n.  4. 

time  when  acts  take  effect,  223. 

provision  in  relation  to  special  laws,  258,  n.  1. 

municipalities  restrained  from  aiding  public  improvements,  318,  n.  1. 

restriction  upon  power  to  contract  debts,  325. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596  n. 

privilege  of  legislators  in  debate,  634  n. 

religious  liberty  in,  662,  n.  3. 


INDEX.  979 

ILLINOIS  —  continued. 

damaging  property  in  the  course  of  public  improvements,  810,  n.  2. 

taking  land  for  railroad  tracks,  809  n. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 
IMMUNITIES, 

of  citizens  of  the  several  States,  36,  37,  567. 

citizens  not  to  be  deprived  of,  14,  15. 

of  municipal  corporations,  300. 

IMPAIRING  CONTRACTS.    See  OBLIGATION  OF  CONTRACTS. 
IMPEACHMENT, 

of  judges  for  declaring  law  unconstitutional,  229,  n.  1. 
IMPLICATION, 

amendments  by,  not  favored,  216,  217. 

repeals  by,  216,  217. 

grant  of  powers  by,  in  State  constitutions,  98,  99. 

corporations  established  by,  277,  278. 
IMPLIED   POWERS, 

of  municipal  corporations,  what  are,  270-276. 

granted  by  State  constitutions,  98,  99. 
IMPLIED   PROHIBITIONS, 

to  the  States  by  the  national  Constitution,  45. 

upon  legislative  power,  233-245. 
IMPORTS, 

State  taxation  of,  688,  857-859. 
IMPOSTS, 

to  be  uniform  throughout  the  Union,  12. 

what  the  States  may  lay,  36. 

taxation  by,  708,  709. 
IMPRESSMENT   OF   SEAMEN, 

not  admissible  in  America,  424. 
IMPRISONMENT, 

for  legislative  contempt  must  terminate  with  the  session,  191. 

for  debt  may  be  abolished  as  to  existing  contracts,  407. 

of  child  for  lack  of  parental  control,  423,  n.  4. 

unlimited,  cannot  be  inflicted  for  common-law  offence,  472. 

relief  from.     See  HABEAS  CORPUS. 
IMPROVEMENTS, 

owner  of  land  cannot  be  compelled  to  make,  552,  n.  2,  768. 

betterment  laws,  552,  553. 

local,  assessments  for  the  making  of,  713-738. 

See  ASSESSMENTS. 
INCHOATE   RIGHTS, 

power  of  the  legislature  in  regard  to,  511-515. 
INCIDENTAL  INJURIES, 

by  change  in  the  law,  give  no  claim  to  compensation,  548-550. 

See  EMINENT  DOMAIN. 
INCOMPETENT   PERSONS, 

legislative  authority  for  sale  of  lands  of,  140-147,  532,  554. 

exclusion  of,  from  suffrage,  901,  902. 
INCONTINENCE, 

accusation  of,  against  female,  not  actionable  per  se,  606,  607. 

statutory  provisions  respecting,  607. 


980  .INDEX. 

INCORPORATIONS, 

notice  of  acts  for,  118,  n.,  193,  n.  1. 

waiver  of  defects  in,  by  State,  118,  n. 

charters  of  private,  are  contracts,  391-394. 

charters  of  municipal,  are  not,  266-270,  390. 

control  of,  by  police  regulations,  835-844. 

See  CHARTERS;  MUNICIPAL  CORPORATIONS. 
INDEBTEDNESS  BY   STATE, 

prohibition  of,  whether  it  precludes  debts  by  towns,  counties,  &c.,  322- 

325. 
INDECENT   PUBLICATIONS, 

sale  of,  may  be  prohibited,  884. 

parties  not  free  to  make,  606,  607,  638. 
INDEMNIFICATION, 

of  officers  of  municipal  corporation  where  liability  is  incurred  in  supposed 
discharge  of  duty,  306-309. 

power  of  legislature  to  compel,  308,  309. 

not  to  be  made  in  case  of  refusal  to  perform  duty,  n.  1,  309. 
INDEMNITY, 

for  property  taken  for  public  use.     See  EMINENT  DOMAIN. 

for  consequential  injuries  occasioned  by  exercise  of  legal  rights,  548. 
INDEPENDENCE, 

declaration  of,  by  Continental  Congress,  8,  9. 

new  national  government  established  by,  8. 

celebration  of,  at  public  expense,  310. 

of  the  traverse  jury,  460,  461. 

of  the  bar,  479-482. 
INDIAN, 

an  unnaturalized,  is  not  a  citizen  nor  entitled  to  vote,  901,  n.  4. 
INDIANA, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160,  n. 

local  option  laws,  validity  of,  173. 

prohibition  of  special  laws  when  general  can  be  made  applicable,  n.  4, 181. 

revenue  bills  must  originate  in  lower  house,  n.  1,  188. 

privilege  of  legislators  from  arrest,  n.  1,  192. 

title  of  acts  to  embrace  the  subject,  n.  3,  202. 

no  act  to  be  amended  by  mere  reference  to  its  title,  n.  1,  215. 

approval  of  laws  by  governor  of,  n.  2,  219,  and  n.  4,  220. 

time  when  acts  take  effect,  224. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  iucompetency  of  witness,  677,  n, 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 
INDICTMENT, 

criminal  accusations  to  be  by,  436. 

trial  on  defective.  382,  n.  2,  468-470. 

must  apprise  accused  of  the  charge  against  hiaa,  382,  n.  3,  436  and  n.  3. 
See  CRIMES. 


INDEX.  981 

INDIVIDUAL  RIGHTS, 

provisions  for  protection  of,  in  State  constitutions,  65,  66. 
in  national  Constitution,  365-367. 

do  not  owe  their  origin  to  constitutions,  68. 

English  statutes  declaratory  of,  51,  366. 

See  PERSONAL  LIBERTY. 
INELIGIBILITY, 

of  highest  candidate,  how  to  affect  election,  931. 
INFANTS, 

excluded  from  suffrage,  57,  901. 

special  statutes  authorizing  sale  of  lands  of,  140,  532,  554. 

custody  of,  by  parents,  485,  496,  497. 

emancipation  of,  485. 

control  of,  by  masters,  guardians,  and  teachers,  485,  486.  ! 

INFERIOR   COURTS, 

duty  of,  to  pass  upon  constitutional  questions,  n.  1,  230. 

distinguished  from  courts  of  general  jurisdiction,  585,  586. 

disproving  jurisdiction  of,  586. 
INFORMALITIES, 

right  to  take  advantage  of,  may  be  taken  away  by  legislation,  528,  546. 

do  not  defeat  jurisdiction  of  court,  587,  588. 

waiver  of,  in  legal  proceedings,  588. 
INHABITANT, 

meaning  of,  in  election  laws,  903,  904. 
INHERITANCE   TAXES, 

validity  of,  n.  (a),  708. 
INITIALS, 

to  Christian  name  of  candidate,  whether  sufficient  in  ballot,  916-919. 
INJUSTICE, 

of  constitutional  provisions  cannot  be  remedied  by  the  courts,  108,  109.  ,  , 

of  statutes  does  not  render  them  unconstitutional,  232-237. 

in  taxation,  sometimes  inevitable,  737,  738. 
INNOCENCE, 

of  accused  parties,  presumption  of,  437-439. 

only  to  be  overcome  by  confession  in  open  court,  or  verdict,  439. 

INQUISITORIAL  TRIALS, 

not  permitted  where  the  common  law  prevails,  442. 

accused  parties  not  compellable  to  give  evidence  against  themselves,  443- 

449. 
INSANE   PERSONS, 

validating  deeds  of,  n.  1,  438. 
INSANITY, 

defence  of,  in  criminal  cases,  n.  1,  538. 

INSOLVENT  LAWS, 

right  of  the  States  to  pass,  416,  417. 

congressional  regulations  supersede,  416. 

what  contracts  cannot  be  reached  by,  417. 

creditor  making  himself  a  party  to  proceedings  is  bound,  417. 

INSPECTION  LAWS,  I 

of  the  States,  imposts  or  duties  under,  36. 
constitutionality  of,  686,  854-859,  888,  889. 


982  INDEX. 

INSPECTORS   OF  ELECTIONS, 

judicial  appointment  of,  n.  3,  129. 

powers  arid  duties  of.     See  ELECTIONS. 
INSURRECTIONS, 

employment  of  militia  for  suppression  of,  13. 
INTENT, 

to  govern  in  construction  of  constitutions,  89-91. 

whole  instrument  to  be  examined  in  seeking,  91-92. 

in  ineffectual  contracts,  may  be  given  effect  to  by  retrospective  legislation, 
530-546. 

question  of,  in  libel  cases,  651-655. 

in  imperfect  ballot,  voter  cannot  testify  to,  914. 

what  evidence  admissible  on  question  of,  919,  920. 
INTEREST, 

in  party,  essential  to  entitle  him  to  question  the  validity  of  a  law,  232. 

in  judge,  precludes  his  acting,  243,  592-595. 

of  money,  illegal  reservation  of,  may  be  legalized,  536. 
INTERNAL   IMPROVEMENTS, 

giving  municipal  corporations  power  to  subscribe  to,  is  not  delegating 
legislative  power,  167. 

constitutionality  of  municipal  subscriptions  to,  312-325. 

special  legislative  authority  requisite,  318-320. 

negotiable   securities  issued  without  authority  are   void,   318-320,  and 
n.  2. 

prohibition  to  the  State  engaging  in,  whether  it  applies  to  municipalities, 
321-325. 

retrospective  legalization  of  securities,  535-543. 
INTERNATIONAL  LAW, 

equality  of  States  under,  3. 

Congress  may  punish  offences  against,  13. 
INTERNATIONAL   QUESTIONS, 

States  no  jurisdiction  over,  176,  177. 
INTERPRETATION, 

meaning  of,  70,  71,  n.  1. 

See  CONSTRUCTION  OF  STATE  CONSTITUTIONS. 
INTER-STATE  COMMERCE, 

regulation  of,  687-691,  845,  846,  872-875. 

what  is,  687,  n.  (a),  688,  n.  3. 

State  cannot  require  license  of  persons  engaged  in,  693,  n.  4,  857-859. 

taxation  of,  by  the  State,  686-691. 
INTIMIDATION, 

of  voters,  secrecy  as  a  protection  against,  910,  922. 

securities  against,  922-925. 
INTOXICATING  DRINKS, 

submitting  question  of  sale  of,  to  people,  173,  174. 

power  of  States  to  require  licenses  for  sale  of,  845-851. 

power  of  States  to  prohibit  sales  of,  18,  n.  1,  845-851,  884,  885. 

furnishing  to  voters,  923,  n. 

annulling  licenses  for,  399,  400. 
INTOXICATION, 

not  an  excuse  for  crime,  673,  n.  4. 

is  temporary  insanity,  902,  n.  1. 


INDEX.  983 

INTRODUCTION  OF  BILLS, 

for  revenue  purposes,  188, 189, 

generally,  197-199. 
INVASIONS, 

employment  of  militia  to  repel,  13. 
INVENTIONS, 

securing  right  in,  to  inventors,  12. 
INVOLUNTARY   SERVITUDE, 

gradual  abolition  of,  in  England,  419-423. 

as  a  punishment  for  crime,  423. 

See  PERSONAL  LIBERTY. 
IOWA, 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160,  n.  2. 

title  of  acts  to  embrace  the  subject,  202,  n.  3. 

power  of  legislature  when  convened  by  governor,  222. 

time  when  acts  are  to  take  effect,  225. 

restriction  upon  power  to  contract  debts,  325. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  63 1,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompeteiicy  of  witness,  677,  n. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 
IRREGULARITIES, 

in  judicial  proceedings,  not  inquirable  into  on  habeas  corpus,  495. 

do  not  render  judicial  proceedings  void,  587,  588. 

waiver  of,  587,  588. 

may  be  cured  by  retrospective  legislation,  528-546 

effect  of,  upon  elections,  928-934. 

what,  render  sales  for  taxes  void,  747,  748. 
IRREPEALABLE  LAWS, 

legislature  cannot  pass,  174-176,  402. 

Parliament  cannot  bind  its  successors,  175. 

laws  which  constitute  contracts  are  inviolable,  175,  176. 

whether  essential  powers  of  government  can  be  bartered  away,  392-402, 
754,  755. 

municipal  corporations  cannot  adopt,  295. 
IRRIGATION, 

assessments  for,  715  n.  (a). 


J. 
JEOPARDY, 

party  not  to  be  twice  put  in,  for  same  cause,  466-470. 

what  constitutes,  467,  468. 

when  jury  may  be  discharged  without  verdict,  468-470. 

when  nolle  prosequi  is  an  acquittal,  468. 

second  trial  after  verdict  set  aside,  470. 

acquittal  on  some  counts  is  a  bar  pro  tanto  to  new  trial,  470. 

varying  form  of  the  charge,  470. 


984  INDEX. 

JEOPARDY  —  continued. 

duplicate  punishments  under  federal  and  State  law,  45,  46. 

under  State  and  municipal  laws,  279. 
JOURNAL   OF   THE   LEGISLATURE, 

office  of,  201. 

is  a  public  record,  193. 

is  evidence  whether  a  law  is  properly  adopted,  193-195. 

silence  of,  not  evidence  that  authority  has  been  exceeded,  unless,  &c.,  195. 

presumption  of  correct  action  where  it  is  silent,  195. 
JUDGE, 

disqualification  of,  by  reason  of  interest,  243,  592-594. 

not  to  urge  opinion  upon  the  jury,  460. 

to  instruct  the  jury  on  the  law,  461. 
JUDGE-MADE   LAW, 

objectionable  nature  of,  99,  n. 
JUDGMENTS, 

conclusiveness  of  those  of  other  States,  38-41. 

general  rules  as  to  force  and  effect,  79-88. 

for  torts  are  not  contracts,  411. 

must  apply  the  law  in  force  when  rendered,  543. 

are  void  if  jurisdiction  is  wanting,  546,  575-578,  585. 

irregularities  do  not  defeat,  587,  588. 

See  JUDICIAL  PROCEEDINGS;  JURISDICTION. 
JUDICIAL  DECISIONS. 

conclusiveness  of,  79-88. 

of  federal  courts  conclusive  on  questions  of  federal  jurisdiction,  25-29. 

of  State  courts  followed  in  other  cases,  31,  32. 

general  rules  as  to  force  and  effect  of,  79-88. 
JUDICIAL  POWER, 

of  the  United  States,  extent  of,  22-35. 

See  COURTS  OF  THE  UNITED  STATES. 

not  to  be  exercised  by  State  legislatures,  126-129,  184,  558,  559. 

what  is,  131-134,  137,  495. 

distribution  of,  129,  n.  3. 

declaratory  statutes  not  an  exercise  of,  134-140. 

such  statutes  not  to  be  applied  to  judgments,  136-139. 

instances  of  exercise  of,  138,  n. 

is  apportioned  by  legislature,  129,  n.  3. 

legislature  may  exercise,  in  deciding  contested  seats,  190. 

cannot  be  delegated,  589. 
JUDICIAL  PROCEEDINGS, 

of  several  States,  full  faith  and  credit  to  be  given  to,  38-40. 

confirmation  of  invalid,  by  legislature,  150,  530. 

are  void  if  court  has  no  jurisdiction  of  the  case,  575. 

jurisdiction  of  subject-matter,  what  is,  575. 
consent  will  not  confer,  575-577. 

if  wanting,  objection  may  be  taken  at  any  time,  576. 

law  encourages  voluntary  settlements  and  arrangements,  576. 

arbitrations  distinguished  from,  576. 

transitory  and  local  actions,  577. 

jurisdiction  in  divorce  cases,  577,  578. 

necessity  for  service  of  process,  or  substitute  therefor,  579-585. 

proceedings  in  rem  and  in  personam,  580,  581. 


INDEX.  985 

JUDICIAL  PROCEEDINGS—  continued. 

bringing  in  parties  by  publication,  581-585. 

no  personal  judgment  in  such  case,  583,  584. 

decree  for  custody  of  children,  effect  of,  584. 
contesting  jurisdiction,  585. 
courts  of  general  and  special  jurisdiction,  585. 
record  of,  how  far  conclusive,  585,  586. 
irregularities  do  not  defeat,  495,  496,  587,  588. 

waiver  of,  587,  588. 

judicial  power  cannot  be  delegated,  589. 
right  to  jury  trial  in  civil  cases,  589-592. 
judge  not  to  sit  when  interested,  592-595. 
statements  in  course  of,  how  far  privileged,  629-631. 
publication  of  accounts  of  trials  privileged,  636-640. 

but  must  be  fair  and  full,  637. 

and  not  ex  parte,  637-639. 

and  not  contain  indecent  or  blasphemous  matter,  638. 
JUDICIARY, 

to  advise  legislature  in  some  States,  72,  n.  1. 
construction  of  constitution  by,  73-78. 
equality  of,  with  legislative  department,  78,  n.  1. 
independence  of,  78,  n.  2. 
when  its  decisions  to  be  final,  79-88. 
appointments  by,  131,  n.  1. 

See  COURTS  ;  JUDICIAL  POWER  ;  JUDICIAL  PROCEEDINGS;  JURISDICTION. 
JURISDICTION, 

of  courts,  disproving,  37-41  and  notes, 
want  of,  cannot  be  cured  by  legislation,  151,  n.  1  and  2. 
of  subject-matter,  what  it  consists  in,  575. 
not  to  be  conferred  by  consent,  575-577. 
if  wanting,  objection  may  be  taken  at  any  time,  576. 
in  divorce  cases,  what  gives,  577,  578. 
necessity  for  service  of  process,  579-585. 
irregularities  do  not  affect,  495,  496,  587,  588. 
interest  in  judge,  effect  of,  592-595. 
general  and  special,  distinguished,  585,  586. 
where  it  exists,  proceedings  not  to  be  attacked  collaterally,  588. 
in  tax  proceedings,  718-720. 
of  federal  courts,  22,  23,  613. 
in  cases  of  habeas  corpus,  491-494. 

of  federal  supreme  court  appellate  over  State  courts,  25-31. 
JURY, 

independence  of,  460-465. 
JURY  TRIAL, 

how  far  required  by  United  States  constitution,  46. 
the  mode  for  the  trial  of  criminal  accusations,  453,  454. 
what  cases  do  not  require,  453,  n.  2. 
must  be  speedy,  440,  441. 

and  public,  441. 

and  not  inquisitorial,  442  and  n.  1,  424,  n.  (a). 
prisoner  to  be  confronted  with  witnesses,  440. 
statement  by  prisoner,  443-449. 

See  CONFESSIONS. 


986  INDEX. 

JURY  TRIAL  —  continued. 

prisoner  to  be  present  during  trial,  452. 
jury  to  consist  of  twelve,  454-459  and  notes, 
challenges  of,  459. 
must  be  from  vicinage,  53,  459. 
must  be  left  free  to  act,  460. 
how  far  to  judge  of  the  law,  461-465,  596-599. 

in  libel  cases,  652-655. 
acquittal  by,  is  final,  462. 
judge  to  instruct  jury  on  the  law,  461. 

but  not  to  express  opinion  on  facts,  460,  465,  n.  1. 

nor  to  refuse  to  receive  verdict,  461. 
accused  not  to  be  twice  put  in  jeopardy,  466-470. 
what  is  legal  jeopardy,  467,  468. 

when  jury  may  be  discharged  without  verdict,  468-470. 
•when  nolle  prosequi  equivalent  to  verdict,  468. 
second  trial  after  verdict  set  aside,  470. 
right  to  counsel,  377,  474. 

constitutional  right  to  jury  trial  in  civil  cases,  46,  589,  778,  n.,  938,  n.  2. 
in  cases  of  contempt,  453,  n.  2. 
in  case  of  municipal  corporations,  340,  n.  1. 
in  habeas  corpus  cases,  497. 
JUST  COMPENSATION, 

what  constitutes,  when  property  taken  by  the  public,  812-828. 

See  EMINENT  DOMAIN. 
JUSTIFICATION, 

in  libel  cases  by  showing  truth  of  charge,  656. 

showing  of  good  motives  and  justifiable  occasion,  656,  657. 

unsuccessful  attempt  at,  to  increase  damages,  623,  624. 


K. 

KANSAS, 

power  to  grant  divorces  vested  in  the  courts,  153,  n.  2. 
exercise  of  the  pardoning  power  restrained,  160,  n.  2. 
requirement  of  general  laws  when  they  can  be  made  applicable,  181,  n.  4. 
privilege  of  legislators  from  arrest,  192,  n.  1. 
title  of  act  to  embrace  the  subject,  202,  n.  3. 
no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 
restriction  upon  power  to  contract  debts,  325. 
liberty  of  speech  and  of  the  press  in,  596,  n. 
privilege  of  legislators  in  debate,  634,  n. 
religious  tests  for  office  forbidden  in,  662,  n.  3. 
religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n. 
persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n. 
private  property  not  to  be  taken  without  compensation,  816,  n.  2. 
KENTUCKY, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 
divorces  not  to  be  granted  by  legislature,  153,  n.  2. 
revenue  bills  must  originate  in  lower  house,  188,  n.  1. 
title  of  acts  to  embrace  the  subject,  202,  n.  3. 
restriction  upon  power  to  contract  debts,  324. 


INDEX.  987 

KENTUCKY  —  continued. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  to  person  and  property  by  the  law  of  the  land,  500,  n.  2. 

compact  with  Virginia,  386,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

exclusion  of  religious  teachers  from  office,  662,  n.  2. 

religious  liberty  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms,  excused,  676,  n. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 


L. 

LARCENY, 

abroad,  punishment  of,  here,  177,  n.  3. 

LAW, 

common,  how  far  in  force,  51-53. 

See  COMMON  LAW. 

and  fact,  respective  province  of  court  and  jury  as  to,  460-465,  652-655. 
the  jury  as  judges  of,  460-465,  652-655. 
LAW-MAKING  POWER.     See  LEGISLATURES  OF  THE  STATES. 

LAW  OF  THE  LAND, 

protection  of,  insured  by  Magna  Charia,  500. 

American  constitutional  provisions,  24,  25,  49,  and  429,  n.  2. 

meaning  of  the  term,  502-506,  526. 

vested  rights  protected  by,  507,  508. 

meaning  of  vested  rights,  508,  526,  537-549. 

subjection  of,  to  general  laws,  508-510. 

interests  in  expectancy  are  not,  509-515. 

rights  acquired  through  the  marriage  relation,  513-515. 

legal  remedies  not  the  subject  of  vested  rights,  and  may  be  changed, 
515-520. 

statutory  privileges  and  exemptions  are  not,  546. 

rights  in  action  are,  517. 

forfeitures  must  be  judicially  declared,  518-520. 

limitation  laws  may  be  passed,  520-524. 
See  LIMITATION  LAWS. 

rules  of  evidence  may  be  changed,  524-528. 
retrospective  laws,  when  admissible,  528-546. 

forbidden  by  some  State  constitutions  529,  530,  n.  1. 

cannot  create  rights  in  action,  528-546. 

nor  revive  debts  barred  by  statute  of  limitations,  528. 

may  cure  informalities,  529-546. 

may  perfect  imperfect  contracts,  415,  416,  535-546. 

may  waive  a  statutory  forfeiture,  461,  n. 

may  validate  imperfect  deeds,  537-539. 

but  not  as  against  bonafide  purchasers,  539,  540. 

cannot  validate  proceedings  the  legislature  could  not  have  authorized. 
541-546. 

cannot  cure  defects  of  jurisdiction  in  courts,  545,  546,  n.  2. 
consequential  injuries  give  no  right  to  complain,  548,  549. 


is  R  it  n  \7" 


988  INDEX. 

LAW   OF   THE   LAND  —  continued. 
sumptuary  laws  inadmissible,  549,  550. 
betterment  laws,  550-553. 
unequal  and  partial  laws,  554-575. 
invalid  judicial  proceedings,  575-595. 

what  necessary  to  give  courts  jurisdiction,  575-585. 
consent  cannot  confer,  575-577. 
in  divorce  cases,  577,  578. 

process  must  be  served  or  substitute  had,  579-585. 
proceedings  in  rem  and  in  personam,  580-585. 
bringing  in  parties  by  publication,  582. 

no  personal  judgment  in  such  case,  583-584. 
process  cannot  be  served  in  another  State,  582. 
jurisdiction  over  guardianship  of  children  in  divorce  cases,  584. 
courts  of  general  and  special  jurisdiction,  and  the  rules  as  to  ques- 
tioning their  jurisdiction,  585,  586. 

irregular  proceedings  do  not  defeat  jurisdiction,  587,  588. 
waiver  of  irregularities,  588. 
judicial  power  cannot  be  delegated,  589. 
judge  cannot  sit  in  his  own  cause,  592-594. 

objection  to  his  interest  cannot  be  waived,  595. 
right  to  jury  trial  in  civil  cases,  46,  589-592,  778,  n.,  938,  n.  2. 
See  TAXATION;   EMINENT  DOMAIN;  POLICE  POWER;  JURY  TRIAL. 
LAWS,  enactment  of.     See  STATUTES. 

Congress  may  make,  to  carry  into  effect  powers  granted,  13,  14. 
LAWS  IMPAIRING  OBLIGATION  OF   CONTRACTS.      See  OBLIGA- 
TION OF  CONTRACTS. 

LAWS,  EX  POST  FACTO.     See  Ex  POST  FACTO  LAWS;   RETROSPEC- 
TIVE LAWS. 
LEGAL  PROCEEDINGS, 

publication  of  accounts  of,  how  far  privileged,  636-640. 

statements  in  course  of,  when  privileged,  629-633. 
See  JUDICIAL  PROCEEDINGS. 
LEGAL  TENDER, 

United  States  Treasury  notes  may  be  made,  14,  n.  1. 

only  gold  and  silver  to  be  made,  by  the  States,  36. 
LEGISLATIVE  AUTHORITY, 

rules  for  measuring  extent  of,  126,  127. 

territorial  limitations  upon,  176-181. 

general  limitations  upon,  181-185  and  notes. 

LEGISLATIVE  DEPARTMENT, 

division  of,  187,  188. 

not  to  exercise  executive  or  judicial  powers,  124-162. 

equality  of,  with  other  departments,  78,  n. 

discretion  of,  not  to  be  controlled  by  the  courts,  75,  n.,  157-162. 

See  LEGISLATURES  OP  THE  STATES. 
LEGISLATIVE  DISCRETION, 

courts  not  to  control,  75,  n.  and  237-239. 
LEGISLATIVE  DIVORCES, 

whether  they  are  an  exercise  of  judicial  power,  152. 

impropriety  of,  153-157. 


INDEX.  989 

LEGISLATIVE  MOTIVES, 

not  to  be  inquired  into  by  courts,  257-260,  300. 

presumption  of  correctness  of,  257-260,  300. 
LEGISLATIVE   POWERS, 

what  are,  131,  137. 

limitations  of,  163,  n.  1. 

enactments  in  excess  of,  are  void,  5,  243. 

distinguished  from  judicial,  131-134. 

cannot  be  delegated,  163,  293,  294. 

exercise  of,  will  not  give  right  of  action,  300-306. 

cannot  extend  beyond  territorial  limits,  176,  177. 

grant  of,  will  not  warrant  exercise  of  executive  or  judicial  powers,  126-162. 
LEGISLATIVE   PROCEEDINGS, 

privilege  of  publication  of,  650-652. 

members  not  to  be  questioned  for  words  in  course  of,  634-636. 
LEGISLATORS, 

contested  elections  of,  to  be  decided  by  house,  190. 

duty  of,  not  to  violate  constitution,  253,  254. 

presumed  correctness  of  motives,  257-259,  300. 

privilege  of,  in  debate,  634-636. 
from  arrest,  192 

right  of,  to  publish  speeches,  650-652. 
LEGISLATURES,    COLONIAL, 

statutes  adopted  by,  in  force  at  Revolution,  51,  52. 
LEGISLATURES   OF   THE   STATES, 

time  for  meeting  of,  188. 

adjournment  of,  188. 

power  to  originate  amendments  to  State  constitution,  59. 

construction  of  constitution  by,  70-76. 

deference  due  to  judicial  construction  by,  85  n. 

powers  of,  compared  with  those  of  Parliament,  124-126,  241-242. 

not  to  exercise  executive  or  judicial  powers,  126-127,  147-150,  244,  245. 

complete  legislative  power  vested  in,  126,  236,  240,  242. 

specification  of  powers  in  constitution  unnecessary,  127,  128. 

declaratory  statutes  not  the  exercise  of  judicial  power,  135-139. 

cannot  set  aside  judgments,  grant  new  trials,  &c.,  137,  138,  560. 

how  far  may  bind  parties  by  recital  of  facts  in  statutes,  139. 

power  of,  to  grant  divorces,  152-157. 

delegation  of  legislative  power  inadmissible,  163-174. 
but  conditional  legislation  is  not,  164-174. 
nor  making  charters  subject  to  acceptance,  166. 
nor  conferring  powers  of  local  government,  165-167,  263-266. 

irrepealable  legislation  cannot  be  passed,  174-176,  402,  n. 

but  exemptions  from  taxation  may  be  made,  176,  395,  396,  739-744. 

power  of,  limited  to  territory  of  the  State,  176-181. 

discretionary  powers  of,  how  restricted,  181-185. 
courts  no  control  over,  184. 

control  public  moneys,  184. 

enactment  of  laws  by,  186-226. 

must  be  under  the  constitutional  forms,  186. 

parliamentary  common  law  of,  187,  189-193. 

division  of,  into  two  houses,  187,  188. 

when  to  meet,  188. 


990  INDEX. 

LEGISLATURES  OF   THE  STATES  —  continued. 
prorogation  by  executive,  188. 
rules  of  order  of,  189,  190. 

electiou  and  qualification  of  members,  determination  of,  190. 
contempts  of,  may  be  punished  by,  190,  191. 

but  not  by  committees,  193. 
members  of,  may  be  expelled,  190. 

their  privilege  from  arrest,  &c. ,  192. 
committees  of,  for  collection  of  information,  &c.,  193. 

power  of,  to  terminate  with  session,  193. 
journals  of,  to  be  evidence,  193,  194. 
action  of,  to  be  presumed  legal  and  correct,  195. 
motives  of  members  not  to  be  questioned,  257-259,  300. 
"  lobby  "  services  illegal,  196. 
bills,  introduction  and  passage  of,  197-201. 

three  several  readings  of,  116-119,  199,  200. 
yeas  and  nays  to  be  entered  on  journal,  201. 
vote  on  passage  of,  what  sufficient,  201. 
title  of,  formerly  no  part  of  it,  202. 

constitutional  provisions  respecting,  117,  202. 
purpose  of  these,  202-205. 
evils  to  be  remedied  by,  203-205. 
they  are  mandatory,  213,  214. 
particularity  required  in  stating  object,  205,  206. 
what  is  embraced  by  title,  208,  209. 
effect  if  more  than  one  object  embraced,  210,  211. 
effect  if  act  is  broader  than  title,  211-214. 
amended  statutes,  publication  of,  at  length,  215-217. 
repeal  of  statutes  at  session  when  passed,  217. 
.     signing  of  bills  by  officers  of  the  houses,  218. 
approval  and  veto  of  bills  by  governor,  218-221. 
governor's  messages  to,  222. 
special  sessions  of,  222. 
when  acts  to  take  effect,  222-226. 
limitations  upon  power  to  enact  law,  181-185,  241. 
power  of  the  courts  to  declare  statutes  unconstitutional,  227-260. 
full  control  of,  over  municipal  corporations,  266-270,  333-340. 
legalization  by,  of  irregular  municipal  action,  306-309,  330,  331. 
of  invalid  contracts,  415,  416,  528-546. 
of  irregular  sales,  taxation,  &c.,  530-543. 
not  to  pass  bills  of  attainder,  36,  62,  368-371. 
nor  ex  post  facto  laws,  36,  62,  376. 
nor  laws  violating  obligation  of  contracts,  36,  62,  175,  176,  383-417. 

See  OBLIGATION  OF  CONTRACTS. 
insolvent  laws,  what  may  be  passed,  416,  417. 
right  to  petition,  497,  498. 
vested  rights  protected  against,  500-575. 

See  LAW  OF  THE  LAND. 
control  by,  of  remedies  in  criminal  cases,  374-383. 

in  civil  cases,  406-416,  515-528. 
control  of  rules  of  evidence,  409,  524-528. 
may  change  estates  in  land,  510-513. 

and  rights  to  property  under  the  marriage  relation,  513. 


INDEX.  991 

LEGISLATURES  OF  THE   STATES  —  continued.    \ 
limitation  laws  may  be  passed  by,  520. 
retrospective  legislation  by,  528-546. 

See  RETROSPECTIVE  LEGISLATION. 
privileges  granted  by,  may  be  recalled,  546-548. 
consequential  injuries  from  action  of,  548,  549. 
sumptuary  laws,  549,  550. 
betterment  laws,  550-553. 
unequal  and  partial  legislation,  554. 

general  laws  not  always  essential,  554-556. 
special  rules  for  particular  occupations,  555,  556. 
proscriptions  for  opinion's  sake,  556. 
suspension  of  laws  in  special  cases,  558,  559. 
special  remedial  legislation.  560. 
special  franchises,  563-575. 
restrictions  upon  suffrage,  564,  901,  902. 

power  of,  to  determine  for  what  purposes  taxes  may  be  levied,  698-708. 
cannot  authorize  property  to  be  taxed  out  of  its  district,  720-726. 
must  select  the  subjects  of  taxation,  739. 
may  determine  necessity  of  appropriating  private  property  to  public  use, 

759,  760,  777,  778. 
but  the  necessity  for  taking  particular  property  is  sometimes  a  judicial 

question,  by  constitutional  requirement,  777,  n.  2. 
authority  of,  requisite  to  the  appropriation,  759,  760. 
cannot  appropriate  property  to  private  use,  763-769. 
LETTERS, 

legal  inviolability  of,  426,  n.  1,  432,  n.  2. 

of  marque  and  reprisal,  Congress  may  grant,  13. 

States  not  to  grant,  35. 
LEVEES, 

establishment  of,  under  police  power,  734-736,  868. 
special  assessments  for,  735,  736. 

LIBEL.     See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
LIBERTY, 

personal.     See  PERSONAL  LIBERTY. 

of  the  press.     See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
religious.     See  RELIGIOUS  LIBERTY. 
of  discussion,  497,  498. 
of  bearing  arms,  498,  499. 
of  petition,  497,  498. 
charters  of,  51. 
LIBERTY  OF  SPEECH  AND  OF  THE  PRESS, 

Hamilton's  reasons  why  protection  of,  by  bill  of  rights,  was  not  impor- 
tant, 365. 

opposing  reasons  by  Jefferson,  367,  n.  1. 
Congress  to  pass  no  law  abridging,  596. 
State  constitutional  provisions  respecting,  596,  n.  1. 
these  create  no  new  rights,  but  protect  those  already  existing,  597-599. 
liberty  of  the  press  neither  well  denned  nor  protected  at  the  common  law, 

599. 

censorship  of  publications,  599,  600. 
debates  in  Parliament  not  suffered  to  be  published,  600. 
censorship  in  the  Colonies,  600,  601. 


992  INDEX. 

LIBERTY  OF  SPEECH   AND  OF  THE  PRESS  —  continued. 
secret  session  of  Constitutional  Convention,  601,  602. 

and  of  United  States  Senate,  602. 

what  liberty  of  speech  and  of  the  press  consists  in,  602,  603. 
general  purpose  of  the  constitutional  provisions,  603-605. 
rules  of  common-law  liability  for  injurious  publications,  605-609. 

modification  of,  by  statute,  607. 
privileged  cases,  609,  611. 
libels  upon  the  government  indictable  at  the  common  law,  612. 

prosecutions  for,  have  ceased  in  England,  612. 

sedition  law  for  punishment  of,  613. 

whether  now  punishable  in  America,  613-615. 
criticism  upon  officers  and  candidates  for  office,  616-628. 
statements  in  the  course  of  judicial  proceedings,  629-631. 
privilege  of  counsel,  631-633. 

of  legislators,  634-636. 
publication  of  privileged  communications  through  the  press,  636-640. 

publication  of  speeches  of  council,  &c.,  not  privileged,  636. 

fair  and  impartial  account  of  judicial  trial  is,  637. 
•whole  case  must  be  published,  637. 
must  be  confined  to  what  took  place  in  court,  637. 
must  not  include  indecent  or  blasphemous  matter,  638. 
but  not  of  ex  parle  proceedings,  638-640. 
privilege  of  publishers  of  news,  640-650. 

publishers  generally  held  to  same  responsibility  as  other  persons,  644. 

not  excused  by  giving  source  of  information,  644. 

nor  because  the  publication  was  without  their  personal  knowledge, 
644. 

nor  by  its  being  a  criticism  on  a  candidate  for  office,  624,  n.  1,  626, 
n.  1,  628,  n.  2,  644. 

nor  by  its  constituting  a  fair  account  of  a  public  meeting,  664. 

may  discuss  public  conduct  of  officials,  626,  644,  645. 

criticisms  by,  on  works  of  art  and  literary  productions,  644,  645. 

exemplary  damages  against  publishers,  647-650. 
publication  of  legislative  proceedings  how  far  privileged,  650-652. 

rule  in  England,  650. 

the  case  of  Stockdale  v.  Hansard,  651,  n.  1. 

publication  of  speeches  by  members,  651,  652. 
the  jury  as  judges  of  the  law  in  libel  cases,  652-655. 

Woodfall's   and  Miller's  cases,  652,  653. 

Mr.  Fox's  Libel  Act,  653,  654. 

the  early  rulings  on  the  subject  in  America,  654. 

provisions  on  the  subject  in  State  constitutions,  596,  n.  1,  655,  n.  2. 
the  truth  as  a  defence  when  good   motives  and  justifiable  ends  in  the 
publication  can  be  shown,  656-658. 

burden  of  proof  on  the  defendant  to  show  them,  657. 

that  publication  was  copied  from  another  source  is  not  sufficient,  658. 
motives  or  character  of  defendant  no  protection,  if  publication  is  false,  658. 
LICENSE, 

granting  of,  283,  and  notes  1  and  2. 

annulling,  399,  400  and  n.  1. 

of  occupations  in  general,  884-890. 

State  cannot  require,  of  those  engaged  in  inter-state  commerce,  693,  n.  4. 


INDEX.  993 

LICENSE  —  continued. 

for  ferry  across  navigable  waters,  867. 

revoking,  where  a  fee  was  received  therefor,  399,  400  and  n.  1. 
LICENSE   FEES, 

when  are  taxes,  283  and  n.  1,  709,  n.  ],  713. 
.    limited  generally  to  necessary  expenses,  &c.,  283. 
LICENSER, 

of  intended  publications,  599-604. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
LICENTIOUSNESS, 

distinguished  from  liberty,  625,  666,  n.  3. 
LIEN, 

statutory,  may  be  taken  away,  407,  n.  1. 
LIFE, 

liberty  and  property,  protected  under  constitution,  15. 

action  for  taking,  through  negligence,  &c.,  843,  844. 

not  to  be  taken  but  by  due  process  of  law,  15,  36,  500. 
LIMITATION, 

of  time  to  apply  for  compensation  for  property  taken  by  public,  815,  816. 

territorial,  to  legislative  authority,  176,  177. 

upon  legislative  authority  generally,  181,  n.  4. 
LIMITATION   LAWS, 

may  cut  off  vested  rights,  520-524. 

opportunity  to  assert  rights  must  first  be  given,  523,  524. 

cannot  operate  upon  party  in  possession,  523. 

legislature  to  determine  what  is  reasonable  time,  523,  524. 

suspension  of,  521,  n.  5,  558. 

legislature  cannot  revive  demands  barred  by,  521. 

legislature  may  describe  form  for  new  promise,  415. 

do  not  apply  to  State  or  nation,  524,  n.  1. 
LIMITATIONS, 

of  federal  constitution,  upon  federal  government,  unless  States  expressly 

named,  46. 
LIMITATIONS   TO   LEGISLATIVE   POWER, 

are  only  such  as  the  people  have  imposed  by  their  constitutions,  126,  127. 

See  LEGISLATURES  OF  THE  STATES. 
LITERARY  PRODUCTIONS, 

copyright  to,  Congress  may  provide  for,  12. 

privilege  of  criticism  of,  644,  645. 
LOBBY   SERVICES, 

contract  for,  unlawful,  196  and  n.  2. 
LOCAL   ASSESSMENTS.     See  ASSESSMENTS. 
LOCAL  IMPROVEMENTS.     See  LOCAL  ASSESSMENTS. 
LOCAL   OPTION  LAWS, 

constitutionality  of,  173,  174. 
LOCAL   SELF-GOVERNMENT, 

State  constitutions  framed  in  reference  to,  65,  243. 

the  peculiar  feature  of  the  American  system,  261-270. 

See  MUNICIPAL  CORPORATIONS. 
LOCAL   TAXATION.     See  TAXATION. 
LOCALITY   OF   PROPERTY, 

may  give  jurisdiction  to  courts,  580. 

taxation  dependent  upon,  719-721,  743. 

63 


994  INDEX. 

LOG-ROLLING  LEGISLATION, 

constitutional  provisions  to  prevent,  202-217. 
LORD'S   DAY, 

laws  for  observance  of,  how  justified,  675,  676,  859. 
LOTTERIES, 

prohibition  of,  120,  n.  5. 
LOUISIANA, 

code  of,  based  upon  the  civil  law,  54,  n.  2. 

divorces  not  to  be  granted  by  special  laws,  153,  n.  2. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

title  of  acts  to  embrace  the  object,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

time  when  acts  are  to  take  effect,  225. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

privileges  not  to  be  granted  on  religious  grounds,  663,  n. 

"  damaging  "  property  in  the  course  of  public  improvements,  810,  n.  2. 

exclusions  from  suffrage  in,  902,  n.  1. 
LUNATICS, 

excluded  from  suffrage,  57,  902. 

special  statutes  for  sale  of  lands  of,  140-147. 


M. 

MAGNA   CHARTA, 

grant  of,  did  not  create  constitutional  government,  5,  n. 

a  declaratory  statute,  51,  366. 

its  maxims  the  interpreters  of  constitutional  grants  of  power,  244 

provision  in,  for  trial  by  peers,  &c.,  500. 
MAILS, 

inviolability  of,  432,  n.  2. 
MAINE, 

judges  to  give  opinions  to  governor  and  legislature,  72,  n.  1. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  to  person  and  property  by  the  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms,  excused,  676,  n.  2. 

periodical  valuations  for  taxation,  711,  712. 

exclusions  from  suffrage  in,  902,  n.  1. 
MAJORITY, 

what  constitutes  two  thirds,  201. 

what  sufficient  in  elections,  892,  n.,  894,  n.,  921,  922. 
MALICE, 

presumption  of,  from  falsity  of  injurious  publications,  609,  652. 

in  refusing  to  receive  legal  votes,  927. 

presumption  in  cases  of  homicide,  465,  n.  1. 


INDEX.  995 

MANDAMUS, 

to  the  executive,  162,  n.  3. 

to  compel  registration  of  voters,  907. 

to  compel  canvassers  to  perform  duty,  936. 
MANDATORY    STATUTES, 

doctrine  of,  109-119. 

constitutional  provisions  always  mandatory,  114-119,  201,  213,  214. 

but  courts  cannot  always  enforce,  184,  185. 
MANUFACTURING  PURPOSES, 

whether  dams  for,  can  be  established  under  right  of  eminent  domain, 
771-773. 

taxation  in  aid  of,  700,  n.  1,  701,  n.  2. 
MARKETS, 

State  power  to  regulate,  887-889. 
MARRIAGE, 

validating  invalid,  by  retrospective  legislation,  533,  534. 

legislative  control  of  rights  springing  from,  513-515. 

between  whites  and  blacks,  556,  u.  1. 

power  of  the  legislature  to  annul,  152-157. 

See  DIVORCE  ;  MARRIED  WOMEN. 
MARRIED  WOMEN, 

exclusion  of,  from  suffrage,  57,  58,  902. 

statutes  enlarging  rights  of,  95,  n.  3. 

waiver  of  rights  by,  252,  n.  1. 

testimony  of,  in  favor  of  husband,  447,  n.  4. 

invalid  deeds  of,  may  be  validated  by  legislature,  537,  538. 

control  of,  by  husband,  484,  485. 

See  DIVORCE  ;  DOWER. 
MARSHES, 

draining  of,  and  assessments  therefor,  734,  769,  770. 
MARTIAL   LAW, 

when  may  be  declared,  436,  n.  1. 

citizen  not  to  be  tried  by,  454,  n.  1. 

legality  of  action  under,  518,  n.  3. 

danger  from,  924,  925. 
MARYLAND, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

limited  time  for  introduction  of  new  bills,  199. 

title  of  acts  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

right  of  jury  to  determine  the  law  in  all  criminal  cases,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

exclusion  of  religious  teachers  from  office,  662,  n.  1. 

religious  tests  for  office  in,  662,  n.  3. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 
MASSACHUSETTS, 

judges  of,  to  give  opinions  to  governor  and  legislature,  72,  n.  1. 

constitutional  provision  respecting  divorces,  153,  n.  2. 


996  INDEX. 

MASSACHUSETTS  —  continued. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 
protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 
liberty  of  speech  and  of  the  press  in,  596,  n. 
privilege  of  legislators  in  debate,  634,  n. 
periodical  valuations  for  taxation,  711,  712. 
exclusions  from  suffrage  in,  902,  n.  1. 
MASTER, 

of  apprentice,  servant,  and  scholar,  power  of,  486. 
MAXIMS, 

of  government,  laws  in  violation  of,  238,  239. 
of  the  common  law,  what  they  consist  in,  49,  50. 

gradual  growth  and  expansion  of,  88. 
for  construction  of  statutes, 

a  statute  is  to  be  construed  as  prospective,  and  not  retrospective  iu 

its  operation,  97. 
such  an  interpretation  shall  be  put  upon  a  law  as  to  uphold  it,  and 

give  effect  to  the  intention  of  the  law-makers,  91,  92. 
words  in  a  statute  are  presumed  to  be  employed  in  their  natural  and 

ordinary  sense,  92,  93,  123,  n.  1. 

contemporary  construction  is  best  and  strongest  in  the  law,  102-106. 
a  statute  is  to  be  construed  in  the  light  of  the  mischief  it  was  de- 
signed to  remedy,  100. 
he  who  considers  the  letter  merely,  goes  but  skin  deep  into  the 

meaning,  123,  n.  1. 
statutes  in  derogation  of  the  common   law  are  to  be   construed 

strictly,  95. 
an   argument   drawn  from  inconvenience    is   forcible  in   the  law, 

102-106. 

taxation  and  representation  go  together,  238. 
local  concerns  shall  be  managed  in  local  districts,  238. 
general  principles, 

no  man  can  be  judge  in  his  own  cause,  592-595. 

consent  excuses  error,  232,  250-252,  588. 

the  law  does  not  concern  itself  about  trifles,  748. 

that  to  which  a  party  assents  is  not  in  law  an  injury,  250-252. 

no  man  shall  be  twice  vexed  for  one  and  the  same  cause,  80. 

every  man's  house  is  his  castle,  50,  425,  426. 

that  which  was  originally  void  cannot  by  mere  lapse  of  time  become 

valid,  522,  523. 
necessity  knows  no  law,  878. 

so  enjoy  your  own  as  not  to  injure  that  of  another,  831. 
MEANING   OF  WORDS.     See  DEFINITIONS. 
MEASURES   AND   WEIGHTS, 
regulation  of,  887-889. 

MEMBERS  OF  THE  LEGISLATURE, 

contested  seats  of,  decided  by  the  house,  190. 
punishment  of,  for  contempts,  &c.,  190,  191. 
power  of  the  houses  to  expel,  190. 
exemption  of,  from  arrest,  192. 
publication  of  speeches  by,  650-652. 
privilege  of,  in  debate,  &c.,  634-636. 


INDEX.  997 

MICHIGAN, 

right  of,  to  admission  to  the  Union  under  ordinance  of  1787,  56,  n.  1. 

repeal  of  acts  of  Parliament  in,  54,  n.  2. 

repeal  of  laws  derived  from  France,  54,  n.  2. 

right  of  married  women  to  property  in,  95,  n.  3. 

special  statutes  authorizing  sale. of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

limited  time  for  introduction  of  new  bills,  198,  199. 

title  of  acts  to  embrace  the  object,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

special  legislative  sessions,  222,  n.  2. 

time  when  acts  are  to  take  effect,  223. 

restriction  upon  power  to  contract  debts,  325  and  n.  5. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  laud,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n.  2. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

periodical  valuations  for  taxation,  711,  712. 

MILITARY   BOUNTIES, 

by  municipal  corporations,  when  legal,  326-333. 

MILITARY  COMMISSIONS, 

when  not  admissible,  454,  n.  1. 

See  MARTIAL  LAW. 
MILITIA, 

control  of,  45,  46. 

not  to  be  called  out  on  election  days,  924,  925. 

MILL-DAMS, 

construction  of,  across  navigable  waters,  867. 
abatement  of,  as  nuisances,  880. 

MILL-DAM   ACTS, 

do  not  confer  vested  rights,  548. 
constitutionality  of,  771-773. 

MILLERS, 

regulation  of  charges  of,  870-873. 

taxation  in  aid  of,  700,  n.  1. 
MINNESOTA, 

divorces  not  to  be  granted  by  the  legislature,  153,  n.  2. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

title  of  acts  to  embrace  the  subject,  202,  n.  3. 

approval  of  laws  by  the  governor  of,  219,  220. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 


998  INDEX. 

MINORS.     See  INFANTS. 
MISCHIEF   TO   BE   REMEDIED, 

may  throw  light  on  constitutional  clause,  100. 

MISSISSIPPI, 

constitutional  provision  respecting  divorces,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  158,  n.  2,  160,  n.  2. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  2. 

time  when  acts  are  to  take  effect,  223. 

municipalities  of,  restrained  from  aiding  public  improvements,  318,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

religious  tests  for  office  in,  662,  n.  3. 

religious  liberty  in,  662,  n.  3. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 

MISSOURI, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

restrictions  upon  legislative  power  in  constitution  of,  181,  n.  4. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

special  legislative  sessions,  222,  n.  2. 

municipalities  restrained  from  aiding  public  improvements,  318,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  liberty  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n.  2. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

"  damaging  "  property  in  the  course  of  public  improvements,  810,  n.  3. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 
MONEY, 

coinage  and  regulation  of,  12,  35,  36. 

States  forbidden  to  coin,  35. 

legal  tender,  14,  n.  1. 

punishment  of  counterfeiting,  12,  46. 

bills  for  raising,  to  originate  in  lower  house  in  some  States,  188. 

cannot  be  appropriated  under  right  of  eminent  domain,  759. 
MONOPOLIES, 

odious  nature  of,  562,  n.  1.    . 

grant  of,  not  presumed,  562,  n.  1. 

in  navigable  waters,  864-866. 

MORAL   OBLIGATIONS, 

recognition  of,  by  municipal  bodies,  306-309. 
MORTGAGES, 

right  to  possession  under,  cannot  be  taken  away  by  legislature,  412- 


INDEX.  999 

MOTIVES, 

of  legislative  body  not  to  be  inquired  into  by  courts,  257-259. 

nor  those  of  municipal  legisl?tive  body,  305,  306. 
good,  when  a  defence  in  libel  cases,  656-658. 
MUNICIPAL   BODIES, 

do  not  decide  upon  disputed  elections,  189,  n.  1. 
MUNICIPAL   CORPORATIONS, 

question  of  formation  or  division  of,  may  be  submitted  to  people  inter- 
ested, 166,  167. 
question  of  engaging  in  internal  improvements  may  also  be  submitted, 

166,  167. 

powers  of  local  government  may  be  conferred  upon,  166,  261. 
general  view  of  the  system,  261-364. 
legislature  prescribes  extent  of  powers,  265,  266. 
charter  of,  the  measure  of  their  authority,  265,  266,  270,  271. 
complete  control  of,  by  legislature,  239,  n.  2,  266-269,  333-340. 

limitations  upon,  333-340  and  notes, 
whether  it  may  compel  them  to  assume  obligations  aside  from  their 

ordinary  functions,  335-342. 
charter  of,  not  a  contract,  268,  390. 
powers  of,  270-276. 

in  general,  270-276. 
express,  what  are,  270. 
implied,  what  are,  270. 
effect  of  changes  in,  266-269. 
charter  to  be  strictly  construed,  271. 
contracts  ultra  vires,  void,  272-275. 

negotiable  paper  issued  by,  when  valid,  312-325. 
may  exist  by  prescription,  276-278. 

powers  thereof,  277. 
by  implication,  existence  of,  277. 
authority  of,  how  exercised,  274. 
what  by-laws  they  may  make,  270,  278-292. 

must  not  be  opposed  to  constitution  of  State  or  nation,  278. 
nor  to  charter,  278,  279. 

nor  to  general  laws  of  the  State,  278,  279,  291. 
nor  to  general  principles  of  the  common  law,  284. 
nor  be  unreasonable,  280-292. 

illustrative  cases  on  question  of  reasonableness  of,  281,  n.  1, 

282,  n.  2,  284,  n.  4. 
nor  uncertain,  284. 

cannot  delegate  their  powers,  293-299. 
cannot  adopt  irrepealable  legislation,  295. 

nor  preclude  themselves  from  exercise  of  police  power,  295-299. 
nor  grant  away  use  of  streets,  295-299. 

but  may  change  grade  of,  296. 
incidental  injuries  in  exercise  of  powers  give  no  right  of  action,  295-303. 

nor  injuries  from  failure  to  exercise  powers,  300-303. 
liability  of,  for  negligence  of  officers,  304,  305  and  notes,  355-364. 

for  false  imprisonment,  300,  n.  (a), 
may  indemnify  officers,  306-309. 

but  not  for  refusal  to  perform  duty,  309,  n.  1,  311. 
may  contract  to  pay  for  liquors  destroyed,  309,  n.  2. 


1000  INDEX. 

MUNICIPAL   CORPORATIONS  —continued. 

may  hold  property  in  trust  for  schools,  261,  n.  1. 

or  for  other  charities,  266,  n.  2. 
construction  of  powers  of,  309-342. 

to  be  with  reference  to  the  purposes  of  their  creation,  309-311. 
will  not  include  furnishing  entertainments,  310. 
or  loaning  credit,  311. 

or  offering  rewards,  or  paying  for  lobby  services,  310,  n.  1. 
or  expenditures  for  private  purposes,  311. 
must  be  confined  to  territorial  limits,  312  and  notes, 
constitutional  prohibitions  of  private  aid  taxes,  167,  n.  5,  318,  n.  1. 
power  of,  to  raise  bounty  moneys,  &c.,  326-333,  341,  342. 
to  aid  internal  improvements,  312-325  and  notes, 
in  respect  to  nuisances,  882-886  and  notes, 
legislative  control  of  corporate  property,  342-347,  390-392,  411. 
may  be  made  liable  for  destruction  of  property  in  riots,  345,  n.  1. 
towns,  counties,  &c.,  how  differing  from  chartered  corporations,  347-358. 
judgments  against,  may  be  collected  of  corporators,  349-354. 

but  only  in  New  England,  354. 

not  liable  for  failure  of  officers  to  perform  duty,  354,  355. 
chartered  corporations   undertake   for   performance  of  corporate   duty, 
355-357. 

liability  to  persons  injured  by  failure,  355-362. 
corporate  organization  how  questioned,  363,  364. 
imperfect  acts  of,  may  be  validated,  534,  535,  541,  542. 
must  tax  all  property  within  their  limits  alike,  718-726. 
cannot  tax  property  not  lying  within  their  limits,  718,  719. 
bounds  of,  cannot  be  arbitrarily  enlarged  in  order  to  bring  in  property 

for  taxation,  720,  721. 

obtaining  water  for,  under  right  of  eminent  domain,  769. 
taking  of  lands  for  parks  for,  770,  n. 
MUTE, 

•wilfully  standing,  when  arraigned,  439,  n.  2. 


NATION, 

definition  of,  3. 

distinguished  from  State,  3. 

See  UNITED  STATES. 
NATURALIZATION, 

power  of  Congress  over,  12. 
NAVIGABLE   WATERS, 

made  free  by  ordinance  of  1787,  54,  n.  2. 

right  of  States  to  improve  and  charge  toll,  54,  n.  2,  866,  n 

what  are,  and  what  not,  861,  862. 

are  for  use  of  all  equally,  861. 

general  control  of,  is  in  the  States,  863. 

congressional  regulations,  when  made,  control,  863,  864. 

States  cannot  grant  monopolies  of,  864. 

States  may  authorize  bridges  over,  865. 

when  bridges  become  nuisances,  866. 


INDEX.  1001 

NAVIGABLE   WATERS  —  continued. 

States  may  establish  ferries  across,  867. 

States  may  authorize  dams  of,  867.  . 

regulation  of  speed  of  vessels  upon,  867. 

rights  of  fishery  in,  752  n. 

frontage  upon,  is  property,  787,  788. 

See  WATERCOURSES. 
NAVIGATION, 

right  of,  pertains  to  the  eminent  domain,  753. 

See  NAVIGABLK  WATERS. 
NEBRASKA, 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

title  of  acts  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

"  damaging  "  property  in  the  course  of  public  improvements,  810,  n.  3. 

disqualifications  for  suffrage  in,  902,  n.  1. 

NECESSITY, 

Constitution  of  United  States  compelled  by,  9,  n. 

is  the  basis  of  the  right  of  eminent  domain,  753. 

extent  of  property  to  be  taken  is  limited  by,  777-781. 

destruction  of  buildings  to  prevent  spread  of  fire,  878. 
NEGLIGENCE, 

liability  of  municipal  corporations  for,  304,  305  and  notes,  355-362. 

liability  of  quasi  municipal  corporations  for,  354. 

as  a  foundation  for  rights  under  betterment  laws,  552. 

carriers  of  persons  may  be  made  responsible  for  deaths  by,  843,  844. 

in  the  construction  of  public  works,  may  give  right  of  action,  826. 
NEGOTIABLE   PAPER, 

when  municipal  corporations  liable  upon,  312-325. 
NEVADA, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

special  legislative  sessions,  222,  n.  2. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

disqualifications  for  suffrage  in,  902,  n.  1. 
NEW   ENGLAND   CONFEDERACY, 

of  1643,  why  formed,  7. 
NEW   HAMPSHIRE, 

judges  of,  to  give  opinions  to  the  governor  and  to  the  legislature,  72,  n.  1. 

causes  of  divorce  to  be  heard  by  the  courts,  153,  n.  2. 


1002  INDEX. 

NEW   HAMPSHIRE  —  continued. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

approval  of  laws,  219,  n.  1. 

municipalities  restrained  from  aiding  public  improvements,  318,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

constitutional  provision  respecting  retrospective  laws,  530,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  664,  n.  1. 

disqualifications  from  suffrage  in,  902,  n.  1. 
NEW  JERSEY, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  L 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

title  of  act  to  embrace  the  object,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

disqualifications  from  suffrage  in,  902,  n.  1. 
NEW   STATES, 

admission  of,  58-69. 
NEW   TRIALS. 

not  to  be  granted  by  the  legislature,  137,  560. 

not  granted  on  application  of  State  in  criminal  cases,  463. 

may  be  had  after  verdict  set  aside  on  application  of  defendant,  469,  470. 
but  not  on  counts  on  which  he  was  acquitted,  470. 

See  JEOPAKDY. 
NEW  YORK, 

amendment  of  constitution  of,  60,  n.  1. 

divorces  to  be  granted  only  in  judicial  proceedings,  153,  n.  2. 

title  of  act  to  express  the  subject,  202,  n.  3. 

approval  of  laws  by  governor  of,  220. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  664,  n.  1. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 
NEWSPAPERS, 

publication  of  privileged  communications  in,  636. 

whether  they  have  any  privilege  in  publishing  news,  640,  641. 

privilege  not  admitted  by  the  courts,  641-643. 

when  publisher  not  liable  to  vindictive  damages,  647-650. 
See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
NOBILITY, 

titles  of,  forbidden  to  be  granted,  44,  45. 
NOLLE  PROSEQUI, 

when  equivalent  to  acquittal,  468. 
NON  COMPOTES  MENTIS, 

legislative  authority  for  sale  of  lands  of,  140-147. 

excluded  from  suffrage,  902. 


INDEX.  1003 

NON-RESIDENT  PARTIES, 

subjecting  to  jurisdiction  of  court  by  publication,' 582-585. 

restricted  effect  of  the  notice,  583,  584. 

discrimination  in  taxation  of,  693. 
NORTH   CAROLINA, 

ratification  of  constitution  by,  9. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

religious  tests  for  office  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n. 

disqualifications  from  suffrage  in,  902,  n.  1. 
NOTICE, 

to  render  municipalities  liable  for  defects,  357,  358. 

necessity  for,  in  legal  proceedings,  579-585. 

right  to,  in  tax  cases,  711,  n.  3. 

bringing  in  non-resident  parties  by  publication  of,  581-585. 

of  elections,  when  essential  to  their  validity,  908,  909. 
NUISANCE, 

liability  of  municipal  corporations  for,  295,  299-306,  362,  363. 

when  bridges  over  navigable  waters  are,  865,  866. 

municipal  control  of,  292,  n.  1. 

abatement  at  expense  of  land-owner,  882,  n.  2. 

power  of  municipal  corporations  over,  882,  n.  2. 

when  dams  are,  and  may  be  abated,  880. 

obstructions  in  navigable  streams  are,  865-867. 

forbidding  use  of  cemeteries  which  have  become,  880,  881. 

general  power  in  the  States  to  abate,  882. 

created  by  public,  not  to  be  abated  at  expense  of  individual,  883,  n.  1. 


0. 

OATH, 

of  attorneys,  474,  n.  3. 
test,  may  be  punishment,  372,  n. 
of  voter,  when  conclusive  of  his  right,  927,  928. 
blasphemy  and  profanity  punishable  by  law,  670-673. 
OBJECT   OF   STATUTE, 

in  some  States  required  to  be  stated  in  title,  202-214. 
OBLIGATION  OF   CONTRACTS, 

States  not  to  pass  laws  violating,  36,  175,  176,  383,  384. 
what  is  a  contract,  383-401. 

agreements  by  States  are,  384-386. 

executed  contracts,  384. 

appointments  to  office  are  not,  388. 

municipal  charters  are  not,  268,  388. 

franchises  granted  to  municipal  corporations  are  not,  390. 

but  grants  of  property  in  trust  are,  390,  391. 

and  grants  of  property  for  municipal  use,  342-347. 
private  charters  of  incorporation  are,  391,  392. 


1004  INDEX. 

OBLIGATION   OF   CONTRACTS  —  continued. 

whether  an  exemption  from  taxation  is,  176,  395,  396. 

it  is  if  granted  for  a  consideration,  395. 
whether  right  of  eminent  domain  can  be  relinquished,  397-399. 

or  the  right  to  exercise  the  police  power,  399. 
change  in  general  laws  of  the  State  does  not  violate,  4.02,403. 
nor  divorce  laws,  403. 

such  laws  not  to  devest  rights  in  property,  403. 
what  obligation  consists  in,  405. 

remedies  for  enforcement  of  contracts  may  be  changed,  405—417. 
imprisonment  for  debt  may  be  abolished,  407. 
exemptions  from  execution  may  be  increased,  407-409. 
rules  of  evidence  may  be  changed,  409,  410. 
but  all  remedy  cannot  be  taken  away,  410,  411. 
a  judgment  for  a  tort  is  not  a  contract,  411. 
repeal  of  statute  giving  remedy  cannot  destroy  contracts,  411. 
appraisement  laws  cannot  be  made  applicable  to  existing  debts,  412. 
right  to  possession  under  mortgages  cannot  be  taken  away,  412. 

nor  time  to  redeem  lands  shortened  or  extended,  412,  413. 
laws  staying  execution,  how  far  invalid,  413,  414. 
when  power  of  municipal  taxation  may  not  be  taken  away,  414,  415. 
stockholders  liable  for  corporate  debts  may  not  be  released  by  law,  415. 
whether  a  party  may  release,  by  contract,  a  privilege  granted  for  reasons 

of  State  policy,  251,  252,  415. 
when  a  contract  requires  new  action  to  its  enforcement,  changes  may  be 

made  as  to  such  action,  415. 

new  promise  to  revive  a  debt  may  be  required  to  be  in  writing,  415, 416. 
laws  validating  invalid  contracts  do  not  violate  Constitution,  416. 

nor  laws  extending  corporate  franchises,  416. 
State  insolvent  laws,  how  far  valid,  416,  417- 
effect  of  police  laws,  832-883. 
OBSCENITY, 

in  legal  proceedings,  not  to  be  published,  638. 
sale  of  obscene  books  and  papers  may  be  prohibited,  884,  885. 
OBSCURITIES. 

aids  in  interpretation  of,  100-107. 

See  CONSTRUCTION  OF  STATE  CONSTITUTIONS. 

OBSTRUCTIONS  TO  NAVIGATION. 

when  bridges  and  dams  to  be  considered  such,  865-867. 

when  channels  cut  by  private  parties  are  private  property,  862. 
OCEAN.     See  HIGH  SEAS. 
OFFENCE, 

same  act  may  be,  against  both  State  and  municipality,  279  and  n.  4. 
OFFICE, 

certain  persons  disqualified  for  federal,  17. 

constitutional  provisions  not  changeable  by  law,  95,  n.  2. 

temporary  appointments  to,  99,  n.  2. 

adjudging  the  forfeiture  of,  133,  n.  1. 

appointments  to,  do  not  constitute  contracts,  388. 
whether  they  pertain  to  the  executive,  158,  n.  1. 

right  to  not  to  be  contested  on  habeas  corpus,  495,  n.  3. 

eligibility  to,  894,  n. 


INDEX.  1005 

OFFICER, 

President  has  general  authority  to  appoint,  21,  22. 

duties  of,  when  cannot  be  taken  away,  99,  n.  3,  388,  n.  2. 

protection  of  dwelling-house  against,  50,  425. 

general  warrants  to,  are  illegal,  426-429. 

may  break  open  house  to  serve  criminal  warrant,  429. 

service  of  search-warrant  by.     See  SEARCHES  AND  SEIZURES. 

privilege  of  criticism  of,  616,  646,  n. 

removal  of,  158,  n.  2,  388,  n.  2. 

constitutional  qualifications  cannot  be  added  to,  by  the  legislature,  99. 

duty  of,  when  doubtful  of  constitutional  construction,  109. 

of  the  legislature,  election  of,  189. 

de  jure,  who  is,  897. 

de  facto,  who  is,  897,  898. 

municipal,  may  be  indemnified  by  corporation,  306-309. 
but  not  for  refusal  to  perform  duty,  309,  n.  1,  311. 

election  of.     See  ELECTIONS. 

appointments  to,  not  necessarily  an  executive  function,  158,  n.  2. 
OHIO. 

general  laws  to  be  uniform,  97,  n.  3. 

legislature  not  to  grant  divorces  nor  exercise  judicial  power,  153,  n.  2. 

legislature  forbidden  to  exercise  the  appointing  power,  158,  n.  2. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

constitutional  provision  respecting  retrospective  laws,  530,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596  n. 

privilege  of  legislators  in  debate,  634  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n.  1. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

OMNIPOTENCE  OF  PARLIAMENT, 

meaning  of  the  term,  6,  124,  125,  244,  245. 
OPINION, 

of  courts,  in  some  States,  executive  or  legislature  may  require,  72. 

proscription  for,  is  unconstitutional,  556. 

on  religious  subjects  to  be  free,  659-661. 

religious  tests  forbidden  in  some  States,  662  and  notes. 

of  witnesses   on  religious  subjects  not  to  constitute  disqualification  in 
some  States,  677,  n.  1. 

judicial,  force  of,  as  precedents,  79-88. 
ORDINANCE  OF  1787, 

how  far  still  in  force,  54,  n.  2. 

admission  of  States  to  the  Union  under,  56  and  n.  1. 

ORDINANCES,  MUNICIPAL.    See  BY-LAWS;  MUNICIPAL  CORPORATIONS. 
OREGON, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160,  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 


1006  INDEX. 

OREGON  —  continued. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms,  excused,  677,  n.  1. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

disqualifications  from  suffrage  in,  902,  n.  1. 
ORIGINAL  PACKAGES, 

State  cannot  prohibit  sales  in,  when,  845-851. 
OVERRULING  DECISIONS, 

when  should  take  place,  86. 


P. 

PAPERS, 

private,  exempt  from  seizure,  425-434. 

protected  the  same  as  property,  509,  n.  2. 
PARDON, 

power  of,  to  be  exercised  by  governor,  159,  n.,  160,  n.  3.    ' 

constitutional  provisions  as  to  rules  for,  160,  n.,  161. 

power  to,  does  not  include  reprieves,  160,  n.  2. 
PARENT, 

right  of,  to  custody  of  child,  485. 

respective  rights  of  father  and  mother,  496,  497. 
PARLIAMENT, 

power  of,  to  change  the  constitution,  6,  124,  125,  244. 

acts  of,  adopted  in  America,  51,  52. 

repeal  of  acts  of,  54,  n. 

comparison  of  powers  with  those  of  State  legislatures,  124-126,  244,  245. 

may  exercise  judicial  authority,  125. 

bills  of  attainder  by,  368. 

publication  of  proceedings  of,  not  formerly  allowed,  600. 

publication  of  speeches  by  members,  650-652. 

publication  of  reports  and  papers  of,  650-652. 
PARLIAMENTARY   LAW, 

influence  of,  in  construction  of  constitutions,  187. 

legislative  power  in  regard  to,  189,  190. 

power  to  preserve  order,  &c.,  under,  190. 

privilege  by,  of  members  from  arrest,  192. 
PARTIAL  LEGISLATION, 

legislature  to  govern  by  equal  laws,  554-575. 

special  laws  for  particular  individuals  not  permissible,  556,  557. 

suspensions  of  laws  not  allowed  in  special  cases,  558. 

regulations  for  special  localities  or  classes,  560-562. 

equality  of  rights,  &c.,  the  aim  of  the  law,  562. 

strict  construction  of  special  privileges  and  grants,  564-567. 

and  of  discriminations  against  individuals  and  classes,  563-565. 
and  of  statutes  in  derogation  of  the  common  law,  95  and  notes. 

citizens  of  other  States  not  to  be  discriminated  against,  567-575. 
PARTICULAR  INTENT, 

control  of,  by  general  intent,  392,  n. 


INDEX.  1007 

PARTIES, 

defendants  in  criminal  suits,  evidence  of,  447-449. 

not  compellable  to  testify  against  themselves,  442-449. 

how  subjected  to  jurisdiction  of  courts,  579-585. 

estopped  by  judgment,  81. 
PASSENGERS, 

power  of   States  to  require  report  of,  from   carriers,  and  to  levy  tax 
upon,  858. 

making  carriers  responsible  for  safety  of,  843,  844. 

requirement  of  equal  privileges  to,  840,  n.  4. 
PASTURAGE, 

right  of,  in  public  highway,  is  property,  788. 
PATENTS, 

power  of  granting,  is  in  the  United  States,  12. 

States  may  regulate  use  of  patented  articles,  12,  n. 
PAUPERS, 

exclusion  of,  from  suffrage,  902. 
PAVING   STREETS, 

assessments  for,  not  within  constitutional  provisions  respecting  taxation, 
713-715. 

special  taxing  districts  for,  722-732. 

assessments  may  be  made  in  proportion  to  benefits,  728. 
or  in  proportion  to  street  front,  729. 

but  each  separate  lot  cannot  be  made  a  separate  district,  732 
PEACE   AND   WAR, 

power  over,  of  the  revolutionary  Congress,  8. 
of  Congress  under  the  Constitution,  13. 
PENALTIES, 

for  the  same  act  under  Federal  and  State  laws,  45,  46. 
under  State  and  municipal  laws,  279  and  n.  4. 

given  by  statute  may  be  taken  away,  517,  n.  3,  547. 

for  violation  of  police  regulations,  890. 
PENNSYLVANIA, 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

local  option  statutes,  validity  of,  173. 

revenue  bills  must  originate  in  lower  house,  188,  n.  1. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

time  when  acts  take  effect,  225. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  463,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  in,  662,  n.  3. 

injuring  of  property  in  course  of  public  improvements,  810-812. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

experiment  of,  with  single  legislative  body,  187,  n.  1. 
PEOPLE, 

reservation  of  powers  to,  by  national  Constitution,  46. 

sovereignty  vested  in,  56-58,  892. 

formation  and  change  of  constitutions  by,  58-63. 

who  are  the,  57,  58,  899-902. 

exercise  of  sovereign  powers  by,  899-909. 


1008  INDEX. 

PERSON, 

right  of  inspection  of  the,  424,  n.  (a). 
PERSONAL   LIBERTY, 

gradually  acquired  by  servile  classes  in  Great  Britain,  419-423. 
constitutional  prohibition  of  slavery  in  America,  423,  424. 
of  bills  of  attainder,  36,  67,  368. 

See  BILLS  OF  ATTAINDER. 
of  ex  post  facto  laws,  36,  67,  374. 

See  Ex  POST  FACTO  LAWS. 
of  unreasonable  searches  and  seizures,  424-434. 

See  SEARCHES  AND  SEIZURES. 
of  quartering  soldiers  in  private  houses,  435,  436. 
protection  of,  in  one's  dwelling-house,  50,  425,  426,  435. 
criminal  accusations,  how  made,  436. 
bail  for  accused  parties,  437,  438. 

unreasonable,  not  to  be  demanded,  439. 
trial  for  crimes,  440-482. 

See  CRIMES. 

meaning  of  the  terra,  483,  489,  490,  560,  561. 
legal  restraints  upon,  484-487. 

right  to,  in  England,  did  not  depend  on  any  statute,  487. 
reason  why  it  was  not  well  protected,  487-489. 
evasions  of  the  writ  of  habeas  corpus,  487-489. 
the  habeas  corpus  act,  51,  489-491. 

did  not  extend  to  American  Colonies,  491. 
general  adoption  of,  491. 
writ  of  habeas  corpus,  491. 

when  national  courts  may  issue,  491-493. 
State  courts  to  issue  generally,  493,  494. 
return  to,  when  prisoner  held  under  national  authority,  493. 
not  to  be  employed  as  a  writ  of  error,  495. 
application  for,  need  not  be  made  in  person,  494,  n.  2. 
what  the  officer  to  inquire  into,  495,  496. 
to  enforce  rights  of  relatives,  496,  497. 
PETIT  JURY, 

trial  by.     See  JURY  TRIAL. 
PETITION, 

right  of,  497,  498,  618. 
PETITION  OF  RIGHT, 

was  a  declaratory  statute,  50,  51,  366. 
quartering  soldiers  upon  subjects  forbidden  by,  435. 
PHILIPPINE   ISLANDS, 

revenue  clauses  of  the  Constitution  do  not  apply  to,  12,  n.  (a). 
PICTURES, 

libels  by,  injury  presumed  from,  607,  608. 
indecent,  sale  of,  may  be  prohibited,  884. 
PILOTAGE, 

State  regulations  of,  687,  688,  858,  859. 
PIRACY, 

Congress  may  define  and  punish,  13. 
PLURALITY, 

sufficient  in  elections,  892,  894,  931. 


INDEX.  1009 

POISONS, 

regulation  of  sales  of,  881,  882. 
POLICE   POWER, 

of   States  not   taken   away  by   Federal   Constitution   nor  amendments 

thereto,  11,  n. 

exercise  of,  by  municipal  corporations,  283-292. 
pervading  nature  of,  832-851. 
definition  of,  829-831. 
the  maxim  on  which  it  rests,  831. 
States  no  power  to  relinquish  it,  399,  400,  840. 

power  of  States  to  make  regulations  which  affect  contracts,  833-851. 
how  charters  of  private  incorporation  may  be  affected  by,  835-851. 
charters  cannot  be  amended  on  pretence  of,  837,  838. 

nor  rights  granted  by  charters  taken  away,  839. 
railroad  corporations  may  be  required  to  fence  track,  840,  841. 

and  made  liable  for  beasts  killed  on  track,  840,  841. 
grade  of  railways  and  crossings  may  be  prescribed,  842. 
requirement  that  bell  shall  be  rung  or  whistle  sounded  at  crossings,  &c., 

843. 

whether  carriers  of  persons  may  not  be  made  insurers,  843. 
action  may  be  given  for  death  caused  by  negligence,  843,  844. 
authority  of  railway  commissioners,  843,  844,  n. 
sale  of  intoxicating  drinks  maybe  regulated  by  States,  845-851  and  notes. 

regulation  of,  to  what  extent  interferes  with  power  of  Congress  over 

commerce,  846-848. 
sale  of  intoxicating  drinks  as  a  beverage  may  be  prohibited  by  States, 

846-848. 
payment  of  United  States  license  fee  does  not  give  rights  as  against  State 

law,  851. 

quarantine  and  health  regulations  by  States,  851-854. 
harbor  regulations  by  the  States,  855. 

line  of  distinction  between  police  regulations  and  interference  with  com- 
merce, 856. 

police  regulations  may  be  established  by  Congress,  856,  857. 
State  requirement  of  license  fee  from  importers  illegal,  687,  688,  857. 
State  regulations  to  prevent  immigrants  becoming  a  public  charge,  858. 
State  regulations  of  pilots  and  pilotage,  858. 
Sunday  laws  as  regulations  of  police,  859. 
regulation  by  States  of  use  of  highways,  860,  861. 

owners  of  urban  property  may  be  required  to  build  sidewalks,  860,  861. 
construction  of  levees  on  river  fronts,  868, 
what  are  navigable  waters,  861. 
control  of  navigable  waters  by  States,  861. 

restrictions  on  this  control,  863-868. 

monopolies  not  to  be  granted,  862,  863. 

States  may  improve  and  charge  tolls,  865. 

may  authorize  bridges,  865,  866. 

when  these  bridges  to  be  abated,  866. 

may  establish  ferries,  867. 

may  authorize  dams,  867. 

when  the  dams  may  be  abated,  867,  868. 

may  regulate  speed  of  vessels,  867,  868. 
regulations  of  civil  rights  and  privileges,  869. 

64 


1010  INDEX. 

POLICE   POWER  —  continued. 

regulations  of  business  charges,  870-876  and  notes. 

other  cases  of  police  regulations,  877-891. 

destruction  of  property  to  prevent  spread  of  fire,  877. 
for  other  reasons,  notes  to,  878,  879,  881. 

establishment  of  fire  limits,  wharf  lines,  &c.,  878,  879. 

regulations   respecting   gunpowder,    poisons,  dogs,   unwholesome  provi- 
sions, &c.,  880-883. 

regulations  for  protection  of  public  morals,  884-886. 

market  regulations,  886-888. 

regulation  of  employments,  869,  884-890. 

limiting  hours  of  labor,  891. 

prohibited  act  or  omission  may  be  made  criminal,  890. 
POLICE   REGULATIONS, 

power  to  establish,  may  be  conferred  on  municipal  corporations,  172,  n. 

See  POLICE  POWER. 
POLICE   REPORTS, 

publication  of,  636-638. 
POLITICAL   DEPARTMENT, 

construction  of  constitution  by,  72-76,  104,  n.  3. 
POLITICAL   OPINIONS, 

citizens  not  to  be  proscribed  for,  556. 
POLITICAL   POWER, 

distinguished  from  judicial,  143,  n.  1. 
POLITICAL   RIGHTS, 

equality  of,  556-567,  659-668. 
POPULAR   RIGHTS, 

not  measured  by  constitutions,  69,  n.  1. 
POPULAR   VOTE, 

submission  of  laws  to,  not  generally  allowable,  163-165. 

See  ELECTIONS. 
POPULAR  WILL, 

expression  of,  as  to  amendment  of  constitutions,  59,  60. 
must  be  obtained  under  forms  of  law,  893,  894. 

See  ELECTIONS. 
PORTO  RICO, 

revenue  clauses  of  the  Constitution  do  not  apply  to,  12,  n.  (a). 
POSSESSION, 

importance  of,  in  limitation  laws,  522,  523. 
POST-OFFICES, 

and  post-roads,  Congress  may  establish,  12. 

inviolability  of  correspondence  through,  432,  n.  1. 
POWDER, 

police  regulations  concerning  storage  of,  881. 
POWERS, 

of  government,  apportionment  of,  by  State  constitutions,  64,  65. 

division  of,  in  American  constitutional  law,  4. 

of  Congress,  11-18. 

of  State  legislatures,  124-132. 

See  JUDICIAL  POWER  ;  LEGISLATIVE  POWERS. 
PRACTICAL   CONSTRUCTION, 

weight  to  be  given  to,  103-106. 

not  to  override  the  Constitution,  106. 


INDEX.  1011 

PRECEDENTS, 

importance  of,  83-85. 

judicial,  how  far  binding,  84—88. 

law  made  by,  89,  n. 

only  authoritative  within  country  where  decided,  85. 

when  to  be  overruled,  87. 

of  executive  department,  force  of,  102. 
PRECIOUS    METALS, 

in  the  soil  belong  to  sovereign  authority,  753. 
PRELIMINARY    EXAMINATIONS, 

of  persons  accused  of  crimes,  443,  444. 

publication  of  proceedings  on,  not  privileged,  638. 
PREROGATIVE   REMEDIAL   LEGISLATION, 

what  is,  140-147. 
PRESCRIPTIVE   CORPORATIONS, 

powers  of,  276,  277. 
PRESENCE, 

of  prisoner  at  his  trial,  450-452. 
PRESIDENT, 

powers  and  duties  of,  19-22. 

PRESS,   LIBERTY  OF.    See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS, 
PRESUMPTION, 

of  constitutionality  of  statutes,  195,  236,  237,  255. 

of  existence  of  corporation,  276,  277. 

of  innocence  of  accused  party,  437. 

of  correctness  of  legislative  motives,  260,  300,  305,  306 
PRICES, 

regulation  of,  870. 
PRINCIPAL   AND  BAIL, 

custody  of  principal  by  bail,  486. 
PRINTED   BALLOTS, 

answer  the  requirement  of  written,  910,  n.  3. 
PRIVACY, 

right  of,  424,  n.  (a),  509,  n.  3. 
PRIVATE   BUSINESS, 

taxation  to  aid,  312-325. 
PRIVATE   CORPORATIONS, 

distinguished  from  public,  387-394. 

charters  of,  are  contracts,  391-394. 
PRIVATE   PAPERS.     See  PAPERS. 
PRIVATE   PROPERTY, 

right  to,  is  before  constitutions,  68,  69,  244,  507. 

of  municipal  corporations,  how  far  under  legislative  control,  342-347. 

when  affected  with  a  public  interest,  870-877. 

owners  cannot  be  compelled  to  improve,  550,  768,  769. 

appropriating,  under  right  of  eminent  domain,  753,  754. 

trial  of  right  to,  526-528. 

protection  of,  against  municipal  action,  291,  292. 

See  EMINENT  DOMAIN  ;  VESTED  RIGHTS. 
PRIVATE   RIGHTS, 

not  to  be  construed  away  by  the  legislature,  73,  n.  1. 

under  what  circumstances  may  be  disturbed,  507,  508. 


1012  INDEX. 

PRIVATE  ROADS, 

cannot  be  laid  out  under  right  of  eminent  domain,  764,  765. 
PRIVATE   STATUTES, 

not  evidence  against  third  parties,  139. 

to  authorize  sales  by  guardians,  &c.,  when  constitutional,  140-147,  554. 
PRIVIES, 

estoppel  of,  by  judgment,  81,  82. 
PRIVILEGED   COMMUNICATIONS, 

meaning  of  the  term,  609. 

when  made  in  answer  to  inquiries,  610,  611. 

between  principal  and  agent,  611. 

where  parties  sustain  confidential  relations,  611. 

discussing  measures  or  principles  of  government,  612-615. 

criticising  officers  or  candidates,  616-628. 

made  in  the  course  of  judicial  proceedings,  629-631. 

made  by  counsel,  631-633. 

by  legislator  to  constituents,  634-636. 

by  client  to  counsel,  477,  478. 
PRIVILEGES   AND   IMMUNITIES, 

of  citizens  of  the  several  States,  36-41,  693. 
what  are,  37,  n.  1,  569-575  and  notes. 

citizens  not  to  be  deprived  of,  14,  15,  36,  417,  418. 

protection  of,  rests  with  the  States,  418,  n.  3,  869. 

of  legislators,  192. 

special,  strict  construction  of,  562-575. 

regulation  of,  869. 
PROCEEDINGS, 

of  constitutional  convention  may  be  looked  to  on  questions  of  construc- 
tion, 101,  102. 

in  rem  and  in  personam,  580-585. 

of  legislative  bodies,  publication  of,  600-602,  636-640,  650-652. 
PROFANITY, 

in  judicial  proceedings,  publication  of,  638. 

punishment  of,  671-674. 
PROFESSIONAL  COMMUNICATIONS, 

not  to  be  disclosed,  477,  478. 
PROFESSIONAL   SERVICES, 

to  influence  legislation  cannot  be  contracted  for,  196. 

law  requiring,  without  compensation,  to  be  strictly  construed,  563. 

See  COUNSEL. 
PROHIBITIONS   ON   THE   STATES, 

in  the  federal  Constitution,  35-41. 

in  forming  or  amending  constitutions,  62. 
PROHIBITORY   LIQUOR   LAWS, 

constitutionality  of,  845-851. 
PROPERTY, 

qualification  for  suffrage,  901,  902. 

protection  of,  by  fourteenth  amendment,  15. 

by  constitutional  provisions  may  be  waived,  250,  251. 

of  municipal  corporations,  control  of,  342-347. 

See  EMINENT  DOMAIN;  PRIVATE  PROPERTY;  VESTED  RIGHTS. 
PROROGATION, 

of  the  legislature  by  governor,  188. 


INDEX.  1013 

PROSCRIPTION, 

of  persons  for  their  opinions,  556,  659-668. 
PROSECUTING   OFFICERS, 

duty  of,  to  treat  accused  parties  with  judicial  fairness,  440,  n.  2,  480-482. 
PROTECTION, 

the  equivalent  for  taxation,  812. 

of  municipal  corporations  from  liability  for  injuries  incident  to  exercise 

of  powers,  300. 
PROVISIONS, 

regulations  to  prevent  sale  of  unwholesome,  881,  882,  886,  887. 
PUBLIC   ACTS, 

records  and  judicial  proceedings,  full  faith  and  credit  to  be  given  to, 

38,  39. 

PUBLIC   CORPORATIONS.     See  MUNICIPAL  CORPORATIONS. 
PUBLIC   DEBT, 

inviolability  of,  17. 
PUBLIC    GOOD, 

laws  should  have  reference  to,  184. 
PUBLIC   GRANTS, 

strict  construction  of,  565. 

See  CHARTER;  FRANCHISE. 
PUBLIC    GROUNDS, 

lands  dedicated  for,  not  to  be  put  to  other  uses,  344,  345,  806,  n. 
PUBLIC    IMPROVEMENTS, 

power  of  municipalities  to  aid  construction  of,  outside  territorial  limits, 

312-325. 
PUBLIC    INTEREST, 

when  properly  affected  with,  870-877. 
PUBLIC    MORALS, 

regulations  for  protection  of,  884,  885. 

See  RELIGIOUS  LIBERTY. 
PUBLIC   OFFICERS.     See  OFFICER. 
PUBLIC   OPINION, 

not  to  affect  construction  of  constitution,  88,  89. 

expression  of,  by  elections,  893-895. 
PUBLIC   PURPOSES, 

what  are,  696,  n.  (n). 

taxation  must  be  for,  184,  243,  678,  696-705. 

appropriation  of  property  for,  752,  756. 

See  EMINENT  DOMAIN. 
PUBLIC   STATUTES, 

what  are,  554-556. 
PUBLIC   TRIAL, 

accused  parties  entitled  to,  441. 

not  essential  that  everybody  be  allowed  to  attend,  441. 
PUBLIC   USE, 

of  property,  what  constitutes,  766,  768. 

See  EMINENT  DOMAIN. 
PUBLICATION, 

of  statutes,  223-226. 

of  debates  in  Parliament  formerly  not  suffered,  600. 

of  books,  &c.,  censorship  of,  601. 

of  debates  in  American  legislative  bodies,  601,  602. 


1014  INDEX. 

PUBLICATION  —continued. 

of  legislative  speeches,  650T652. 
of  judicial  proceedings,  636-640. 
of  notice  to  non-resident  parties,  581-585. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
PUBLISHERS  OF   NEWS, 

not  privileged  in  law,  640-650. 
PUNISHMENTS, 

for  same  act  under  Federal  and  State  laws,  45,  46. 
under  State  and  municipal  laws,  279  and  n.  4. 
what  changes  in,  the  legislature  may  make  applicable  to  previous  offences, 

372-383. 

of  crimes  by  servitude,  423. 
cruel  and  unusual,  prohibited,  471-474. 
must  not  exceed  measure  the  law  has  prescribed,  473,  474. 
See  BILLS  OF  ATTAINDER;  CRIMES;  Ex  POST  FACTO  LAWS. 


Q- 

QUALIFICATIONS, 

of  officer  or  voter  under  constitution  cannot  be  added  to  by  legislature,  99. 

of  members  of  legislature  to  be  determined  by  the  two  houses,  189,  190. 

of  voter,  inquiring  into,  on  contested  election,  942-944. 
QUARANTINE, 

regulations  by  the  States,  851-853. 
QUARTERING   SOLDIERS, 

in  private  houses  in  time  of  peace  forbidden,  435,  436. 
QUASI  CORPORATIONS,  347-355. 

individual  liability  of  members  of  in  New  England,  349,  354. 

not  liable  to  private  action  for  negligence  of  officers,  354. 
QUORUM, 

majority  of,  generally  sufficient  for  passage  of  laws,  201. 

of  courts,  must  act  by  majorities,  139. 

full  court  generally  required  on  constitutional  questions,  230. 


R 

RACE, 

color  or  previous  condition  of  servitude,  discrimination  on  account  of,  for- 
bidden, 36. 

not  to  be  a  disqualification  for  suffrage,  17,  18,  901. 
marriages  between  persons  of  different,  556,  n.  1. 
RAILROADS, 

authorizing  towns,  &c.,  to  subscribe  to,  is  not  delegating  legislative  power, 

167,  168. 

whether  such  subscriptions  may  be  made,  312-325. 
appropriations  of  lands  for,  768  et  seq. 

and  of  materials  for  constructing,  756. 
and  of  lands  for  depot  buildings,  &c.,  780. 
See  EMINENT  DOMAIN. 
appropriation  of  highways  for,  788-806. 


INDEX.  1015 

RAILROADS  —  continued. 

must  be  by  legislative  permission,  789. 

whether  adjoining  owner  entitled  to  compensation,  789-803. 

whether  one  may  condemn  property  of  another,  757,  n.  3,  804-806  and 
note. 

police  regulations  in  respect  to,  832-844. 

requiring  corporations  to  fence  track  and  pay  for  beasts  killed,  840- 

841. 

regulation  of  grade  and  crossings,  842. 
provisions  regarding  alarms,  843. 
regulation  of  charges,  871-876  and  notes, 
responsibility  for  persons  injured  or  killed,  843, 

bridges  for,  over  navigable  waters,  865. 

commissioners  of,  authority  of,  843,  844,  n. 
READING   OF    BILLS, 

constitutional  provisions  for,  116,  117,  200  and  n. 
REAL   ESTATE, 

rights  of  foreign  corporations  as  to,  180,  181. 

not  to  be  taxed  out  of  taxing  district,  719. 

within  taxing  district  to  be  taxed  uniformly,  718-731 

taking  for  public  use.     See  EMINENT  DOMAIN. 
REASONABLENESS, 

of  municipal  by-laws,  280-292  and  notes. 

of  limitation  laws,  522,  524. 

of  police  regulations.     See  POLICE  POWER. 
REBELLION, 

employment  of  militia  to  suppress,  12. 
RECITALS, 

in  statutes,  not  binding  upon  third  parties,  139. 

when  they  may  be  evidence,  139. 
RECONSTRUCTION   OF   STATES, 

control  over,  63,  n. 
RECORDS, 

public,  of  the  States,  full  faith  and  credit  to  be  given  to,  38-41. 

judicial,  not  generally  to  be  contradicted,  40,  n.,  585. 

See  JUDICIAL  PROCEEDINGS. 
REDEMPTION, 

right  of,  cannot  be  shortened  or  extended  by  legislature,  412,  413. 
REFUSAL    TO   PLEAD, 

in  criminal  cases,  consequence  of,  439,  n.  2. 
REGISTRATION, 

of  voters,  may  be  required,  905-907. 
REGULATION, 

of  commerce  by  Congress,  12,  686-691,  845-859,  873,  n.  1. 

by  legislature,  of  exercise  of  executive  power,  160, 161,  n.  2. 

of  navigable  waters  by  Congress,  864. 

police,  by  the  States.     See  POLICE  POWER. 

of  the  right  of  suffrage,  899-905. 

right  of,  does  it  imply  a  right  to  prohibit,  284-292  and  notes. 
REHEARING.     See  NEW  TRIALS. 
RELIGIOUS   LIBERTY, 

care  taken  by  State  constitutions  to  protect,  659-668. 


1016  INDEX. 

RELIGIOUS   LIBERTY  —  continued. 

no  law  for  the  establishment  of  religion  can  be  passed,  663,  664. 

compulsory  taxation  for  support  of  religion  forbidden,  664,  665  and  u.  2. 

compulsory  attendance  on  religious  worship  forbidden,  664. 

freedom  of  worship  protected,  665. 

freedom  of  expression  of  religious  belief  guaranteed,  665. 

distinguished  from  religious  toleration,  659,  632  and  n.  1. 

does  not  preclude  recognition  of  superintending  Providence  by  public 

authorities,  668,  669. 

nor  appointment  of  chaplains,  thanksgiving  and  fast  days,  669. 
nor  recognition  that  the  prevailing  religion  of  the  State  is  Christian, 

669,  670. 

the  maxim  that  Christianity  is  part  of  the  law  of  the  land,  670-673. 
punishment  of  blasphemy  does  not  invade,  671-673. 

or  of  other  forms  of  profanity,  674. 
Sunday  laws,  how  justified,  674,  675,  859. 
respect  for  religious  scruples,  676. 

religious  belief,  as  affecting  the  competency  or  credibility  of  witnesses, 
676,  677  and  notes. 

REMEDIAL  STATUTES, 

liberal  construction  of,  95,  n. 

parties  obtaining,  are  bound  by,  139. 

may  disturb  private  rights,  508. 
REMEDY, 

power  of  legislature  over,  in  criminal  cases,  374-383. 
in  civil  cases,  137-139,  405-417,  515-520. 

legislature  cannot  take  away  all  remedy,  410,  411. 

a  judgment  for  a  tort  is  not  a  contract  within  this  rule,  411 
may  give  new  remedies,  and  defences,  406-408. 
may  limit  resort  to  remedies,  515-520. 

for  collection  of  taxes,  748-751. 

for  compensation  for  property  taken  by  public,  812-828. 
REMOVAL, 

of  causes  from  State  to  national  courts,  25-31. 

of  officers,  158,  n.  2. 
REPEAL, 

of  old  English  statutes,  54,  n. 

all  laws  subject  to,  174-176. 

of  statutes  at  same  session  of  passage,  217. 

by  implication,  not  favored,  216,  217. 

of  corporate  charters,  388,  394. 

of  a  law,  terminates  right  to  give  judgment  under  it,  544. 

of  laws  conflicting  with  unconstitutional  law,  256,  257. 

question  of,  not  to  be  referred  to  the  people,  171. 
REPORTS, 

of  public  meetings,  621. 

of  legislative  proceedings,  publication  of,  600-602,  650-652. 

of  judicial  proceedings,  publication  of,  636-640. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
REPRESENTATION, 

constructive,  94,  n. 

See  LEGISLATIVE  DEPARTMENT;    LEGISLATORS. 


INDEX.  1017 

REPRIEVE, 

power  of,  not  included  in  power  to  pardon,  160,  n.  2. 
REPUBLICAN   GOVERNMENT, 

guarantee  of,  by  United  States  to  the  States,  43,  44,  62. 

maxims  of,  do  not  constitute  limitations  on  legislative  power,  237-239. 
REPUBLICATION, 

of  amended  statutes  under  certain  State  constitutions,  214-217. 
RES  ADJUD1CATA, 

definition,  79,  80. 

parties  and  privies  estopped  by  judgments,  81. 

force  of  judgment  does  not  depend  on  reasons  assigned,  82. 

strangers  not  bound  by,  81,  82. 

parties  and  privies  not  bound  in  new  controversy,  82. 
RESERVED   POWERS, 

under  the  United  States  Constitution  in  the  States  and  people,  11,  46. 
RESIDENCE, 

gives  jurisdiction  in  divorce  suits,  578. 
but  not  unless  bonajide,  578. 

as  affecting  right  to  impose  personal  taxes,  719. 

of  voters,  what  constitutes,  903,  904. 
RESTRAINT  OF  TRADE, 

by-laws  of  municipal  corporations  when  void  because  in,  284-287. 
RESTRICTIONS, 

on  trade  by  municipal  by-laws,  281-292. 

in  United  States  Constitution  on  powers  of  the  States,  35-41. 

on  power  of  people  to  amend  constitutions,  62. 

on  powers  of  legislature.     See  LEGISLATURES  OF  THE  STATES. 
RESUMPTION   OF   GRANTS, 

by  the  States  is  forbidden,  385. 
RETROSPECTIVE  LEGISLATION, 

when  admissible  generally,  134-139,  528-546. 

sometimes  construed  as  having  prospective  operation  only,  255. 

cannot  revive  demands  which  are  barred,  528. 

nor  create  a  demand  where  none  ever  equitably  existed,  528-546. 

may  take  away  defences  based  on  informalities,  528,  529. 

may  cure  irregularities  in  legal  proceedings,  529-546. 
or  in  corporate  action,  &c.,  531,  534,  535. 

what  defects  can  and  what  cannot  be  cured  by,  531,  539-546. 

may  validate  imperfect  marriages,  533-535. 
or  other  imperfect  contracts,  535-546. 
or  invalid  deeds,  537-540. 

may  take  away  defence  of  usury,  536,  537. 

bona  fide  purchasers  not  to  be  affected  by,  540. 

legalizing  municipal  action,  330,  331,  542. 

pendency  of  suit  does  not  affect  power  to  pass,  543,  544. 

cannot  make  good  what  the  legislature  could  not  originally  have  per- 
mitted, 544,  545. 

cannot  cure  defects  of  jurisdiction,  546. 

forbidden  in  some  States,  529,  530. 

statutes  generally  construed  to  operate  prospectively,  97,  529. 

prospective  construction  of  constitution,  97. 


1018  INDEX. 

REVENUE, 

in  some  States,  bills  for,  to  originate  with  lower  house,  188,  189. 

cannot  be  raised  under  right  of  eminent  domain,  758,  759. 

See  TAXATION. 
REVISION, 

of  State  constitutions,  62. 

of  statutes.     See  STATUTES. 
REVOLUTION,   AMERICAN, 

powers  of  the  Crown  and  Parliament  over  Colonies  before,  7,  8. 

Congress  of  the,  its  powers,  7-9. 

division  of  powers  of  government  at  time  of,  8,  n. 
REWARDS, 

by  towns  for  apprehension  of  offenders,  310,  n.  1. 
RHODE  ISLAND, 

ratification  of  Constitution  by,  9. 

charter  government  of,  55. 

judges  of,  to  give  opinions  to  governor  and  legislature,  72,  n.  1. 

privilege  of  legislators  from  arrest,  192,  n.  2. 

impeachment  of  judges,  229,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  696,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

periodical  valuations  for  taxation,  712. 

exclusions  from  suffrage  in,  902,  n.  1. 
RIGHTS, 

of  citizen  not  to  be  denied  or  abridged  on  account  of  race,  color,  or  pre- 
vious servitude,  17,  18. 

distinguished  from  the  remedy,  402-417. 

express  constitutional  prohibitions  not  necessary  where  they  are  declared 
in  Constitution,  245. 

vested.     See  VESTED  RIGHTS. 

in  action.     See  ACTION. 
RIOTS, 

liability  of  municipality  for  property  destroyed  in,  300,  n.  1,  345,  n.  1. 
ROAD   DISTRICTS,  348. 
ROADS, 

appropriation  of  private  property  for,  756,  767. 

appropriation  of  materials  for  constructing,  756. 

appropriation  of,  for  railroads,  &c.,  788-798. 
See  EMINENT  DOMAIN. 

regulation  of  use  of,  by  States,  860. 

action  for  exclusion  from,  787,  n.  2. 
RULES   AND  REGULATIONS.     See  BY-LAWS. 

RULES   OF   CONSTRUCTION.     See  CONSTRUCTION  OF  STATE  CONSTI- 
TUTIONS. 
RULES  OF  EVIDENCE, 

power  of  the  legislature  to  change,  405,  406,  524-528. 

See  EVIDENCE. 
RULES   OF   LEGISLATIVE   ORDER, 

are  under  the  control  of  the  legislature,  187-193. 
See  LEGISLATURES  OF  THE  STATES. 


INDEX.  1019 


S. 
SABBATH, 

laws  for  observance  of,  674,  675,  859. 
SALE   OF   LANDS, 

of  incompetent  persons,  &c.,  special  legislative  authority  for,  140-147. 
propriety  of  judicial  action  in  such  cases,  140. 
SCHOOL   AUTHORITIES, 

control  by,  of  school  children,  261,  n.  1. 
SCHOOL   DISTRICTS,  348,  349. 

judgments  against,  in  New  England  collectible  against  private  owners, 

349-354. 
SCHOOL-HOUSES, 

exercise  of  right  of  eminent  domain  for  sites  for,  769. 
SCHOOLS, 

general  power  of  States  to  provide,  261-263  and  notes, 
control  of,  261,  n.  1. 
impartial  rights  in,  261,  n.  1,  556,  n. 
Bible  in,  665,  n.  2. 
SCIENCE, 

Congress  may  promote,  12. 
SCOTLAND, 

servitude  in,  422,  423. 
SEAMEN, 

impressment  of,  424. 

SEARCH-WARRANTS.     See  SEARCHES  AND  SEIZURES. 
SEARCHES   AND   SEIZURES, 

the  maxim  that  every  man's  house  is  his  castle,  50,  425,  426. 
unreasonable  searches  and  seizures  prohibited,  425,  426. 

origin  of  the  prohibition,  425,  426  and  n.  1. 
history  of  general  warrants  in  England,  426,  n.  1. 
general  warrants  in  America,  427,  428. 
search-warrants,  their  arbitrary  character,  429. 

only  granted  after  a  showing  of  cause  on  oath,  429. 

must  specify  place  to  be  searched  and  the  object,  429,  430. 

particularity  of  description  required,  430. 
should  be  served  in  daytime,  430. 
must  be  directed  to  proper  officer,  430. 
must  command  accused   party  and  property,  &c.,   to  be   brought 

before  officer,  430,  431. 

cannot  give  discretionary  power  to  ministerial  officer,  431. 
not  allowed  to  obtain  evidence  of  intended  crime,  431. 
compulsory  inspection  of  person  or  property,  424,  n.  (a), 
cases  in  which  they  are  permissible,  431,  432. 

not  to  seize  correspondence,  432,  n.  2. 
for  libels,  illegal  at  common  law,  433,  n.  1. 
officer  following  command  of,  is  protected,  434. 

and  may  break  open  doors,  434. 
SEAS.     See  HIGH  SEAS. 
SEAT  OF  GOVERNMENT, 

Congress  has  exclusive  control  over,  13. 


1020  INDEX. 

SECESSION, 

not  admitted  by  the  Constitution,  11. 
SECRECY, 

inviolability  of,  in  correspondence,  432-434. 

elector's  privilege  of,  910-913. 

privilege  of,  as  between  counsel  and  client,  477,  478. 
SEDITION   LAW, 

passage  of,  and  prosecutions  under,  613. 
SELF-ACCUSATION, 

not  to  be  compelled,  442. 
SELF-DEFENCE, 

right  to,  434,  n.  4. 
SELF-EXECUTING  PROVISIONS, 

what  are  and  are  not,  119-123. 

SELF-GOVERNMENT.     See  ELECTIONS  ;  MUNICIPAL  CORPORATIONS. 
SENTENCE, 

indefinite  suspension  of,  160,  n.  2. 

indeterminate,  158,  n. 
SERMONS, 

privilege  of  criticism  of,  625,  627,  n. 
SERVANT, 

control  of,  by  master,  486. 
SERVICES, 

laws  requiring,  without  compensation,  strictly  construed,  563. 

to  influence  legislation  cannot  be  contracted  for,  196. 

of  child,  right  of  father  to,  485. 
SERVITUDE.    See  SLAVERY. 
SEVENTH  AMENDMENT, 

limitations  of,  apply  to  federal  government  only,  46. 
SHEEP, 

regulations  for  protection  of,  527,  n.  2,  881,  u.  3. 
SIDEWALKS, 

owners  of  lots  may  be  compelled  to  build  under  police  power,  860. 

See  ASSESSMENTS. 
SIGNING  OF  BILLS, 

by  officers  of  legislature,  218. 

by  the  governor,  218-221. 
SIXTH  AMENDMENT, 

limitations  of,  apply  to  federal  government  only,  46. 
SLANDER, 

general  rules  of  liability  for,  605,  606. 

See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
SLAVE  CONTRACTS, 

enforcement  of,  405,  n.  1. 
SLAVERY, 

former  state  of,  in  England,  419. 

causes  of  its  disappearance,  420-422. 

in  Scotland,  422,  423. 

in  America,  423,  424. 

now  prohibited,  14. 

servitude  in  punishment  of  crime,  14,  423. 


INDEX.  1021 

SLAVES, 

United  States  and  States  forbidden  to  pay  claims  for  loss  or  emancipation 

of,  17. 
SOLDIERS, 

quartering  of,  in  private  houses  prohibited,  435. 

municipal  bounties  to,  326-333. 

military  suffrage  laws,  903,  n. 

jealousy  of  standing  armies,  498,  499. 
SOUTH   CAROLINA, 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

title  of  act  to  embrace  the  object,  169  and  n.  3. 

right  of  jury  to  determine  the  law  in  cases  of  libel,  n.  1,  463. 

protection  of  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

religious  tests  for  office  in ,  662,  n.  3. 

persons  conscientiously  opposed  to  bearing  arms  excused,  676,  n.  1. 

private  property  not  to  be  taken  without  compensation,  816,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 
SOVEREIGN    POWERS, 

separation  of,  62-66,  126-139. 

cannot  be  granted  away,  174-176,  293,  395-402. 
SOVEREIGN    STATE, 

what  it  is,  3. 

American  States  not  strictly  such,  8,  24-31. 
SOVEREIGNTY, 

definition  of,  3. 

territorial  and  other  limits  of,  4. 

in  America,  rests  in  people,  56,  126,  892. 
limitation  of  the  doctrine,  57. 

division  of  powers  of,  in  American  system,  4,  71. 

legislature  not  to  bargain  away,  174-176,  293,  395-402. 

exercise  of,  by  the  people,  892. 

See  ELECTIONS. 
SPECIAL  JURISDICTION, 

courts  of,  585,  586. 
SPECIAL   LAWS, 

forbidden  in  certain  States  where  general  can  be  made  applicable,  153 
and  n.  2,  181  and  n.  4. 

due  process  of  law  does  not  always  forbid,  554-557. 

for  sale  of  lands,  &c.,  140. 
SPECIAL   PRIVILEGES, 

strict  construction  of,  561-567. 

restrictions  in,  based  on  sex,  889,  n.  2. 
SPECIAL   SESSIONS   OF  LEGISLATURE, 

calling  of,  by  the  governor,  188,  222. 

SPEECH,  FREEDOM  OF.    See  LIBERTY  OF  SPEECH  AND  OF  THE  PRESS. 
SPEECHES, 

of  legislators,  publication  of,  650-652. 

of  counsel,  636. 
SPEED, 

upon  public  highways,  regulation  of,  860,  861. 

on  navigable  waters,  867. 


1022  INDEX. 

SPEEDY   TRIAL, 

right  of  accused  parties  to,  440. 
SPIRIT  OF   THE   CONSTITUTION, 

must  be  found  in  the  words  employed,  108,  239-241. 

laws  in  supposed  violation  of,  239-241. 
STALLIONS, 

prohibiting  standing  of,  in  public  places,  886,  n.  2. 
STAMP, 

defence  to  contract  based  on  the  want  of,  may  be  taken  away,  539,  n.  2. 

cannot  be  required  on  process  of  State  courts,  684. 

upon  contracts,  684,  n.  2. 
STAMP  ACT  CONGRESS, 

what  led  to,  7. 
STANDING   ARMIES, 

jealousy  of,  498,  499. 
STANDING  MUTE, 

of  accused  party,  proceeding  in  case  of,  439. 
STAR  CHAMBER, 

court  of,  488. 
STARE  DECISIS, 

what  is,  and  effect  of  the  doctrine,  79-88. 
STATE, 

definition  of,  3.  , 

sovereign,  what  is,  3. 

distinguished  from  nation,  3. 

limits  to  jurisdiction  of,  4. 

not  suable  without  its  own  consent,  23  and  n.  2. 

actions  nominally  against  officers,  really  against  State,  will  not  lie,  23,  n.  2. 

not  liable  for  acts  of  agents,  23,  n.  2. 
STATE  BUILDINGS, 

local  taxation  for,  313,  n.  1,  337,  n.  1. 
STATE  CONSTITUTIONS, 

in  existence  when  United  States  Constitution  was  formed,  49. 

pre-existing  laws,  common  and  statutory,  49-54,  55,  n. 
ordinance  of  1787,  54,  n.  2. 
colonial  charters,  55. 

how  modified  when  not  containing  provisions  therefor,  56. 

theory  that  the  people  are  sovereign,  56,  58. 

general  rules  for  modification  of,  58-68. 

right  of  people  of  Territories  to  form,  58,  59. 

right  to  amend,  rests  in  people  as  an  organized  body  politic,  59. 

•will  of  the  people  must  be  expressed  under  forms  of  law,  59,  60. 

conventions  to  amend  or  revise,  61. 

limitations  by  Constitution  of  the  United  States  on  power  to  amend,  62. 

protection  of  personal  rights  by,  62,  64,  65. 

unjust  provisions,  &c.,  must  be  enforced,  62,  63. 

what  is  generally  to  be  expected  in,  64-68. 

are  not  the  origin  of  individual  rights,  68,  69. 

are  presumed  to  have  been  drafted  with  care,  91,  92. 

are  successors  of  English  charters  of  liberty,  93,  94. 

construction  of,  70-123. 

See  CONSTRUCTION  OF  STATE  CONSTITUTIONS. 


INDEX.  1023 

STATE  COURTS, 

removal  of  causes  from,  to  United  States  courts,  25-31. 
to  decide  finally  questions  of  State  law,  31,  33. 
protection  to  personal  liberty  by,  417,  418,  491. 

See  COURTS. 
STATE   INDEBTEDNESS, 

prohibition  of,  will  not  prevent  indebtedness  by  municipal  corporations, 
321-325. 

STATE   INSTITUTIONS, 

local  taxation  for,  313,  n.  1,  337,  n.  1. 

STATEMENT, 

of  defendant  in  criminal  case,  right  to  make,  and  effect  of,  443-449. 

STATE'S   ATTORNEY, 

fairness  required  of,  482,  n.  1. 

STATES   OF   THE   UNION, 

in  what  sense  sovereign,  8. 

always  subject  to  a  common  government,  10. 

restrictions  upon,  in  the  Constitution,  35-41. 

suits  between,  in  Federal  courts,  23. 

division  of  powers  between,  and  the  nation,  4. 

not  suable  without  their  consent  by  individuals,  23  and  n.  2. 

actions,  nominally  against  officers,  really  against  State,  will  not  lie,  23, 

n.  2. 

powers  prohibited  to,  35,  36,  44,  45. 
may  legislate,  in  absence  of  congressional  action,  45. 
faith  to  be  given  to  public  records  of,  38-40. 
privileges  and  immunities  of  citizens  of,  35,  692. 
cannot  tax  agencies  of  general  government,  45. 
admission  of  new,  56. 
agreements  of,  are  inviolable,  384-386. 
compacts  between,  are  inviolable,  386,  n.  1. 

STATUS, 

of  marriage,  control  of,  by  legislature,  152-157. 

See  DIVORCE. 
S1ATUTES, 

adopted  from  other  States,  construction  of,  85  and  note, 
directory  and  mandatory,  109-114. 
enactment  of,  186-226. 

constitutional  requirements  must  be  observed,  186. 
common  parliamentary  law  as  affecting,  187. 
the  two  houses  must  act  separately,  187. 

are  of  equal  importance,  dignity,  and  power,  187. 
to  proceed  in  their  own  way  in  collecting  information,  192. 
journals  of  houses  as  evidence,  193,  194. 
introduction  of  bills,  197-199. 
in  some  States  bills  involving  raising  of  money  must  originate  in 

lower  house,  188. 

three  several  readings  of  bills,  116-118,  199,  200. 
yeas  and  nays,  entry  of,  11  o,  201. 
what  sufficient  vote  on  passage,  201. 
title  of  bill,  formerly  no  part  of  it,  202. 


1024  INDEX. 

STATUTES  —  continued. 

constitutional  provisions  requiring  object  to  be  expressed,  117,  202. 

these  provisions  mandatory,  213,  214. 

evil  to  be  remedied  thereby,  203-205. 

particularity  required  in  stating  object,  205-207 

"other  purposes,"  ineffectual  words  in,  207. 

examples  as  to  what  can  be  held  embraced  in,  208,  209. 

repealing  section,  valid  though  not  in  title,  208. 

effect  if  more  than  one  object  embraced  in  title,  210,  211. 

effect  where  act  broader  than  title,  211-214. 
amendatory,  214-217. 

requirement  that  act  amended  be  set  forth  at  length,  214-217. 

this  not  applicable  to  amendments  by  implication,  216. 
repeal  of,  at  session  of  their  passage,  217. 

by  unconstitutional  act,  256,  257. 

signing  of,  by  presiding  officers  of  two  houses,  218. 
approval  of,  by  the  governor,  218-221. 
passage  of,  at  special  sessions,  222. 
when  to  take  effect,  222-226. 

whether  taking  effect  of,  may  be  conditional,  164-170. 
publication  of,  223-226. 
presumed  validity  of,  235-243,  252-254. 
power  of  courts  to  declare  their  unconstitutionality,  227-250. 

inferior  courts  may  pass  upon,  230,  n.  1. 

not  to  be  exercised  by  bare  quorum,  230. 
a  rule  of  propriety  only,  230. 

nor  unless  decision  on  the  very  point  necessary,  231. 

nor  on  complaint  of  party  not  interested,  232. 

nor  solely  because  of  unjust  provisions,  233-237. 

nor  because  violating  fundamental  principles,  237-239. 

nor  because  opposed  to  spirit  of  constitution,  239-241. 

nor  in  any  doubtful  case,  252-257. 

may  be  void  though  no  express  constitutional  provision  violated,  242,  244. 
may  be  unconstitutional  in  part,  246-250. 

instances  of,  249,  250. 

when  valid  portion  may  be  enforced,  246-250. 

may  be  valid  as  to  some  cases  and  void  as  to  others,  250. 
constitutional  objection  to,  may  be  waived,  250. 

not  in  criminal  cases,  252. 

motives  in  passage  of,  not  to  be  inquired  into,  257-259. 
consequence  when  invalid,  259-260. 
whether  jury  may  pass  upon,  480,  n.  4. 
retrospective,  528-546. 
construction  of,  to  be  such  as  to  give  effect,  255. 

presumption  against  conflict  with  constitution,  255  257. 

to  be  prospective,  529. 

contemporary  and  practical,  102-107. 
ex  post  facto,  372-383. 

See  Ex  POST  FACTO  LAWS. 
violating  obligation  of  contracts,  383-417. 
validating  legal  proceedings,  150,  151. 

See  OBLIGATION  OF  CONTRACTS. 
unequal  and  partial,  554-575. 


INDEX.  1025 

STATUTES  —  continued. 
of  limitation,  520,  524. 

of  Parliament,  how  far  in  force  in  America,  51-53. 
STATUTORY   LIENS, 

whether  they  may  be  taken  away,  407,  n.  1. 
STATUTORY   PRIVILEGES, 
are  not  vested  rights,  546. 
strict  construction  of,  563-575. 
STAY   LAWS, 

law  taking  from  mortgagees  right  to  possession  invalid  as  to  existing 

mortgages,  412. 
law  extending  time  of  redemption  of  lands  previously  sold  is  void,  412, 

413. 

law  shortening  redemption  void,  412,  413. 
stay  of  execution  on  existing  demands  for  unreasonable  or  indefinite  time 

is  void,  413,  414. 
STOCK  IN   CORPORATIONS, 

municipal  subscriptions  to,  167,  168,  312-325. 
•when  liable  for  debts,  cannot  be  released  by  legislative  act,  415. 
STREETS, 

power  of  cities,  &c.,  to  change  grade  of,  295-303. 
power  to  control,  295-303,  and  n.  (a),  297. 
liability  for  injuries  in,  &c.,  300-306,  and  n.  1,  300. 
special  assessments  for  grading  and  paving,  713-717. 
assessment  of  labor  upon,  737. 

exercise  of  right  of  eminent  domain  for,  756,  769  et  seq. 
and  for  materials  for  constructing,  756. 
when  owner  of  land  to  receive  compensation,  812-828. 
appropriation  of,  for  railways,  789-803. 
police  regulations  for  use  of,  860,  861. 
STRICT  CONSTRUCTION, 

of  laws  in  derogation  of  common  law,  95. 
of  charters,  271,  272,  564-567. 
of  statutes  granting  special  privileges,  563-567. 
of  statutes  requiring  gratuitous  services,  563. 
of  statutes  taking  property  for  public  use,  760-762. 
STUDENTS, 

law  for  protection  of,  888. 
SUBJECT   OF   STATUTE, 

required  in  some  States  to  be  stated  in  title,  202. 
SUBMITTING  LAWS   TO   POPULAR  VOTE, 

whether  it  is  a  delegation  of  legislative  power,  164-168. 
authorities  generally  do  not  allow,  168,  169. 
corporate  charters,  &c.,  may  be  submitted,  167,  264,  265. 
and  questions  of  division  of  towns,  &c.,  167. 
and  questions  of  local  subscriptions  to  improvements,  167,  n.  5,  169, 

170. 
SUBSCRIPTIONS, 

to  internal  improvements  by  municipal  corporations,  167,  n.  5,  312-325 

and  notes, 
submitting  questions  of,  to  corporation  is  not  delegating  legislative  power, 

167,  n.  5,  169,  170. 

power  of  taxation  to  provide  for,  cannot  be  taken  away,  414,  415. 

65 


1026  INDEX. 

SUCCESSION  TO  THE   CROWN, 

power  of  Parliament  to  change,  125 
SUCCESSION   TAXES, 

character  and  validity  of,  708,  n.  (a). 
SUFFRAGE, 

right  of,  in  forming  new  constitutions,  57. 

restrictions  upon,  to  be  construed  strictly,  564. 

constitutional  qualifications  for,  not  to  be  added  to  by  legislature,  99 
and  n.  3. 

who  to  exercise  generally,  899-905. 

regulation  of  right  of,  905-908. 

right  of,  not  conferred  on  women  by  the  new  amendments,  18,  n. 

See  ELECTIONS. 
SUIT, 

notification  of,  by  publication,  582-585. 

See  ACTION. 
SUMPTUARY  LAWS, 

odious  character  of,  549,  550. 
SUNDAY, 

laws  to  prevent  desecration  of,  how  defended,  675. 

police  regulations  regarding,  859. 
SUPPORT, 

of  children,  liability  of  father  for,  485. 

lateral,  of  lands,  right  to,  785,  n.  3. 
SUPREMACY  OF   PARLIAMENT, 

extent  of,  6,  124-127,  244,  366. 
SUPREME   COURT, 

Federal,  appellate  jurisdiction  of,  from  State  courts,  25-31. 
SUPREME   LAW, 

Constitution,  laws,  and  treaties  of  United  States  to  be,  24. 

of  a  State,  constitution  to  be,  4. 
SURRENDER, 

of  fugitives  from  justice,  37,  38,  n.  1. 
SUSPENSION  OF  LAWS, 

when  authorized  must  be  general,  558. 

for  limitation  of  actions,  523  and  n.  2. 
SWAMPS, 

drains  for,  769,  770. 

special  assessments  for  draining,  734. 


T. 

TAKING  OF  PROPERTY, 

of  individuals  for  public  use,  732,  n.  3,  752  et  seq. 

whether  necessity  for,  is  a  judicial  question,  777,  778  and  notes. 

See  EMINENT  DOMAIN;   TAXATION. 
TAX, 

what  is,  678. 
direct,  what  is,  680. 
TAX  DEED, 

may  be  made  prima  facie  evidence  of  good  title,  525,  526. 
but  not  conclusive  evidence,  527. 


INDEX.  1027 

TAX   LAWS, 

directory  and  mandatory  provisions  in,  109-119. 

See  TAXATION. 
TAX   SALES, 

curing  defective  proceedings  in,  by  retrospective  legislation,  544-546. 
what  defects  should  avoid,  747,  748. 

deeds  given  upon,  may  be  made  evidence  of  title,  525-528. 
conditions  to  redemption  from,  527,  n.  1. 

See  TAXATION. 
TAXATION, 

general  government  may  exercise  power  of,  12. 

and  representation  to  go  together,  52,  53,  94,  n.  1,  163,  n.  1,  238. 

construction  of  grant  of,  318,  319. 

right  of,  compared  with  eminent  domain,  812. 

exemptions  from,  by  the  States,  when  not  repealable,  176,  395,  396. 

can  only  be  for  public  purposes,  184,  243,  678,  696-705. 

whether  purpose  is  public  is  judicial  question,  185,  n.  1. 
must  be  by  consent  of  the  people,  163,  n.  1. 
license  fees  distinguished  from,  283  and  notes,  709,  n.  1. 
by  municipalities,  power  of  legislature  over,  165-167,  309,  334-338,  390 

and  n.  1. 

for  internal  improvements,  312-325. 
re-assessment  of  irregular,  may  be  authorized,  306-308. 
irregular,  may  be  confirmed  by  legislature,  544-546. 
necessary  to  the  existence  of  government,  678. 
•  unlimited  nature  of  power  of,  678-686. 
for  the  support  of  religion  forbidden,  664,  665,  n.  2. 
of  agencies  of  national  government  by  the  States  impliedly  forbidden,  45, 

680-683. 
of  agencies  of  the  States  by  the  national  government  also  forbidden,  683, 

684. 

of  the  subjects  of  commerce  by  the  States,  686-691,  856-859. 
of  corporations,  710,  n.  (n),  739,  n.  («). 

discriminations  in,  as  between  citizens  of  different  States,  692,  693. 
legislature  the  proper  authority  to  determine  upon,  698-708. 
apportionment  essential  to,  705. 
taxing  districts,  necessity  of,  711,  718,  719,  722. 
apportionment  not  always  by  values,  708,  709,  712,  713. 
periodical  valuations  for,  711,  712. 
inheritance  taxes,  708,  n.  (a), 
license  fees  and  other  special  taxes,  713. 
assessments  for  local  improvements,  713-717. 

benefits  from  the  improvement  may  be  taken  into  the  account,  714, 

715,  727,  734. 
general  provisions   requiring   taxation  by  value  do  not  apply  to  these 

assessments,  713-715. 

taxation  of  persons  or  property  out  of  the  district  is  void,  720-726. 
must  be  uniform  throughout  the  district,  692-694,  718-732. 
local  assessments  may  be  made  in  proportion  to  frontage,  729-731. 

necessity  for  apportionment  in  such  case,  729,  730. 
special  taxing  districts  for  drains,  levees,  &c.,  734-736. 
taxation  in  labor  for  repair  of  roads,  &c.,  737. 
difficulty  in  making  taxation  always  equal,  737,  738. 


1028  INDEX. 

TAXATION  —  continued. 

hardships  of  individual  cases  do  not  make  it  void,  738. 

legislature  must  select  the  objects  of  taxation,  739. 

exemptions  of  property  from,  739-744. 

constitutional  provisions  which  preclude  exemptions,  743,  744. 

special  exemptions  void,  741,  n.  1. 

legislative  authority  must  be  shown  for  each  particular  tax,  744-747. 

excessive  taxation,  747,  748. 

the  maxim  de  minimis  lex  non  curat  not  applicable  in  tax  proceedings,  748. 

what  defects  and  irregularities  render  tax  sales  void,  747,  748. 

legislature  controls  methods  of  collecting  taxes,  748,  749. 
TEACHER   AND   SCHOLAR, 

control  of  former  over  latter,  261,  n.  1,  486. 
TECHNICAL   RULES   OF   CONSTRUCTION, 

danger  of  resorting  to,  95  and  n.  3,  and  123,  n.  1. 
TELEGRAPHIC   CORRESPONDENCE, 

right  to  secrecy  in,  432,  n.  2. 
TEMPERANCE   LAWS, 

right  of  the  States  to  pass,  845-851. 
TENNESSEE, 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

title  of  act  to  express  the  object,  202,  n.  3. 

constitutional  provision  relating  to  amendment  of  acts,  215,  n.  1. 

when  acts  to  take  effect,  224,  n.  4. 

right  of  jury  to  determine  the  law  in  libel  cases,  463,  n.  1. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

constitutional  provision  respecting  retrospective  laws,  530,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  in,  662,  n.  3. 

persons  may  be  excused  from  bearing  arms  by  money  payment,  676,  n.  1. 

exclusion  of  religious  teachers  from  office,  662,  n.  2. 
TENTH   AMENDMENT, 

provisions  of,  46. 
TERRITORIAL   LIMITATION, 

to  the  powers  of  sovereignty,  4. 

to  the  exercise  of  power  by  the  States,  176-181. 

to  municipal  authority,  312. 

to  power  of  taxation,  718-721,  743. 
TERRITORIES, 

power  of  eminent  domain  in,  755,  756. 

legislation  for,  54,  n.  1. 

formation  of  constitutions  by  people  of,  57. 
TESTS, 

test  oaths,  when  may  constitute  a  punishment,  371,  372  and  notes. 

religious  tests  forbidden  in  some  States,  622,  notes,  677,  n. 

political  tests  for  office,  894,  n. 
TEXAS, 

admission  to  Union,  10. 

Mexican  law  retained  in  the  system  of,  54,  n.  2. 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

legislative  rules  regulating  pardons,  160,  n.  2. 


INDEX.  1029 

TEXAS  —  continued. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

title  of  acts  to  express  the  object,  202,  n.  3. 

right  of  jury  to  determine  the  law  in  libel  cases,  463,  n.  1. 

protection  to  person  and  property  by  law  of  the  laud,  500,  n.  2. 

constitutional  provision  respecting  retrospective  laws,  530,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

damaging  of  property  in  course  of  public  improvements,  810,  n.  2. 

exclusions  from  suffrage  in,  902,  n.  1. 
THIRTEENTH   AMENDMENT, 

provisions  of,  14,  417,  423. 
TIME, 

when  statute  shall  take  effect  may  be  determined  by  popular  vote,  171, 172. 

loss  of  remedy  by  lapse  of,  520-524. 

and  place  are  of  the  essence  of  election  laws,  908,  909. 
TITLE   TO   LEGISLATIVE   ACT, 

requirement  that  it  shall  state  subject,  &c.,  is  mandatory,  117-119,  202-214. 
to  be  liberally  construed,  209. 

what,  sufficient,  206. 

generality  of,  not  necessarily  objectionable,  206. 

effect,  if  embraces  more  than  one  object,  210,  211. 

effect,  where  act  broader  than,  211,  214. 

amendment  of  statute  by  reference  to,  214-216. 
TITLES    OF   NOBILITY, 

States  not  to  grant,  44,  45. 
TOLERATION, 

as  distinguished  from  religious  liberty,  659-662. 
TORT, 

judgment  for,  is  not  a  contract,  411. 
•  TOWN   EXPENSES, 

cannot  embrace  pay  for  lobby  services,  196  and  n.  2. 

See  MUNICIPAL  CORPORATIONS. 
TOWNSHIPS, 

importance  of,  in  the  American  system,  263-265  and  notes. 

origin  of,  263,  264. 

distinguished  from  chartered  corporations,  347-349. 

are  quasi  corporations,  347,  349. 

collection  from  corporators  of  judgments  against,  348-355. 

not  liable  for  neglect  of  duty  by  officers,  354. 

apportionment  of  debts,  &c.,  on  division,  341,  411. 

indemnification  of  officers  of,  306-309. 

See  MUNICIPAL  CORPORATIONS. 
TRADE, 

by-laws  in  general  restraint  of,  284-291. 
TRAVEL, 

obstructions  to,  on  navigable  waters,  862-867. 

regulating  speed  of,  860,  861,  867. 
TRAVERSE  JURY, 

trial  of  accused  parties  by,  453-470. 

See  JURY  TRIAL. 
TREASON, 

evidence  required  to  convict  of,  443,  n.  4. 


1030  INDEX. 

TREATIES, 

President  to  make  with  concurrence  of  senate,  20,  21. 

of  the  United  States,  to  be  the  supreme  law,  24. 

States  forbidden  to  enter  into,  35. 
TREATING   VOTERS, 

laws  against,  923. 
TRIAL, 

of  right  to  property,  526-528. 

new,  not  to  be  granted  by  legislature,  137,  560. 

of  accused  parties  to  be  by  jury,  453,  454. 
must  be  speedy,  440,  441. 
must  be  public,  441. 
must  not  be  inquisitorial,  442  and  n.  1,  424,  n.  (a). 

See  CRIMES;  HEARING;  JURY  TRIAL. 
TROOPS, 

and  ships  of  war,  restrictions  upon  States  as  to,  36. 
TRUST, 

the  legislative,  not  to  be  delegated,  163,  293. 

grants  of  property  in,  inviolable,  390,  391. 
TRUSTEES, 

special  statutes  authorizing  sales  by,  constitutional,  140. 

rights  of  cestuis  que  trust  not  to  be  determined  by  legislature,  147-151. 

municipal  corporations  as,  261,  n.  1,  and  266,  n.  2. 
TRUTH, 

as  a  defence  in  libel  cases,  607,  608,  623,  624,  656. 

necessity  of  showing  good  motives  for  publication  of,  656. 
TURNPIKES, 

exercise  of  eminent  domain  for,  769. 

appropriation  of  highways  for,  788,  789. 

change  of,  to  common  highways,  790,  n.  1. 
TWICE  IN  JEOPARDY, 

punishment  of  same  act  under  State  and  national  law,  45,  46. 
under  State  law  and  municipal  by-law,  279  and  n.  4. 

See  JEOPARDY. 
TWO   THIRDS   OF  HOUSE, 

what  constitutes,  201. 

U. 

ULTRA    VIRES, 

contracts  of  municipal  corporations  which  are,  272,  273,  309-311. 
UNANIMITY, 

required  in  jury  trials,  460  and  notes. 
UNCONSTITUTIONAL   LAW, 

definition  of  the  term,  5,  6. 

first  declaration  of,  55,  n.  1,  229,  n.  1. 

impeachment  of  judges  for  refusal  to  enforce,  229,  n.  1. 

power  of  the  courts  to  annul,  227-229. 

consent  to  taking  of  property  under,  defeats  objection  to,  232. 

strangers  cannot  urge  the  objection,  232. 

effect  of,  259,  260. 

whether  jury  may  pass  upon,  480,  n.  4. 

See  COURTS  ;  STATUTES. 


INDEX.  1031 

UNEQUAL  AND  PARTIAL  LEGISLATION, 

special  laws  of  a  remedial  nature,  554. 

local  laws,  or  laws  applying  to  particular  classes,  554-556. 

proscription  of  parties  for  opinions,  556. 

suspensions  of  the  laws  must  be  general,  558,  559. 

distinctions  must  be  based  upon  reason,  561. 

equality  the  aim  of  the  law,  562. 

strict  construction  of  special  burdens  and  privileges,  563-567. 

discrimination  against  citizens  of  other  States,  36,  567-575. 
UNIFORMITY, 

in  construction  of  constitutions,  88,  89. 

in  taxation,  705,  718-732. 

See  TAXATION. 
UNION, 

of  the  colonies  before  the  Revolution,  7. 
UNITED   STATES, 

division  of  powers  between  the  States  and  Union,  4. 

origin  of  its  government,  7. 

Revolutionary  Congress  and  its  powers,  8,  9. 

Articles  of  Confederation  and  their  failure,  9. 

formation  of  Constitution  of,  9. 

government  of,  one  of  enumerated  powers,  10,  242. 

general  powers  of,  11-18. 
to  levy  taxes,  679,  680. 

its  laws  and  treaties  the  supreme  law,  24. 

judicial  powers  of,  22,  23,  47. 

removal  of  causes  from  State  courts  to  courts  of,  25-31. 

prohibition  upon  exercise  of  powers  by  the  States,  35-46. 

guaranty  of  republican  government  to  the  States,  42-44. 

implied  prohibition  of  powers  to  the  States,  45,  46. 

reservation  of  powers  to  States  and  people,  46. 

consent  of,  to  formation  of  State  constitutions,  56,  57. 
See  CONGRESS  ;   CONSTITUTION  OF   UNITED  STATES  ;    COURTS  OF  UNITED 

STATES  ;  PRESIDENT. 
UNJUST   DEFENCES, 

no  vested  right  in,  529  et  seq. 
UNJUST    PROVISIONS, 

in  constitutions,  must  be  enforced,  108,  109. 

in  statutes,  do  not  necessarily  avoid  them,  232-237. 

See  PARTIAL  LEGISLATION. 

UNLAWFUL   CONTRACTS.     See  ILLEGAL  CONTRACTS. 
UNLIMITED    POWER, 

unknown  in  America,  125,  n.  1. 

UNMUZZLED    DOGS, 

restraining  from  running  at  large,  881 

UNREASONABLE    BAIL, 

not  to  be  required,  439. 
UNREASONABLE    BY-LAWS, 

are  void,  280-292  and  notes. 

UNREASONABLE  SEARCHES  AND   SEIZURES.     See  SEARCHES  AND 
SEIZURES. 


.1032  INDEX. 

UNWHOLESOME   PROVISIONS, 

prohibiting  sale  of,  881,  882. 
USAGE  AND  CUSTOM.     See  COMMON  LAW. 
USURPATION, 

by  legislature  should  not  be  upheld,  105-110. 

of  office,  898. 

USURY, 

right  to  defence  of,  may  be  taken  away  by  legislature  retrospectively,  536. 


V. 

VACANCIES, 

in  office,  filling,  99,  n.  3. 
VACCINATION, 

compulsory,  880,  n.  (&). 

VAGRANCY, 

commitment  of  children  for,  423,  n.  4. 
charges  of,  not  triable  by  jury,  453,  n.  1. 
but  must  be  tried  judicially,  568,  n.  1. 

VALIDATING   IMPERFECT   CONTRACTS, 
by  reti'ospective  legislation,  415,  531-546. 

See  RETROSPECTIVE  LEGISLATION. 

VALUATION, 

of  property  for  taxation,  711,  712. 

requirements  for,  do  not  apply  to  local  assessments,  713-715. 

See  TAXATION. 
of  land  taken  for  public  use.     See  EMINENT  DOMAIN. 

VENUE, 

in  criminal  cases,  459. 

change  of,  459,  n.  2. 
VERDICT, 

jury  not  to  be  controlled  by  judge  in  giving,  460. 

judge  cannot  refuse  to  receive,  461. 

jury  may  return  special,  461. 

but  cannot  be  compelled  to  do  so,  461. 

general,  covers  both  the  law  and  the  facts,  461,  463. 

in  favor  of  defendant  in  criminal  case  cannot  be  set  aside,  462,  463. 

against  accused,  may  be  set  aside,  464. 

in  libel  cases,  to  cover  law  and  fact,  462,  652. 

to  be  a  bar  to  new  prosecution,  466. 

when  defendant  not  to  be  deprived  of,  by  nolle  prosequi,  468. 

not  a  bar  if  court  had  no  jurisdiction,  467,  468. 
or  if  indictment  fatally  defective,  467,  468. 

when  jury  may  be  discharged  without,  468-470. 

set  aside  on  defendant's  motion,  may  be  new  trial,  470. 

on  some  of  the  counts,  is  bar  to  new  trial  thereon,  470. 

cannot  be  received  from  less  than  twelve  jurors,  454-459  and  notes. 
VERMONT. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1, 

betterment,  law  of,  551,  552. 


INDEX.  1033 

VERMONT  —  continued. 

liberty  of  speech  and  of  press,  596,  n. 
privilege  of  legislators  in  debate,  634,  n. 

VESTED    RIGHTS, 

not  conferred  by  charters  of  municipal  incorporation,  266-268. 
grants  of  property  to  corporations  not  revocable,  342-347,  390-394. 
under  the  marriage  relation,  cannot  be  taken  away,  403. 
not  to  be  disturbed  except  by  due  process  of  law,  14,  15,  245,  417,  508. 
meaning  of  the  term,  509-549. 
subjection  of,  to  general  laws,  508-510. 
interests  in  expectancy  are  not,  509-515. 
rights  under  the  marriage  relation,  when  are,  513-515. 
in  particular  legal  remedies,  parties  do  not  have,  515-520. 
but  do  have  to  some  legal  remedy,  410,  411,  517,  518. 
statutory  privileges  are  not,  546. 
in  rights  of  action,  517,  518. 

forfeitures  of,  must  be  judicially  declared,  518-520. 
time  for  enforcing,  may  be  limited,  520-524. 
do  not  exist  in  rules  of  evidence,  524-528. 
rights  to  take  advantage  of  informalities  are  not,  528,  529. 
or  of  defence  of  usury,  536,  537. 

VILLAGES   AND   CITIES.     See  MUNICIPAL  CORPORATIONS. 

VILLEINAGE, 

in  England,  419-422. 

VINDICTIVE   DAMAGES, 

when  publisher  of  newspaper  not  liable  to,  647,  648. 

VIOLATING  OBLIGATION  OF   CONTRACTS.      See  OBLIGATION    OF 

CONTRACTS. 
VIRGINIA, 

repeal  of  acts  of  Parliament  in,  54,  n.  2. 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legistature,  153,  n.  2. 

exercise  of  the  pardoning  power  restrained,  160  and  n.  2. 

revenue  bills  to  originate  in  lower  house,  188,  n.  1. 

no  act  to  be  amended  by  mere  reference  to  title,  215,  n.  1. 

compact  with  Kentucky,  386,  n.  1. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

exclusions  from  suffrage  in,  902,  n.  1. 

VOID   CONTRACTS.     See  CONTRACTS. 
VOID   JUDGMENTS.     See  JURISDICTION. 
VOID   STATUTES.     See  STATUTES. 

VOLUNTEERS, 

in  military  service,  municipal  bounties  to,  326-333. 

VOTERS, 

franchise   of,   cannot    be   made    to    depend    on    impossible  condition, 
518,  n.  3. 


1034  INDEX. 

VOTERS  —  continued. 

constitutional  qualifications   of,  cannot  be  added  to  by  legislature,  99 

and  n.  2. 

who  are,  568,  n.  1,  899-902. 
privilege  of  secrecy  of,  910-913. 

whether  qualifications  of,  can  be  inquired  into  in  contesting  election, 
941-944. 

See  ELECTIONS. 

VOTING  MACHINES 
use  of,  910,  n.  1. 


w. 

WAGERS, 

upon  elections,  are  illegal,  924. 

WAIVER, 

of  constitutional  objection,  250-252,  415. 

of  defects  in  incorporation,  n.  1,  118. 

of  irregularities  in  judicial  proceedings,  588. 

of  objection  to  interested  judge,  594,  595. 

of  right  to  full  panel  of  jurors,  456-458. 

of  right  to  compensation  for  property  taken  by  public,  815,  816. 

in  capital  cases,  452  and  n.  2. 

of  elector's  right  to  secrecy,  910-913. 

WAR  AND   PEACE, 

power  of  Revolutionary  Congress  over,  8. 
control  of  questions  concerning,  by  Congress,  13. 
States  not  to  engage  in  war  except,  &c.,  36. 

WARD, 

control  of  guardian  over,  485,  486. 

special  statutes  for  sale  of  lands  of,  140-147. 

WAREHOUSEMEN, 

regulation  of  charges  of,  870-877. 

WARRANTS, 

general,  their  illegality,  425-429. 
service  of,  in  criminal  cases,  429. 
search-warrants,  429-434. 

See  UNREASONABLE  SEARCHES  AND  SEIZURES. 

WATERCOURSES, 

navigable,  and  rights  therein,  861-868. 
dams  across,  for  manufacturing  purposes,  771-773,  867. 
bridges  over,  under  State  authority,  865. 
licensing  ferries  across,  867. 
construction  of  levees  upon,  769,  868. 
flooding  premises  by,  the  liability  for,  787,  n.  2. 
incidental  injury  by  improvement  of,  gives  no  right  of  action,  868. 
See  NAVIGABLE  WATERS;   WATER-RIGHTS. 

WATER-RIGHTS, 

right  to  front  on  navigable  water  is  property,  787,  788. 
right  of  the  States  to  establish  wharf  lines,  878. 


INDEX.  1035 

WATER-RIGHTS  —  continued. 

right  to  use  of,  in  running  stream,  807,  808. 

appropriation  of  streams  under  right  of  eminent  domain,  757,  769,  770. 

See  NAVIGABLE  WATERS;  WATERCOURSES. 
WAYS.     See  HIGHWAYS  ;  PRIVATE  ROADS  ;   ROADS  ;   STREETS. 

WEIGHTS   AND   MEASURES, 

Congress  may  fix  standard  of,  12. 

regulation  of,  by  the  States,  887-889. 
WEST   VIRGINIA, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

protection  to  person  and  property  by  law  of  the  land,  500,  n.  2. 

liberty  of  speech  and  of  the  press  in,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  liberty  in,  662,  n.  3. 

damaging  property  in  the  course  of  public  improvements,  810,  n.  2. 

exclusions  from  suffrage  in,  902,  n.  1. 

WHARFAGE, 

right  to,  is  property,  787,  788. 
States  may  establish  wharf  lines,  878. 

WHIPPING, 

punishment  by,  378. 

WIDOW.     See  DOWER. 

WIFE.     See  DIVORCE  ;   DOWER  ;  MARRIED  WOMEN. 

WILL, 

imperfect,  cannot  be  validated  after  title  passed,  136,  n.  2. 

WISCONSIN, 

special  statutes  licensing  sale  of  lands  forbidden,  141,  n.  1. 

divorces  not  to  be  granted  by  legislature,  153,  n.  2. 

privilege  of  legislators  from  arrest,  192,  n.  1. 

title  of  act  to  embrace  the  subject,  202,  n.  3. 

no  act  to  be  amended  by  mere  reference  to  its  title,  215,  n.  1. 

time  when  acts  take  effect,  224,  225. 

restriction  upon  power  to  contract  debts,  325. 

liberty  of  speech  and  of  the  press,  596,  n. 

privilege  of  legislators  in  debate,  634,  n. 

religious  tests  for  office  forbidden  in,  662,  n.  3. 

religious  belief  not  to  be  test  of  incompetency  of  witness,  677,  n. 

exclusions  from  suffrage  in,  902,  n.  1. 

WITCHCRAFT, 

confessions  of,  444. 

WITNESSES, 

power  to  summon  and  examine  before  legislative  committees,  193 
accused  parties  to  be  confronted  with,  450-452. 

not  compellable  to  be  against  themselves,  442-452,  564. 

evidence  by,  in  their  own  favor,  449,  n.  2. 
not  liable  to  civil  action  for  false  testimony,  629,  630. 

unless  the  testimony  "was  irrelevant,  629,  n.  2. 

competency  and  credibility  of,  as  depending  on  religious  belief,  676,  677,  n. 
testimony  of  wife  on  behalf  of  husband,  447,  n.  4. 


1036  INDEX. 

WOMEN, 

regulation  of  employments  of,  889,  n.  3. 

may  hold  office,  894,  n. 

may  not  vote,  57,  568,  n.  1,  902. 

See  DIVORCK;   DOWER;  MARRIED  WOMEN. 
WORKS   OF   ART, 

liberty  of  criticism  of,  644,  645. 
WRITS   OF   ASSISTANCE, 

unconstitutional  character  of,  425-429. 

WRITS   OF  HABEAS   CORPUS.    See  HABEAS  CORPUS. 

WRITTEN  CONSTITUTIONS, 
object  of,  78,  n.  2. 


Y. 

YEAS  AND  NAYS, 

in  some  States,  on  passage  of  laws  to  be  entered  on  journals,  115,  201. 


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